Federal authorities indicted Justin Paul Gladding on two
counts
related to his possession of child
pornography: Count 1: Receipt or Distribution of a Visual Depiction of a Minor
Engaged in Sexually Explicit Conduct in violation of 18 U.S. Code §2252(a)(2); and Count 2: Possession of One or More Matters Containing VisualDepiction of Minors Engaged in Sexually Explicit Conduct in violationof 18 U.S. Code § 2252(a)(4)(B). The indictment included allegations that
Gladding's electronic storage devices, including three computers and other hard
drives, were subject to forfeiture under 18 U.S. Code § 2253 because
they contained child pornography.
U.S. v. Gladding, 2014
WL 7399113 (U.S. Court of Appeals for the 9th Circuit 2014).
Gladding pled guilty to Count One of the indictment and
did not dispute that his electronic
storage devices were forfeit, but he asked the government to return copies of
certain noncontraband computer files on those devices.
According to Gladding, there were
thousands of pictures of his family and personal emails on the devices that he
wanted returned. At the change of plea hearing, the government agreed to give
copies of those files to Gladding. But, in the following weeks, negotiations
between Gladding and the government apparently broke down.
In response, Gladding filed his first
motion to return the noncontraband computer files under Federal Rule of
Criminal Procedure 41(g). The court addressed that motion at Gladding's sentencing
hearing. Without specifically granting the motion, the court directed the
parties to work together to determine which noncontraband files Gladding wanted
and asked the government to provide copies of those files to Gladding. The
court then entered a forfeiture order that stated: `The Preliminary Order of
Forfeiture is made final as to contraband items only. If counsel can not
resolve the motion for return of property[,] defense counsel may renew a motion
for a return of property.’
The parties were again unable to agree
on how to return the noncontraband files to Gladding, and Gladding filed a
second Rule 41(g) motion. The government attached three exhibits to
its opposition brief: (1) a document listing some of Gladding's property the government
found to be noncontraband; (2) email correspondence between counsel; and (3)
the transcript of a hearing on a similar dispute in a different case. None of
the exhibits established the burden or cost to the government of segregating
contraband from noncontraband computer files.
U.S. v. Gladding,
supra.
As the Court of Appeals went on to explain, the District Court Judge who had the case held “three separate hearings” on Gladding’s Rule
41 motion. U.S. v. Gladding, supra.
At the first and second hearings, the
government represented it would be difficult and costly to segregate Gladding's
noncontraband files from the files containing child pornography. The district
court asked the parties at those hearings to meet and confer to resolve the
dispute, and suggested at the second hearing that the court would deny
Gladding's motion should the parties be unable to resolve the dispute.
At the third hearing, the district
court denied Gladding's motion, stating `I'm satisfied at least from the
representations made to me, that it's almost impossible to separate [the
noncontraband files] out in a coherent manner.’ Gladding appealed that
decision. While the appeal was pending, the government granted Gladding's
expert access to the forfeited electronic storage devices, and Gladding's
expert was able to obtain a large number of Gladding's noncontraband files.
Gladding maintains that there are still other noncontraband files the
government is obligated to turn over.
U.S. v. Gladding,
supra.
The Court of Appeals began
its analysis of Gladding’s arguments by noting that
[w]e review de novo a district court's
denial of a motion for return of property under Rule 41(g) of the Federal Rules
of Criminal Procedure. U.S. v. Harrell, 530 F.3d 1051 (U.S. Court
of Appeals for the 9th Circuit 2008). We review the district court's underlying
factual findings for clear error. U.S. v. Harrell, supra.
U.S. v. Gladding,
supra.
It then outlined how courts analyze challenges to a U.S.
District Court’s denial of a motion for return of property under Rule
41(g). U.S. v. Gladding, supra.
`A person aggrieved . . . by the
deprivation of property may move for the property's return.’ Rule 41(g). The
burden of proof on a Rule 41(g) motion depends on when the defendant
files the motion. `When a motion for return of property is made before an
indictment is filed (but a criminal investigation is pending), the movant bears
the burden of proving both that the [property's] seizure was illegal and that
he or she is entitled to lawful possession of the property.’ U.S. v. Martinson, 809 F.2d
1364 (U.S. Court of Appeals for the 9th Circuit 1987). . . .
But that burden of proof changes when `the
property in question is no longer needed for evidentiary purposes, either
because trial is complete, the defendant has pleaded guilty, or ... the
government has abandoned its investigation.’ U.S. v. Martinson, supra. Then, the burden of proof shifts
and the defendant `is presumed to have a right to [the property's] return,
and the government has the burden of demonstrating that it has a legitimate
reason to retain the property.’ U.S. v.
Martinson, supra; see also U.S. v. Kriesel, 720 F.3d 1137 (U.S.
Court of Appeals for the 9th Circuit 2013) (a defendant’s Rule
41(g) motion should presumptively be granted if the government no longer
needs the property for evidence’) (internal quotation marks and citation
omitted)).
U.S. v. Gladding,
supra. The court goes on to explain that the government can
rebut the presumption that property
ought to be returned by proving a `legitimate reason’ for retaining the
property that is `reasonable [ ] under all of the circumstances.’ U.S. v.
Kriesel, supra; see also U.S. v. Kaczynski, 416 F.3d 971 (U.S.
Court of Appeals for the 9th Circuit 2005) `“[T]he government has the
burden of showing that it has a legitimate reason to retain the property’); Ramsden
v. U.S., 2 F.3d 322 (U.S. Court of Appeals for the 9th Circuit 1993) (`reasonableness
under all of the circumstances must be the test when a person seeks to obtain
the return of property’). . .
The Advisory Committee's Note
to Rule 41, to which we give `weight in interpreting the Federal Rules of Criminal Procedure,’ U.S. v. Bainbridge, 746 F.3d 943 (U.S. Court of
Appeals for the 9th Circuit 2014), confirms the `reasonableness’ standard
applies to the return of computer files on electronic storage devices, see
Fed.R.Crim.P. 41 , Advisory Committee's Note to 2009 Amendment (`Rule 41(g)
. . . provides a process for the “person
aggrieved” to seek an order from the court for a return of the property,
including storage media or electronically stored information, under reasonable
circumstances’).
The simplest way for the government to
carry its burden is to prove `the property . . . is contraband or subject to
forfeiture.’ U.S. v. Martinson, supra; see also U.S. v. Fitzen, 80
F.3d 387 (U.S. Court of Appeals for the 9th Circuit 1996) (`It is
well-settled that the federal government may defeat a Rule [41(g) ] motion by
demonstrating that the property is subject to federal forfeiture’).
To that end, district courts must
receive evidence on any factual issue necessary to decide the motion.’ Federal
Rule of Criminal Procedure 41(g). The government can therefore carry its burden
by submitting evidence that demonstrates the property is contraband or the
property falls within the court's forfeiture order. See, e.g., U.S.
v. Harrell, supra. But
showing the property is contraband or forfeit is not the only way the
government can justify retaining the property; the government can otherwise
retain property if it can show a `legitimate reason’ for doing so. See,
e.g., U.S. v. Kriesel, supra
(government's retention of the defendant's blood sample was `reasonable under
the circumstances’ because the government needed the sample to ensure the
accuracy of future DNA identifications).
U.S. v. Gladding,
supra.
The Court of Appeals goes on to explain that Gladding filed
his Rule 41(g) motion
after he pleaded guilty and the
government no longer needed his property as evidence. The burden of proof was
therefore on the government. U.S. v.
Kriesel, supra. The district court did not expressly state whether Gladding
or the government had the burden of proof on the motion. However, the parties
impliedly concede the court put the burden on Gladding. And the district
court's brief analysis denying Gladding's motion sheds light as to whom the
district court thought should bear the burden of proof.
The district court denied Gladding's
motion because it was `satisfied’ by the government's `representations’ that it
is `almost impossible to separate [the noncontraband files] out.’ But
representations are not evidence, unless adopted by the opponent. The
government failed to submit any evidence of the difficulty and cost of
segregating Gladding's data, which it claimed was a `legitimate reason’ for
retention of the noncontraband files. For that reason, the government could not
have carried its burden of proof had the district court correctly placed it on
the government. The district court's decision not to put the burden of proof on
the government was legal error. We remand for the court to apply the correct
burden in the first instance. See U.S. v. Martinson, supra.
U.S. v. Gladding,
supra.
It also pointed out that
[w]e think it may be helpful to provide
the district court guidance on remand, as we have not articulated the contours
of a Rule 41(g) motion in the context of intermingled computer files.
At oral argument, the government narrowed the issues to be considered in this
case by admitting the files Gladding seeks are neither contraband nor subject
to forfeiture. In the government's view, the district court's forfeiture order
did not cover Gladding's noncontraband files even though those files were
intermingled with files containing child pornography.
As some files are neither contraband
nor forfeit, the government can retain the noncontraband files only if the
government shows a `legitimate reason’ for doing so `that is reasonable under
all of the circumstances.’ U.S. v. Kriesel, supra.
We have noted the `spirit of [Rule
41(g)] is one of compromise’ that `recognizes that reasonable accommodations
might protect both the law enforcement interests of the United States and the
property rights of property owners.’ U.S. v. Ramsden, 2 F.3d 322
(U.S. Court of Appeals for the 9th Circuit 1993) (quoting Federal Rule
of Criminal Procedure 41, Advisory Committee's Note to 1989 Amendment).
The government's primary objection to
returning Gladding's noncontraband files is the cost of segregating those files
from the files containing child pornography. The Advisory Committee's Note to Rule
41 confirms the difficulties posed by electronic data in this context: `A
substantial amount of time can be involved in the forensic imaging and review
of information. This is due to the sheer size of the storage capacity of media,
difficulties created by encryption and booby traps, and the workload of the
computer labs.’ Fed.R.Crim.P. 41, Advisory Committee's Note to 2009 Amendment.
The difficulty and cost of segregating
the data can therefore be a `legitimate reason’ for the government to retain
Gladding's property. If the parties dispute the cost of segregating data, they
should submit supporting evidence and the district court may hold an
evidentiary hearing to resolve that dispute. The district court should deny Gladding's
motion if the government has carried its burden of proof by producing evidence
which preponderates to show the government's cost concerns are `reasonable
under all of the circumstances. See U.S. v. Kriesel, supra.
U.S. v. Gladding,
supra.
Finally, the Court of Appeals explained that the U.S.
District Court Judge could
also order
alternative measures for returning Gladding's noncontraband files other than
forcing the government to pay for segregating the data itself. . . .
For example, the
district court can require Gladding to pay the costs of segregation by having
his expert review the electronic storage devices and copy the noncontraband
files to the extent otherwise permitted by law. Indeed, Gladding already had an
expert review the storage devices while this appeal was pending.
The district court
may decide to order the government to provide a printed directory of the
electronic storage devices. A directory could assist Gladding in better
identifying which files he wants returned or which folders potentially contain
noncontraband material. Such a remedy may have the effect of substantially
reducing the government's costs in identifying noncontraband files to return to
Gladding. And counsel for Gladding suggested at oral argument that a printed
directory would go a long way toward resolving this dispute.
We of course do not
mean to require the district court to adopt any or all of our suggestions; nor
do we mean to preclude the district court from ordering other remedies. In
cases such as this, the district court is in the best position to fashion a
remedy, `taking into account the time needed to image and search the data and
any prejudice to the aggrieved party.’ Federal Rule of Criminal Procedure 41,
Advisory Committee's Note to 2009 Amendment.
U.S. v. Gladding,
supra.
It therefore reversed the
U.S. District Court Judge’s order “denying Gladding’s Rule 41(g) motion”
and remanded the case to the District Court “for proceedings consistent with
this opinion.” U.S. v. Gladding, supra.
You can, if you are interested, read more about the
prosecution of Gladding in the news stories you can find here and here.
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