United States v. Gladding, 2014 WL 7399113 (C.A.9 (Cal.)) December 31, 2014

Facts: Appellant was indicted on two counts of possession of child sexual abuse images.  The indictment included that Appellant’s electronic storage devices, including three computers and other hard drives, were subject to forfeiture under 18 U.S.C. 2253 because they contained child sexual abuse images.  Appellant plead guilty to one of the two counts and did not dispute the forfeiture but asked for the Government to return certain noncontraband files.  The Government agreed, but negotiations soon broke down. Appellant filed a motion with the district court for return of the noncontraband files under Fed.R.Crim. Pro 41(g).  Without ruling, the court directed the parties to work it out.  The court did enter a forfeiture order with respect to the contraband items.  Failing to reach a mutually agreeable outcome, appellant filed another motion with the district court for return of the noncontraband items.  Three separate hearings were held on this motion.  The Government contended that it would be unduly costly and difficult to separate contraband from noncontraband files.  At the close of the third hearing, the court denied the motion.

Issue:  Whether the district court erred in denying the motion to return property.

Law: “A person aggrieved … by the deprivation of property may move for the property’s return.” Fed.R.Crim.P. 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.” United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.1987) (citations omitted). 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.” Id. 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.” Id.; see also United States v. Kriesel, 720 F.3d 1137, 1144 (9th Cir.2013) (explaining that a “defendant’s Rule 41(g) motion should presumptively be granted if the government no longer needs the property for evidence.”).

Holding: Reversed and Remanded.  I think this reversal is all to do with the district court’s improper placement of the burden of proof on the defendant, rather than the Government.  In fact, the court gives the lower court multiple avenues to deny the defendant’s motion, including amending the forfeiture order to include all the files.

Practitioner Notes:  At minimum the burden of proof/persuasion needs to be properly placed.  In hearings like this, the appellate court intimates that the Government need only show how costly and burdensome it would be for the Government to parse out the noncontraband files, thus demonstrating a legitimate reason for retention.

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