F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J U S T I N P A U L G L A D D I N G , Defendant-Appellant

. No. 12-10544

D.C. No. 1:09-cr-00265- AW I -1

OPI NI O N

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

Arg ued and Submitted J une 9, 2014 San F rancisco, California

F iled December 31, 2014

B efore: Diarmuid F

. O’Scannlain, F erdinand F . F ernandez

,

and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e B eaU N I T E D S T A T E S V

. G L

A D D I N G 2

SUMMARY *

Crim inal Law

The panel reversed the district court’s denial o f a motion pursuant to F ed. R. Crim. P

. 4 1 (g ) for return of noncontrab a n d computer files, and remanded for further proceeding s , in a case that required the p anel to address w h en a criminal defendant is e ntitled to the return of h i s p e r sonal computer files when he has interm i n gled them with his child
pornog raphy

files.

The p anel h eld that the district court’s decision not to put the b urden of proof on the g overnment was leg al error, where the defendant filed the Rule 41(g ) motion after he pleaded
g uilty and the g overnment no long er n eeded his p r o p e r ty a s evidence. T he panel h eld that the g overnment could not have carried its burden o f proof had the district court cor r ectly placed it on the g overnment, where the g overnment failed to submit a ny evidence of the difficulty and costs of seg reg ating the d e fendant’s data, w hich it claimed was a leg itimate reason for retention of the noncontraband files.

Providing g uidance to th e d istrict court on remand, the panel wrote that th e d i f

fi c ulty a nd cost of seg reg ating data

can b e a leg itimate reaso n f or the g overnment to retain the defendant ’ s p r operty , and the district court should deny the defendant’s motion i f the g overnment has carried its burden of proof by producing evidence which preponderates to show the g overnment’s c ost concerns are reasonable under all o f

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. G L

A D D I N G 3

the circumstances. The p a n el wrote t h at the d istrict court may also ord er alternative remedies, including requiring the defendant to pay

the costs of seg reg ation.

COUNSEL

Caroly n M. W i ggi n, F ederal D efender, Sacramento, California, arg ued the cause and along w i t h Heather E. W illiams, filed the briefs for the defendant-appellant.

David L

. Gappa, Assistant U.S. A ttorney , F resno, California,
arg ued the cause and, along with B enjamin B

. W ag n er, filed the brief for the United States.

OP INION

B EA, Circuit J udg e:

Many p eople store every aspe c t of their lives on electro n i c d evices. Those devices are brimming with correspond e n c e, schedules, photog raphs, a nd music. As a result, a c rashing c o mputer or a lost s m a rtphone can lead to catastrophic results for a p erso n wh o failed to back up that data; the only record for y ears of a person’s life can b e lost in an instant.

Criminals who possess child pornog raphy are no different. Those c riminals may likewise store important aspects of their lives on their electronic devices. B ut along with the normal risks of losing their personal data, such criminals also r isk losing that personal data when t he
g overnment seiz es their d e v ices for evidence o f childU N I T E D S T A T E S V

. G L

A D D I N G 4

pornog raphy

. To that end, this case r e q u i res u s to address

w h e n a criminal defendant is entitled to the r eturn of h i s personal computer files when he has interming led those f iles with his child pornog raphy files.

I

.

J ustin Paul Gladding was indicted on two counts r elated to his possession of child pornog raphy : Count 1: Receipt or Distribution o f a V isual Depiction of a Minor Eng ag ed in Sex ually E x plicit Con d u c t in violation of 18 U .S.C. § 2252(a)(2); and Count 2: Possession o f O n e or More Matters Containing Vi s u al Depiction of Minors Eng ag ed in Sex ually E x p licit Conduct in violation of 18 U .S.C. § 2252(a)(4)(B ). The indictment included a l l e ga tions that Gladding ’s electronic stor a g e devices, including three computers a

nd other hard drives, were subject to f orfeiture under 18 U.S.C. § 2253 because they contained child
pornog raphy

. Gladding p leaded g uilty to Count One of the indictment. At the chang e of plea hearing

, Gladding did not dispute that his electronic storag e d ev i ce s were forfeit, b ut he asked the
g overnment to r e t urn copies of certain noncontraband

c o mputer files on those devices. A ccording to Gladding

, there were thousands o f p i c t ures o f his family and personal emails on the devices that he wanted returned. At the chang e of plea he aring

, the g overnment ag reed to g ive copies o f those fil e s t o G ladding

. B ut, in the following weeks,
neg otiations between Gladding and the g o v ernment apparently

broke down. I

n response, Gladding filed his first motion to return the noncontraband computer f iles un der F ederal R u l e o f Criminal Procedure 41(g ). The court address e d that motion a t Gladding ’ s sentencing hearing

.U N I T E D S T A T E S V

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A D D I N G 5

W ithout specifica lly g r anting the motion, the court directed the parties to w o r k tog e ther to determine which noncontraband files Gladdi n g wanted and asked the
g overnment to provide copies of those files to Gladding

. The

c ourt then entered a forfeiture order that stated: “ T h e Preliminary Order of F orfeiture is made final as to contraband items only

. I f c o unsel can not resolve the motion for return of property [ ,] defense counsel may renew a motion for a return of property .”

Th e p a rties were ag ain unable to ag r ee on how to return the noncontraband files to Glad ding

, and Gladding filed a second Rule 41(g ) motion. The g overnment attached three

ex h ibits to its opposition b rief: (1) a document listing some o f Gladding ’s property t h e go v e r n m e n t f o u n d to be noncontraband; (2) email corre spondence between counsel; and (3) t h e t r a n s cript o f a hearing on a similar dispute in a different case. None of the ex hibits e stablished the burden o r

c ost to the g overnment o f seg reg ating contraband from noncontraband computer files.

The d istrict court held three se p arate hearing s on Gladding ’s Rule 4 1(g ) m o t i o n

. At the first and second hearing s, the g overnment represented it would be d ifficult and costly to seg reg ate Gladding ’s noncontraband files from the files c ontaining ch i ld pornog raphy

. The district court asked the parties at those hearing s to meet an d c o n f e r to resolve the dispute, and sug g ested at the second hearing that the c ourt would deny Gladding ’s motion should the parties be unable to resolve the d ispute. At the third hearing

, the district
court d enied Gladding ’ s motion, stating “I ’m satisfied at least from the rep r e s e n tations made to me, that it’s almost impossible to separate [ the noncontraband files] out i n a coherent manner.” Gladd i n g a ppealed that decision. W hileU N I T E D S T A T E S V

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A D D I N G 6

the appeal was pending , the g overnment g ranted Gladding ’s

ex p ert access to the forfeited electronic storag e d e vices, a nd Gladding ’s ex pert was able to o btain a large n u mber o f Gladding ’s noncontraband files. Gladding maintain s t h at there are still other non co n t r aband files the g overnment is oblig ated to turn over.

I I

.

W e review de novo a district court’s denial of a motion for return of property

under Rule 41(g ) of the F ederal Rules of Criminal Procedure. United States v. Harrell , 530 F .3d 1051, 1057 (9th Cir. 2008). W e review the district court’s underly ing factual finding s for clear error. Id.

A.

“A p erson ag g rieved

. . . b y the d e p rivation of property may move for the property ’s return.” F e d. R. Crim. P. 41(g ). The burden of proof on a Rule 41(g ) motion depends on when the defendant f

iles the motion. “W hen a motion for return o f property is made before an indictment is filed (but a criminal investig ation is pending ), the movant bear s t he burden o f proving both that the [property ’s] seiz ure was illeg al and that he or she is e nti t l ed to lawful possession of the property

. ” United States v. Martinson
, 809 F .2d 1364, 13 6 9 (9th Cir. 1987) ( c i t a t i ons omitted). B ut that b urden of proof chang e s wh e n “ t he property in question is n o long er needed for evidentiary p u r

poses, either because trial is complete, the defendant has pleaded g uilty

, o r

. . . the g overnment has abandoned its investig ation.” Id. Then, the burden of proof shifts and the defendant “ i s p resumed to have a rig ht to [ the property ’s] return, and t h e g overnment has the burden o f demonstrating that it has a leg itimate reason to retain theU N I T E D S T A T E S V

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A D D I N G 7

property .” Id. ; s ee also United States v. Kriesel

, 720 F .3d 1 1 3 7
, 1144 ( 9th Cir. 2013) (ex p laining that a “defendant ’s Rule 41(g ) motion should presumptively be g rant e d i f the
g overnment no long er needs the property for eviden c e

. ” (internal quotation marks and citation omitted)).

The g overnment can rebut the presumption that property oug ht to be r eturned by pro v i n g a “leg itimate reason” for retaining the property that i s “reasonable [ ] under all of the circumstan c e s .” Kriesel

, 720 F

. 3d at 1145; see also United States v. Kaczynski

, 416 F .3d 971, 974 (9th C ir. 2 005) (“[ T] he g overnment has the burden of showing t h a t i t has a l e gitimate reason to retain the p roperty .” (quotation marks omitted)); Ramsden v. United Stat e s , 2 F .3d 322, 3 2 6 (9th Cir. 1 9 9 3 ) ( ex plaining that “reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property .” (internal quotation marks and citation omitted)). The Advisory Committee’s Note to Rule 41, to which we g ive “weig ht in interpreting t he F ederal Rules o f Criminal Procedure,” United States v. Ba i nbridge

, 746 F .3d 9 43, 947 (9th Cir. 2014), confirms the “reasonablene s s ” standard applies to the return of computer files on electronic

s t o rag e devices, see F e d. R. Crim. P. 41, Advis o r y Committee’s N ote to 2009 Amendment (“Rule 4 1(g)

. . . provides a process for the ‘person ag g rieved’ to seek an order from the c ourt for a return of the property , including storag e media or e lectronically stored information, under reasonable circumstances.”). T h e simplest way for the g overnment to carry its burden is to p rove “the property

. . . is contraband o r subject to forfeiture.” Martinson , 809 F

. 2d at 1369; see also United States v. Fitzen
, 80 F .3d 387, 389 (9th Cir. 1996) (“I t is well-settled that the federal g o v ernment may d efeat a Rule [ 41(g ) ] motion by demonstrating that the property is subject
to federal forfeiture.”). To that e nd, district courts “mustU N I T E D S T A T E S V

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A D D I N G 8

receive evidence on any f actual issue necessary to decide the motion.” F ed. R. Crim. P. 41(g ). The g overnment can therefore carry its burden by submitting e v i d e n ce that demonstrates the property is contraband or the p r operty falls within the court’s forfe i t u r e order. See, e.g., Harrell

, 530 F

. 3d at 1 056–57. B ut showing the property is contraband

or forfeit is not the only w a y the g overnment can justify retaining the property ; the g overnment can otherwise retain property if i t can show a “leg itimate reason” for doing so. See, e.g., Kriesel

, 720 F .3d a t 1 145–47 (holding that the
g overnment’s retention of the defendant’s blood sample was

“ r e a s o n a b l e u n d e r t h e c ircumstance s ” b ec a u s e t h e g overnment needed the sample to ensure the accuracy o f future DNA identifications).

B

. Gladding filed his Rule 41(g ) motion after he pleaded
g uilty and the g overnment no long er n ee d e d his property a s evidence. The burden of proof was t h e re fore on the
g overnment. Kriesel

, 720 F

. 3d at 1144. T he district court did
not ex pressly state whether Gladding or the g o vernment h ad the burden of proof on the motion. However, the pa r t ies impliedly concede the court put the burden on Gladding

. A nd the district c ourt’s brief analy sis deny ing Gladding ’s motion sheds lig ht as to w hom the district court thoug ht should bear the burden of proof. T h e distr i c t c ourt denied Gladding ’s motion because it w as “satisf i e d” by the g overnment’s “representations” that it is “almost impossible to separate [ the noncontraband files] o ut.” B ut representa tions are not evidence, unless adopted by the opponent. The g overnment fai l e d to submit any evidence of the difficulty and cost o f

s e gr eg ating Gladding ’s d ata, which it claimed was a “leg itimat e r e a son” for retention o f the noncontraband files.U N I T E D S T A T E S V

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A D D I N G 9

Fo r that reason, the g overnment could not have c arried it s burden of p r oof had the district court correctly pl a c e d i t on the g overnment. The district court’s decisi o n n o t to put the burden of proof on the g overnment was leg al error. W e remand for the court to apply t h e c o rrect burden in the first instance. See Martinson , 809 F .2d at 1370.

W e thi n k i t may be helpful to provide the district court g uidance on remand, as we have not a rticulated the contours of a Rule 41(g ) motion in t he c ontex t of interming led computer f

iles. At oral arg

ument, the g overnment narrowed the issues to be considered in this case by admitting the f iles Gladding seeks are neither c ontraband n or subject to forfeiture. I n the g overnment’s view, the district court’s forfeiture order did not cover Gladding ’s noncontraband f iles

even thoug h those f

iles were i n terming led w ith f iles containing child pornog r aphy

. 1 As some files a r e n either

1 T h is ty

pe o f f o rf eitu re o rd er is u

n co m m o n a c c o r d in g to th e g o v ern m en t. T h e g o v ern m en t c o n t e n d s th at, i n th e n o rm al co u rse, a d ef en d an t f o rf eits all th e fi l e s o n an electro n i c sto rag e d ev ice w h en i t f o rf eits th e dev ice itself

, w h eth er th o s e f

iles are co n trab an d o r n o t. W e d o

n o t ex p ress an o p i n io n o n th e v alid ity o f th e d istrict co u rt’ s o rd er req u irin g Glad d in g t o f

o rf eit o n l y co n t

rab an d f iles. No r d o w e p reclu d e th e d istrict

co u rt f ro m am en d in g its f

o rf eitu re o r d e r o n rem an d t o in clu de th e

n o n co n trab an d f

iles th at G lad din g seek s in h is m o tio n to th e ex ten t p erm i tted b y

law

.

Mo reo v er, to th e ex ten t th e g o v e r n m en t arg u es th e d istrict co u rt d en i e d G l ad d i n g ’ s Ru le 4 1 (g ) m o tio n b ecau se th e co u rt f ou n d th e

n o n co n trab an d f

iles f o r fe it u n d er 1 8 U.S.C. § 2 2 5 3 (a), th at arg u m en t

co n trad icts th e g o v ern m en t’ s ad m issio n th at n on co n trab an d f i les w ere n o t

su b j ect to th e f

o rf eitu re o rd er. A d m itted ly

, t h e tran scrip t o f th e d istrict

co u rt’ s d ecisio n can b e read as d en y i n g Glad d in g ’ s Ru le 4 1 (g ) m o tio n b ecau se th e co u

rt f o u n d th e n o n co n trab an d f iles w ere f

o rf eited p ro p erty

u n d er 1 8 U.S.C. § 2 2 5 3 (a). B u t th e d istrict co u rt’ s p rio r f o rf eitu re o rd er b y its term s ex clu d ed th o se f iles, in stead statin g th e “ P relim in ary Ord er ofU N I T E D S T A T E S V

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A D D I N G 10

c ontraband nor f

orfeit, the g overnment can retain t h e noncontraband files only if the g o vernment shows a “leg itimate reason” for doing so “that is reasonable under all of the circumstances.” Kriesel , 720 F

. 3d at 1144.

W e have noted the “spirit of [ Rule 41(g )] is one o f

c o m p r o m i s e ” t h a t “ r e c o g n i z e s t h a t r e a s o n a b l e accommod ations mig ht protect both the law enforcement interests of the United Stat e s a n d the property rig hts o f property owners.” Ramsden

, 2 F .3d at 327 (quoti ng F e d. R. Crim. P. 41, Advisory C ommittee’s N ote to 1989 Amendment). The g overnment’s pr i m a ry objection to returning Gl adding ’s noncontraband f iles is the cost o f
seg reg ating those f

iles from the files containing child
pornog raphy

. The A d v isory Committee’s Note to Rule 41 confirms the difficulties p osed by electro n ic data in this
contex t: “A substantial amount of time can be involved in the forensic imag ing and review of information. This is due to the sheer siz e of the storag e c apacity of media, difficulties created by encry

ption and booby traps, a n d the workload o f the c omputer labs

. ” F e d. R. Crim. P. 41, A dvisory Committee’s N ote to 2009 Amendment. The difficulty a nd
cost of seg reg ating the d ata can therefore be a “leg itimate reason” for the g overnment to retain Gladding ’s property

. I f the parties d i spute the cost of seg r eg a ting data, they should submit supporting e vidence and the district court may hold an evidentiary hearing to resolve that dispute. The district court should deny G ladding ’s motion if the g overnment has carried its burden of proof by producing evidence which preponderates to show the g overnment’s cost concerns a re

Fo rf eitu re is m ad e f

in al as to co n trab an d item s on ly .” T h e d istrict co u rt d id n o t l ater am en d t

h at o rd er to in clu d e n o n co n trab an d item s, su ch as th e

co m pu ter f iles Glad din g n o w

seek s.U N I T E D S T A T E S V

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A D D I N G 11

“reasonable under al l o f the circumstances.” S ee Kriesel

, 720 F .3d at 1144.

The d istrict court may also order alternative measures for returning Gladding ’s nonc ontraband files other than forcing the g overnment to pay for seg reg ating the data itsel f

. See,
e.g. , Ramsden

, 2 F .3d at 327 ( ordering the g overnment to return documents b ut permitting the g overnment to retain copies). F or ex ample, the district court can require Gladding
to pay the costs of seg reg a tion by having his ex p e rt r eview the electronic storag e devices a n d copy the noncontraband files to the e x ten t o therwise p ermitted by law. I ndeed, Gladding already had an ex pert review the storag e devices while this appeal was pending

. The district court may decide
to order the g overnment to provide a printed directory of the electronic storag e devices. A directory c ould a ssist Gladding i n better identify ing which files he w ants returned or w h i c h folders potentially contain noncontraband mat e r i a l. Such a remedy may have the effect of substanti al l y r educing the
g overnment’s costs in identify ing noncontr a band files to return to G ladding

. And counsel for G l a d d i n g sug g ested at oral arg ument that a printed directo r y would g o a long way toward resolving this d ispute. 2 We of course do not mean to require the district court to adopt any or all o f our sug g estions; nor do we mean to p r eclude the district court from ordering other r emedies. I n cases such as this, the

2 T h e g o v ern m en t arg u es t h at p ro v id in g G lad d in g w ith a p r i n t e d d irecto ry w o u ld o n ly

d elay th e co st to th e g ov ern m en t. T h e g o v ern m en t

su g g ests Glad d in g co u ld u se th at l ist to id en tif y th o u san d s o f f

o ld ers an d f iles th at G l a d din g b eliev ed w ere n o n co n t rab an d

, an d th e g o v ern m en t

w o u ld b e req u ired to o p en th o se f o l d ers an d f

iles to ex am i n e th eir co n ten ts b ef o re tu rn i n g th em o v er t o Glad d i n g

. No th in g p rev en ts th e g o v ern m en t f ro m seek i n g reli e f fr o m t h e district co u rt sh o u ld Glad d in g id en t if y a b u rd en so m e n u m

b er o f f iles as p o t en tially

n o n co n trab an d

.U N I T E D S T A T E S V

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A D D I N G 12

district c ourt is in the best positio n t o f a s hion a remedy

, “taking into account the time needed to imag e and search the data and any prejudice to the ag g r ieved p arty

. ” F e d. R. Crim. P. 41, Advisory

Committee’s Note to 2009 Amendment.

I I I

.

The district court’s order d e n y ing Gladding ’s Rule 41(g ) motion is reversed a

n d remanded for proceeding s consistent with this opinion.

REVERSED AND REMANDED.