FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUSTIN PAUL GLADDING,

Defendant-Appellant.

No. 12-10544

D.C. No. 

1:09-cr-00265-

AWI-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted June 9, 2014

San Francisco, California

Filed December 31, 2014

Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea
2 UNITED STATES V. GLADDING

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of a motion

pursuant to Fed. R. Crim. P. 41(g) for return of noncontraband computer files, and remanded for further proceedings,

in a case that required the panel to address when a criminal

defendant is entitled to the return of his personal computer

files when he has intermingled them with his child

pornography files.

The panel held that the district court’s decision not to put

the burden of proof on the government was legal error, where

the defendant filed the Rule 41(g) motion after he pleaded

guilty and the government no longer needed his property as

evidence. The panel held that the government could not have

carried its burden of proof had the district court correctly

placed it on the government, where the government failed to

submit any evidence of the difficulty and costs of segregating

the defendant’s data, which it claimed was a legitimate reason

for retention of the noncontraband files.

Providing guidance to the district court on remand, the

panel wrote that the difficulty and cost of segregating data

can be a legitimate reason for the government to retain the

defendant’s property, and the district court should deny the

defendant’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

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GLADDING 3

the circumstances. The panel wrote that the district court

may also order alternative remedies, including requiring the

defendant to pay the costs of segregation.

COUNSEL

Carolyn M. Wiggin, Federal Defender, Sacramento,

California, argued the cause and along with Heather E.

Williams, filed the briefs for the defendant-appellant.

David L. Gappa, Assistant U.S. Attorney, Fresno, California,

argued the cause and, along with Benjamin B. Wagner, filed

the brief for the United States.

OPINION

BEA, Circuit Judge:

Many people store every aspect of their lives on

electronic devices. Those devices are brimming with

correspondence, schedules, photographs, and music. As a

result, a crashing computer or a lost smartphone can lead to

catastrophic results for a person who failed to back up that

data; the only record for years of a person’s life can be lost in

an instant.

Criminals who possess child pornography are no

different. Those criminals may likewise store important

aspects of their lives on their electronic devices. But along

with the normal risks of losing their personal data, such

criminals also risk losing that personal data when the

government seizes their devices for evidence of child
4 UNITED STATES V. GLADDING

pornography. To that end, this case requires us to address

when a criminal defendant is entitled to the return of his

personal computer files when he has intermingled those files

with his child pornography files.

I. 

Justin Paul Gladding was indicted 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.C.

§ 2252(a)(2); and Count 2: Possession of One or More

Matters Containing Visual Depiction of Minors Engaged in

Sexually Explicit Conduct in violation of 18 U.S.C.

§ 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.C. § 2253 because they contained child

pornography.

Gladding pleaded guilty to Count One of the indictment. 

At the change of plea hearing, Gladding 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. 
UNITED STATES V. GLADDING 5

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

PreliminaryOrder 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.

The district court held three separate hearings on

Gladding’s Rule 41(g) motion. 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 denyGladding’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
6 UNITED STATES V. GLADDING

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.

II.

We 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. United States v. Harrell, 530 F.3d

1051, 1057 (9th Cir. 2008). We review the district court’s

underlying factual findings for clear error. Id.

A.

“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
UNITED STATES V. GLADDING 7

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.”

(internal quotation marks and citation omitted)).

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.” Kriesel, 720 F.3d at 1145; see also United

States v. Kaczynski, 416 F.3d 971, 974 (9th Cir. 2005)

(“[T]he government has the burden of showing that it has a

legitimate reason to retain the property.” (quotation marks

omitted)); Ramsden v. United States, 2 F.3d 322, 326 (9th

Cir. 1993) (explaining 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 give “weight in interpreting the Federal Rules of

Criminal Procedure,” United States v. Bainbridge, 746 F.3d

943, 947 (9th Cir. 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.” Martinson, 809 F.2d at 1369; see also

United States v. Fitzen, 80 F.3d 387, 389 (9th Cir. 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
8 UNITED STATES V. GLADDING

receive evidence on any factual issue necessary to decide the

motion.” Fed. R. Crim. P. 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., Harrell,

530 F.3d at 1056–57. 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., Kriesel, 720 F.3d at 1145–47 (holding that the

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).

B.

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. Kriesel, 720 F.3d at 1144. 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. 
UNITED STATES V. GLADDING 9

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 Martinson, 809 F.2d at 1370.

We 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.

1 As some files are neither

1 This type of forfeiture order is uncommon according to the

government. The government contends that, in the normal course, a

defendant forfeits all the files on an electronic storage device when it

forfeits the device itself, whether those files are contraband or not. We do

not express an opinion on the validity ofthe district court’s order requiring

Gladding to forfeit only contraband files. Nor do we preclude the district

court from amending its forfeiture order on remand to include the

noncontraband files that Gladding seeks in his motion to the extent

permitted by law.

Moreover, to the extent the government argues the district court

denied Gladding’s Rule 41(g) motion because the court found the

noncontraband files forfeit under 18 U.S.C. § 2253(a), that argument

contradicts the government’s admission that noncontraband files were not

subject to the forfeiture order. Admittedly, the transcript of the district

court’s decision can be read as denying Gladding’s Rule 41(g) motion

because the court found the noncontraband files were forfeited property

under 18 U.S.C. § 2253(a). But the district court’s prior forfeiture order

by its terms excluded those files, instead stating the “Preliminary Order of
10 UNITED STATES V. GLADDING

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.” Kriesel, 720 F.3d at 1144.

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.” Ramsden, 2 F.3d at 327 (quoting Fed. R.

Crim. P. 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

Forfeiture is made final as to contraband items only.” The district court

did not later amend that order to include noncontraband items, such as the

computer files Gladding now seeks.
UNITED STATES V. GLADDING 11

“reasonable under all of the circumstances.” See Kriesel,

720 F.3d at 1144.

The district court may also order alternative measures for

returning Gladding’s noncontraband files other than forcing

the government to pay for segregating the data itself. See,

e.g., Ramsden, 2 F.3d at 327 (ordering the government to

return documents but permitting the government to retain

copies). 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.2 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

2 The government argues that providing Gladding with a printed

directory would only delay the cost to the government. The government

suggests Gladding could use that list to identify thousands of folders and

files that Gladding believed were noncontraband, and the government

would be required to open those folders and files to examine their contents

before turning them over to Gladding. Nothing prevents the government

from seeking relief from the district court should Gladding identify a

burdensome number of files as potentially noncontraband.
12 UNITED STATES V. GLADDING

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.” Fed. R. Crim.

P. 41, Advisory Committee’s Note to 2009 Amendment.

III.

The district court’s order denying Gladding’s Rule 41(g)

motion is reversed and remanded for proceedings consistent

with this opinion.

REVERSED AND REMANDED.