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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:10cr42-SPM

MICHAEL ALAN REAID,

Defendant.

_____________________________/

ORDER DIRECTING GOVERNMENT TO FILE SUPPLEMENTAL RESPONSE

This cause comes before the Court upon Defendant’s letter (doc. 80),

which has been treated as a motion for return of seized property pursuant to

Federal Rule of Criminal Procedure 41(g). The Government filed a response in

opposition (doc. 82). 

Defendant’s request for return of seized property is limited. He is not

seeking the physical return of his lap top computer or the media disks seized by

the Government. These items were used to commit his offense and they are

subject to forfeiture under 18 U.S.C. § 2253(a). Defendant, in fact, agreed to the

forfeiture as a condition of his plea. And while the forfeiture was omitted from

Defendant’s judgment and sentence, the Government may nevertheless seek

forfeiture through a civil forfeiture proceeding, which the Government has

indicated it will pursue under 18 U.S.C. § 2254. So Defendant does not have a

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possessory interest in the lap top computer or the media disks themselves, nor

does he have clean hands with respect to these items, which are requirements

for return of property under Rule 41(g). See United States v. Connolly, 446 F.

App’x 254, 255 (11th Cir. 2011) (A defendant seeking return of seized property

after conviction must show “that he has a possessory interest in the seized

property . . . [and] that he has ‘clean hands’ with respect to the property.”).

What Defendant is asking for are personal and professional files that are

stored on the laptop computer and the media files. He wants the Government to

go through the media disks and the hard drive on the lap top computer to find his

personal and professional files, copy them, and send them to his parents for safe

keeping. Defendant states that these items are neatly organized and clearly

labeled on both the media disks and the hard drive of his computer. 

In response, the Government states that many hours may be needed to

separate the criminal from the non-criminal files because persons possessing

images of child pornography often hide them in seemingly benign files or within

the background of larger images. The Government also notes that no authority

exits to require non-criminal items to be extracted from forfeited property. 

Rule 41, however, does contemplate extraction and return of electronically

stored information. Vast quantities of non-case related information may be

involved when electronic media items are seized. The 2009 Advisory Committee

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Note to Rule 41(e)(2) acknowledges that “[c]omputers and other electronic

storage media commonly contain [ ] large amounts of information . . . “ and that

“officers may seize or copy the entire storage medium and review it later to

determine what electronically stored information falls within the scope of the

warrant.” The same Advisory Committee Note explains that the property owner

has a remedy to seek “return of the property, excluding contraband or

instrumentalities of crime” through a court order under Rule 41(g) for return of

“electronically stored information, under reasonable circumstances.” The

Advisory Committee Note states that “the court on a case by case basis can

fashion an appropriate remedy, taking into account the time needed to image and

search the data and any prejudice to the aggrieved party.” 

So at least in some circumstances a defendant may be entitled to the

return of electronically stored information, which is what Defendant is seeking

here. The fact that Defendant is not entitled to return of the laptop computer

itself or the actual media disks, does not mean that he is not entitled to certain

electronically stored information contained therein. By analogy, a defendant may

be entitled to return of personal property contained in an automobile even if the

automobile is subject to lawful seizure and forfeiture. See United States v.

Berroa, No. 05-40098, 2007 WL 2683996 (C.D. Ill. Sept. 6, 2007) (setting hearing

on post-conviction 41(g) motion for return of property that was contained in a

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seized and forfeited automobile). Likewise, information copied from a computer

hard drive may be subject to return under Rule 41(g), even if the defendant is not

entitled to possession of the computer hardware. See United States v. UribeLondono, 238 F. App’x 628, 630-31 (1st Cir. 2007).

 A post-prosecution motion for return of property is treated as a civil action

in equity. United States v. Melquiades, 394 F.Appx. 578, 581 (11th Cir. 2010). 

When a colorable claim is made, the Court cannot deny the motion without

requiring the Government to submit at least some evidence to support its factual

contentions. Id. at 585; see also United States v. Cardona-Sandoval, 518 F.3d

13, 16 (1st Cir. 2008) (“Affidavits or documentary evidence . . . may suffice to

support the district court’s determination in a given case.”). 

If, as the Government contends, the electronically stored information is too

difficult to extract from the criminal materials, then Defendant may not be entitled

to equitable relief. On the other hand, Defendant represents that the

electronically stored information that he seeks is clearly labeled and contains no

criminal materials. If that turns out to be true, the equities may favor returning

the electronically stored information to Defendant. Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendant’s motion (doc. 80) remains under advisement.

2. The Government shall inspect the hard drives and media disks to

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assess whether the materials Defendant is seeking can be separated from the

criminal materials and returned to Defendant. 

3. On or before July 30, 2012, the Government shall file a

supplemental response with evidentiary materials to support its position.

DONE AND ORDERED this 11th day of June, 2012.

s/ Stephan P. Mickle 

Stephan P. Mickle

Senior United States District Judge

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