U.S. v. Kaczynski

• Decision Date: 21 July 2005
• Docket Number: No. 04-10158.,04-10158.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theodore John KACZYNSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 971

416 F.3d 971

UNITED STATES of America, Plaintiff-Appellee, v. Theodore John KACZYNSKI, Defendant-Appellant.

No. 04-10158.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2005.

Filed July 21, 2005.

John Balazs, Sacramento, CA, for the defendant-appellant.

Ana Maria Martel, Office of the United States Attorney, Sacramento, CA, for the plaintiff-appellee.

Christopher B. Durbin (argued and briefed), Cooley Godward, San Francisco, CA, and Margaret C. Crosby (briefed), American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, CA, for Amici Curiae.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge Presiding. D.C. No. CR-96-00259-GEB/GGH.

Before: SCHROEDER, Chief Judge, CANBY, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

This matter comes to us in the form of a request by convicted Unabomber Theodore John Kaczynski for the return of his papers and other property seized pursuant to a search of his Montana cabin in 1996. Kaczynski pled guilty to a series of coldly calculated bombings that resulted in the loss of innocent life and numerous life-altering injuries. The plea agreement that spared Kaczynski his own life includes a restitution order of some $15 million for the benefit of his victims and their families.

Kaczynski principally seeks the return of his writings, which he wishes to donate to the University of Michigan for inclusion in its collection of protest literature. Arguing that Kaczynski should not profit from his criminal notoriety, the government objected to return of the property, claiming that the property was, on the one hand, of negligible value and, on the other, nonetheless needed to satisfy the terms of Kaczynski's restitution order. The government's restitution plan, yet to be reduced to a detailed writing, seems to be: (1) to hold a private sale of Kaczynski's property, (2) ascribe thereby a value to it, and then (3) deposit government (i.e., taxpayer) funds equal to that value in an account for the benefit of Kaczynski's victims and their families. The government would then keep Kaczynski's property, to unknown ends.

Because the government's plan is inconsistent with the purpose of victim restitution, and with our precedent specifying what must be done with a defendant's property once it is no longer needed as evidence, we remand this matter to the district court for the government to propose a detailed, written plan to dispose of the property in question in a commercially reasonable manner calculated to maximize the monetary return to Kaczynski's victims and their families. We also appoint separate pro bono counsel to act as amicus curiae in support of the interests of the victims and their families.¹

FACTS & PROCEDURAL HISTORY

In 1996, government agents executed a search warrant on Kaczynski's cabin in rural Montana. The agents seized for potential use as evidence much of Kaczynski's personal property, including everything from "one rock" and a "plastic container with white clumpy powder" to a copy of ELEMENTS OF STYLE and a brown envelope marked "autobiography." Kaczynski has since described the seized property as "of negligible intrinsic financial value," though potentially worth more "due to its `celebrity' value." A declaration submitted by the government appraised the various items seized as of "no value," "negative value," and "minimal value."

Kaczynski was charged with numerous counts involving the transportation and/or mailing of explosives with the intent to kill, and in 1998 he pled guilty to all charges. Kaczynski's plea agreement specified:

The defendant agrees that he shall disgorge any monies paid in whole or in part to him or on his behalf, in return for writings, interviews, or other information disclosed by the defendant, including but not limited to access to the defendant, photographs or drawings of or by the defendant or any other type of artifact or memorabilia to the United States Probation Office for restitution or other distribution to the victims of the Unabom[b] events.

Kaczynski was sentenced to life in prison, and ordered to pay restitution to the specifically identified victims of his crimes in the amount of $15,026,000. Upon the entry of judgment of conviction, a lien arose in favor of the government on all of Kaczynski's property and rights to property, which will last until his restitution debt is satisfied. 18 U.S.C. § 3613(c).²

Kaczynski then moved to have his conviction vacated under 28 U.S.C. § 2255, which the district court denied. This court affirmed that denial. United States v. Kaczynski, 239 F.3d 1108 (9th Cir.2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1309, 152 L.Ed.2d 219 (2002), (hereinafter "Kaczynski I"). The Supreme Court denied Kaczynski's petition for writ of certiorari and his subsequent petition for rehearing, thus concluding Kaczynski's criminal case.

After the Federal Public Defender and Kaczynski both tried and failed to informally secure the return of his property, Kaczynski moved under Federal Rule of Criminal Procedure 41(g)³ for the return of all property not used within a reasonable time for payment of restitution. He further asked the court to order the government to send his papers to the University of Michigan's Labadie Collection, which houses materials on radical, social and political movements. The government opposed Kaczynski's motion, arguing that Kaczynski should not profit from his notoriety, and that his property, "treated as the belongings of John Doe," would cost more to sell than it is worth.

The magistrate judge recommended that Kaczynski's motion be granted in part, and deemed the government's argument that it needed the property to satisfy the restitution order, but that the property should be appraised absent Kaczynski's notoriety to prevent him from benefitting from his crime, "circular and confusing." The magistrate recommended that the government sell whatever property it desired for restitution purposes, and return the rest to Kaczynski.

The district court, however, rejected the magistrate's Findings and Recommendations and denied Kaczynski's motion. United States v. Kaczynski, 306 F.Supp.2d 952 (E.D.Cal.2004) (hereinafter "Kaczynski II"). The district court held that the judgment lien of restitution gives the government a sufficient cognizable claim of ownership to defeat Kaczynski's motion for return of property. Id. at 955 (citing United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993)). The court found that Kaczynski lacked standing to assert the victims' interest in the property or to demand that the government sell or display it. Id. at 956. The court also held that Kaczynski was barred from profiting from his crimes, both under his plea agreement and in equity, and defined "profit" to include "his apparent endeavor to extol his criminal celebrity status." Id. The court further found that Kaczynski was not entitled even to photocopies of his documents, and that, because the property should be valued at its pre-celebrity value, a "court of equity need not unravel matters having a negligible impact on such an astronomical restitution debt." Id. at 956-57.

Kaczynski timely appealed this final order.

JURISDICTION & STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291, and review the district court's interpretation of Rule 41(g) de novo. Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993). The denial of a motion for return of property is also reviewed de novo. United States v. Marshall, 338 F.3d 990, 993 (9th Cir.2003).

ANALYSIS

Federal Rule of Criminal Procedure 41(g) provides that "a person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Property seized for the purposes of a trial that is neither contraband nor subject to forfeiture should ordinarily be returned to the defendant once trial has concluded. United States v. Van Cauwenberghe, 934 F.2d 1048, 1060-61 (9th Cir.1991).⁴ A defendant is indeed presumed to have a right to the return of his property once the property is no longer needed as evidence, and the government has the burden of showing that it has a "legitimate reason to retain the property." See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.1987). A "cognizable claim of ownership or right to possession adverse to that of [the defendant]" constitutes a legitimate reason. United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993) (internal quotation omitted).

In Mills, 991 F.2d at 612, we held that a valid restitution order under the Victim and Witness Protection Act ("VWPA") gives the government a cognizable claim of ownership to defeat a defendant's motion for return of property, "if that property is needed to satisfy the terms of the restitution order." We explained that because a restitution order is enforceable as a lien on all of a defendant's property, a court may order that a defendant's property already in the government's possession be applied to his restitution debt. Id.⁵

Kaczynski argued, however, that the restitution lien does not permit the government to retain his property indefinitely. In response, the government responded that it will not keep Kaczynski's property without paying for it, but would rather credit than sell Kaczynski's property because the property must be valued absent Kaczynski's notoriety and so is of negligible value — thus, "the cost of sale ... would exceed the proceeds." The government further reasoned that it need not sell the property, as it is statutorily permitted to enforce an order of restitution "by all other available and reasonable means." 18 U.S.C. § 3664(m)(1)(A)(ii).

The government's position is untenable. The restitution order may only defeat Kaczynski's motion for return of property "if that property is needed to satisfy the terms of the restitution order." Mil...