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United States of America v. Theodore John Kaczynski

May 23, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
THEODORE JOHN KACZYNSKI,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

AMENDED ORDER DENYING MOTION FOR RETENTION OF EVIDENCE

Defendant Theodore John Kaczynski ("Kaczynski") filed a "Motion for Retention of Evidence" on May 9, 2011, seeking a court order that prevents the United States (the "government") "from disposing of . . . some of the evidence seized from [his] cabin in 1996, and related information[.]" (Def.'s Mot. for Retention of Evid. ("Mot.") 5:1-7.) Specifically, Kaczynski seeks to enjoin disposal of the following evidence for the stated reasons:

(1) . . . lists and records of evidence . . . because these lists and records will show whether any known cyanide compounds were found in [his] cabin[;]

(2) . . . records of all chemical analyses performed on substances found in [his] cabin, because such records will reveal whether any of the analyses detected cyanide compounds[;]

(3) . . . all powders, liquids, granulated materials, mixtures, and other materials of a possibly chemical nature that were found in [his] cabin, so that these can be chemically analyzed or re-analyzed, as may in future turn out to be appropriate, to determine whether they contain any cyanide compounds[;]

(4) . . . the originals of . . . [a]ll materials written in code (together with the keys to the codes), because the majority of the coded materials were devoted to descriptions of [his] illegal acts[, and t]hese materials will show whether [he] ever committed any illegal acts involving cyanide[;] . . . [a]ll letters received or sent by [him] that may date from 1982 or later, because they may provide evidence as to [his] whereabouts and activities during 1982[; and] . ..

[a]ll parts of [his] journals that may date from 1982 or later, because they may provide evidence as to [his] whereabouts and activities during 1982.

(Mot. 5:8-6:26.) Kacznyski requests in the alternative that the government be required "to retain photocopies of all the written materials" he requests; "to provide [his] designee, Julie Herrada, with photocopies of all of the [requested] written materials[;]" and "to retain a record of the names and addresses of all purchasers of [the requested] written materials[.]" Id. at 7:1-23.

Kaczynski argues the referenced evidence "may turn out to be important" should he have "to resolve correctly the question of any putative connection between [him] and [a 1982 event in which someone put potassium cyanide in Tylenol]." Id. at 4:14-25. Kaczynski states the injunction sought is "motivated by" a recent visit from two prison officers, "who told [him] that the Chicago office of the FBI wanted a sample of [his] DNA to compare with some partial DNA profiles connected with [the cyanide incident]." Id. at 3:6-20. Kaczynski filed "this same Motion [in] both the District Court and [in] the 9th Cir.[,]" stating "[i]t's not clear . . . who has jurisdiction over this Motion . . . [b]ut someone ought to have jurisdiction[.]" Id. at 2:16-3:3. Kaczynski further argues this motion is "URGENT" because the "sale of [his] property begins on [May 18, 2011.]" Id. at 1:18, 2:6-10.

The on-line auction of the subject property began on May 18, 2011, however, the bidding for the property is not scheduled to end until June 2, 2011.*fn1

The government opposes Kaczynski's motion, arguing "no court has jurisdiction" to grant the relief he requests because "(1) no statute authorizes such an order; (2) it would deeply offend separation of powers for a court to order preservation of evidence for a prosecution not initiated by the Executive Branch; and (3) the case-or-controversy requirement of Article III does not allow courts to entertain [this] theoretical dispute[] which might arise in the future[,]" when "Kaczynski has not been indicted in connection with the Chicago Tylenol investigation, and no such federal prosecution is currently planned." (Pl.'s Mem. in Opp'n ("Opp'n"), 1:23-2:1, 2:9-10.)

Article III of the Constitution "restricts federal court[] [jurisdiction] to the resolution of cases and controversies." Davis v. Fed. Election Commm'n, 554 U.S. 724, 732 (2008). "Federal courts are presumed to lack jurisdiction, unless the contrary appears affirmatively from the record." San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)(internal quotation marks and citation omitted). "Two components of the Article III case or controversy requirement are [the closely related concepts of] standing and ripeness." Bova v. City of Medford, 564 F.3d 1093, 1095-96 (2009). "To allege a justiciable [request for injunctive relief], [the party requesting relief] must plead facts that are sufficient to confer standing and demonstrate that the [request] is ripe for determination." Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010).

"As the part[y] invoking federal jurisdiction, [Kaczynski] bear[s] the burden of establishing standing to [seek the injunctive relief he requests]." San Diego Cnty., 98 F.3d at 1126 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). "To do so, [he] must demonstrate three elements which constitute the 'irreducible constitutional minimum' of Article III standing." Id. (quoting Lujan, 504 U.S. at 560).

First, [he] must have suffered an "injury-in-fact" to a legally protected interest that is both "concrete and particularized" and "actual or imminent," as opposed to "'conjectural' or 'hypothetical.'" Second, there must be a causal connection between [his] injury and the conduct complained of. Third, it must be "likely" - not ...


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