United States District Court, E.D. California
ORDER RE MOTION FOR RETURN OF SEIZED ITEMS (ECF NO.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
Court has received the Defendant's motion for return of
seized items, in which he requests return of all
non-contraband evidence seized from him in connection with
the underlying events of this case. ECF No. 143. The specific
items in question are listed in an evidence inventory
attached to Defendant's motion, which includes the
following items: U.S. Currency, several DNA swabs, several
cellular telephones, an Ipad, two watches, a digital scale, a
cell phone charger, a pair of sunglasses, a lock box, a
“cylinder-shape[d]” container, and a thumb drive
“containing digital data from search warrant
affidavit.” ECF No. 143, Ex. A. Because Defendant is
currently in the custody of the Bureau of Prisons, he
requests that all such property be released to his local
designee, Lorena Sanchez Bitler. Id.
government's initial opposition indicated consent to the
return of the evidence, except for the DNA swabs, digital
scale, and thumb drive. ECF No. 144. After the Court
requested an explanation of the government's position as
to the DNA swabs, digital scale, and thumb drive, ECF No.
146, the United States narrowed its objection to only the
thumb drive on the ground that the thumb drive does not
belong to Defendant. ECF No. 148. The government indicated it
already produced the content of the thumb drive to Defendant
but has no objection to copying the content of the thumb
drive onto media provided by Defendant and/or an order to
destroy the content of the drive. Id. However, the
government requests that the Court make the effective date of
its order on this subject December 15, 2019, or upon the
disposition of any motion pursuant to 28 U.S.C. § 2255
(“Section 2255”), whichever is later, as it is
the government's position that December 15, 2019, is the
day after which any Section 2255 Motion would be due.
objects to this condition, arguing that there is no basis in
the law for the government to delay returning the property
based upon the possibility that a collateral attack position
may be filed. ECF No. 150. “[W]hen 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, . .
. [t]he person from whom the property is seized is presumed
to have a right to its return, and the government has the
burden of demonstrating that it has a legitimate reason to
retain the property.” United States v.
Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). While it
is true that the Ninth Circuit has not extended this
reasoning to collateral attack proceedings, the government
reasonably asserts that the property continues to have
evidentiary value so long as there is a possibility that
Defendant may challenge his conviction through a Section 2255
petition. See Sosa-Pintor v. United States, No.
4:19-CV-033-MAC-CAN, 2019 WL 2273758, at *2 (E.D. Tex. Apr.
22, 2019), report and recommendation adopted, No.
4:19CV33, 2019 WL 2267293 (E.D. Tex. May 24, 2019) (denying
without prejudice motion for return of property while Section
2255 petition was pending).
argues that, while generally Section 2255 petitions are
subject to a one-year statute of limitations, the exceptions
to that rule set forth in 28 U.S.C. § 2255(f)(2),
(f)(3), and (f)(4), extend the possible time for collateral
attack into the future indefinitely. ECF No. 150. Plaintiff
suggests that, as a result, the possible filing of a Section
2255 petition cannot reasonably be used to justify continued
possession of property by the government, because such
possession could likewise extend indefinitely. Id.
That simply is not the question presented here. The
government is asking for a delay through mid- December 2019
or through the disposition of any 2255 Petition filed within
the initial one-year limitations period. This is reasonable
and bears no risk of indefinite delay. Therefore, the
requested condition will be included in the order.
reasons set forth above, Defendant's motion for return of
property is GRANTED with two exceptions/conditions.
the United States need not provide the original thumb drive
to Defendant. Rather, Defendant shall provide the United
States with appropriate media onto which the content of that
drive can be copied. Otherwise, if Defendant declines to
provide such media on or before January 15, 2020, the United
States may destroy the thumb drive.
the operation of the above order is STAYED until December 15,
2019, or until the disposition of any Section 2255 Petition