United States v. Kaczynski

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10158
Plaintiff-Appellee, D.C. No.
v.  CR-96-00259-GEB/
THEODORE JOHN KACZYNSKI, GGH
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
June 16, 2005—San Francisco, California
Filed July 21, 2005
Before: Mary M. Schroeder, Chief Judge,
William C. Canby, Jr. and Michael Daly Hawkins,
Circuit Judges.
Opinion by Judge Hawkins
8585
UNITED STATES v. KACZYNSKI 8587
COUNSEL
John Balazs, Sacramento, California, for the defendant-
appellant.
8588 UNITED STATES v. KACZYNSKI
Ana Maria Martel, Office of the United States Attorney, Sac-
ramento, California, for the plaintiff-appellee.
Christopher B. Durbin (argued and briefed), Cooley Godward,
San Francisco, California, and Margaret C. Crosby (briefed),
American Civil Liberties Union Foundation of Northern Cali-
fornia, Inc., San Francisco, California, for Amici Curiae.
OPINION
HAWKINS, Circuit Judge:
This matter comes to us in the form of a request by con-
victed 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 inno-
cent life and numerous life-altering injuries. The plea agree-
ment 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 Kaczyn-
ski’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 Kac-
zynski’s victims and their families. The government would
then keep Kaczynski’s property, to unknown ends.
UNITED STATES v. KACZYNSKI 8589
Because the government’s plan is inconsistent with the pur-
pose 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 dis-
trict 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 prop-
erty, including everything from “one rock” and a “plastic con-
tainer with white clumpy powder” to a copy of ELEMENTS OF
STYLE and a brown envelope marked “autobiography.” Kac-
zynski has since described the seized property as “of negligi-
ble 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, photo-
1
We decline to reach the First Amendment issue Kaczynski and Amici
raised.
8590 UNITED STATES v. KACZYNSKI
graphs 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 distri-
bution 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 judg-
ment 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 (2002),
(hereinafter “Kaczynski I”). The Supreme Court denied Kac-
zynski’s petition for writ of certiorari and his subsequent peti-
tion 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, Kac-
zynski 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 Michi-
gan’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.
2
Kaczynski has paid a $650 special assessment, and the government
received $7,025 towards restitution by selling Kaczynski’s interest in his
Montana land, but almost all of Kaczynski’s $15 million debt remains.
3
Rule 41(e) was changed to Rule 41(g) in 2002 and amended for stylis-
tic purposes only.
UNITED STATES v. KACZYNSKI 8591
The magistrate judge recommended that Kaczynski’s
motion be granted in part, and deemed the government’s argu-
ment that it needed the property to satisfy the restitution
order, but that the property should be appraised absent Kac-
zynski’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 resti-
tution purposes, and return the rest to Kaczynski.
The district court, however, rejected the magistrate’s Find-
ings 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 suffi-
cient 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 dis-
play 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 prop-
erty 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. Ram-
sden v. United States, 2 F.3d 322, 324 (9th Cir. 1993). The
denial of a motion for return of property is also reviewed de
8592 UNITED STATES v. KACZYNSKI
novo. United States v. Marshall, 338 F.3d 990, 993 (9th Cir.
2003).
ANALYSIS
[1] 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 ordi-
narily 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 lon-
ger needed as evidence, and the government has the burden
of showing that it has a “legitimate reason to retain the prop-
erty.” 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).
[2] 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 own-
ership to defeat a defendant’s motion for return of property,
“if that property is needed to satisfy the terms of the restitu-
tion 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 govern-
ment’s possession be applied to his restitution debt. Id.5
4
Kaczynski does not seek the return of any property that constitutes
contraband.
5
This holding illustrates a misunderstanding by the magistrate judge:
while the magistrate correctly noted that a restitution lien is treated as if
it were a federal tax lien, 18 U.S.C. § 3613(c), the magistrate incorrectly
concluded that “a tax levy is necessary before the government is entitled
UNITED STATES v. KACZYNSKI 8593
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 neg-
ligible 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).
[3] The government’s position is untenable. The restitution
order may only defeat Kaczynski’s motion for return of prop-
erty “if that property is needed to satisfy the terms of the resti-
tution order.” Mills, 991 F.2d at 612. Yet the government
argued unequivocally that the property is of negligible value.
To accept that appraisal is to conclude that the government
did not meet its burden: property of negligible value is by def-
inition not needed to satisfy the terms of a restitution order.6
to possession as against the owner.” This conclusion would be correct
under tax law, see United States v. Barbier, 896 F.2d 377, 379 (9th Cir.
1990) (a levy operates as a seizure; a lien “is merely a security interest and
does not involve the immediate seizure of property”), but here, as in Mills,
the government has already lawfully seized the property. See Kaczynski II,
306 F. Supp. 2d at 955. Accordingly, a restitution lien may be enough to
defeat a defendant’s claim of ownership. See Mills, 991 F.2d at 612. This
mistake is not terribly significant, since the magistrate concluded that even
if the lien were treated as a levy, “the ultimate object . . . is the sale, not
the continued possession, of the property.” A more important ramification
of the irrelevance of the tax levy laws is that we may not simply defer to
the clear rules 26 U.S.C. § 6335 applies to the sale of seized property, as
Kaczynski requests.
6
In addition, the 1989 Advisory Committee Notes to Rule 41(g) set rea-
sonableness as the standard to be used in ruling on motions for the return
of property, and emphasized that “if the United States’ legitimate interests
can be satisfied even if the property is returned, continued retention of the
property would become unreasonable.” See also Ramsden, 2 F.3d at 326-
27. A corollary might be: if the government’s interests would not be satis-
fied if the property is retained, continued retention is unreasonable.
8594 UNITED STATES v. KACZYNSKI
Moreover, acknowledging that this is so does not create a
slippery slope in which a court would have to determine
whether property of little value would be sufficient: “negligi-
ble” is an extreme classification, and here it is the government
who has urged its acceptance.
[4] But that valuation is also flawed. The district court held
that Kaczynski’s property had negligible value because “a
contrary finding would allow Kaczynski to profit from his
criminal celebrity status,” see Kaczynski II, 306 F. Supp. 2d
at 957, and the government argued that this holding finds sup-
port in both contractual and equitable principles. Not so. First,
the disgorgement provision in Kaczynski’s plea agreement
provides that Kaczynski disgorge any money he is paid “in
return for writings . . . including . . . memorabilia.”7 While
this contract clearly prevents Kaczynski from profiting from
the property at issue, it also anticipates that Kaczynski might
be compensated (and have to disgorge money paid) for ordi-
nary property transformed into “memorabilia” by virtue of his
notoriety.8
[5] Second, as to equity, while it is undisputed that a crimi-
nal may not profit from his crime, see, e.g., Mutual Life Ins.
Co. v. Armstrong, 117 U.S. 591, 600 (1886) (beneficiary who
murdered insured cannot collect life insurance proceeds), that
situation is not before us. Applying the revenue from the sale
of Kaczynski’s property, even inflated by his “criminal celeb-
rity status,” to his restitution debt would benefit not Kaczyn-
ski but the victims of his crimes.9 Indeed, while two of our
7
Moreover, 18 U.S.C. § 3664(n) provides that a person obligated to pro-
vide restitution who receives “substantial resources from any source”
while incarcerated is required to apply the value of those resources to his
restitution debt.
8
Kaczynski has also stated that he is willing to execute an agreement
barring him from selling any of the seized property should it be returned
to him.
9
Cf. United States v. O’Connor, 321 F. Supp. 2d 722, 730 (E.D. Va.
2004) (“Although use of the forfeiture proceeds as partial satisfaction of
UNITED STATES v. KACZYNSKI 8595
sister circuits, in Lavin v. United States, 299 F.3d 123, 127
(2d Cir. 2002), and United States v. Duncan, 918 F.2d 647,
654 (6th Cir. 1990), referred to the application of seized cash
to a defendant’s sentence as using the property “for [the
defendant’s] benefit,” in neither case was this practice thus
barred as violative of equitable principles. This is certainly
also true in our own circuit, else our holding in Mills, that a
court may order a defendant’s property already in the govern-
ment’s possession applied to his restitution debt, would be
meaningless. Thus, neither contractual nor equitable princi-
ples compel a negligible valuation. Indeed, common sense
suggests the property would be quite valuable to scholars,
archivists, and, unsavory as that prospect might be, collectors.
[6] In the probable event that the value of Kaczynski’s
property is more than negligible, the property is “needed to
satisfy the terms of the restitution order,” and the government
has a cognizable claim of ownership sufficient to defeat Kac-
zynski’s motion for its return. Mills, 991 F.2d at 612. Accord-
ingly, the government has some degree of discretion as to
how to enforce the restitution lien, per 18 U.S.C.
§ 3664(m)(1)(A)(ii) (order of restitution may be enforced “by
all other available and reasonable means”). Even so, neither
its actions to date nor its newly proposed restitution plan are
reasonable.
The government has held Kaczynski’s property since 1996,
and his criminal proceedings ended (with the Supreme
Court’s denial of his petition for rehearing) in 2002. Though
the government has asserted that it “does not intend to keep
Kaczynski’s property without paying for it,” that is precisely
what it has done. At a minimum, nothing barred the govern-
ment from selling the property and providing some compensa-
the restitution order effectively grants defendants a substantial benefit . . .
the result in this case is properly viewed . . . not as one in favor of the
defendants, but rather, as one in favor of the victims of defendants’ crimi-
nal activity”).
8596 UNITED STATES v. KACZYNSKI
tion to the victims between 2002 and 2003. Cf. Martinson,
809 F.2d at 1370 n.5 (“Some courts have indicated that the
burden also shifts if the government has held property for an
over-long period of time” without beginning a prosecution);
Sovereign News Co. v. United States, 690 F.2d 569, 577-78
(6th Cir. 1982) (“we can conceive of no legitimate purpose
for retaining these documents if the United States contem-
plates no actual use for them. The government may not keep
the copies purely for the sake of keeping them”). Simply sit-
ting on an order of restitution is not a reasonable means of
enforcing it.
Going forward, the government proposed for the first time
at argument a private “garage sale,” guided by the Uniform
Commercial Code, which it would hold to determine the prop-
erty’s pre-notoriety value, after which, at taxpayers’ expense,
it would pay the victims the inevitably nominal sum and
thereafter do what it likes with the property. This plan, which
has heretofore existed solely in internal governmental conver-
sations, does not defeat Kaczynski’s claim to return.
More importantly, the government’s “plan” plainly fails to
serve the victims and their families, for whom— we must not
lose sight— the restitution was awarded in the first place. See
VWPA, Pub. L. No. 97-291 § 2(a)(2) (1982) (“[a]ll too often
the victim of a serious crime is forced to suffer physical, psy-
chological, or financial hardship first as a result of the crimi-
nal act and then as a result of contact with a criminal justice
system unresponsive to the real needs of such victim”); Kac-
zynski II, 306 F. Supp. 2d at 956 (“the government holds the
restitutionary lien on behalf of the victims”); United States v.
Miguel, 49 F.3d 505, 509 (9th Cir. 1995) (through VWPA,
Congress “attempted to restore restitution to its proper place
in federal criminal law by . . . fostering improved monitoring
and enforcement procedures . . . The purpose of the Act was
to compensate victims of crime”).10
10
See also Lawrence P. Fletcher, Restitution in the Criminal Process:
Procedures for Fixing the Offender’s Liability, 93 YALE L.J. 505, 508 n.11
UNITED STATES v. KACZYNSKI 8597
[7] Enforcing the restitution order by reasonable means, see
18 U.S.C. § 3664(m)(1)(A)(ii), if nothing else, requires the
government to take prompt action to see that the victims are
awarded restitution in a commercially reasonable manner cal-
culated to maximize monetary return. Anything less would be
inadequate.11
Finally, missing throughout this litigation have been the
voices of the victims and their families. Though the govern-
ment purported to represent these individuals, we see nowhere
in the record their viewpoints and desires regarding the
enforcement of the restitution order, even though its very pur-
pose is to provide financial compensation for their great
losses. Accordingly, we appoint separate pro bono counsel to
serve as amicus curiae in support of their interests.
CONCLUSION
[8] We remand to the district court, refusing Kaczynski’s
request that we direct assignment of the matter to a different
judge,12 to give a timely and adequate opportunity for the gov-
ernment to present, and Kaczynski and pro bono amicus to
(1984) (VWPA aimed at victim-oriented sentencing practices to ensure
“that the prosecutorial, judicial and probation authorities know, and are
encouraged to respond to, the victim’s monetary damages”) (internal cita-
tions omitted); Lorraine Slavin & David J. Sorin, Congress Opens a Pan-
dora’s Box — The Restitution Provisions of the Victim and Witness
Protection Act of 1982, 52 FORDHAM L. REV. 507, 572 (1984) (“a victim
can only receive restitution if courts and probation departments actively
monitor restitution payments.”).
11
While it is true that, in general, a restitution order operates for the ben-
efit of the state, see Kelly v. Robinson, 479 U.S. 36, 53 (1986), in this case
the district court entered a restitution order in favor of four named victims
and their families; the government flouts the VWPA by electing to squan-
der property it possesses pursuant to a restitution order rather than selling
it to bring in as much money as possible for these victims.
12
Contrary to Kaczynski’s suggestions, we find no proof of bias on the
part of the district court.
8598 UNITED STATES v. KACZYNSKI
comment upon, a commercially reasonable plan to dispose of
the property at issue, the principal purpose of which shall be
to maximize monetary return to the victims and their families.
If the government fails or refuses to provide such a plan
within a reasonable period of time, or if its plan includes a
finding of negligible value or results in a nominal, taxpayer-
funded contribution to victim restitution, then the district
court is directed to return Kaczynski’s property to him.13
REMANDED for proceedings consistent with the forego-
ing opinion. The panel will retain jurisdiction over any future
appeal from those proceedings.
13
Any effort by Kaczynski to publish or otherwise profit from this prop-
erty following any return to him will, of course, remain subject to the $15
million restitution lien.