United States v. Theodore Kaczynski

FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10495
Plaintiff - Appellee, D.C. No. 2:96-cr-00259-GEB-
GGH-1
v.
THEODORE JOHN KACZYNSKI, AKA MEMORANDUM *
FC,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted July 12, 2011 **
San Francisco, California
Before: SCHROEDER, CANBY, and HAWKINS, Circuit Judges.
In a prior appeal, we affirmed the district court’s proposed plan for a judicial
sale of certain items belonging to Theodore Kaczynski and remanded for further
proceedings. United States v. Kaczynski, 551 F.3d 1120 (9th Cir. 2009). Following
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
remand, Kaczynski now appeals pro se from the district court’s order of September
17, 2010, which clarified how such sale would be conducted.
Kaczynski claims his designee should have ninety days prior to the sale of his
original writings to examine the copies of his writings provided by the government.1
We take judicial notice that the internet sale of Kaczynski’s belongings has already
occurred. Bob Egelko, Auction Raises $232,246 for Attack Victims, S.F. C HRONICLE,
June 4, 2011, at C1. Thus, we are unable to grant Kaczynski the relief he requests;
and this claim is rendered moot. See Sandidge v. State of Washington, 813 F.2d 1025,
1025 (9th Cir. 1987) (“A case is moot if the reviewing court can no longer grant
effective relief.”).
Kaczynski further requests that the government be ordered to provide him with
a complete copy of not only his own writings, but of any writings by others which
were seized from his Montana cabin. This request lacks any legal basis and appears
to be founded on a misreading of our prior opinion. Our prior opinion addressed only
whether the forced sale of Kaczynski’s personal writings violated the First
Amendment. 551 F.3d at 1123-29. In concluding it did not, we explained that
Kaczynski’s ability to communicate his thoughts was not impaired by the loss of the
1
The district court instead ordered that the government should maintain a copy
of Kaczynski’s writings for one year from the date it supplies a complete copy to
Kaczynski’s designee, an alternative plan proposed by Kaczynski.
2
originals, and noted in passing that the district court had already ordered the
government to provide Kaczynski (through his designated recipient) with copies of
any page he had not already received in legible form. Id. at 1127. We were not
imposing a new and broader requirement on the government, but merely restating
what the district court had already required of it. Id. (quoting United States v.
Kaczynski, 446 F. Supp. 2d 1146, 1154 n. 12 (E. D. Cal. 2006)). The district court’s
refusal to provide copies of the seized writings of others therefore did not violate our
directive on remand.
AFFIRMED.2
2
The United States’ pending Motion for Summary Affirmance and Opposition
to Appellant’s Motion for Stay is denied as moot.
3