Basey v. United States

Opinion

KALEB LEE BASEY, Case No. 21-cv-08688-JCS

Plaintiff, ORDER OF DISMISSAL FOR v.

UNITED STATES OF AMERICA, Re: Dkt. Nos. 10, 16, 17 Defendant.

Plaintiff filed this complaint pursuant to Federal Rule of Criminal Procedure 41(g), seeking the return and/or destruction of Yahoo! emails that were seized via warrant by the United States Attorney for the District of Alaska, and subsequently used to convict Plaintiff at jury trial in that district. The United States of America moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue, and in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The parties have consented to magistrate judge jurisdiction for all purposes under 28 U.S.C. § 636(c). (Dkt. Nos. 6 and 11.) A. Legal Standard Federal Rule of Civil Procedure 12(b)(3) allows a party to file a motion to dismiss on the basis of improper venue. Fed. R. Civ. Proc. 12(b)(3). Plaintiff bears the burden of establishing proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, (W.D. Wash. 1967)). In resolving a 12(b)(3) motion, “pleadings need not be accepted as true, and facts outside the pleadings may be considered.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). A district court, upon determining that venue is improper for a case in front of it, “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). B. Federal Rule of Criminal Procedure 41(g) Federal Rule of Criminal Procedure 41(g) provides:

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. The Rule defines “property” to include “documents, books, papers, any other tangible objects, and information.” Fed. R. Crim. Proc. 41(a)(2)(A). If a Rule 41(g) motion is made before an indictment is filed, but during a criminal investigation, “the movant bears the burden of proving both that the [property’s] seizure was illegal and that he or she is entitled to lawful possession of the property.” United States v. Gladding, 775 F.3d 1149, 1152 (9th Cir. 2014) (quoting United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987)). “But that burden of proof changes when ‘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.’” Id. At that time, the burden shifts to the government to demonstrate that it “has a legitimate reason to retain the property.” Id. “[A] defendant’s Rule 41(g) motion should presumptively be granted if the government ‘no longer needs the property for evidence.’” United States v. Kriesel, 720 F.3d 1137, 1144 (9th Cir. 2013) (quoting United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996)). The government can carry its burden by demonstrating that the property “is contraband or subject to forfeiture.” Gladding, 775 F.3d at 1152 (quoting Martinson, 809 will also suffice. Id. A Rule 41(g) motion, “when there are no criminal proceedings pending against the movant,” is “treated as [a] civil equitable proceeding[] and, therefore, a district court must exercise ‘caution and restraint’ before assuming jurisdiction.” Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993) (quoting Kitty’s East v. United States, 905 F.2d 1367, 1370 (10th Cir. 1990)); see also Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987). C. Background Plaintiff was convicted by a federal jury in the District of Alaska of one count of transportation of child pornography and one count of distribution of child pornography on December 12, 2017. United States v. Basey, 4:14-CR-00028-RRB (D. Alaska) (“Criminal Case”), Dkt. No. 214. He was sentenced to 180 months in prison and a lifetime of supervised release on May 18, 2018. Criminal Case, Dkt. No. 257. His conviction was upheld by the Ninth Circuit on August 14, 2019, which found the district court’s denial of his motion for a continuance to file additional suppression motions—following two complete rounds of pretrial suppression motions—was not an abuse of discretion. United States v. Basey, 784 F. App’x 497, 498 (9th Cir. 2019). Plaintiff’s petition for rehearing en banc was denied on September 23, 2019. Criminal Case, Dkt. No. 272. Plaintiff filed a motion for the return of seized property pursuant to Rule 41(g) in the District of Alaska on October 7, 2019. He sought the return of property seized by Army Criminal Investigation Division Agents and the Alaska State Trooper from a search of Plaintiff’s “barracks room” on Fort Wainwright, Alaska, including an iPhone, flash drive, computer, and various thumb drives and SD cards. Criminal Case, Dkt. No. 278. He also asked the district court to “order the government to destroy any derivative information obtained from [his] property that remains in its possession.” Id. at 9. The government responded that it had a “legitimate need to retain the seized property pending resolution of [Plaintiff’s] direct appeal of his criminal conviction,” Dkt. No. 281, and the district court denied the motion. Dkt. No. 282. Plaintiff filed a motion for reconsideration, order denying his Rule 41(g) motion as well as the order denying reconsideration. The Ninth Circuit affirmed, finding that although “precedent suggests that criminal proceedings are over for purposes of a Rule 41(g) motion once the defendant is convicted,” the government met its burden of demonstrating a “reasonable need to retain the property in light of [Plaintiff’s] pending collateral attack on his 2017 convictions.” United States v. Basey, 837 F. App’x 603 (9th Cir. 2021). The Ninth Circuit also denied rehearing en banc. Criminal Case, Dkt. No. 378. Plaintiff also filed a motion pursuant to 28 United States Code § 2255 to vacate, set aside, or correct his sentence. Dkt. No. 294. Counsel was appointed to represent Plaintiff for the purpose of his § 2255 motion. Dkt. No. 319. Plaintiff later asked to proceed pro se, which the district court permitted. Dkt. No. 335. The district court denied the motion, and subsequently filed an amended order at Plaintiff’s request, clarifying “issues that [he] felt were inadequately addressed in” the first order. Dkt. Nos. 357, 363. Plaintiff filed a motion for reconsideration, which the district court denied, Dkt. No. 381, after which Plaintiff appealed to the Ninth Circuit, Dkt. No. 384, which denied a certificate of appealability, Dkt. No. 403, and prohibited any further filings in the case. Dkt. No. 404. While Plaintiff’s appeal of the denial of his return of property was pending, Plaintiff, proceeding pro se, sought an injunction “restraining the United States from using [his] property for any purpose pending the result of the appeal,” in particular from using it in connection with “threat[s] to reindict [Plaintiff] on previously-dismissed charges related to the property should [he] overturn his conviction in his 2255 proceeding.” Criminal Case, Dkt. No. 327. The government agreed to refrain from forensically examining the property during the pendency of the appeal. Dkt. No. 337. Plaintiff filed his second motion for the return of seized property on May 5, 2021, regarding the same property as his first motion. Dkt. No. 369. The government responded that “after consultation with the Federal Bureau of Investigations (FBI) the Government agrees that it follows policy to return the requested property after it has been deleted in a moot.” Dkt. No. 387 at 1-2. The government noted that the “search of defendant’s room has been thoroughly litigated,” and that his Rule 41(g) motion “appears primarily focused on relitigating these . . . issues.” Id. at 2. The government indicated that Plaintiff was required to provide a name of a person authorized to receive his property. Id. at 4. The district court granted the Rule 41(g) motion, according to the terms identified by the government. Dkt. No. 388. Plaintiff responded that he “wants to fight this case and will not provide the information of who he wants the property sent to at this time.” Dkt. No. 394 at 4. He appealed the district court’s order granting his Rule 41(g) motion. Dkt. No. 399. The Ninth Circuit affirmed, rejecting Plaintiff’s argument that the “district court’s order granting relief was an injunction or ‘coerced settlement’,” and explained that “neither the district court nor [the Ninth Circuit] need reach [Plaintiff’s] claim that the property at issue was illegally seized.” United States v. Basey, No. 21-30196, 2022 WL 2872264, at *1 (9th Cir. July 21, 2022). The court quoted Martinson, 809 F.2d at 1369: “[W]hen the property in question is no longer needed for evidentiary purposes ... the legality of the search and seizure is no longer an issue.” Id. Plaintiff filed his complaint in this case on November 8, 2021, while litigation was ongoing in his District of Alaska case and numerous Ninth Circuit appeals. Dkt. No. 1. He claims that his Yahoo emails were “warrantlessly preserved under 18 U.S.C. § 2703(f) for a nine-month period,” and searched unlawfully pursuant to a warrant sought after an illegal search of his computer. Id. He seeks “an order requiring the Government to destroy his emails, a declaration that § 2703(f) is unconstitutional as applied to this case, and other related injunctive and declaratory relief.” Id. He also asks the Court to order the government to “destroy any information derived from [his] Yahoo emails” and to order the government “to not use, disclose, or refer to information discovered in or derived from [his] Yahoo emails in any future proceeding.” Id. at 42. He notes:

A declaration from this Court to the effect that reasonable jurists could conclude that the decision to seek a warrant for [Plaintiff’s] Yahoo emails was affected by prior warrantless searches of [his] devices would clarify and/or settle the [him] to file a motion under Fed. R. Civ. P Rule 60(b)(6) to reopen the judgment in his 2255 proceeding due to an intervening change in law. Id. at 12. D. Analysis Plaintiff claims that venue is appropriate in this Court because his “emails were seized by the Government from Yahoo at 701 First Ave., Sunnyvale, California, which is located in the Northern District.” Dkt. No. 1 at 3. He cites Rule 41(g)’s provision that “[t]he motion must be filed in the district where the property was seized,” arguing that “venue lies where the property was seized.” Id. Defendant argues, first, that venue does not lie in this district because Plaintiff “does not in fact seek the return of any property, but instead seeks an order directing the destruction of his Yahoo! emails and for declaratory relief.”1 Dkt. No. 10 at 6. Second, Defendant argues that although “[i]t does not appear that the Ninth Circuit has decided whether the venue provision in Rule 41(g) controls in post-conviction motions for the return of property,” a district court in the District of Columbia has held that the appropriate venue for such a motion is the “standard venue statute” or 28 United States Code § 1391. Id. at 7 (citing Ford-Bey v. United States, No. 19-2039 (BAH), 2020 WL 32991, at *12 (D.D.C. Jan. 2, 2020)). This Court finds that, regardless of whether Rule 41(g)’s venue provision applies to post-conviction motions, venue is improper in this district. If the provision does apply, it does not mandate venue in this district because the property at issue—Plaintiff’s Yahoo emails—were not seized in this district. Plaintiff’s Yahoo emails were seized in the District of Alaska, where the warrant was issued and the CD containing Plaintiff’s emails 1 The Court notes that destruction of property may be an appropriate remedy for a Rule 41(g) case. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1174 (9th Cir. 2010), overruled in part on other grounds as recognized by Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018) (citing Advisory Committee Notes on 1989 Amendment to Rule 41(e) stating that “[i]n some circumstances . . . equitable considerations might justify an order requiring the government to return or destroy all copies of records that it has seized.”). The Court also notes that, although not raised by the government, it is not clear whether emails to or from Plaintiff, stored by Yahoo after Plaintiff, according to the was obtained. See Criminal Case, Dkt. No. 172-1 at 1-2. The warrant asked the issuing District of Alaska court to order Yahoo to “send the information electronically,” or by facsimile and United States mail if electronic delivery was not available. Id. at 38. Plaintiff cites an overturned, out-of-circuit district court case finding that a provision of the Stored Communications Act, 18 United States Code § 2703, allows district courts to issue search warrants for electronic property in locations other than where the information is stored. In re Warrant to Search a Certain E-Mail Acct. Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d 466, 474 (S.D.N.Y. 2014), rev’d and remanded sub nom. Matter of Warrant to Search a Certain E-Mail Acct. Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), vacated and remanded sub nom. United States v. Microsoft Corp., 138 S. Ct. 1186 (2018). Plaintiff claims this case supports his argument that electronic property is located where the ISP is located, “not the location of any server.” Dkt. No. 13 at 7. Ultimately, the Supreme Court held that the issue in the case—whether “a U.S. provider of e-mail services must disclose to the Government electronic communications within its control even if the provider stores the communications abroad”—was mooted by the Clarifying Lawful Overseas Use of Data Act (CLOUD Act) requiring service providers to comply with a section 2703 warrant regardless of whether the information was stored abroad. Microsoft Corp., 138 S. Ct. at 1187. In fact, this case supports the concept that electronic property searches can take place, and warrants be executed, in a district other than where the data is stored. The district court specifically noted that “one reason for the amendments” to section 2703 “was to alleviate the burden placed on federal district courts in the Eastern District of Virginia and the Northern District of California where major internet service providers [ ] AOL and Yahoo, respectively, are located.” In re Warrant to Search, 15 F. Supp. 3d at 474. But Plaintiff seeks to employ the opposite of this principle by suggesting that all electronic email seizures take place in these districts. The section 2703 amendment demonstrates that federal law treats electronic property seizures as taking place in the districts where the Plaintiff also notes that the search warrant for his emails “describes Yahoo’s headquarters as the place to be searched.” Dkt. No. 13 at 7. While the warrant does identify Yahoo’s Sunnyvale address as its headquarters, it identifies “information associated with” Plaintiff’s email address as the location to be searched. See Criminal Case, Dkt. No. 172-1 at 3. The language of the warrant does not support Plaintiff’s claim that the seizure occurred in the Northern District of California. Plaintiff cites out-of-circuit precedent identifying the purpose of the amendment to Rule 41 as resolving a circuit split over whether venue for a post-conviction motion for return of property lies in the district of prosecution and trial or the district of seizure, in favor of the district of seizure. See United States v. Parlavecchio, 57 F. App’x 917, 921 (3d Cir. 2003). But Plaintiff has identified no precedent suggesting that the district of seizure of electronic property is the location where the data is stored as opposed to where the warrant was issued. This Court finds that venue does not lie in this district, not because it is not the district of prosecution or trial, but because it is not the district where the property was seized. In addition, if Rule 41(g)’s venue provision does not apply to post-conviction motions like Plaintiff’s, section 28 United States Code § 1391(e)(1)’s general venue provisions for suits against the United States would also preclude this district as neither a location where “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated,” nor the location where “the plaintiff resides.” Because the Court finds that dismissal is appropriate for lack of venue, it does not reach Defendant’s argument that the complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). l Defendant’s motion to dismiss Plaintiffs complaint is GRANTED.’ The clerk shall 2 terminate all pending motions, enter judgment in favor of Defendant, and close the file. 3 This Order terminates Docket Nos. 10, 16, and 17. 5 Dated: September 27, 2022 ° Zo 7 8 JOSEPH C. SPERO United States Chief Magistrate 9 Judge 10 11 12

Zz 19 20 21 22 23 24 25 26 27 ? Plaintiffs motion for leave to file supplemental authority (Dkt. No. 16) is GRANTED. Plaintiff's motion for preliminary relief (Dkt. No. 17) in the form of a Certificate of 28 ‘Appealability allowing him to appeal the denial of his § 2255 motion in the District of Alaska, which Plaintiff already appealed to the Ninth Circuit, is DENIED.