United States v. Douglas Spink , 524 F. App'x 352 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 09 2013
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. 12-30068
Plaintiff - Appellee, D.C. No. 2:05-cr-00085-RSM-1
v.
MEMORANDUM *
DOUGLAS SPINK,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted April 24, 2013 **
San Francisco, California
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Douglas Spink appeals from a district court order directing the government
to erase the hard drives of two computers before returning them to Spink. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conclude that this condition on returning the computers is reasonable and affirm
the district court’s order.1
“We review the denial of a motion for return of property de novo.” United
States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008) (citing United States v.
Kaczynski, 416 F.3d 971, 974 (9th Cir.2005)). “We review the district court’s
factual findings for clear error.” Id. (citing United States v. Marolf, 173 F.3d 1213,
1216 (9th Cir. 1999)). Once seized property is no longer needed for evidentiary
purposes, “‘[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.’” Id. (quoting United States v. Martinson,
809 F.2d 1364, 1369 (9th Cir. 1987)).
Here, there appears to be no question that Spink is entitled to the return of
the two computers. The only issue is whether the district court could direct that the
computer hard drives be erased before the computers were returned to Spink. The
record reflects that the government had a legitimate reason for seeking an order
allowing the erasure of the computers’ hard drives. There was substantial evidence
that Spink was a skilled computer technician, who had used his computer skills to
1
Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.
2
violate the conditions of his supervised release. Among the provisions of Spink’s
supervised release, which are not at issue in this appeal, are the following:
The defendant shall not possess or peruse any authentic, altered, or
manufactured, in whatever form, material that depicts and/or describes
“bestiality”, zoophilia or any sexual conduct involving animals except
as approved in advance by his probation officer.
The defendant shall allow a probation officer to inspect any personal
computer owned and operated by the defendant.
The defendant shall consent to the United States Probation Office
conducting ongoing monitoring of his/her computer(s), hardware, and
software. The monitoring may include the installation, at the
defendant’s expense, of hardware or software systems which allow
evaluation of his/her computer use. Monitoring may also include the
retrieval and copying of all data from his/her computer(s) or other
electronic devices/media. The defendant shall also comply with the
requirements of the United States Probation Computer Monitoring
Program as directed.
The defendant shall shut down all websites owned, operated, or under
his control that promote or contain zoophilia, bestiality or any sexual
act with animal[s] to include, but not limited to [52 specifically listed
websites].
The government professed that it could not determine whether the
computers’ hard drives appeared to be blank because they had been erased or
because they contained encrypted information that the government could not
access. This uncertainty favors the order allowing the government to erase the
hard drives. If the hard drives have been erased, there is no harm to Spink from the
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government wiping the hard drives again before it returns the computers.
However, if there is encrypted data, Spink presumably has the ability to access
those materials, and he has not offered to access the files in the presence of the
Probation Office. Moreover, if the hard drives contain encrypted materials, those
materials are likely to be the type of materials that Spink is prohibited from
possessing under the conditions of his supervised release.
The district court’s order is AFFIRMED.
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