579 F. App'x 680
10th Cir.2014Background
- Grigsby pled guilty on Nov 15, 2012 to eight counts of sexual exploitation of a child, one count of possessing with intent to view child pornography, and one count of being a felon in possession of a firearm.
- District court granted preliminary forfeiture of property related to the charges before sentencing.
- District court allowed Grigsby access to copy certain non-pornographic family photographs from forfeited computers prior to sentencing.
- May 21, 2013 judgment imposed a 260-year sentence, ten-year supervised release, and ordered forfeiture of the property; restitution hearing was scheduled for June 24, 2013.
- July 30, 2013 amended judgment awarded $126,440 to the minor victim and $13,560 to the victim’s mother; Grigsby did not appeal the amended judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal and Rule 4(c)(1) prison mailbox rule applicability | Grigsby's notice is timely under the prison mailbox rule | Appellate timetable followed Rule 4(b) and notice was late | Timely under prison mailbox rule; appeal timely |
| Remand authority to modify restitution regarding recipient | Modification possible to change recipient for the minor's benefit | Modification not barred; interior issues to be considered by district court | Remand for expedited hearing on recipient and economic-change-based modification of restitution |
| Modification of restitution due to Grigsby's economic circumstances | Evidence of potential changes in finances warrant reconsideration | Economic change not shown or sufficient to modify initial restitution | Remand to consider whether economics justify changes to payment schedule or timing |
| Access to transcripts and Rule 41(g) relief for forfeited property | Transcripts and return of photographs are necessary for appeal | No particularized need shown; issues are on appeal and transcripts largely part of record | No remand for transcripts; Rule 41(g) denial affirmed; forfeiture-related relief affirmed |
Key Cases Cited
- United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007) (MVRA does not permit consideration of defendant's economic circumstances at restitution imposition but allows later § 3664(k) consideration of changed circumstances)
- Cani v. United States, 331 F.3d 1210 (11th Cir. 2003) (definition of material change in defendant's economic circumstances for § 3664(k))
- United States v. Libretti, 38 F.3d 523 (10th Cir. 1994) (criminal forfeiture is part of a defendant's sentence; direct appeal required for initial forfeiture)