515 F. App'x 784
10th Cir.2013Background
- Penry, a federal inmate, was arrested on a Colorado parole warrant and the roommate produced his laptop and related equipment on Feb 22, 2008.
- Authorities interviewed Penry on Feb 26, 2008; Penry admitted using the computer to download and view child pornography and to camouflage files.
- A search warrant for the computer and hard drive was executed on Mar 7, 2008, uncovering 600+ images/videos of minors.
- Penry was indicted for possession of child pornography (18 U.S.C. § 2252A(a)(5)(B),(b)(2)); the indictment did not include a § 2253 forfeiture count.
- Penry pled guilty on May with the sentence of 150 months imprisonment and 20 years supervised release (Jul 11, 2008).
- In May 2012 Penry filed a Rule 41(g) motion seeking return of seized property; the district court denied as to the laptop and ordered no forfeiture title transfers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2253 and §853 require a forfeiture order for seized property | Penry argues no forfeiture order was issued, so property should be returned. | Government contends statutory provisions apply and forfeiture is appropriate. | No forfeiture order issued; property not restored, but affirmance of denial stands. |
| Whether Rule 32.2 and Rule 41(g) provide a proper path for return of property | Penry relies on Rule 41(g) to recover property; seeks quiet title. | District court correctly treated as lacking right to return given use in offense. | Rule 41(g) relief denied; quiet title vested in the government. |
| Whether the fourteen-day delay in obtaining/executing a warrant invalidated the seizure | Delay violated reasonable search and seizure standards. | Probable cause existed; delay not constitutionally improper under the circumstances. | Delay did not render the seizure unconstitutional; probable cause supported. |
Key Cases Cited
- United States v. Rodriguez-Aguirre, 264 F.3d 1195 (10th Cir. 2001) (general rule: seized property should be returned after criminal proceedings)
- United States v. Clymore, 245 F.3d 1195 (10th Cir. 2001) (administrative forfeiture; quiet title concept under Rule 41(g))
- United States v. Clark, 84 F.3d 378 (10th Cir. 1996) (administrative forfeiture considerations in similar contexts)
- United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008) (indictment and forfeiture order in §2253 context)
- United States v. Grimmett, 439 F.3d 1263 (10th Cir. 2006) (probable cause supporting search warrant issuance)
- United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009) (delay in forensic search considerations)
- United States v. Shigemura, 664 F.3d 310 (10th Cir. 2011) (Rule 41(g) review standards on abuse of discretion)
- United States v. Shomo, 786 F.2d 981 (10th Cir. 1986) (probable cause despite delay between event and warrant)
- United States v. Copeman, 458 F.3d 1070 (10th Cir. 2006) (Rule 41(e) to Rule 41(g) amendment and relevance)