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United States v. Hoffman

United States District Court, E.D. Virginia, Norfolk Division

November 14, 2018

UNITED STATES OF AMERICA,
v.
ROBERT PATRICK HOFFMAN, II, Petitioner.

          OPINION AND ORDER

          ROBERT G. DONMAR, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Robert Patrick Hoffman, II's ("Petitioner") Motion for Return of Seized Property ("Motion"). ECF No. 208. For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART Petitioner's Motion. ECF No. 208.

         I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         On May 8, 2013, Petitioner was named in a one-count Superseding Indictment charging him with Attempted Espionage, in violation of 18 U.S.C. § 794(a). ECF No. 50. On August 21, 2013, after a five-day trial, a jury unanimously found Petitioner guilty, beyond a reasonable doubt, of Count One of the Superseding Indictment. ECF No. 118. On November 25, 2013, the Court entered a Consent Order of Forfeiture signed by Petitioner, listing numerous electronic items to be forfeited pursuant to 18 U.S.C. § 794(d) ("Consent Order"). ECF No. 128.

         On February 10, 2014, the undersigned sentenced Petitioner to 360 months of imprisonment. ECF No. 142. Petitioner appealed his sentence and on May 5, 2015, the Fourth Circuit affirmed this Court's Judgment. United States v. Hoffman. 612 Fed.Appx. 162 (4th Cir. 2015) (opinion docketed as amended at ECF No. 194). On June 30, 2016, the clerk docketed Petitioner's Motion to Vacate Under 18 U.S.C. § 2255 ("2255 Motion"). ECF No. 203. On February 16, 2018, the court denied Petitioner's 2255 Motion. ECF No. 215. Petitioner's Notice of Appeal regarding this decision to the Fourth Circuit was filed on May 1, 2018. ECF No. 219. The Fourth Circuit dismissed Petitioner's Appeal on September 27, 2018. ECF No. 226.

         On June 6, 2017, Petitioner filed the instant Motion for Return of Seized Property ("Motion"). ECF No. 208. The United States filed its Response to Petitioner's Motion for Return of Seized Property on August 4, 2017 ("Response"). ECF No. 211. Petitioner filed his Reply to Government's Response in Opposition to the Return of Seized Property on August 21, 2017 ("Reply"). ECF No. 212.

         II. GOVERNING STANDARDS

         Federal Rule of Criminal Procedure 41(g) provides that "[a] person aggrieved by . . . the deprivation of property may move for the property's return." Fed. R. Crim. P. 41(g). However, "[t]he Court properly denies a motion for return of property if the Petitioner lacks entitlement to 'lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence continues.'" Hill v. United States. 296 F.R.D. 411, 414 (E.D. Va. 2013) (quoting United States v. Vanhorn. 296 F.3d 713, 719 (8th Cir. 2002)), affd, 567 Fed.Appx. 202 (4th Cir. 2014).

         III. MOTION FOR RETURN OF SEIZED PROPERTY

         In Petitioner's Motion, he requests return of the following:

1) All physical items/devices seized from his home that are not listed in [the Consent Order of Forfeiture], and;
2) Copies of all electronic media (i.e., family and professional photos, videos and documents) in their original file format, from the devices forfeited pursuant to [the Consent Order of Forfeiture].

ECF No. 208 at 4. Petitioner argues that he is entitled to the requested relief under because such "items were never forfeited, have never been considered contraband, are in the government's possession and are unresponsive to his . . . 28 U.S.C. § 2255 motion." Id. As to the first category of items Petitioner requests (those physical items/devices not listed in the Consent Order), Petitioner offers no argument as to what these items are or why they should be returned. Regarding the second category of requested items, Petitioner notes that "[t]he devices seized . . . contain over two decades worth of Petitioner's family's life, professional life and countless other documents stored electronically." ECF No. 208 at 3. Petitioner argues that he is not requesting the "the forfeited devices themselves" but rather, such "family and professional photos, videos and files on his seized devices." Id. at 6.

         In response, the Government sets forth three categories of Petitioner's property, some of which the Government argues must not be returned. ECF No. 211 at 3-6. First, the Government details the property which it is able to return to Petitioner. l± at 3-4. Second, the Government sets forth items which are not listed in the Consent Order, but which the Government argues it is unable or not required to return. Id. at 4-5. The Government argues that it is unable to return certain items containing classified information as well as other items belonging to the Government. Id. With regard to the third category (personal files and electronic media located on forfeited electronics), the Government argues that because Petitioner "signed a consent order of forfeiture listing numerous electronics without any exceptions or caveats," he "waived any claim whatsoever to the property set forth ...


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