United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
G. DONMAR, UNITED STATES DISTRICT JUDGE.
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.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
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.
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.
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.
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).
MOTION FOR RETURN OF SEIZED PROPERTY
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.
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