United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on defendant's pro se
letter that does not have a caption, but which has been
deemed to be a Motion for Return of Seized Property/Post
Trial. Defendant's letter contains an ad mixture of
projections, requests, and accusations.
defendant projects that he is filing a Section 2255 motion.
Review of the docket does not reveal that such a motion has
defendant contends that his attorneys have his
“evidence supporting my facts” and that his
attorneys have not given him those materials despite his
requests. Defendant does not appear to allege that he is
unable to formulate his Section 2255 motion without those
materials, but appears to suggest that those materials would
be evidence that would support his yet-to-be filed petition.
Such issue can be dealt with once petitioner files his
petition and the Court has had an opportunity to do an
initial screening to see if viable claims have been stated
within the time allowed.
defendant states that he has asked his attorneys to file a
motion for return of seized property. While he appears to
state that no motion was filed, he goes on to provide that
his stepmother was able to retrieve some of his property, but
still has “approved returnable items.” The Court
considers this to be a statement of facts as they appear to
defendant complains that the FBI cleaned a Sony computer
before his stepmother picked it up and that such machine had
no illegal materials, but contained irreplaceable family
documents. To the extent defendant may be contending that the
government destroyed his personal property, that claim cannot
be prosecuted in this criminal action but must be pursued
through administrative claims and, perhaps, the Federal Torts
Claim Act in a civil proceeding after exhaustion of
defendant contends that the cleaned Sony computer also
contained “evidence of supporting facts.”
Defendant's remedy, if any, is to argue in the Section
2255 action that such cleaning of his computer is
“spoliation” of evidence and that the Court
should consider whatever he describes as being on that
computer that supports his contentions. Again, there is no
relief available in this criminal action and can only be
determined once defendant files his Section 2255 motion.
defendant states that he is “filing a motion to return
seized property.” Earlier statements in the motion
indicate, however, that the government has agreed to return
his personal property, with some materials available that
simply have not been picked up. Thus, there is no relief
which can be afforded under Rule 41(g) at this point.
defendant states that he would “rather my stepmother
pick up the case files and disks from my attorneys.” To
the extent defendant believes he needs information in the
possession of his criminal attorneys to provide evidentiary
support in the civil Section 2255 case that has not been
filed, that issue is not yet ripe because the Court will only
know what the claims are once it has screened the petition.
Further, defendant is advised that to the extent he may be
seeking discovery that was provided to defense counsel
pursuant to a discovery agreement, the Court notes that the
government's open file policy prevents defense counsel
from providing defendants with copies of discovery and that
such materials are typically returned to the government at
the conclusion of the case. Shelton v. Inman,
1:17CV327, 2017 WL 2455781, at *3 (M.D. N.C. Apr. 25, 2017),
report and recommendation adopted, 1:17CV327, 2017
WL 2455102 (M.D. N.C. June 6, 2017). Such a practice is
completely lawful. Id. Defendant can certainly ask
his attorneys to provide him with a copy of his own
defendant can identify any item of personal property that has
not been made available for return and is not contraband, he
can file a specific Rule 41(g) motion seeking return of that
item or items. If defendant needs a copy of his case file
from his attorneys (that is not subject to the discovery
agreement) to prepare his Section 2255 motion, he
can file a Motion to Compel his attorneys to provide such a
copy but must show therein that a copy has not previously
been provided, that he has attempted to resolve the request
with the attorneys prior to filing the motion, and that the
attorneys have been sent a copy of the motion.
IS, THEREFORE, ORDERED that defendant's pro se
Motion for Return of Seized Property/Post Trial (#55) is
DENIED without prejudice. If defendant can
identify any item of personal property that has not been made
available for return and is not contraband, he can file a
specific Rule 41(g) motion seeking return of that item or
is reminded that he has one (1) year from the Judgment in
this matter becoming final to file a petition under 28 U.S.C.
§ 2255. A judgment of conviction becomes final when the
time expires for filing a petition for certiorari
contesting the appellate court's ...