March 25, 2015
UNITED STATES OF AMERICA,
SHAWN SAYER, Defendant
ORDER ON DEFENDANT’S MOTION TO RETURN NON-EVIDENTIARY PROPERTY
D. Brock Hornby, United States District Judge.
The defendant’s motion under Fed. R. Crim. P. 41(g) to return non-evidentiary property seized in connection with his prosecution and conviction for cyberstalking, Motion to Return Non-Evidentiary Property (ECF No. 164), is Denied. It appears that everything has been returned to the defendant except two computer hard drives, and they are the subject of the dispute.
This Circuit holds that “such motions are to be treated as civil complaints for equitable relief” and that “the civil preponderance-of-the-evidence standard applies.” United States v. Uribe-Londono, 238 Fed.Appx. 628, 630 (1st Cir. 2007). I apply that standard here. There are two reasons for denying the motion in this case.
First, the defendant is currently attacking his conviction and sentence under section 2255 based on inadequacy of counsel. If he is successful, the hard drives will be useful evidence in any subsequent trial to show the images of the victim that he maintained and disseminated and how he used the internet as part of the crime. The government has established this by the sworn declaration of Andrea Donovan of the Maine State Police Computer Crimes Unit and her forensic report. Therefore, the government is entitled to retain the evidence at least until the pending section 2255 motion and any appeal are finally resolved. United States v. Pierre, 484 F.3d 75, 87 (1st Cir. 2007) (“However, ‘[a] Rule 41[(g)] motion is properly denied “if . . . the government’s need for the property as evidence continues, ”’” quoting United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)).
Second, the government has established that the hard drives were derivative contraband,  i.e., they were used in committing the cyberstalking crime. (The hard drives contained sexually explicit images of the victim and were used to post them to the internet.) See Uribe-Londono, supra, at 629-30, citing and quoting Pierre, supra, at 87. The government has established this by the sworn declaration already cited. I am aware of no authority for the proposition that if the government chooses to return derivative contraband (here the hard drives) it cannot exclude from them images relating to the victim of a crime.
Accordingly, the defendant’s motion is Denied.