Fifth Circuit Sends Request for Return of Confiscated Property Back to Trial Court – U.S. v. Bacon

December 16, 2013 by David S. Seltzer

Defendants arrested for child pornography crimes are generally too worried about the long criminal sentences imposed for these crimes to think about property forfeiture. But in addition to serving time in prison, defendants may also see their property confiscated by police agencies. This is perfectly legal, despite what many observers might think. But defendants are free to challenge the confiscation of their property, which is what Welles D. Bacon did in U.S. v. Bacon. Bacon was convicted of one count of child pornography possession in 2009, when police seized computer equipment and media storage from his home. Only some of this contained child pornography, so Bacon filed a motion in 2012 for the return of the property that did not contain child porn. The district court denied him, but the Fifth U.S. Circuit Court of Appeals reversed, saying Bacon could possess media that was not Internet-enabled.

Bacon’s property was seized on Feb. 6, 2009. The property included two laptops, two external hard drives, six memory sticks, five USB flash drives, one digital recorder, 42 CDs and 13 VHS cassettes. One of the hard drives and two or three of the flash drives were found to contain child pornography. Welles was charged with five counts of child pornography possession, and later pleaded guilty to one count as part of a plea deal. The district court sentenced Bacon to 10 years in prison and a lifetime of supervised release that included special conditions. One such condition was a prohibition against Bacon possessing Internet-capable software on any electronic storage media, without advance written approval from the probation office. Three years later, Bacon moved to return the property without any child pornography on it. The government responded by noting that at least some of it had been destroyed after Bacon failed to contest forfeiture, and the district court denied the motion, chiding Bacon for wanting the equipment that facilitated his crime.

Because the property was destroyed, the Fifth Circuit treated the request as a civil action seeking damages for the destruction of the property. Both parties relied on the wrong sections of the law, the court noted, but that doesn’t end Bacon’s claim; it noted that if Bacon had been permitted to amend his claim, he could have made a claim under Bivens v. Six Unknown Named Agents for wrongful confiscation and destruction of his property. Because he is a pro se litigant, the court deferred to him under prior circuit cases and treated his claim as a Bivens claim. Under that standard, the court said, the computers were properly forfeited because the government had sent him a letter about them. But the other equipment was not mentioned in that letter, the Fifth said, so Bacon did not get due process of law. As a result, it ruled, the trial judge should not have dismissed the request. It doesn’t matter that Bacon is forbidden from owning “Internet capable software” stored on electronic media, the court noted; he is still free to possess the media without such software. It sent the case back for further proceedings on compensation for the destroyed media.

The Fifth Circuit was kind to Bacon because he was representing himself in this request. As the opinion shows, criminal forfeiture is complicated, and people who represent themselves can quickly find themselves in over their heads. This court was sympathetic—perhaps because the destruction of private property by the state is the stuff of nightmares—but courts are often not sympathetic to self-represented people if they feel their time is being wasted. That’s especially true for people who are fighting child pornography charges, because there’s not much public sympathy for people accused of those crimes, sometimes even before the charge is proven. That’s why it’s very important for those accused to get help from an experienced cyber crime defense attorney who knows their rights and how to enforce them.

Seltzer Law, P.A., represents clients across the United States who are charged with serious crimes involving technology and the Internet. To learn more or set up a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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