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explaining that the Government was entitled to retain possession of seized photographs because "in [the defendant's] hands they pose a credible threat to the safety of others"
Summary of this case from Azzara v. United StatesOpinion
Nos. 07-2460-cr (L), 08-0628-cr (CON).
February 3, 2009.
UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the Southern District of New York (Brieant, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
For Appellee: STEPHEN J. RITCHIN, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y.
For Defendant-Appellant: ROBIN C. SMITH, Brooklyn, N.Y.
PRESENT: HON. JON O. NEWMAN, HON. GUIDO CALABRESI, HON. ROBERT D. SACK, Circuit Judges.
Defendant-Appellant James Sabatino was convicted of conspiracy to commit mail and wire fraud and conspiracy to commit identity fraud. He organized and led the conspiracy while serving time for an earlier conviction. After becoming aware of the conspiracy, law enforcement officers searched Sabatino's cell pursuant to a valid warrant and seized various documents and articles. Some of these were subsequently returned to Sabatino; others were not. Sabatino later filed pro se motions seeking the return of his property and also seeking to hold the United States Attorney in contempt for allegedly failing to comply with a court order. The motions were denied by the U.S. District Court for the Southern District of New York (Brieant, J.). Sabatino's appeal from those denials is the lead appeal before us today.
We have already affirmed Sabatino's conviction and sentence. United States v. Sabatino, 117 Fed. Appx. 153 (2d Cir. 2004); 159 Fed. Appx. 217 (2d Cir. 2005).
In due course, we consolidated the lead appeal with a separate appeal by Sabatino; this one from a January 22 order entered by Judge Brieant. The January 22 order attempted to clarify yet another order, which arguably suggested that Sabatino should pay only $25 per month in restitution to the victims of his fraud. In the January 22 order, Judge Brieant stated that the first order was meant to be "generic," suggesting that Sabatino could — like any other prisoner — be required to pay more in certain circumstances. Before us Sabatino claims that this order impermissibly delegated authority over his restitution and constituted an untimely amendment of the judgment. We address Sabatino's appeals in turn.
While "a criminal defendant is presumptively entitled to the return of his property once it is no longer needed as evidence, . . . the Government may retain the property if it has a legitimate reason for doing so. . . ." Lavin v. United States, 299 F.3d 123, 127-28 (2d Cir. 2002); see also id. at 128 ("A defendant's right to the return of lawfully seized property is subject to the Government's legitimate continuing interest in that property."). Moreover, "[t]he movant is not entitled to the return of property under Rule 41(g) to which he cannot claim lawful possession." Ferreira v. United States, 354 F. Supp. 2d 406, 409 (S.D.N.Y. 2005).
At oral argument, Sabatino's counsel expressly stated that her client was seeking the return only of photographs of co-conspirators, and has abandoned his efforts to secure the return of the other categories of documents. The Government has shown good reason for refusing to give the photographs back to Sabatino, as in his hands they pose a credible threat to the safety of others. Accordingly, the District Court did not err in refusing to order their return.
For similar reasons, the District Court did not err in denying Sabatino's motion for contempt, which was directed at the U.S. Attorney for an alleged refusal to return the disputed property. In order for a person to be held to be held in criminal contempt for violating a court order, the evidence must show beyond a reasonable doubt that: "(1) the court entered a reasonably specific order; (2) defendant knew of that order; (3) defendant violated that order; and (4) his violation was willful." United States v. Cutler, 58 F.3d 825, 834 (2d Cir. 1995). And in order for a person to be held in civil contempt, "the court need only (1) have entered a clear and unambiguous order, (2) find it established by clear and convincing evidence that that order was not complied with, and (3) find that the alleged contemnor has not clearly established his inability to comply with the terms of the order." Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995). Here, there was no court order directing the U.S. Attorney to return any of Sabatino's property, and therefore the U.S. Attorney could not possibly be held in contempt for refusing to do so.
Finally, in the consolidated appeal Sabatino challenges a January 22 order entered by the District Court, which he says improperly delegated authority over Sabatino's restitution scheme to the Bureau of Prisons and constituted an untimely amendment of the judgment. Assuming for present purposes that this order is final, see Flanagan v. United States, 465 U.S. 259, 263 (1984), and that we therefore have jurisdiction to consider Sabatino's appeal from it, we do not find anything improper in the District Court's order. To whatever extent the order may be viewed as more than a clarification, the order was not a modification of that portion of the judgment setting the total amount of restitution, but was, at most, a permissible modification of the scheduled payment obligation, which was an injunction, over which the district court retained continuing jurisdiction. See 18 U.S.C. § 3664(n) (requiring payment toward restitution of funds received while incarcerated).
We have considered the remainder of Sabatino's arguments and find them to be without merit. Accordingly, we AFFIRM the denial of Sabatino's motion for contempt, AFFIRM the District Court's refusal to order the return of the disputed property, and AFFIRM District Court's January 22 order.
Sabatino's former counsel, Anna Wirth, has also sought clarification as to whether she has any obligation to return to Mr. Sabatino "specific information from his file" that was "included within the nine categories of materials the government declined to return to Mr. Sabatino." As noted, at argument, his current counsel has now limited that request to photographs of former co-conspirators.
As a general rule, a lawyer cannot assist her client (or former client) in the commission of a crime. By order dated August 30, 2006, the District Court appeared to conclude that the government was justified in retaining these documents because they would facilitate Sabatino's commission of future crimes. Under the circumstances, in our view, it would likely be reasonable for Ms. Wirth to conclude that the photographs might assist Sabatino's commission of future crimes, and on that basis decline to return them to Sabatino.