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United States v. Colon

United States District Court, Third Circuit

October 23, 2013

United States of America,
v.
Lawrence Colon, Defendant.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Presently before the court is the defendant's motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. (Doc. No. 91). The charges in this matter stern, in part, from a search warrant executed at the residence of the defendant Lawrence Colon and codefendant Kelly Jean Hefferon by members of the Pennsylvania State Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a search which resulted in the seizure of numerous items of evidence.

On January 13, 2009, a federal grand jury returned a four-count indictment against the defendant and Hefferon. The defendant's indictment included a forfeiture count (Count IV), which sought the forfeiture of three firearms allegedly used in the commission of his offenses. (Doc. No. 95 at 2). The defendant entered into a binding plea agreement with federal prosecutors and, pursuant to that agreement, the defendant pleaded guilty to the charge of being a convicted felon in possession of a firearm and was sentenced to sixty months in prison to be followed by three years of supervised release. (Doc. No. 95, at 2). In addition, the defendant and Hefferon also agreed to forfeit all interest in the firearms listed in Count IV of the indictment. (Doc. No. 95, at 2).

On November 26, 2012, the defendant filed the present motion seeking the return of property that was seized during the execution of the search warrant. These items include:

6 entry vest tactical, 2 computer modems HP-ZT, photos, 4 radios with charger, 1 black gloves leather, 10 personal photos, 4 flash drives, HP laptop computer, 3 shoulder holsters, numerous business cards, 5 photos, magazines, 1 book of firearms laws, 1 special forces pin on vest, misc paper work, and all other personal item [sic] that belong to Mr. Lawrence Colon and Kelly Hefferon, are to b [sic] returned to the address below. (Doc. No. 91.)

On December 12, 2012, the government filed a brief in opposition to the motion, enumerating all of the items that were previously returned to the defendant as well as his plea agreement and its destruction provision. (Doc. No. 95). On January 14, 2013, the defendant filed a motion to vacate in which he sought to dismiss the charge of convicted felon in possession of a firearm. (Doc. No. 96). On March 28, 2013, this court dismissed the defendant's motion to vacate because he did not present his motion on the required standard form. (Doc. No. 99). The defendant was given the proper form and additional time to file his motion to vacate. Despite the extension of time, the defendant did not return the form. When given an additional chance to return his form, the defendant failed to comply for a second time. (Doc. No. 99). His motion was therefore dismissed by this court. (Doc. No. 99). However, the defendant's original motion for return of property is currently pending. All items that the defendant seeks have either been returned, forfeited, or destroyed. As a result, the motion will be denied.

The defendant seeks the return of property pursuant to Rule 41 (g) of the Federal Rules of Civil Procedure. Rule 41 (g) states:

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed. R. Cr. P. 41 (g).

When a motion for return of property is made while a criminal prosecution is pending, the burden is on the moving party to show why he is entitled to the property. United States v. Davies, No. 08-253, 2010 WL 3024844, at *6 (M.D.Pa. July 29, 2010) (citing United States v. Chambers , 192 F.3d 374, 377 (3d Cir.1999)). When the criminal proceedings have concluded, however, the burden of proof shifts to the government to show that the property should not be returned. Chambers , 192 F.3d at 377. At that point, the person from whom the property was seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate reason to retain the property. Id. at 377. Regardless of who has the burden, a Rule 41(g) motion will generally be denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband, or the government's need for the property as evidence continues. Davies, 2010 WL 3024844, at *6. (citing Chambers , 192 F.3d at 377).

If, as here, the government contends that it simply is not in possession of plaintiffs requested items, "the district court must determine, in fact, whether the government retains possession of the property." Chambers , 192 F.3d at 378. If not, the court must determine what happened to it, and if there is a "disputed issue of fact necessary to the resolution of the motion, " the court must hold an evidentiary hearing. Id . Of course, the court need not hold a hearing on every issue of disputed fact, only those "necessary to dispose of the motion." U.S. v. Albinson , 356 F.3d 278, 281 (3d Cir. 2004). If the government argues that it does not have the property, "[it] must do more than state, without documentary support, that it no longer possesses the property at issue." Id . Nonetheless, the Third Circuit has stated that courts have significant discretion in resolving disputes over property seized by government officials:

We note at the outset that a district court need not necessarily conduct an evidentiary hearing on every Rule 41(g) motion. The rule only directs a district court to receive evidence on any factual issue necessary to decide the motion. Likewise, Chambers does not mandate the method by which a district court must determine, in fact, whether the government retains possession of the property, so long as this determination rests on a firmer basis than the government's unsubstantiated assertions that it no longer possesses the property at issue. For example, affidavits or documentary evidence, such as chain of custody records, may be sufficient to support a fact finder's determination. U.S. v. Albinson , 356 F.3d 278, 281-82 (3d Cir. 2004).

The court will now consider each of Colon's property requests, but the court must first address a preliminary matter. Plaintiff improperly characterizes his motion as a "Motion for the Return of Property, " (Doc. No. 91), because once criminal proceedings have been terminated, a motion under Rule 41(g) is referred to as a civil proceeding for equitable relief. U.S. v. Chambers , 192 F.3d 374, 376 (3d Cir. 1999). ("A District Court has jurisdiction to entertain a motion for return of property made after the termination of criminal proceedings against the defendant; such an action is treated as a civil proceeding for equitable relief."). Therefore, the court will construe defendant's motion as a civil proceeding for equitable relief instead of a motion for the return of property. Furthermore, Colon improperly states that his request is made pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. In 2002, Rule 41(e) was changed to Rule 41(g) as part of the "restyling of the Criminal Rules." Albinson , 356 F.3d at 279, n. 1. As such, the court will refer to Colon's request as pursuant to Rule 41(g).

Item One: "Entry Vest Tactical"

The defendant first seeks return of an "Entry Vest Tactical." The government contends that this vest has already been returned to its owner, as evidenced the police records of the Pennsylvania State Police, a document akin to a chain-of-custody record. (Doc. No. 95, Ex. B at 6). In fact, the police records indicate that all vests seized by the state police or ATF during the execution of the warrant at issue in this case were signed for by and returned to Hefferon. Because the property record indicates that all vests were returned, the court will dismiss Colon's request for return of an "entry vest tactical."

Item Two: "(2) Computer Modems WP-ZT"

The defendant next seeks to have his "(2) Computer Moderns WP-ZT" returned. The government makes no reference to this item or other "computer modems" within the Pennsylvania State Police property record. The government has demonstrated to the court, through their submission of the signed property record, that such items were never seized. Therefore, the defendant's claim fails.

Item Three: Photos and Personal Photos

The defendant also seeks to have his "photos, " "5 photos, " and "10 personal photos" returned. This description does not make it clear how many photos are sought. Moreover, it is difficult for the court to determine what constitutes "personal photos" without any additional description from the defendant. For the purposes of this motion, however, the court will assume that the defendant is requesting all photographs seized during the execution of the warrant.

The government contends that "fifteen various photographs" were destroyed, according to the Pennsylvania State Police property record's disposition code. (Doc. No. 95, Ex. B at 5). The property record, (Doc. No. 95, Ex. B at 3), also indicates that "Two pictures from camera station, printouts" were destroyed. The property record reflects that the "fifteen various photographs" and "two pictures from camera station, printouts" were all of the defendant's photographs in the government's possession. Therefore, the court finds that the government is no longer required to return these items to the defendant. The defendant's claim fails.

Item Four: Radios with Charger

The defendant next seeks to have his "(4) Radios With Charger" returned. The government claims that it returned "(2) Black UAW Hand Held Radios With One Charger" and points to the Pennsylvania State Police property record as proof (Doc. No. 95, Ex. B at 7). In addition, (Doc. No. 95, Ex. B at 7) demonstrates that Hefferon accepted and received these items. Even though the defendant is seeking four radios, the property record indicates that only two radios and one charger were taken during the execution of the search warrant. As a result, the court can infer that the defendant properly received all of his property. The government cannot be held liable for property that was never taken, as evidenced by the property record. Therefore, the defendant's claim fails.

Item Five: (1) Black Leather Gloves

The defendant seeks return of his "(1) black gloves leather". The government makes no reference to the item within the Pennsylvania State Police property record. The government has demonstrated to the court, through its submission of the signed property record, that such property was never seized. Therefore, the court finds that the government did not confiscate the plaintiffs property during the search warrant. The defendant's claim fails.

Item Six: (4) Flash Drives

The defendant seeks return of his "(4) flash drives." The government contends that the Pennsylvania State Police property record indicates that "(1) USB Black Sandisk Flash Drive" and "(1) USB Orange Attache Flash Drive" were released to owner/finder. (Doc. No. 95, Ex. B at 5). In addition, Hefferon accepted and received these items. (Doc. No. 95, Ex. B at 7). Despite the defendant's claim for four flash drives, the property record indicates that only two flash drives were taken. Therefore, the courtfinds that the government properly returned all of the defendant's property. The defendant's claim fails.

Item Seven: HP Laptop Computer

The defendant seeks recovery of his "HP laptop computer." The government contends that the Pennsylvania State Police property record indicates that this item was released to the owner/finder, according to the disposition code. (Doc. No. 95, Ex. B at 6). The property record described the item as a "(1)Black HP Lap Top Computer Serial # CNF7081X2K". In addition, "(1) S liver HP Computer Tower Serial#MKM40201 KF and (1) Black 2T Computer Tower Serial #XXXXXXXXXXXX" were also released to the owner/finder. (Doc. No. 95, Ex. B at 6).

The court finds that the government returned the defendant's property. In addition, Hefferon accepted, received, and signed for the items. (Doc. No. 95, Ex. B at 7). For these reasons, the defendant's claim fails.

Item Eight: (3) Shoulder Holsters

The defendant seeks to have "(3) shoulder holsters" returned. The government contends that the Pennsylvania State Police property record indicates that "(9) Nylon Black Holsters" were released to the owner/finder, according to the disposition. (Doc. No. 95, Ex. B at 5). In addition, Hefferon accepted, received, and signed for these items. (Doc. No. 95, Ex. B at 7).

Although the property record did not describe the holsters precisely as "shoulder holsters, " the court is able to infer that the government properly returned these items, given the similarity in description. The government will not be required to return items that were already released. The defendant's claim fails.

Item Nine: Numerous Business Cards

The defendant seeks the return of "numerous business cards." The government has demonstrated to the court, through its submission of the signed property record, that such property was never seized. There is also nothing on the property record to suggest that any seized item could fall within the meaning of "numerous business cards." Therefore, the court finds that the government did not confiscate business cards during the execution of the search warrant. The defendant's claim fails.

Item Ten: Magazines

The defendant seeks the return of his "Magazines." The Property Status Summary Report describes how certain magazines were seized administratively. (Doc. No. 95, Ex. C at 4). The report indicates that "Two Taurus Magazines (One Containing Ten Rounds of 9MM Ammunition; One Containing Twelve Rounds of 9MM Ammunition" and "Two Springfield XD Magazines Each Containing An Apparent Twelve Rounds of.40 Caliber Hornady Hollow" were received by ATF and administratively seized. (Doc. No. 95 at 3). ATF has represented to government counsel that these items have since been destroyed. (Doc. No. 95 at 3-4).

The court finds that all "magazines" within the meaning of the defendant's claim were seized by the ATF and have since been destroyed. Therefore, the defendant is not entitled to this property.

Item eleven: Book of Firearms Laws

The defendant seeks return of his "Book of Firearms Laws." The government makes no reference to the item within the Pennsylvania State Police property record. The government has demonstrated to the court, through its submission of the signed property record, that such property was never seized. Therefore, the court finds that the government did not confiscate this property. The defendant's claim fails.

Item twelve: Special Forces Pin on Vest

The defendant seeks the return of "(1) Special Forces Pin On Vest." While the police record does not reflect that any such item was seized, it does show that "(2) Security Enforcement Badges" were seized and destroyed. (Doc. No. 95, Ex. B at 5). Either the defendant seeks the return of an item which was never seized, or he seeks return of badges which were destroyed. In either case, plaintiffs claim must fail, as the government has demonstrated that it cannot return the property in question.

Item thirteen: Misc. Paperwork

The defendant seeks the return of "Misc. Paperwork." The government states that "(1) Package with Misc. Paperwork for Wargods Inc." was destroyed, according to the disposition of the Pennsylvania State Police property record. (Doc. No. 95, Ex. B at 5). The property record does not reflect that any other paperwork was seized, and so the court is satisfied that the package destroyed was in fact the same "Misc. Paperwork now requested. Therefore, the court finds that the government no longer has access to the requested paperwork and is no longer required to return these items to the defendant. The defendant's claim fails.

Conclusion

The defendant filed a motion for return of property seeking the return of multiple items of property. Although the defendant offers only vague descriptions of the property sought, the Pennsylvania State Police property record and ATF Property Status Summary Report submitted by the government adequately, and in many instances more precisely, describe the seized property. These records demonstrate that there was no wrongful withholding of defendant's property. The court finds that the defendant's motion fails for all of the property which he seeks. An appropriate order will follow.

Francis P. Sempa, U.S. Attorney's Office, Scranton, PA, for Plaintiff.

Hervery B.O. Young, Federal Public Defender's Office, Scranton, PA, for Defendant.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

*1 Presently before the Court is Defendant Lewis John Davies' Supplemental Pre-Trial Motions (Doc. 94) Defendant's motion seeks to I) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant 2) sever Counts I and II of the superseding indictment, 3) dismiss Count III of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant. (Doc. 94) Also before the Court is Defendant's Motion to Dismiss Count I of the superseding indictment. (Doc. 100)

BACKGROUND

In 2008, Defendant was under investigation by the Federal Bureau of Investigation ("FBI") for potential violations of internet solicitation of a minor to engage in sexual activity pursuant to 18 U.S.C. § 2422(b). On June 12, 2008, a search warrant was issued for Defendant's home; the warrant authorized law enforcement officials to seize certain property as evidence of criminal activity in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. §§ 2252, 2252A, which in make it illegal to knowingly receive, possess, or attempt to possess child pornography. An attachment to the warrant listed the items to be seized and searched as all visual depictions of child pornography as defined by 18 U.S.C. § 2256, including all computers, disks, cables and other items, all computer passwords, all documents, records, emails, Internet history pertaining to violations of 18 U.S.C. § 2256, and any records, documents, invoice; notes and materials that pertain to accounts with an internet service provider.

The affidavit for probable cause claims to set forth facts relevant to establish probable cause of violation of 18 U.S.C. § 2422(b) and 18 U.S.C. §§ 2252, 2252A. According to the affiant Jennifer Welsh, who was also the FBI agent who conducted the investigation, Defendant engaged in several Internet chats and messages with the agent, who posed as a fourteen-year-old girl. Defendant also allegedly sent pictures of his genitalia to the agent, indicated that he would like to take pictures of the agent on his pool table, conmented that he would like to see nude photographs of the agent, and described his house and told the agent the block on which he lived.

The affidavit went on to explain that the agent traveled to the block described by Defendant, and found a house matching the description that Defendant had maven to the agent. It also noted that a 2006 study by the National Center for Missing and Exploited Children, the Crimes Against Children Research Center, and the Office of Juvenile Justice and Delinquency Prevention found that 43% of the offenders who solicited undercover investigators posing online as minors also possessed child pornography. Magistrate Judge Malachy E. Manion issued the warrant on June 12, 2008.

On June 13, 2008, agents executed the warrant on Defendant's residence and recovered over thirty (30) pieces of property, including laptops, desktops, thumb drives, CD's, floppy disks, a video camera, and cables. Among the items seized was a CD that allegedly contains a ten second video clip of a minor engaging in sexual activity.

*2 On June 17, 2008, a grand jury issued a one-count indictment, charging Defendant with knowingly attempting to persuade, entice, or induce a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b) (Count I). Defendant filed a motion to dismiss, which was subsequently denied as moot when the government filed a superseding indictment that added charges for possession of child pornography pursuant to 13 U.S.C. §2252(a)(4)(B) (Count II) and knowingly attempting to transfer obscene material to an individual under the age of sixteen (16) pursuant to 18 U.S.C. 1470 (Count III).

On January 28, 2010, Defendant filed the instant motion seeking to I) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant 2) sever Counts I and II of the superseding indictment' 3) dismiss Count III of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant. On April 12, 2010, Defendant refiled his Motion to Dismiss Count I of the superseding indictiment. These motions are fully briefed and are currently ripe for disposition.

DISCVSSION

I. Motion to Supress

Defendant argues that the CD allegedly con. taining child pornography should be suppressed because the warrant authorizing seizure of the CD was issued without probable cause and lacked specificity.

A. Probable Cause

The Fourth Amendment to the United States Constitution provides that"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Evidence that is seized pursuant to a search warrant that is not issued won probable cause may be suppressed. United Slates v. Vosburgh, 602 F.3d 512, 525 (3d Cir 2010) (citations omitted). District courts reviewing a magistrate judge's decision to issue a warrant must determine whether the magistrate judge had a "substantial basis" for determining that probable cause existed. United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir.2002) (citing United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir.1993)). To do so, this Court "must determine if a practical, commonsense decision [was made] whether, given all the circumstances set forth in the affidavit before him... there is a fair probability that contraband or evidence of a crime [would] be found in a particular place.'" Zimmerman, 277 F.3d at 432 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). While the decision of the magistrate should be paid great deference, Harvey, 2 F.3d at 1322, district courts reviewing a magistrate judge's decision should not "simply rubber stamp a magistrate's conclusions." United States Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983).

*3 There are two cases from the Third Circuit Cote of Appeals that could potentially control this case. Defendant argues that Zimmerman should control. In that case, the defendant was a ldgh school teacher and basketball coach who was accused of molestation by several former students. Zimmerman, 277 F.3d at 430. The allegations against the defendant included accusations that he had forced his students to simulate oral sex on him, touched their genitalia, talked about graphic sexual matters, and had shown pornography consisting of a video clip of an adult woman performing fellatio on a horse. Id. A search warrant was issued seeking both adult and child pornography, the police raided defendant's home and found several an ages of child pornography. Id. at 431-32. The affidavit referred to the aforementioned video clip and contained en opinion by Postal Inspector Thomas Clinton that persons with sexual interest in children may possess child pornography, but Thomas' opinion did not refer to the defendant or the facts of the case. Id. at 431. The Third Circuit Cow/. of Appeals held that the warrant was not issued on probable cause because "there was absolutely no information in the affidavit or anywhere else indicating that child pornography was-or ever had been-located [at defendant's residence]." Id. at 433.

Recently, the Third Circuit Court of Appeals distinguished the holding in Zimmerman. In Vosburgh, the FBI set up a sting operation on a known child pornography message board by posting a link that purported to be a video of a four-year-old child engaged in sexual activity. 602 F.3d at 517. When defendant clicked on the link, it created a log file that allowed the FBI agent to track the users of the link by their Internet Protocol ("IP") address. Id. Defendant attempted to download the link three times in a two-minute period. Id. at 518. The FBI agent then tracked the defendant's address by using his IP address and conducted surveillance on the defendant's residence. Id. Based on the surveillance, the agent applied for a search warrant; the affidavit in support of the application discussed the actions of child pornography collectors generally, the nature of the message board used in the sting operation, why it was unlikely that somebody attempting to access the link could have done so by accident, and finally the facts specific to defendant including defendant's repeated efforts to access the link that he believed contained child pornography. Id. at 518-19. The Third Circuit Court of Appeals held that:

Attempted possession of child pornography is a federal crime. See 18 U.S.C.§2252(b)(2). Therefore, the attempts to access the Link by someone using [defendant's] IP address were undoubtedly criminal activity. Considering the "totality of the circumstances?' outlined in Agent Desys affidavit, Gates , 462 U.S. at 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, we think it was fairly probable that "instrumentalities or evidence" of that criminal activity-such as computers and computer equipment would be found in [defendant's] apartment
*4 Id. at 527.

This case is more like Vosburgh than Zimmerman. As in Vosburgh, the affidavit of probable cause set forth facts that would make it fairly probable, considering the totality of the circumstances, that evidence of attempted possession of child pornography in violation of 18 U.S.C. § 2252 would be found in Defendant's home. Defendant engaged in explicit online discussions with the agent, said he wanted to take pictures of her on his pool table, asked her to take off her hoodie and shirt in subsequent photographs, and then gave her his address. Therefore, there was sufficient evidence to drive rise to probable cause to believe that Defendant attempted to produce ardor possess child pornography. This case is distinguishable from Zimmerman where there was no evidence that the defendant had ever possessed or attempted to possess child pornography at any time. Thus, the warrant was issued on probable cause.

B. Specificity

Defendant also argues that the warrant did not set out the items to be seized with sufficient specificity. As noted above, the Fourth Amendment to the United States Constitution requires that a search warrant particularly describe the place to be searched and the persons or things to be seized "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231, (1927).

The Third Circuit Court of Appeals has upheld the language "[p]hotogaphs, drawings, magazines or other visual media to include photographic slides, videotapes or literature depicting children under the age of 18 years engaging in sexually explicit conduct as defined in Title 18, U.S.Code, Section 2256" as being sufficiently specific to satisfy the Fourth Amendment. United States v. Loy, 191 F.3d 360, 369 (3d Cir.1999). Likewise, the Third Circuit Court of Appeals has upheld "[c]omputers, computer peripherals, related instruction manuals and notes, and software in order to conduct an off-site search for electronic copies of [documents)" as satisfying the Fourth Amendment's particularity requirement. United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir.2002).

The items listed in the instant warrant, while broad, described inclusive generic terms of what should be seized and, therefore, did not give the executing officers unbridled discretion. Id. The Third Circuit Court of Appeals has held that similar language satisfied the Fourth Amendment in Loy and Ninety-Two Thousand Four Hundred Twenty-Two Dollars and My-Seven Cents. The warrant in the instant matter is also sufficiently specific. Therefore, Defendant's Motion to Suppress will be denied.

II. Motion to Sever

*5 Defendant also seeks to sever Count I (for internet enticement of a minor) from Count II (possession of child pornography). Fed.R.Crim.P. 8(a) states that an indictment "may charge a defendant in separate counts with 2 or more offenses if the offenses charged-whether felonies or misdemeanors or both-are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." The rule is disjunctive; therefore, if any of the criteria are satisfied, joinder is permissible.

At least one court of appeals has held that enticement of a minor to engage in sexual activity and possession of child pornography are similar charges that may be joined pursuant to Rule 8(a). United States v. Rivera, 546 F.3d 245, 253 (2d Cir.2008) (citing United States v. Hersh, 297 F.3d 1233, 1242 (11th Cir.2002)). This Court agrees with the Second Circuit Court of Appeals that such charges have a "sufficient logical connection" that they can be said to be of the same or similar character. See id. (quotations omitted).

Defendant argues that, even if the charges may be joined, they should not be because they are prejudicial. Fed.R.Crim.P. 14(a) provides that [i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Defendant contends that the government's evidence of possession of child pornography is weak and that government might use evidence of the other offenses to "bootstrap" the proof on the child pornography charge. In Rivera, the Second Circuit Court of Appeals held that such a "spillover" argmment of generalized prejudice is not sufficient to show that a district court must exercise its discretion to sever pursuant to Rule 14(a). Rivera, 546 F.3d at 254. Defendant has not cited any case that would suggest that such "prejudice" requires severance. As such, this Court will not sever the charges, and Defendant's motion on this ground will be denied.

III. Motion to Dismiss as Multiplicitous

Defendant also moves to dismiss Count Ill. of the superseding indictment (forwarding obscene materials to a person less than sixteen (16) years of age) because it is multiplicitous of Count I (Internet enticement of a minor). "The basic inquiry in determining whether counts of an indictment are truly separate, and not multiplicious, is whether proof of one offense charged requires an additional fact that proof of the other offense does not necessitate." United States v. Carter, 576 F.2d 1061, 1064 (3d Cir.1978) (citing United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 97 L.Ed. 61 (1952)).

The two charges at issue here require proof at least one additional fact. Count Ill. only requires that the government prove that the Defendant transferred images to someone under the age of sixteen Count I requires the government to prove that the Defendant attempted to induce a minor to engage in sexual activity. While actions taken that would satisfy Count Ill. might also satisfy Count I, such as sending pictures of Defendant's genitalia to the agent, Count I requires additional proof regarding Defendant's motives when sending that material. As such, it requires proof of an additional fact and the charges are not multiplicitious. Defendants motion will be denied on this ground as well.

IV. Motion to Return Property

*6 Defendant also moves for return of property that he contends belong to his wife and children Fed.R.Crim.P. 41(g) provides "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." When a motion for return of property is made while a criminal prosecution is pending, the burden is on the moving party to show why he is entitled to the property. United States Chambers, 192 F.3d 374, 377 (3d Cir.1999). Generally a Rule 41(g) motion will be denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband, or the government's need for the property as evidence continues. Id. (citing United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.1991)).FN1

FN1. Chambers refers to Rule 41(e); Rule 41(e) was amended to become the present-day Rule 41(g) in 2002. United States v. Pantelidis, 335 F.3d 226, 231 n. 2 (3d Cir.2003)

Defendant has not met his burden to prove why he is entitled to the property. First, he has not specifically stated which seized items he is seeking to have returned. Second, he has clearly implied, in this motion and at previous proceedings before this Court, that he intends to defend the charges against him by claiming that some of the items seized belonged to his son or wife. As such, the governments need to use the property as evidence is still ongoing in this case. Defendants motion for return of property will be denied

V. Motion to Dismiss

Defendant also moves to dismiss Count I of the superseding indictment, arguing that the governments evidence on the attempted internet enticement charge is insufficient to convict him because the chat logs amount to nothing more than "sexual banter." The Third Circuit C curt of Appeals has clearly held that pretrial motions to dismiss are not the proper vehicle to challenge the sufficiency of the government's evidence, unless there is a stipulated record or immunity issues are involved United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir.2000) (citations omitted). Fed.R.Crim.P. 12(b)(2) permits dismissal of an indictment if the allegations are insufficient to charge an offense, "but such dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment's charges." Id. at 661 (citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)). Defendant is challenging the sufficiency of the government's evidence to prove the attempted internet enticement charge, which is clearly not a valid basis for a dismiss of that charge. There is no stipulated record or immunity issues. Therefore, Defendant's motion to dismiss will be denied.

CONCLUSION

For the foregoing reasons, Defendant's motion seeking to 1) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant, 2) sever Counts I and II of the superseding indictment, 3) dismiss Count Ill. of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant will be denied. Furthermore, Defendant's Motion to Dismiss will be denied. An appropriate order follows.

ORDER

*7 NOW, this 29th of July, 2010, it is HEREBY ORDERED THAT:

(1) Defendant's motion seeking to 1) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant, 2) sever Counts I and II of the superseding indictment, 3) dismiss Count Ill. of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant (Doc. 94) is DENIED.

(2) Defendant's Motion to Dismiss (Doc. 100) is DENIED.


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