1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KALEB LEE BASEY, Case No. 21-cv-08688-JCS

Plaintiff, 8

ORDER OF DISMISSAL FOR

v. 9 IMPROPER VENUE

10 UNITED STATES OF AMERICA, Re: Dkt. Nos. 10, 16, 17 Defendant. 11

12 13 INTRODUCTION 14 Plaintiff filed this complaint pursuant to Federal Rule of Criminal Procedure 41(g), 15 seeking the return and/or destruction of Yahoo! emails that were seized via warrant by the 16 United States Attorney for the District of Alaska, and subsequently used to convict 17 Plaintiff at jury trial in that district. The United States of America moved to dismiss the 18 action pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue, and in the 19 alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim 20 upon which relief can be granted. 21 The parties have consented to magistrate judge jurisdiction for all purposes under 22 28 U.S.C. § 636(c). (Dkt. Nos. 6 and 11.) 23 DISCUSSION 24 A. Legal Standard 25 Federal Rule of Civil Procedure 12(b)(3) allows a party to file a motion to dismiss 26 on the basis of improper venue. Fed. R. Civ. Proc. 12(b)(3). Plaintiff bears the burden of 27 establishing proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 1 (W.D. Wash. 1967)). In resolving a 12(b)(3) motion, “pleadings need not be accepted as 2 true, and facts outside the pleadings may be considered.” Doe 1 v. AOL LLC, 552 F.3d 3 1077, 1081 (9th Cir. 2009). A district court, upon determining that venue is improper for a 4 case in front of it, “shall dismiss, or if it be in the interest of justice, transfer such case to 5 any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). 6 B. Federal Rule of Criminal Procedure 41(g) 7 Federal Rule of Criminal Procedure 41(g) provides:

8 A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the 9 property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any 10 factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but 11 may impose reasonable conditions to protect access to the property and its use in later proceedings. 12 13 The Rule defines “property” to include “documents, books, papers, any other tangible 14 objects, and information.” Fed. R. Crim. Proc. 41(a)(2)(A). If a Rule 41(g) motion is 15 made before an indictment is filed, but during a criminal investigation, “the movant bears 16 the burden of proving both that the [property’s] seizure was illegal and that he or she is 17 entitled to lawful possession of the property.” United States v. Gladding, 775 F.3d 1149, 18 1152 (9th Cir. 2014) (quoting United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 19 1987)). “But that burden of proof changes when ‘the property in question is no longer 20 needed for evidentiary purposes, either because trial is complete, the defendant has pleaded 21 guilty, or ... the government has abandoned its investigation.’” Id. At that time, the 22 burden shifts to the government to demonstrate that it “has a legitimate reason to retain the 23 property.” Id. “[A] defendant’s Rule 41(g) motion should presumptively be granted if the 24 government ‘no longer needs the property for evidence.’” United States v. Kriesel, 720 25 F.3d 1137, 1144 (9th Cir. 2013) (quoting United States v. Fitzen, 80 F.3d 387, 388 (9th 26 Cir. 1996)). The government can carry its burden by demonstrating that the property “is 27 contraband or subject to forfeiture.” Gladding, 775 F.3d at 1152 (quoting Martinson, 809 1 will also suffice. Id. 2 A Rule 41(g) motion, “when there are no criminal proceedings pending against the 3 movant,” is “treated as [a] civil equitable proceeding[] and, therefore, a district court must 4 exercise ‘caution and restraint’ before assuming jurisdiction.” Ramsden v. United States, 2 5 F.3d 322, 324 (9th Cir. 1993) (quoting Kitty’s East v. United States, 905 F.2d 1367, 1370 6 (10th Cir. 1990)); see also Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987). 7 C. Background 8 Plaintiff was convicted by a federal jury in the District of Alaska of one count of 9 transportation of child pornography and one count of distribution of child pornography on 10 December 12, 2017. United States v. Basey, 4:14-CR-00028-RRB (D. Alaska) (“Criminal 11 Case”), Dkt. No. 214. He was sentenced to 180 months in prison and a lifetime of 12 supervised release on May 18, 2018. Criminal Case, Dkt. No. 257. His conviction was 13 upheld by the Ninth Circuit on August 14, 2019, which found the district court’s denial of 14 his motion for a continuance to file additional suppression motions—following two 15 complete rounds of pretrial suppression motions—was not an abuse of discretion. United 16 States v. Basey, 784 F. App’x 497, 498 (9th Cir. 2019). Plaintiff’s petition for rehearing en 17 banc was denied on September 23, 2019. Criminal Case, Dkt. No. 272. 18 Plaintiff filed a motion for the return of seized property pursuant to Rule 41(g) in 19 the District of Alaska on October 7, 2019. He sought the return of property seized by 20 Army Criminal Investigation Division Agents and the Alaska State Trooper from a search 21 of Plaintiff’s “barracks room” on Fort Wainwright, Alaska, including an iPhone, flash 22 drive, computer, and various thumb drives and SD cards. Criminal Case, Dkt. No. 278. 23 He also asked the district court to “order the government to destroy any derivative 24 information obtained from [his] property that remains in its possession.” Id. at 9. The 25 government responded that it had a “legitimate need to retain the seized property pending 26 resolution of [Plaintiff’s] direct appeal of his criminal conviction,” Dkt. No. 281, and the 27 district court denied the motion. Dkt. No. 282. Plaintiff filed a motion for reconsideration, 1 order denying his Rule 41(g) motion as well as the order denying reconsideration. The 2 Ninth Circuit affirmed, finding that although “precedent suggests that criminal proceedings 3 are over for purposes of a Rule 41(g) motion once the defendant is convicted,” the 4 government met its burden of demonstrating a “reasonable need to retain the property in 5 light of [Plaintiff’s] pending collateral attack on his 2017 convictions.” United States v. 6 Basey, 837 F. App’x 603 (9th Cir. 2021). The Ninth Circuit also denied rehearing en banc. 7 Criminal Case, Dkt. No. 378. 8 Plaintiff also filed a motion pursuant to 28 United States Code § 2255 to vacate, set 9 aside, or correct his sentence. Dkt. No. 294. Counsel was appointed to represent Plaintiff 10 for the purpose of his § 2255 motion. Dkt. No. 319. Plaintiff later asked to proceed pro 11 se, which the district court permitted. Dkt. No. 335. The district court denied the motion, 12 and subsequently filed an amended order at Plaintiff’s request, clarifying “issues that [he] 13 felt were inadequately addressed in” the first order. Dkt. Nos. 357, 363. Plaintiff filed a 14 motion for reconsideration, which the district court denied, Dkt. No. 381, after which 15 Plaintiff appealed to the Ninth Circuit, Dkt. No. 384, which denied a certificate of 16 appealability, Dkt. No. 403, and prohibited any further filings in the case. Dkt. No. 404. 17 While Plaintiff’s appeal of the denial of his return of property was pending, 18 Plaintiff, proceeding pro se, sought an injunction “restraining the United States from using 19 [his] property for any purpose pending the result of the appeal,” in particular from using it 20 in connection with “threat[s] to reindict [Plaintiff] on previously-dismissed charges related 21 to the property should [he] overturn his conviction in his 2255 proceeding.” Criminal 22 Case, Dkt. No. 327. The government agreed to refrain from forensically examining the 23 property during the pendency of the appeal. Dkt. No. 337. 24 Plaintiff filed his second motion for the return of seized property on May 5, 2021, 25 regarding the same property as his first motion. Dkt. No. 369. The government responded 26 that “after consultation with the Federal Bureau of Investigations (FBI) the Government 27 agrees that it follows policy to return the requested property after it has been deleted in a 1 moot.” Dkt. No. 387 at 1-2. The government noted that the “search of defendant’s room 2 has been thoroughly litigated,” and that his Rule 41(g) motion “appears primarily focused 3 on relitigating these . . . issues.” Id. at 2. The government indicated that Plaintiff was 4 required to provide a name of a person authorized to receive his property. Id. at 4. The 5 district court granted the Rule 41(g) motion, according to the terms identified by the 6 government. Dkt. No. 388. Plaintiff responded that he “wants to fight this case and will 7 not provide the information of who he wants the property sent to at this time.” Dkt. No. 8 394 at 4. He appealed the district court’s order granting his Rule 41(g) motion. Dkt. No. 9 399. The Ninth Circuit affirmed, rejecting Plaintiff’s argument that the “district court’s 10 order granting relief was an injunction or ‘coerced settlement’,” and explained that 11 “neither the district court nor [the Ninth Circuit] need reach [Plaintiff’s] claim that the 12 property at issue was illegally seized.” United States v. Basey, No. 21-30196, 2022 WL 13 2872264, at *1 (9th Cir. July 21, 2022). The court quoted Martinson, 809 F.2d at 1369: 14 “[W]hen the property in question is no longer needed for evidentiary purposes ... the 15 legality of the search and seizure is no longer an issue.” Id. 16 Plaintiff filed his complaint in this case on November 8, 2021, while litigation was 17 ongoing in his District of Alaska case and numerous Ninth Circuit appeals. Dkt. No. 1. 18 He claims that his Yahoo emails were “warrantlessly preserved under 18 U.S.C. § 2703(f) 19 for a nine-month period,” and searched unlawfully pursuant to a warrant sought after an 20 illegal search of his computer. Id. He seeks “an order requiring the Government to 21 destroy his emails, a declaration that § 2703(f) is unconstitutional as applied to this case, 22 and other related injunctive and declaratory relief.” Id. He also asks the Court to order the 23 government to “destroy any information derived from [his] Yahoo emails” and to order the 24 government “to not use, disclose, or refer to information discovered in or derived from 25 [his] Yahoo emails in any future proceeding.” Id. at 42. He notes:

26 A declaration from this Court to the effect that reasonable jurists could conclude that the decision to seek a warrant for 27 [Plaintiff’s] Yahoo emails was affected by prior warrantless searches of [his] devices would clarify and/or settle the [him] to file a motion under Fed. R. Civ. P Rule 60(b)(6) to 1 reopen the judgment in his 2255 proceeding due to an intervening change in law. 2 3 Id. at 12. 4 D. Analysis 5 Plaintiff claims that venue is appropriate in this Court because his “emails were 6 seized by the Government from Yahoo at 701 First Ave., Sunnyvale, California, which is 7 located in the Northern District.” Dkt. No. 1 at 3. He cites Rule 41(g)’s provision that 8 “[t]he motion must be filed in the district where the property was seized,” arguing that 9 “venue lies where the property was seized.” Id. Defendant argues, first, that venue does 10 not lie in this district because Plaintiff “does not in fact seek the return of any property, but 11 instead seeks an order directing the destruction of his Yahoo! emails and for declaratory 12 relief.”1 Dkt. No. 10 at 6. Second, Defendant argues that although “[i]t does not appear 13 that the Ninth Circuit has decided whether the venue provision in Rule 41(g) controls in 14 post-conviction motions for the return of property,” a district court in the District of 15 Columbia has held that the appropriate venue for such a motion is the “standard venue 16 statute” or 28 United States Code § 1391. Id. at 7 (citing Ford-Bey v. United States, No. 17 19-2039 (BAH), 2020 WL 32991, at *12 (D.D.C. Jan. 2, 2020)). 18 This Court finds that, regardless of whether Rule 41(g)’s venue provision applies to 19 post-conviction motions, venue is improper in this district. If the provision does apply, it 20 does not mandate venue in this district because the property at issue—Plaintiff’s Yahoo 21 emails—were not seized in this district. Plaintiff’s Yahoo emails were seized in the 22 District of Alaska, where the warrant was issued and the CD containing Plaintiff’s emails 23 1 The Court notes that destruction of property may be an appropriate remedy for a Rule 24 41(g) case. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1174 (9th Cir. 2010), overruled in part on other grounds as recognized by Demaree v. Pederson, 25 887 F.3d 870, 876 (9th Cir. 2018) (citing Advisory Committee Notes on 1989 Amendment to Rule 41(e) stating that “[i]n some circumstances . . . equitable considerations might 26 justify an order requiring the government to return or destroy all copies of records that it has seized.”). The Court also notes that, although not raised by the government, it is not 27 clear whether emails to or from Plaintiff, stored by Yahoo after Plaintiff, according to the 1 was obtained. See Criminal Case, Dkt. No. 172-1 at 1-2. The warrant asked the issuing 2 District of Alaska court to order Yahoo to “send the information electronically,” or by 3 facsimile and United States mail if electronic delivery was not available. Id. at 38. 4 Plaintiff cites an overturned, out-of-circuit district court case finding that a 5 provision of the Stored Communications Act, 18 United States Code § 2703, allows 6 district courts to issue search warrants for electronic property in locations other than where 7 the information is stored. In re Warrant to Search a Certain E-Mail Acct. Controlled & 8 Maintained by Microsoft Corp., 15 F. Supp. 3d 466, 474 (S.D.N.Y. 2014), rev’d and 9 remanded sub nom. Matter of Warrant to Search a Certain E-Mail Acct. Controlled & 10 Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), vacated and remanded sub 11 nom. United States v. Microsoft Corp., 138 S. Ct. 1186 (2018). Plaintiff claims this case 12 supports his argument that electronic property is located where the ISP is located, “not the 13 location of any server.” Dkt. No. 13 at 7. Ultimately, the Supreme Court held that the 14 issue in the case—whether “a U.S. provider of e-mail services must disclose to the 15 Government electronic communications within its control even if the provider stores the 16 communications abroad”—was mooted by the Clarifying Lawful Overseas Use of Data 17 Act (CLOUD Act) requiring service providers to comply with a section 2703 warrant 18 regardless of whether the information was stored abroad. Microsoft Corp., 138 S. Ct. at 19 1187. In fact, this case supports the concept that electronic property searches can take 20 place, and warrants be executed, in a district other than where the data is stored. The 21 district court specifically noted that “one reason for the amendments” to section 2703 “was 22 to alleviate the burden placed on federal district courts in the Eastern District of Virginia 23 and the Northern District of California where major internet service providers [ ] AOL and 24 Yahoo, respectively, are located.” In re Warrant to Search, 15 F. Supp. 3d at 474. But 25 Plaintiff seeks to employ the opposite of this principle by suggesting that all electronic 26 email seizures take place in these districts. The section 2703 amendment demonstrates that 27 federal law treats electronic property seizures as taking place in the districts where the 1 Plaintiff also notes that the search warrant for his emails “describes Yahoo’s 2 headquarters as the place to be searched.” Dkt. No. 13 at 7. While the warrant does 3 identify Yahoo’s Sunnyvale address as its headquarters, it identifies “information 4 associated with” Plaintiff’s email address as the location to be searched. See Criminal 5 Case, Dkt. No. 172-1 at 3. The language of the warrant does not support Plaintiff’s claim 6 that the seizure occurred in the Northern District of California. 7 Plaintiff cites out-of-circuit precedent identifying the purpose of the amendment to 8 Rule 41 as resolving a circuit split over whether venue for a post-conviction motion for 9 return of property lies in the district of prosecution and trial or the district of seizure, in 10 favor of the district of seizure. See United States v. Parlavecchio, 57 F. App’x 917, 921 11 (3d Cir. 2003). But Plaintiff has identified no precedent suggesting that the district of 12 seizure of electronic property is the location where the data is stored as opposed to where 13 the warrant was issued. This Court finds that venue does not lie in this district, not 14 because it is not the district of prosecution or trial, but because it is not the district where 15 the property was seized. 16 In addition, if Rule 41(g)’s venue provision does not apply to post-conviction 17 motions like Plaintiff’s, section 28 United States Code § 1391(e)(1)’s general venue 18 provisions for suits against the United States would also preclude this district as neither a 19 location where “a substantial part of the events or omissions giving rise to the claim 20 occurred, or a substantial part of property that is the subject of the action is situated,” nor 21 the location where “the plaintiff resides.” 22 Because the Court finds that dismissal is appropriate for lack of venue, it does not 23 reach Defendant’s argument that the complaint should be dismissed for failure to state a 24 claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 25 12(b)(6). 26 CONCLUSION 27 l Defendant’s motion to dismiss Plaintiffs complaint is GRANTED.’ The clerk shall 2 || terminate all pending motions, enter judgment in favor of Defendant, and close the file. 3 This Order terminates Docket Nos. 10, 16, and 17. 4 IT ISSO ORDERED. 5 || Dated: September 27, 2022 ° Zo 7 8 JOSEPH C. SPERO United States Chief Magistrate 9 Judge 10 11 12

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Zz 19 20 21 22 23 24 25 26 27 ? Plaintiffs motion for leave to file supplemental authority (Dkt. No. 16) is GRANTED. Plaintiff's motion for preliminary relief (Dkt. No. 17) in the form of a Certificate of 28 ‘Appealability allowing him to appeal the denial of his § 2255 motion in the District of Alaska, which Plaintiff already appealed to the Ninth Circuit, is DENIED.