                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 12-10544
                Plaintiff-Appellee,
                                             D.C. No.
                 v.                       1:09-cr-00265-
                                              AWI-1
JUSTIN PAUL GLADDING,
              Defendant-Appellant.          OPINION


      Appeal from the United States District Court
          for the Eastern District of California
    Anthony W. Ishii, Senior District Judge, Presiding

           Argued and Submitted June 9, 2014
               San Francisco, California

                Filed December 31, 2014

Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,
            and Carlos T. Bea, Circuit Judges.

                 Opinion by Judge Bea
2                 UNITED STATES V. GLADDING

                           SUMMARY*


                          Criminal Law

    The panel reversed the district court’s denial of a motion
pursuant to Fed. R. Crim. P. 41(g) for return of noncontra-
band computer files, and remanded for further proceedings,
in a case that required the panel to address when a criminal
defendant is entitled to the return of his personal computer
files when he has intermingled them with his child
pornography files.

    The panel held that the district court’s decision not to put
the burden of proof on the government was legal error, where
the defendant filed the Rule 41(g) motion after he pleaded
guilty and the government no longer needed his property as
evidence. The panel held that the government could not have
carried its burden of proof had the district court correctly
placed it on the government, where the government failed to
submit any evidence of the difficulty and costs of segregating
the defendant’s data, which it claimed was a legitimate reason
for retention of the noncontraband files.

    Providing guidance to the district court on remand, the
panel wrote that the difficulty and cost of segregating data
can be a legitimate reason for the government to retain the
defendant’s property, and the district court should deny the
defendant’s motion if the government has carried its burden
of proof by producing evidence which preponderates to show
the government’s cost concerns are reasonable under all of

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. GLADDING                      3

the circumstances. The panel wrote that the district court
may also order alternative remedies, including requiring the
defendant to pay the costs of segregation.


                         COUNSEL

Carolyn M. Wiggin, Federal Defender, Sacramento,
California, argued the cause and along with Heather E.
Williams, filed the briefs for the defendant-appellant.

David L. Gappa, Assistant U.S. Attorney, Fresno, California,
argued the cause and, along with Benjamin B. Wagner, filed
the brief for the United States.


                          OPINION

BEA, Circuit Judge:

    Many people store every aspect of their lives on
electronic devices. Those devices are brimming with
correspondence, schedules, photographs, and music. As a
result, a crashing computer or a lost smartphone can lead to
catastrophic results for a person who failed to back up that
data; the only record for years of a person’s life can be lost in
an instant.

    Criminals who possess child pornography are no
different. Those criminals may likewise store important
aspects of their lives on their electronic devices. But along
with the normal risks of losing their personal data, such
criminals also risk losing that personal data when the
government seizes their devices for evidence of child
4              UNITED STATES V. GLADDING

pornography. To that end, this case requires us to address
when a criminal defendant is entitled to the return of his
personal computer files when he has intermingled those files
with his child pornography files.

                             I.

    Justin Paul Gladding was indicted on two counts related
to his possession of child pornography: Count 1: Receipt or
Distribution of a Visual Depiction of a Minor Engaged in
Sexually Explicit Conduct in violation of 18 U.S.C.
§ 2252(a)(2); and Count 2: Possession of One or More
Matters Containing Visual Depiction of Minors Engaged in
Sexually Explicit Conduct in violation of 18 U.S.C.
§ 2252(a)(4)(B). The indictment included allegations that
Gladding’s electronic storage devices, including three
computers and other hard drives, were subject to forfeiture
under 18 U.S.C. § 2253 because they contained child
pornography.

    Gladding pleaded guilty to Count One of the indictment.
At the change of plea hearing, Gladding did not dispute that
his electronic storage devices were forfeit, but he asked the
government to return copies of certain noncontraband
computer files on those devices. According to Gladding,
there were thousands of pictures of his family and personal
emails on the devices that he wanted returned. At the change
of plea hearing, the government agreed to give copies of
those files to Gladding. But, in the following weeks,
negotiations between Gladding and the government
apparently broke down. In response, Gladding filed his first
motion to return the noncontraband computer files under
Federal Rule of Criminal Procedure 41(g). The court
addressed that motion at Gladding’s sentencing hearing.
                UNITED STATES V. GLADDING                      5

Without specifically granting the motion, the court directed
the parties to work together to determine which
noncontraband files Gladding wanted and asked the
government to provide copies of those files to Gladding. The
court then entered a forfeiture order that stated: “The
Preliminary Order of Forfeiture is made final as to contraband
items only. If counsel can not resolve the motion for return
of property[,] defense counsel may renew a motion for a
return of property.”

    The parties were again unable to agree on how to return
the noncontraband files to Gladding, and Gladding filed a
second Rule 41(g) motion. The government attached three
exhibits to its opposition brief: (1) a document listing some of
Gladding’s property the government found to be
noncontraband; (2) email correspondence between counsel;
and (3) the transcript of a hearing on a similar dispute in a
different case. None of the exhibits established the burden or
cost to the government of segregating contraband from
noncontraband computer files.

    The district court held three separate hearings on
Gladding’s Rule 41(g) motion. At the first and second
hearings, the government represented it would be difficult
and costly to segregate Gladding’s noncontraband files from
the files containing child pornography. The district court
asked the parties at those hearings to meet and confer to
resolve the dispute, and suggested at the second hearing that
the court would deny Gladding’s motion should the parties be
unable to resolve the dispute. At the third hearing, the district
court denied Gladding’s motion, stating “I’m satisfied at least
from the representations made to me, that it’s almost
impossible to separate [the noncontraband files] out in a
coherent manner.” Gladding appealed that decision. While
6              UNITED STATES V. GLADDING

the appeal was pending, the government granted Gladding’s
expert access to the forfeited electronic storage devices, and
Gladding’s expert was able to obtain a large number of
Gladding’s noncontraband files. Gladding maintains that
there are still other noncontraband files the government is
obligated to turn over.

                              II.

    We review de novo a district court’s denial of a motion
for return of property under Rule 41(g) of the Federal Rules
of Criminal Procedure. United States v. Harrell, 530 F.3d
1051, 1057 (9th Cir. 2008). We review the district court’s
underlying factual findings for clear error. Id.

                              A.

    “A person aggrieved . . . by the deprivation of property
may move for the property’s return.” Fed. R. Crim. P. 41(g).
The burden of proof on a Rule 41(g) motion depends on when
the defendant files the motion. “When a motion for return of
property is made before an indictment is filed (but a criminal
investigation is pending), the movant bears the burden of
proving both that the [property’s] seizure was illegal and that
he or she is entitled to lawful possession of the property.”
United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.
1987) (citations omitted). But that burden of proof changes
when “the property in question is no longer needed for
evidentiary purposes, either because trial is complete, the
defendant has pleaded guilty, or . . . the government has
abandoned its investigation.” Id. Then, the burden of proof
shifts and the defendant “is presumed to have a right to [the
property’s] return, and the government has the burden of
demonstrating that it has a legitimate reason to retain the
                UNITED STATES V. GLADDING                      7

property.” Id.; see also United States v. Kriesel, 720 F.3d
1137, 1144 (9th Cir. 2013) (explaining that a “defendant’s
Rule 41(g) motion should presumptively be granted if the
government no longer needs the property for evidence.”
(internal quotation marks and citation omitted)).

    The government can rebut the presumption that property
ought to be returned by proving a “legitimate reason” for
retaining the property that is “reasonable [] under all of the
circumstances.” Kriesel, 720 F.3d at 1145; see also United
States v. Kaczynski, 416 F.3d 971, 974 (9th Cir. 2005)
(“[T]he government has the burden of showing that it has a
legitimate reason to retain the property.” (quotation marks
omitted)); Ramsden v. United States, 2 F.3d 322, 326 (9th
Cir. 1993) (explaining that “reasonableness under all of the
circumstances must be the test when a person seeks to obtain
the return of property.” (internal quotation marks and citation
omitted)). The Advisory Committee’s Note to Rule 41, to
which we give “weight in interpreting the Federal Rules of
Criminal Procedure,” United States v. Bainbridge, 746 F.3d
943, 947 (9th Cir. 2014), confirms the “reasonableness”
standard applies to the return of computer files on electronic
storage devices, see Fed. R. Crim. P. 41, Advisory
Committee’s Note to 2009 Amendment (“Rule 41(g) . . .
provides a process for the ‘person aggrieved’ to seek an order
from the court for a return of the property, including storage
media or electronically stored information, under reasonable
circumstances.”). The simplest way for the government to
carry its burden is to prove “the property . . . is contraband or
subject to forfeiture.” Martinson, 809 F.2d at 1369; see also
United States v. Fitzen, 80 F.3d 387, 389 (9th Cir. 1996) (“It
is well-settled that the federal government may defeat a Rule
[41(g)] motion by demonstrating that the property is subject
to federal forfeiture.”). To that end, district courts “must
8               UNITED STATES V. GLADDING

receive evidence on any factual issue necessary to decide the
motion.” Fed. R. Crim. P. 41(g). The government can
therefore carry its burden by submitting evidence that
demonstrates the property is contraband or the property falls
within the court’s forfeiture order. See, e.g., Harrell,
530 F.3d at 1056–57. But showing the property is contraband
or forfeit is not the only way the government can justify
retaining the property; the government can otherwise retain
property if it can show a “legitimate reason” for doing so.
See, e.g., Kriesel, 720 F.3d at 1145–47 (holding that the
government’s retention of the defendant’s blood sample was
“reasonable under the circumstances” because the
government needed the sample to ensure the accuracy of
future DNA identifications).

                              B.

    Gladding filed his Rule 41(g) motion after he pleaded
guilty and the government no longer needed his property as
evidence. The burden of proof was therefore on the
government. Kriesel, 720 F.3d at 1144. The district court did
not expressly state whether Gladding or the government had
the burden of proof on the motion. However, the parties
impliedly concede the court put the burden on Gladding. And
the district court’s brief analysis denying Gladding’s motion
sheds light as to whom the district court thought should bear
the burden of proof. The district court denied Gladding’s
motion because it was “satisfied” by the government’s
“representations” that it is “almost impossible to separate [the
noncontraband files] out.” But representations are not
evidence, unless adopted by the opponent. The government
failed to submit any evidence of the difficulty and cost of
segregating Gladding’s data, which it claimed was a
“legitimate reason” for retention of the noncontraband files.
                   UNITED STATES V. GLADDING                                9

For that reason, the government could not have carried its
burden of proof had the district court correctly placed it on
the government. The district court’s decision not to put the
burden of proof on the government was legal error. We
remand for the court to apply the correct burden in the first
instance. See Martinson, 809 F.2d at 1370.

    We think it may be helpful to provide the district court
guidance on remand, as we have not articulated the contours
of a Rule 41(g) motion in the context of intermingled
computer files. At oral argument, the government narrowed
the issues to be considered in this case by admitting the files
Gladding seeks are neither contraband nor subject to
forfeiture. In the government’s view, the district court’s
forfeiture order did not cover Gladding’s noncontraband files
even though those files were intermingled with files
containing child pornography.1 As some files are neither

   1
         This type of forfeiture order is uncommon according to the
government. The government contends that, in the normal course, a
defendant forfeits all the files on an electronic storage device when it
forfeits the device itself, whether those files are contraband or not. We do
not express an opinion on the validity of the district court’s order requiring
Gladding to forfeit only contraband files. Nor do we preclude the district
court from amending its forfeiture order on remand to include the
noncontraband files that Gladding seeks in his motion to the extent
permitted by law.

     Moreover, to the extent the government argues the district court
denied Gladding’s Rule 41(g) motion because the court found the
noncontraband files forfeit under 18 U.S.C. § 2253(a), that argument
contradicts the government’s admission that noncontraband files were not
subject to the forfeiture order. Admittedly, the transcript of the district
court’s decision can be read as denying Gladding’s Rule 41(g) motion
because the court found the noncontraband files were forfeited property
under 18 U.S.C. § 2253(a). But the district court’s prior forfeiture order
by its terms excluded those files, instead stating the “Preliminary Order of
10                UNITED STATES V. GLADDING

contraband nor forfeit, the government can retain the
noncontraband files only if the government shows a
“legitimate reason” for doing so “that is reasonable under all
of the circumstances.” Kriesel, 720 F.3d at 1144.

    We have noted the “spirit of [Rule 41(g)] is one of
compromise” that “recognizes that reasonable
accommodations might protect both the law enforcement
interests of the United States and the property rights of
property owners.” Ramsden, 2 F.3d at 327 (quoting Fed. R.
Crim. P. 41, Advisory Committee’s Note to 1989
Amendment). The government’s primary objection to
returning Gladding’s noncontraband files is the cost of
segregating those files from the files containing child
pornography. The Advisory Committee’s Note to Rule 41
confirms the difficulties posed by electronic data in this
context: “A substantial amount of time can be involved in the
forensic imaging and review of information. This is due to
the sheer size of the storage capacity of media, difficulties
created by encryption and booby traps, and the workload of
the computer labs.” Fed. R. Crim. P. 41, Advisory
Committee’s Note to 2009 Amendment. The difficulty and
cost of segregating the data can therefore be a “legitimate
reason” for the government to retain Gladding’s property. If
the parties dispute the cost of segregating data, they should
submit supporting evidence and the district court may hold an
evidentiary hearing to resolve that dispute. The district court
should deny Gladding’s motion if the government has carried
its burden of proof by producing evidence which
preponderates to show the government’s cost concerns are


Forfeiture is made final as to contraband items only.” The district court
did not later amend that order to include noncontraband items, such as the
computer files Gladding now seeks.
                  UNITED STATES V. GLADDING                            11

“reasonable under all of the circumstances.” See Kriesel,
720 F.3d at 1144.

    The district court may also order alternative measures for
returning Gladding’s noncontraband files other than forcing
the government to pay for segregating the data itself. See,
e.g., Ramsden, 2 F.3d at 327 (ordering the government to
return documents but permitting the government to retain
copies). For example, the district court can require Gladding
to pay the costs of segregation by having his expert review
the electronic storage devices and copy the noncontraband
files to the extent otherwise permitted by law. Indeed,
Gladding already had an expert review the storage devices
while this appeal was pending. The district court may decide
to order the government to provide a printed directory of the
electronic storage devices. A directory could assist Gladding
in better identifying which files he wants returned or which
folders potentially contain noncontraband material. Such a
remedy may have the effect of substantially reducing the
government’s costs in identifying noncontraband files to
return to Gladding. And counsel for Gladding suggested at
oral argument that a printed directory would go a long way
toward resolving this dispute.2 We of course do not mean to
require the district court to adopt any or all of our
suggestions; nor do we mean to preclude the district court
from ordering other remedies. In cases such as this, the

   2
        The government argues that providing Gladding with a printed
directory would only delay the cost to the government. The government
suggests Gladding could use that list to identify thousands of folders and
files that Gladding believed were noncontraband, and the government
would be required to open those folders and files to examine their contents
before turning them over to Gladding. Nothing prevents the government
from seeking relief from the district court should Gladding identify a
burdensome number of files as potentially noncontraband.
12             UNITED STATES V. GLADDING

district court is in the best position to fashion a remedy,
“taking into account the time needed to image and search the
data and any prejudice to the aggrieved party.” Fed. R. Crim.
P. 41, Advisory Committee’s Note to 2009 Amendment.

                             III.

   The district court’s order denying Gladding’s Rule 41(g)
motion is reversed and remanded for proceedings consistent
with this opinion.

     REVERSED AND REMANDED.
