                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 14-55640
                                                      14-56282
              Plaintiff - Appellee,
                                                 D.C. No. 5:11 cv-01570- SJO-OP
 v.

JEFFREY S. BURUM,                                MEMORANDUM*

              Defendant - Appellant.


                   Appeals from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                        Argued and Submitted April 7, 2016
                               Pasadena, California

Before:       TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

      Jeffrey Burum appeals the district court’s orders denying his Federal Rule of

Criminal Procedure 41(g) motion for the return of property and granting the

government’s motion for an order authorizing provision of seized hard copy

documents to state prosecutors. We have jurisdiction under 28 U.S.C. § 1291. We



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reverse the order denying the Rule 41(g) motion and remand for further

proceedings. We vacate the order authorizing provision of hard copy documents to

state prosecutors, and dismiss as moot the appeal from that order.

                                          I.

      In 2011, the government initiated a federal investigation against Burum for

suspected political corruption and bribery. As part of the investigation, the

government executed search warrants at Burum’s residence and office building and

seized 52 digital devices and 37 items of non-digital evidence. The government

ultimately concluded its investigation without filing any federal charges against

Burum. However, a state grand jury indicted Burum based on similar allegations.

The state criminal case is currently pending.

      Burum filed several motions in district court to compel the government to

return his property and/or to conduct an appropriate scope and attorney-client

privilege review of the seized evidence. The government eventually returned all of

Burum’s original property but retained copies of the evidence. In May 2012, the

government turned over to state prosecutors at least two disks that were seized

pursuant to the federal warrants. Burum then filed a Rule 41(g) motion for the

return or destruction of all copies of his property retained by the government.

Without holding an evidentiary hearing, the district court declined to exercise


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equitable jurisdiction over the motion; alternatively, it denied the motion on the

merits. The government then filed a motion requesting the district court’s

authorization to turn over all seized hard copy documents to the state prosecutors,

which the court granted. Burum appeals both orders.

                                          II.

      Under Rule 41(g), a court may exercise its equitable jurisdiction to grant a

motion for the return of property by a “person aggrieved by an unlawful search and

seizure of property or by the deprivation of property.” Fed. R. Crim. P. 41(g); see

Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993). The court must receive

evidence on any factual issue necessary to decide the motion. Fed. R. Crim. P.

41(g). This court reviews a district court’s decision to exercise its equitable

jurisdiction under Rule 41(g) for an abuse of discretion. Ramsden, 2 F.3d at 324.

A district court’s decision not to hold an evidentiary hearing on a motion to

suppress is also reviewed for an abuse of discretion. Ctr. Art Galleries-Hawaii,

Inc. v. United States, 875 F.2d 747, 754 (9th Cir. 1989).

                                          III.

      The district court declined to exercise equitable jurisdiction over Burum’s

Rule 41(g) motion without holding an evidentiary hearing. We conclude that this

was an abuse of discretion.


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      The district court ruled on the motion without resolving several outstanding

factual disputes on which Burum’s motion depends, including whether the

government conducted an adequate review of the seized digital data to determine

whether those data were within the scope of the search warrant, whether the

government destroyed out-of-scope and privileged evidence, and which evidence

the government has turned over to the state prosecutors.

      We therefore reverse the order denying the Rule 41(g) motion and remand

for further proceedings. On remand, the district court shall conduct an evidentiary

hearing to determine: (1) which documents (including copies) the government still

has in its possession; (2) whether those documents fall within the scope of the

search warrants; (3) whether those documents are protected by the attorney-client

privilege; and (4) based on the court’s findings on scope and privilege, which

documents the government is required to return or destroy.

      Because the court’s findings on remand will necessarily affect what evidence

the government may provide to the state prosecutors, we vacate the order

authorizing the wholesale provision of documents to state prosecutors, and dismiss

as moot the appeal from that order without reaching the merits.




                                         4
     In No. 14-55640, the order of the district court is REVERSED and

REMANDED.

     In No. 14-56282, the order of the district court is VACATED and the appeal

is DISMISSED.




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