                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 09 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30068

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00085-RSM-1

  v.
                                                 MEMORANDUM *
DOUGLAS SPINK,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                            Submitted April 24, 2013 **
                             San Francisco, California

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Douglas Spink appeals from a district court order directing the government

to erase the hard drives of two computers before returning them to Spink. We




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conclude that this condition on returning the computers is reasonable and affirm

the district court’s order.1

       “We review the denial of a motion for return of property de novo.” United

States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008) (citing United States v.

Kaczynski, 416 F.3d 971, 974 (9th Cir.2005)). “We review the district court’s

factual findings for clear error.” Id. (citing United States v. Marolf, 173 F.3d 1213,

1216 (9th Cir. 1999)). Once seized property is no longer needed for evidentiary

purposes, “‘[t]he person from whom the property is seized is presumed to have a

right to its return, and the government has the burden of demonstrating that it has a

legitimate reason to retain the property.’” Id. (quoting United States v. Martinson,

809 F.2d 1364, 1369 (9th Cir. 1987)).

       Here, there appears to be no question that Spink is entitled to the return of

the two computers. The only issue is whether the district court could direct that the

computer hard drives be erased before the computers were returned to Spink. The

record reflects that the government had a legitimate reason for seeking an order

allowing the erasure of the computers’ hard drives. There was substantial evidence

that Spink was a skilled computer technician, who had used his computer skills to



       1
             Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.

                                           2
violate the conditions of his supervised release. Among the provisions of Spink’s

supervised release, which are not at issue in this appeal, are the following:

      The defendant shall not possess or peruse any authentic, altered, or
      manufactured, in whatever form, material that depicts and/or describes
      “bestiality”, zoophilia or any sexual conduct involving animals except
      as approved in advance by his probation officer.

      The defendant shall allow a probation officer to inspect any personal
      computer owned and operated by the defendant.

      The defendant shall consent to the United States Probation Office
      conducting ongoing monitoring of his/her computer(s), hardware, and
      software. The monitoring may include the installation, at the
      defendant’s expense, of hardware or software systems which allow
      evaluation of his/her computer use. Monitoring may also include the
      retrieval and copying of all data from his/her computer(s) or other
      electronic devices/media. The defendant shall also comply with the
      requirements of the United States Probation Computer Monitoring
      Program as directed.

      The defendant shall shut down all websites owned, operated, or under
      his control that promote or contain zoophilia, bestiality or any sexual
      act with animal[s] to include, but not limited to [52 specifically listed
      websites].

      The government professed that it could not determine whether the

computers’ hard drives appeared to be blank because they had been erased or

because they contained encrypted information that the government could not

access. This uncertainty favors the order allowing the government to erase the

hard drives. If the hard drives have been erased, there is no harm to Spink from the



                                           3
government wiping the hard drives again before it returns the computers.

However, if there is encrypted data, Spink presumably has the ability to access

those materials, and he has not offered to access the files in the presence of the

Probation Office. Moreover, if the hard drives contain encrypted materials, those

materials are likely to be the type of materials that Spink is prohibited from

possessing under the conditions of his supervised release.

      The district court’s order is AFFIRMED.




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