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United States v. Cabezas

United States District Court, M.D. Florida, Orlando Division

April 26, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
ANDRES FERNANDO CABEZAS Defendant.

          REPORT AND RECOMMENDATION

          Thomas B. Smith, United States Magistrate Judge.

         This case comes before the Court on pro se Defendant Andres Fernando Cabezas' Request for an Evidentiary Hearing and Notice of Pending 41(g) Motion (Doc. 131). The government has not filed a response to the motion.

         Background

         Defendant Andres Fernando Cabezas pled guilty to receiving child pornography (Doc. 73). In his plea agreement, he agreed to forfeit all his property that was subject to forfeiture, including the iPhone he used in the commission of the crime (Doc. 67, ¶ 9). The Court accepted Defendant's plea and adjudicated him guilty (Doc. 77). Later, the Court entered a Preliminary Order of Forfeiture for Defendant's iPhone 5s, serial number F2LLx4H7FF9V (Doc. 96).

         The Court sentenced Defendant to a period of incarceration followed by a term of supervised release (Doc. 101). The Judgement and Sentence provide: “Defendant shall forfeit to the United States those assets previously identified in the Plea Agreement and Order of Forfeiture, that are subject to forfeiture.” (Id., at 6). Defendant appealed the judgment and sentence (Doc. 103). That appeal is still pending.

         Next, the government filed a motion for the entry of a final judgment of forfeiture of the iPhone (Doc. 113). The motion was granted and on May 18, 2018 the Court decreed that “all right, title and interest in the cellular phone is CONDEMNED and FORFEITED to the United States for disposition according to law. Clear title to the cellular phone is now vested in the United States of America.” (Doc. 114 at 2). Defendant did not appeal this final order.

         More than four months later, Defendant filed a motion, pursuant to Fed. R. Crim. P. 41(g), for the return of the iPhone, or alternatively, that his personal photographs and data contained in the iPhone that are not related to the crime he was convicted of be returned to him (Doc. 115). The government filed a response in opposition to the motion and the matter was referred to me (Doc. 121). I denied the motion because: (1) it was not signed by Defendant's lawyer; (2) by virtue of the appeal, jurisdiction resided in the Eleventh Circuit; and (3) this Court had already adjudicated Defendant's interest in the iPhone so his remedy was to appeal to the Eleventh Circuit (Doc. 122).

         Defendant sought reconsideration and that motion was also referred to me (Doc. 123). On reconsideration, I acknowledged that I had erred because when Defendant filed his Rule 41(g) motion, he was representing himself (Doc. 126). But I found that this was of no consequence because Defendant had not shown that I had misapprehended his position or the material facts when I entered my Order (Id., at 1). Defendant had also not shown any intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or manifest injustice (Id.). I noted that because this Court had entered a final order of forfeiture, Defendant could not obtain relief pursuant to Rule 41(g) (Id. at 2) (quoting United States v. Guerra, 426 Fed.Appx. 694, 697-98 (11th Cir. 2011) (“Rule 41(g) cannot be used to recover property that has been forfeited to the government in a civil forfeiture proceeding.”). And, I informed Defendant that his remedy was to appeal the forfeiture judgment, which he had failed to do (Id.). Defendant appealed my Order (Doc. 127), and the Eleventh Circuit dismissed the appeal for lack of jurisdiction (Doc. 130 at 2-3).

         Now, Defendant is requesting an evidentiary hearing on the merits of his objections to my Order denying his initial request for the return of the contents of the iPhone that are not evidence of the commission of a crime (Doc. 131). Defendant argues that the forfeiture Order applies only to the actual phone; and not its contents (Id., at 1).

         Until the Court holds a hearing on his motion, Defendant is asking that the Court, and not law enforcement, secure the iPhone (Id., at 2). As grounds, he references law enforcements' “checkered reputation, ” and the case investigators recent “odd and potentially dangerous (to the truth-finding function of this court) behavior.” (Id.). Defendant alleges that FBI “agents went out of their way to return the iPhone to Mr. Cabezas at the prison.” (Id.). He says FBI agents came to the prison and asked him to sign some forms before they would return the iPhone to him (Id.). However, the prison would not allow Defendant to take and review the forms before signing them (Id.). Feeling suspicious and cautious, Defendant did not sign the forms (Id.). He alleges that the next day, prison recreation guards tracked him down and asked if he still wanted the phone back (Id., at 3). Defendant responded that the FBI agents should talk to his lawyer[1] (Id.).

         Now Defendant wonders why the government opposed his Rule 41(g) motion (Id.). He asserts that “the iPhone and its contents are evidence in a continuing criminal case” and “the government has a duty to preserve that evidence.” (Id.) (footnote omitted). Defendant also discusses the cloning of the phone, possible mishandling of the evidence by law enforcement, and Defendant's belief “that the government agents were attempting to sever the chain of custody, thereby generating a plausible claim in some future proceeding that Mr. Cabezas tampered with the evidence.” (Id.).

         Next, in contradiction of his guilty plea, Defendant states under penalties of perjury that to the best of his knowledge:

The government agents know the truth, there is not now nor was there any child pornography on the iPhone. It was a lie, and a lie to this court. The only real question is who was in on the lie, and why did this court's officers (the AUSA and defense attorneys) either permit it, or worse, propagate it?

(Id., at 4). As a remedy, Defendant is asking the Court to order that he be supplied with a copy of the contents of the iPhone and that the phone itself be given to his expert for examination to see if the FBI or the United States Attorney's Office tampered with evidence (Id.). Alternatively, Defendant is asking the ...


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