United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. Smith, United States Magistrate Judge.
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.
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).
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.
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.
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).
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).
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).
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
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.).
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
(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 ...