FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 06-10514
v.
D.C. No.
CR-96-00259-GEB
THEODORE JOHN KACZYNSKI, aka
FC, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted September 29, 2008*
San Francisco, California
Filed January 9, 2009
Before: Mary M. Schroeder, William C. Canby, Jr., and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
187
UNITED STATES v. KACZYNSKI 191
COUNSEL
Theodore John Kaczynski, Pro Se defendant-appellant.
Ana Maria Martel, Assistant United States Attorney, Sacra-
mento, California, for the plaintiff-appellee.
Kelly A. Woodruff, Farella Braun & Martel, LLP, San Fran-
cisco, California, for Amici Curiae Unnamed Victims of
Appellant.
Steven A. Hirsch, Keker & Van Nest, LLP, San Francisco,
California, for Amici Curiae Susan Mosser, Connie W. Mur-
ray, Gary B. Wright and Charles Epstein.
192 UNITED STATES v. KACZYNSKI
OPINION
HAWKINS, Circuit Judge:
Appellant Theodore John Kaczynski (“Kaczynski”), also
known as the “Unabomber,” appeals the district court’s order
approving the plan (the “Plan”) developed, following an ear-
lier remand by this court, to sell or to dispose of Kaczynski’s
personal property that was seized during the underlying crimi-
nal investigation into his bombings. Kaczynski contends: (1)
the restitution lien statute, 18 U.S.C. § 3613, is facially
unconstitutional and violates the First Amendment; (2) the
Plan violates the First Amendment as applied by impinging
his freedom of expression and restricting information from the
public; and (3) the Plan impermissibly allows credit bids from
the victims and allows destruction of “bomb-making materi-
als” instead of returning them to his designee. For the reasons
that follow, we affirm the district court’s order approving the
Plan.
FACTS AND PROCEDURAL HISTORY
As is well known, Kaczynski was arrested in 1996 and
charged with numerous counts involving the transportation or
mailing of explosives with the intent to kill, resulting in the
death of three people and injuries to nine others. United States
v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001) (“Kaczynski I”).
He eventually pled guilty and was sentenced to four consecu-
tive life sentences plus 30 years imprisonment. He was also
ordered to pay $15,026,000 in restitution to four named vic-
tims (the “Named Victims”). He later unsuccessfully tried to
vacate his conviction pursuant to 28 U.S.C. § 2255. Id. at
1119.
When investigating Kacyznski’s crimes, government agents
searched Kaczynski’s Montana cabin and seized various items
of his personal property for use as evidence. The seized prop-
erty included papers, books, Kaczynski’s writings, guns,
UNITED STATES v. KACZYNSKI 193
bomb-making materials, and instructions on making bombs
using store-bought items. In June 2003, Kaczynski attempted
to regain this personal property. He filed a motion requesting
the return of any property that had not been sold within a rea-
sonable period of time. The magistrate judge recommended
that the government sell any marketable property to pay resti-
tution and return all other items to Kaczynski. Rejecting this
recommendation, the district court denied Kaczynski’s motion
because the judgment lien gave the government a superior
ownership interest in Kaczynski’s personal property. United
States v. Kaczynski, 306 F. Supp. 2d 952, 955 (E.D. Cal.
2004) (“Kaczynski II”). The district court also concluded that
Kaczynski’s property was essentially worthless because the
property had to be valued prior to “his criminal celebrity sta-
tus” to prevent Kaczynski from profiting from his crimes. Id.
at 956-57.
Kaczynski appealed, and we held the government has a
cognizable ownership claim in the property but only “if that
property is needed to satisfy the terms of the restitution
order.” United States v. Kaczynski, 416 F.3d 971, 974-75 (9th
Cir. 2005) (“Kaczynski III”) (quoting United States v. Mills,
991 F.2d 609, 612 (9th Cir. 1993)) (internal quotations omit-
ted). We noted that Kaczynski’s property may not be worth-
less because any increase in the property’s value as a result
of his notoriety would benefit the victims by increasing the
amount of money available for restitution. Id. at 975. Con-
cerned about the lack of representation for the victims and
their families, we appointed pro bono counsel to serve as
amicus curiae to protect their interests in the enforcement of
the restitution order. Id. at 977.1 We remanded the matter to
the district court “to give a timely and adequate opportunity
for the government to present, and Kaczynski and pro bono
1
The court is extremely grateful for the extraordinary efforts of pro
bono counsel Steven A. Hirsch, of Keker & Van Nest, LLP, San Fran-
cisco, and Kelly A. Woodruff, of Farella Braun & Martell, LLP, San Fran-
cisco.
194 UNITED STATES v. KACZYNSKI
amicus to comment upon, a commercially reasonable plan to
dispose of the property at issue, the principal purpose of
which shall be to maximize monetary return to the victims
and their families.” Id.
In July 2006, the government submitted a plan to the dis-
trict court that provided for the sale or disposal of Kaczyn-
ski’s personal property. United States v. Kaczynski, 446 F.
Supp. 2d 1146 (E.D. Cal. 2006) (“Kaczynski IV”). Specifi-
cally, the government would conduct a well-publicized inter-
net sale of Kaczynski’s seized property, including personal
items, books owned by Kaczynski, and his own writings. At
the Named Victims’ request, the writings would be redacted
to exclude all information that could be used to identify the
actual and intended victims and families. In addition, the gov-
ernment proposed that Kaczynski’s weapons be sold to the
Named Victims for a credit bid of $300. Finally, the govern-
ment would dispose of the instructions and materials for mak-
ing bombs. Id. at 1149-52.
Over Kaczynski’s objections to various aspects of the Plan,
the district court approved the government’s plan with the
exception that the instructions, including recipes and diagrams
for making a bomb, were to be returned to Kaczynski’s desig-
nated recipient.2 Id. at 1155. Kaczynski timely appealed. Kac-
zynski was initially represented by counsel on appeal, but
later sought and obtained permission to represent himself.
STANDARD OF REVIEW
We review de novo questions of federal constitutional law,
Polykoff v. Collins, 816 F.2d 1326, 1335 (9th Cir. 1987), as
well as questions of statutory construction. United States v.
2
Kaczynski had previously designated the University of Michigan to
receive his property. The University maintains the Labadie Collection,
which houses materials on radical social and political movements. Kaczyn-
ski III, 416 F.3d at 973.
UNITED STATES v. KACZYNSKI 195
Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
We review for an abuse of discretion the district court’s order
approving the Plan of sale to satisfy the restitution lien. Cf.
United States v. Stonehill, 83 F.3d 1156, 1162 (9th Cir. 1996).
DISCUSSION
I. First Amendment Facial Challenge
A. Waiver/Justiciability
For the first time on appeal, Kaczynski challenges the facial
validity of 18 U.S.C. § 3613, asserting that the restitution lien
statute “is unconstitutional to the extent that it authorizes the
government to deprive a convict of his First Amendment
property . . . .”3 In general, a party who does not raise an issue
3
The restitution lien statute at issue provides in relevant part:
(a) Enforcement.—The United States may enforce a judgment
imposing a fine in accordance with the practices and procedures
for the enforcement of a civil judgment under Federal law or
State law. Notwithstanding any other Federal law . . . , a judg-
ment imposing a fine may be enforced against all property or
rights to property of the person fined . . . .
....
(c) Lien.— . . . [A]n order of restitution made pursuant to sec-
tions 2248, 2259, 2264, 2327, 3663, 3663A, or 3664 of this
title[ ] is a lien in favor of the United States on all property and
rights to property of the person fined as if the liability of the per-
son fined were a liability for a tax assessed under the Internal
Revenue Code of 1986. The lien arises on the entry of judgment
and continues for 20 years or until the liability is satisfied, remit-
ted, set aside, or is terminated . . . .
....
(f) Applicability to order of restitution.—In accordance with
section 3664(m)(1)(A) of this title, all provisions of this section
are available to the United States for the enforcement of an order
of restitution.
18 U.S.C. § 3613.
196 UNITED STATES v. KACZYNSKI
before the trial court is prevented from doing so on appeal.
United States v. De Salvo, 41 F.3d 505, 510-11 (9th Cir.
1994). We may, in our discretion, hear an issue for the first
time on appeal “(1) when review is necessary to prevent a
miscarriage of justice or to preserve the integrity of the judi-
cial process, (2) when a change in law raises a new issue
while an appeal is pending, and (3) when the issue is purely
one of law.” Jovanovich v. United States, 813 F.2d 1035,
1037 (9th Cir. 1987) (declining to hear issues raised by the
government for the first time on appeal because the issues did
not fall within one of these three exceptions).
[1] Although Kaczynski characterizes his claim as a purely
facial legal challenge, on closer examination it appears that in
large part what he seeks is an advisory opinion that § 3613
would be invalid if applied to him in particular ways in the
future. Reacting to some post-remand comments by the gov-
ernment about the scope of the restitution lien, Kaczynski
seems concerned about potential attempts to seize and sell any
writing that he creates or receives from others after his con-
viction, or copyrights to his literary works. The current Plan,
however, is strictly limited to the physical originals of the
documents previously seized from Kaczynski’s cabin. Thus
Kaczynski is really asking us to issue a speculative as-applied
ruling that would prohibit the government from taking a pos-
sible future action.
The Constitution empowers federal courts to hear actual
cases and not render advisory opinions. See United Public
Workers v. Mitchell, 330 U.S. 75, 89 (1947); Aetna Life Ins.
v. Haworth, 300 U.S. 227, 240-41 (1937); see also Hillblom
v. United States, 896 F.2d 426, 429-30 (9th Cir. 1990) (case
not justiciable because injury allegations based upon future
actions Congress might take to reduce government authority
in the Northern Mariana Islands). Kaczynski cannot, there-
fore, bring a justiciable as-applied claim at the present time
based upon the possible future actions of the government.
UNITED STATES v. KACZYNSKI 197
[2] Thus, we will consider Kaczynski’s arguments only to
the extent they constitute true facial challenges to § 3613. We
need not and, indeed, cannot consider the validity of specific
applications of the statute which have yet to occur.
B. Facial Validity
[3] Section 3613 is invalid under the First Amendment if “it
is unconstitutional in every conceivable application[ ] or . . .
it seeks to prohibit such a broad range of protected conduct
that it is unconstitutionally ‘overbroad.’ ” Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 796 (1984).
1. Every Conceivable Application
“A facial challenge to a [statute] is . . . the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the
[statute] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987). “While some Members of the Court have
criticized the Salerno formulation, all agree that a facial chal-
lenge must fail where the statute has a ‘plainly legitimate
sweep.’ ” Washington State Grange v. Washington State
Republican Party, 128 S. Ct. 1184, 1190 (2008) (citations
omitted). In particular, a generally applicable statute is not
facially invalid unless the statute “can never be applied in a
constitutional manner.” Lanier v. City of Woodburn, 518 F.3d
1147, 1150 (9th Cir. 2008) (drug testing policy not facially
invalid because the challenger failed to provide a reason why
the policy could not be constitutionally applied to applicants
for certain types of jobs).
[4] The restitution lien statute assists the government in
collecting unpaid restitution orders that have been imposed on
those convicted of federal crimes. The statute provides that a
lien arises automatically upon entry of judgment against these
individuals and may be enforced against all property and
198 UNITED STATES v. KACZYNSKI
property rights, regardless of the nature of the property. The
statute is thus generally applied to all individuals subject to
restitution orders, is not dependent upon the discretion of any
government officials, and does not vary according to the type
of property that is owned by these individuals.4 Because a res-
titution lien, like any other tax lien, can be constitutionally
applied in many cases, Kaczynski’s facial challenge must fail.
Kaczynski urges this court to consider the “facial” validity
of the statute only as it applies to his First Amendment property.5
He argues that the First Amendment aspect of § 3613 can be
“severed” from the rest of the statute and held unconstitu-
tional. This argument misunderstands the concept of sever-
ance, and conflates as-applied and facial challenges. A court
does not sever a statute prior to determining whether it is
facially valid. Rather, a court will sever a statute when a por-
tion of it is found unconstitutional and that portion can be
excised from the statute without altering the statute’s intended
purpose. See, e.g., United States v. Jackson, 390 U.S. 570,
585-90 (1968) (provision authorizing the death penalty sever-
able from the Federal Kidnaping Act because “[i]ts elimina-
tion in no way alters the substantive reach of the statute and
leaves completely unchanged its basic operation”). In addi-
tion, a facially invalid or overbroad statute cannot be severed
unless it is susceptible to a narrowing construction using the
4
The broad application of this statute makes sense from a policy per-
spective because those convicted of federal crimes should not be able to
avoid having a lien placed on their property (and possibly paying any res-
titution) solely because the property has some expressive qualities. See
Alexander v. United States, 509 U.S. 544, 551-52 (1993) (stating that “a
contrary scheme [to the RICO statute that permits forfeiture of all assets]
would be disastrous from a policy standpoint, enabling racketeers to evade
forfeiture by investing the proceeds of their crimes in businesses engaging
in expressive activity”).
5
Kaczynski defines his First Amendment property as that “property that
he needs for the exercise of his First Amendment rights of expression,
such as literary property (copyrights) and physical property in expressive
materials such as documents, papers, etc.”
UNITED STATES v. KACZYNSKI 199
terms contained within it. See Erznoznik v. City of
Jacksonville, 422 U.S. 205, 216 (1975). Section 3613 is sim-
ply not subject to the type of division Kaczynski urges.6
Moreover, despite describing it as a facial challenge, what
Kaczynski really claims is that § 3613 might be unconstitu-
tional if applied to First Amendment property, and thus would
not be constitutional in every situation. As we recently noted
when another plaintiff attempted a similar “facial” challenge,
this formulation “would turn Salerno on its head.” Lainer,
518 F.3d at 1150. Kaczynski’s challenge likewise fails.
2. Overbreadth
[5] “A statute is facially overbroad when its application to
protected speech is ‘substantial, not only in an absolute sense,
but also relative to the scope of the law’s plainly legitimate
applications.’ ” Humanitarian Law Project v. Mukasey, 509
F.3d 1122, 1136-37 (9th Cir. 2007) (quoting Virginia v.
Hicks, 539 U.S. 113, 119-20 (2003)). Because the overbreadth
must be substantial, “the mere fact that one can conceive of
some impermissible applications of a statute is not sufficient
to render it susceptible to an overbreadth challenge.” Taxpay-
ers for Vincent, 466 U.S. at 800. In addition, heightened scru-
tiny is applied to generally applicable statutes only when they
regulate conduct that has a “significant expressive element” or
when the statutes have “the inevitable effect of singling out
those engaged in expressive activity.” Arcara v. Cloud Books,
Inc., 478 U.S. 697, 706-07 (1986) (enforcement of a public
health regulation of general application did not implicate the
6
Kaczynski’s reliance on United States v. Grace, 461 U.S. 171, 178-80
(1983), to argue that this court could limit its analysis to only First
Amendment property is unpersuasive, because the statute involved there
was a time, place, and manner restriction actually directed at expressive
activity. Moreover, the statute was severable, and the Court concluded that
the statute violated the First Amendment only to the extent it applied to
the public forum of public sidewalks around the Supreme Court building.
Id.
200 UNITED STATES v. KACZYNSKI
First Amendment even though it resulted in the closure of an
adult book store).
[6] The restitution lien statute is a generally applicable stat-
ute that places a lien on all property and property rights of
individuals subject to a restitution order. The statute does not
burden individuals engaged in First Amendment activities any
more than it burdens those engaged in other types of activi-
ties. The primary purpose of § 3613 is to compel payment of
restitution and not to prohibit any type of speech or expressive
conduct. Because it is not directed at any expressive activity
and has only an incidental effect on such activity, § 3613 is
not constitutionally overbroad. See, e.g., Nordyke v. King, 319
F.3d 1185, 1190 (9th Cir. 2003) (ordinance forbidding posses-
sion of a gun at a specific location not unconstitutional
because this conduct did not commonly convey any expres-
sive content); Roulette v. City of Seattle, 97 F.3d 300, 305
(9th Cir. 1996) (ordinance prohibiting sitting or lying on a
sidewalk not facially invalid because lying or sitting are not
“integral to, or commonly associated with, expression”).
[7] Accordingly, § 3613 is facially valid because it is not
unconstitutional in all of its applications and is not overbroad.7
II. First Amendment As-Applied Challenge
[8] Kaczynski further argues that the district court’s order
violates his First Amendment rights with respect to the sale of
his personal writings. An as-applied challenge “contends that
the law is unconstitutional as applied to the litigant’s particu-
lar speech activity, even though the law may be capable of
valid application to others.” Foti v. City of Menlo Park, 146
7
Kaczynski’s brief also contains a claim that he received ineffective
assistance of counsel in the district court because his counsel refused to
raise the facial challenge to § 3613. As explained above, the facial chal-
lenge lacks merit and his counsel was thus justified in declining to raise
it.
UNITED STATES v. KACZYNSKI 201
F.3d 629, 635 (9th Cir. 1998). As discussed above, the restitu-
tion lien statute is a generally applicable law that has at most
an incidental effect on First Amendment issues. Its applica-
tion to protected speech will be upheld if the regulation “fur-
thers an important or substantial governmental interest; if the
. . . interest is unrelated to the suppression of free expression;
and if the incidental restriction . . . is no greater than is essen-
tial to the furtherance of that interest.” United States v.
O’Brien, 391 U.S. 367, 376-77 (1968); see also Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 567-72 (1991) (general
indecency law upheld even though it limited expression of
completely nude dancing).
Before delving into Kaczynski’s specific arguments, it is
important to note that most of his as-applied challenges stem
from an inaccurate premise — that he does not have and can-
not obtain a complete set of copies of the underlying materials
that will be sold. This arises from Kaczynski’s interpretation
of the district court’s order, which he views as requiring him
to specifically identify the pages of which he has not yet
received copies (a task he claims is impossible because he
cannot remember everything he has written). The district
court’s order, however, simply places an affirmative obliga-
tion on the government to provide a full set of legible copies
to Kaczynski or his representative: “The government shall
provide Kaczynski, though [sic] his designated recipient, with
any page Kaczynski has not already received in readable
form.” Kaczynski IV, 446 F. Supp. 2d at 1154 n.12. We are
confident that the district court can and will ensure compli-
ance with this order prior to any sale of Kaczynski’s documents.8
A. Right to Communicate Impaired without Originals
Kaczynski argues that the sale of his original writings vio-
8
For example, the district court could permit Kaczynski’s designee to
compare the photocopied documents to the originals prior to any redac-
tions and before the sale.
202 UNITED STATES v. KACZYNSKI
lates the First Amendment. Kaczynski claims that his right to
communicate the information contained in the papers will be
impaired because it will be impossible to establish the authen-
ticity of the photocopies and they will be “of little value.”
[9] Kaczynski’s argument essentially reveals its own flaw
— he can still communicate any ideas contained in the docu-
ments without the originals, the originals are just worth more.
He does not explain how his freedom of speech or expression
is at all curtailed by receiving copies of his documents (or
having copies delivered to his designee). Moreover, he admit-
ted below and in his opening brief that receiving a full set of
copies was a less restrictive alternative that would provide
him with an alternative channel for communicating his ideas.
[10] The First Amendment protects ideas and the freedom
to express them. See, e.g., Roth v. United States, 354 U.S.
476, 484 (1957) (the First Amendment “was fashioned to
assure unfettered interchange of ideas”); Thomas v. Collins,
323 U.S. 516, 537 (1945) (“free trade in ideas” includes
opportunity to persuade); Thornhill v. Alabama, 310 U.S. 88,
102 (1940) (discussing historical importance of freedom of
discussion). Kaczynski cites no authority for the proposition
that the original pieces of paper on which his ideas were writ-
ten are independently deserving of constitutional protection.
Cf. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 608-09
(1978) (no First Amendment right to physical originals of
audio tapes where reporters received transcripts of tapes and
could communicate contents to public if desired). Kaczynski
offers instead practical, forensic considerations for why the
originals are more valuable, but no explanation as to how his
right to free speech or freedom of expression is impinged by
their sale.9 We therefore reject his argument that the sale of
the originals violates the First Amendment.
9
Of course, Kaczynski may be otherwise precluded from receiving or
communicating such ideas within the maximum security prison in which
he is housed, but those considerations are not at issue here.
UNITED STATES v. KACZYNSKI 203
B. Redaction
The approved Plan permits the government to redact from
the originals the names of victims and their families, names
of other intended victims, and recognizable descriptions of the
victims and their injuries. This proposal was made at the
request of the Named Victims, whose interests this court
directed the district court to consider. Kaczynski III, 416 F.3d
at 977.
[11] Kaczynski complains that these proposed redactions
also hinder his right of expression and result in the suppres-
sion of some information that could be of value to the public,
both in violation of the First Amendment. As for impeding his
right of expression, his argument once again depends on
ascribing constitutional significance to the originals of the
documents, or on his assumption that he cannot obtain com-
plete copies of the documents. The district court aptly noted
that “Kaczynski fails to explain how alterations of the original
physical documents, when he possesses exact copies, impairs
his ability to communicate his ideas or otherwise violates the
First Amendment.” Kaczynski IV, 446 F. Supp. 2d at 1155.
Similarly, with respect to suppressing information from the
public, the district court’s order is expressly limited to the sale
of the physical documents.
[12] Moreover, any diminution in the originals’ value is
justified because of the importance of excising this informa-
tion to protect the privacy interests of the victims and
intended victims. See, e.g., United States v. Kaczynski, 154
F.3d 930, 932 (9th Cir. 1998) (upholding partial redaction of
Kaczynski’s psychiatric and competency reports, because
court properly balanced privacy interests versus public right
to know); cf. Favish v. Office of Indep. Counsel, 217 F.3d
1168, 1173 (9th Cir. 2000) (discussing privacy interests of
survivors under Freedom of Information Act). We directed
the district court to take such considerations into account in
fashioning a plan for the sale, Kaczynski III, 416 F.3d at 977,
204 UNITED STATES v. KACZYNSKI
and the Plan is a reasonable compromise that permits the vic-
tims to hopefully recoup some monetary value without further
compromising their privacy or memories of their loved ones.
The redactions may affect value, but they only affect the orig-
inal documents, and do not otherwise hinder free expression.
To the extent Kaczynski objects that the government should
not be permitted to single-handedly excise the documents
without supervision, this can be easily remedied by having the
district court review the materials in camera and approve the
redactions to ensure they correspond to and do not exceed the
descriptions in the approved Plan.
C. Conclusion
[13] The lien statute and the court’s order approving the
Plan for enforcement of that lien further the important govern-
mental interest of providing compensation to crime victims
without further invasion of their privacy or harm to the public;
the government’s interest is unrelated to the restriction of free
expression, and the incidental effect on expression from sell-
ing redacted originals but providing the author with complete
copies is no greater than essential to further that interest
because he is not otherwise precluded from communicating
the ideas expressed therein. See O’Brien, 391 U.S. at 377. We
therefore hold that the lien statute, as applied here through the
approved Plan, does not violate Kaczynski’s First Amend-
ment rights.
III. Other Objections to the Plan
A. Return of Derivative Contraband
The Plan excludes from the sale a list of bomb-making
materials seized at Kaczynski’s home. The government con-
tends Kaczynski cannot lawfully possess these materials and
plans to dispose of them instead.
UNITED STATES v. KACZYNSKI 205
[14] Kaczynski first asserts that the district court incor-
rectly placed the burden on him to prove that he is lawfully
entitled to possession of the seized property, by relying on a
case in which the defendant sought the return of property
while the criminal case was still proceeding. See Kaczynski
IV, 446 F. Supp. 2d at 1153 (citing United States v. Van Cau-
wenberghe, 827 F.2d 424, 433 (9th Cir. 1987)). As Kaczynski
correctly states, in cases in which the property is no longer
needed for evidentiary purposes, we have noted that “[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.” United States v. Martinson, 809 F.2d 1364, 1369
(9th Cir. 1987).
[15] Ultimately this distinction makes little difference,
however, because the government has successfully rebutted
Kaczynski’s presumptive right to return of the property. After
Kaczynski objected below, the government submitted a
detailed document describing each of the 100 items it had
labeled “bomb-making materials,” with an explanation as to
why the FBI believed Kaczynski had used or intended to use
the substances to create illegal destructive devices.10 This sub-
mission is sufficient to rebut Kaczynski’s claim that he ever
lawfully possessed the materials, as he offers no innocent
explanation to counter it. See United States v. Dean, 100 F.3d
19, 20-21 (5th Cir. 1996) (government successfully rebutted
defendant’s presumptive right to return of property where a
convicted robber sought return of $6,000 found in his posses-
sion along with $41,000 bearing bank labels, but offered no
credible explanation for the presence of the unmarked cash,
and was unable to distinguish it from the robbery money or
otherwise show that he had lawfully possessed it).
10
Individually innocent materials can become contraband when com-
bined or are intended to be combined to produce such weapons. See
United States v. Lussier, 128 F.3d 1312, 1314-15 (9th Cir. 1997).
206 UNITED STATES v. KACZYNSKI
Kaczynski contends, however, that he (or his designee) is
prohibited only from possessing items that are “per se” con-
traband — that is, materials that, without more, are illegal to
possess. He contends the materials listed are instead “deriva-
tive” contraband — items that may be lawfully possessed but
became unlawful due to their use or intended use.
[16] Although Kaczynski emphasizes that many listed
items are not “per se” contraband, this argument does not get
him as far as he hopes, because the court is entitled to prohibit
him from possessing derivative contraband as well. A motion
such as Kaczynski’s for the return of his property is a motion
in equity, and “the owner of the property must have clean
hands.” United States v. Howell, 425 F.3d 971, 974 (11th Cir.
2005); see also United States v. Felici, 208 F.3d 667, 670-71
(8th Cir. 2000) (“The doctrine of unclean hands is an equita-
ble doctrine that allows a court to withhold equitable relief if
such relief would encourage or reward illegal activity.”).
Thus, even if the items sought to be returned could somehow
be construed as innocent in and of themselves, the motion
could be denied if such items had been utilized or intended to
be utilized for illegal purposes. Felici, 208 F.3d at 671 (“[I]t
makes scant sense to return to a convicted drug dealer the
tainted tools used or intended to be used in his illegal trade
when the same were lawfully seized.”). Kaczynski similarly
has unclean hands and should be denied the right to possess
or direct the disposition of these otherwise innocent materials.
Howell, 425 F.3d at 974.
[17] For these reasons, the district court acted well within
its discretion by ordering the materials not be returned to Kac-
zynski or his designee.
B. Sale to Victims on Credit-bid
Kaczynski also challenges the Plan’s provision that the vic-
tims can purchase his firearms on a credit-bid and also credit-
bid on other personal items that do not sell in the internet auc-
UNITED STATES v. KACZYNSKI 207
tion. He argues that a credit bid is impermissible because it
would not result in any monetary gain for the victims, and he
was ordered to pay the victims monetary restitution. He
claims this type of bid also contravenes our earlier order,
which directed the district court to maximize the monetary
return for the benefit of the victims. See Kaczynski III, 416
F.3d at 977.
The district court rejected this argument, noting that
although our prior opinion indicated the sale’s principal pur-
pose was to maximize monetary return, we also directed the
court to consider the viewpoints and desires of the Named
Victims, who had expressed an interest in purchasing both
personal items that did not sell as well as Kaczynski’s fire-
arms (which the Plan proposes not selling at all). See Kaczyn-
ski IV, 446 F. Supp. 2d at 1153 (citing Kaczynski III, 416 F.3d
at 977).
[18] The district court properly noted that an order of resti-
tution may be enforced by all “available and reasonable
means.” Id. at 1152-53 (quoting 18 U.S.C.
§ 3664(m)(1)(A)(ii)). The court further explained that Fed. R.
Civ. P. 69(a), which governs enforcing a monetary judgment,
directs that the court follow “the practice and procedure of the
state in which the district court is held.” Id. at 1153. Under
California law, a judgment creditor may credit-bid on prop-
erty that is subject to a judgment lien. Id.; Cal. Code Civ. P.
§ 701.590(b).11
[19] Kaczynski does not seem to dispute that the credit-bid
process is available under California law, but argues it is not
11
Cal. Code of Civ. Pro. § 701.590(b) provides:
The judgment creditor may bid by giving the levying officer a
written receipt crediting all or part of the amount required to sat-
isfy the judgment, except that the levying officer’s costs remain-
ing unsatisfied . . . shall be paid in cash or by certified check of
cashier’s check.
208 UNITED STATES v. KACZYNSKI
a reasonable means to enforce the restitution lien, because it
yields no monetary gain to the victims. However, as the dis-
trict court properly noted, our prior decision directed the court
to consider not only maximizing value but also the interests
of the victims.12 A credit-bid does not violate the letter or
spirit of our decision, which contemplated a balancing of such
interests. The district court understandably concluded that a
credit-bid was a reasonable means to enforce the lien because
the personal property that did not sell might still have value
to the victims. And, of course, Kaczynski still gains a benefit
as well, by having the amount of restitution owed reduced
accordingly.
[20] Similarly, the credit-bid on Kaczynski’s firearms is
also available and reasonable. The victims expressed a desire
that these weapons not be sold, and understandably gain some
value in knowing they will not be used to injure others. Sell-
ing the guns to the victims (at twice Kaczynski’s original
declared value) is also reasonable because the guns could not
simply be auctioned like ordinary personal property. Rather,
as the government explains in the Plan, selling firearms
requires a special license and verification of the non-felony
status of the buyer, and the government represented to the dis-
trict court that none of the online auctioneers that contract
with the U.S. Marshall have the ability to sell firearms.13
IV. Amicus Considerations
12
Kaczynski III also noted that the government had “some degree of dis-
cretion” in deciding how to enforce the lien. 416 F.3d at 976.
13
Kaczynski also argues that credit-bidding by the victims is impermis-
sible because the lien is held by the United States. This argument is made
for the first time on appeal and we will not consider it. We note, however,
that “the government holds the restitutionary lien on behalf of the vic-
tims.” Kaczynski III, 416 F.3d at 976 (quoting Kaczynski I, 306 F. Supp.
2d at 956). Thus, even assuming California law requires the credit bid to
be made by the lienholder rather than by the underlying beneficiaries,
nothing appears to preclude the United States from making a credit-bid on
their behalf.
UNITED STATES v. KACZYNSKI 209
With the court’s thanks to pro bono counsel for both the
Named and Unnamed Victims for their participation in this
difficult case, we have reviewed and carefully considered the
amicus briefs filed on behalf of both groups of victims. The
Named Victims generally support affirming the district court
opinion, adopt the government’s arguments, and offer addi-
tional arguments to refute Kaczynski’s First Amendment
claims. The Unnamed Victims, however, disagree with the
decision to sell the remaining property, and contend that the
district court decision only takes into account the desires of
the Named Victims. The Unnamed Victims would prefer to
see the property donated or destroyed to minimize publicity
and prevent re-opening old wounds.
The sale of Kacyznksi’s property is undoubtedly a sensitive
issue for everyone involved. Although the Unnamed Victims
have legitimate reasons for not seeking restitution personally,
the government nonetheless has an obligation to attempt to
obtain funds for those who did. Our prior decision recognized
this obligation and essentially directed that the property be
either sold in a commercially reasonable manner to maximize
the return for the restitution beneficiaries, or returned to Kac-
zynski. Kaczynski III, 416 F.3d at 977 & n.11. The govern-
ment’s proposal and the district court’s order approving that
Plan fully comply with our limited remand.
We note that even if the district court did not specifically
solicit or mention the views of the Unnamed Victims, it did
attempt to strike a balance between the competing consider-
ations. The court hoped to minimize the undesirable impact of
the sale by redacting the victims’ names, other personal infor-
mation, and descriptions of their injuries. See Kaczynski IV,
446 F. Supp. 2d at 1155 (discussing how redaction will pro-
tect privacy, the feelings and sensibilities of loved ones, and
minimize the “painful conflict” of “profiting from the sale of
materials that identify and discuss the injuries” of victims).
210 UNITED STATES v. KACZYNSKI
[21] We cannot say that the district court committed legal
error or otherwise abused its discretion in approving the Plan.
We therefore affirm the district court’s order.
AFFIRMED.