United States v. Gossjankowski

669 F.Supp.3d 1

UNITED STATES of America v. Vitali GOSSJANKOWSKI, Defendant.

Criminal No. 21-0123 (PLF)

United States District Court, District of Columbia

Signed February 1, 2023

Barry Kent Disney, I, Francesco Valentini, Assistant U.S. Attorneys, DOJ-CRM, Criminal Division, Appellate Section, Washington, DC, Adam Michael Dreher, Assistant U.S. Attorney, United States Attorney's Office, Washington, DC, Karen E. Rochlin, Assistant U.S. Attorney, DOJ-USAO, Miami, FL, for United States of America.

Matthew J. Peed, Clinton & Peed, Washington, DC, Ubong E. Akpan, Celia Goetzl, Edward Smock, Public Defenders, Office of the Federal Public Defender District of Columbia, Washington, DC, for Defendant.

OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge

Defendant Vitali GossJankowski has filed a Motion to Suppress Physical Evidence and Return Property ("Mot.") [Dkt. No. 108].¹ He requests that the Court, pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, order the government "to return [his] devices so that he can adequately consult with defense counsel, review discovery, and prepare for trial." Mot. at 1. He also requests that the Court suppress at trial "his electronic devices and any and all information seized and imaged from those devices" because the government's search and seizure of those devices was unreasonable and in violation of the Fourth Amendment. Id. The government filed a response opposing Mr. GossJankowski's motion, see Government's Opposition to Defendant's Motion to Suppress Physical Evidence and Return Property ("Gov't Opp.") [Dkt. No. 84], and Mr. GossJankowski filed a reply in support of his motion. See Reply in Support of Motion to Suppress Physical Evidence and Return Property ("Reply") [Dkt. No. 90]. The parties presented oral argument on the motion on January 17, 2023.

For the following reasons, the Court concludes that the government must promptly return Mr. GossJankowski's electronic devices pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure and identify with specificity evidence it intends to use in its case-in-chief at trial pursuant to Rule 16(a)(1)(E) of Federal Rules of Criminal Procedure. The Court therefore will grant Mr. GossJankowski's motion in part and order the immediate return of his property.

I. BACKGROUND

The charges against Mr. GossJankowski relate to the events at the U.S. Capitol on January 6, 2021. Those events are summarized in the Court's opinion in United States v. Puma. See United States v. Puma, 596 F. Supp. 3d 90, 93-94 (D.D.C. 2022). The government alleges that Mr. GossJankowski was a member of the crowd that entered the grounds of the Capitol on January 6, 2021 and engaged in certain activities while there. See Superseding Indictment [Dkt. No. 41]. According to the statement of facts accompanying the criminal complaint in this case, a publicly available video depicts Mr. GossJankowski attempting to gain access to the U.S. Capitol building on January 6, 2021. See Statement of Facts [Dkt. No. 1-1] at 2. The video depicts Mr. GossJankowski handling and activating a Taser. See id. On January 14, 2021, Mr. GossJankowski contacted law enforcement regarding an FBI "Be on the Lookout" poster that included a picture of him, and officers of the Metropolitan Police Department interviewed him that same day. See id. at 4. Law enforcement officers interviewed Mr. GossJankowski again on January 17, 2021. See id. at 5. During these interviews, Mr. GossJankowski admitted to possessing a Taser on January 6, 2021 but denied using the Taser on a law enforcement officer. See id. at 4-5.

On January 18, 2021, the United States charged Mr. GossJankowski by criminal complaint with offenses arising out of his conduct in relation to the Capitol riot, see Complaint [Dkt. No. 1], and he was arrested at his residence. That same day, the government executed a warrant to search Mr. GossJankowski's residence and seized an iPhone 11 Pro Max cell phone from Mr. GossJankowski's person, which was subsequently returned to Mr. GossJankowski on January 20, 2021. See Mot. at 3. In addition, the government seized the following electronic devices from Mr. GossJankowski's residence: (1) Droid phone; (2) tablet; (3) silver Apple laptop with the serial number FVFZLQDZJ1WK ("MacBook Air"); (4) silver Apple laptop with the serial number CO2C80V6LVDN ("MacBook Pro"); (5) black Lenovo laptop; and (6) red iPhone XR. See id. at 2-3. These electronic devices have not been returned to Mr. GossJankowski. See id. at 3.

A grand jury returned an indictment on February 17, 2021 and a superseding indictment on November 10, 2021. The superseding indictment charges Mr. GossJankowski with five felony offenses and one misdemeanor offense: Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2; Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, in violation of 18 U.S.C. §§ 111(a)(1) and (b); Entering and Remaining in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A); Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(2) and (b)(1)(A); and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D). See Superseding Indictment.

II. LEGAL STANDARD

With respect to the government's obligation to return property, Rule 41(g) of the Federal Rules of Criminal Procedure provides:

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return . . . . The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

FED. R. CRIM. P. 41(g).² This rule "allows the owner of property the government has seized in a search to seek its return." In re Sealed Case, 716 F.3d 603, 605 (D.C. Cir. 2013). The D.C. Circuit has stated that a "party from whom materials are seized in the course of a criminal investigation retains a protectible property interest in the seized materials." United States v. Hubbard, 650 F.2d 293, 303 (D.C. Cir. 1980); see United States v. Brown, 185 F. Supp. 3d 79, 82 (D.D.C. 2016). Under Rule 41(g), property may be returned to a defendant regardless of whether the initial seizure of the property was lawful or not. See United States v. Hubbard, 650 F.2d at 303 ("Lawful seizure of the property, of itself, may affect the timing of the return, but never the owner's right to eventual return.").

"[I]t is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner." United States v. Hubbard, 650 F.2d at 303 (citation omitted). Lawfully seized property "may be retained pending exhaustion of its utility in criminal prosecutions," and unlawfully seized property "must on motion be promptly returned unless it be contraband or statutorily forfeit, in which event it need not be returned at all." Id. at 303 n.26 (citations omitted); see United States v. Brown, 185 F. Supp. 3d at 82. The district court has "both the jurisdiction and the duty to ensure the return" to a defendant of "property seized from him in [an] investigation but which is not alleged to be stolen, contraband, or otherwise forfeitable, and which is not needed, or is no longer needed, as evidence." United States v. Wilson, 540 F.2d 1100, 1101 (D.C. Cir. 1976); see United States v. Brown, 185 F. Supp. 3d at 82.

With respect to the government's discovery obligations, Rule 16 of the Federal Rules of Criminal Procedure provides:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

FED. R. CRIM. P. 16(a)(1)(E). This rule "is intended to prescribe the minimum amount of discovery to which the parties are entitled" and "is not intended to limit the judge's discretion to order broader discovery in appropriate cases." United States v. Anderson, 416 F. Supp. 2d 110, 113 n.2 (D.D.C. 2006) (quoting FED. R. CRIM. P. 16 advisory committee's note to 1974 amendment).

III. DISCUSSION

A. Motion to Return Property

Pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, Mr. GossJankowski has requested the return of the six electronic devices seized from his residence. He asserts that since seizing his electronic devices, the government has downloaded images from the devices and has produced to him "approximately 21 image files from the [r]ed iPhone XR" and "approximately 39 image files from the tablet," in addition to "approximately 29 image files and 5 video files from the iPhone 11 Pro Max cell phone" that was subsequently returned. Mot. at 15. As to the other devices seized, the government has not "identified or provided any evidence obtained from" the Droid phone, the MacBook Air, the MacBook Pro, or the Lenovo laptop. See id. at 15-16. According to Mr. GossJankowski, "the government identifies no evidence of the crimes charged found on any digital device, nor any evidence from any device that it plans to use at trial." Reply at 6; see also Transcript of Motions Hearing, January 17, 2023 ("Tr.") at 25:17-20 ("[T]he government has identified no evidence on any of the laptops, period. It has not said that...