Cite as 446 F.Supp.2d 1146 (E.D.Cal. 2006)
21, 2006, at 2.) Specifically, Kaczynski argued the victims should not be permitted to credit bid on any of his personal items that do not sell at the auction because “[a]ny property that does not sell … by definition is of minimal or no value” and “must be returned to [him].” (Id. at 4) He also asserted his firearms should be returned to him if the government does not intend to sell the items at the auction. (Id. at 2.) He further argued “the government should be required to show” that the items the government asserts are bomb-making materials “constitute[ ] contraband per se,” that is, items “ ‘the mere possession of which is unlawful’ ”; otherwise, [the government] should return the property to [him]. (Id. at 3 (quoting United States v. Felici, 208 F.3d 667, 670 (8th Cir.2000)).) Finally, Kaczynski asserted his original writings should be returned to him because an auction of the originals would violate the First Amendment. (Id. at 4.) Kaczynski alternatively asserted that if the auction included his original writings, the First Amendment prohibits redactions of the originals, and he should receive unredacted copies. (Id. at 8–10.)
A Status Conference was held on July 28, 2006, at which Kaczynski’s counsel stated that Kaczynski did not oppose the July 7 Plan on timeliness grounds but that he did challenge its adequacy. The government’s oral argument included proposals and issues that were not contained in the July 7 Plan; the government stated it would file an amended plan to include these new items. Counsel for the Named Victims joined in the government’s positions and emphasized that the Named Victims were “very concerned about the idea of any sale that would not include the Writings,” stating “the writings … clearly Possess the bulk of the value for the victims.”
On July 32, 2006, the government filed a Status Report containing an amended plan that includes those items discussed at the July 28 Status Conference (“July 31 Plan”). The July 31 Plan proposes that the “firearms will be turned over … to the Named Victims and [Kaczynski] will be credited three hundred [dollars] ($300.00) towards his restitution debt.” (Gov’t Status Report, filed July 31, 2006, at 4.) The government states “the value being credited to [Kaczynski] for the firearms is twice the value that the Defendant stated his weapons were worth in his Rule 41 motion.” (Id.) The government also asserts “the Named Victims, who will receive the proceeds from [an] auction, request that no bomb-making materials be sold.” (Id.) The government contends Kaczynski told the Ninth Circuit he was not seeking the return of said items and that “prison regulations prohibit Kaczynski from possessing these items.” (Id.)
Kaczynski filed a response to the July 31 Plan on August 1, 2006. In his response, Kaczynski argues the Named Victims should not be allowed to “credit the restitution order for the value of the firearms” and asserts that “if the firearms are not sold and the proceeds given to the [Named Victims,] the firearms must be returned to him through a designated representative.” (Kaczynski’s Response, Aug, 1, 2006, at 1.) Kaczynski also contends he is entitled to the return of any unsold property, including those items categorized by the government as bomb-making materials, unless those materials “constitute ‘per se contraband.’ ” (Id. at 2.)
On August 4, 2006, the government filed a supplemental document regarding the bomb-making materials, to which it attached detailed descriptions and photographs of the items. (Gov’t Status Report, filed August 4, 2006, Attach. 1–3.)
