Cite as 446 F.Supp.2d 1146 (E.D.Cal. 2006)
18 U.S.C. § 3664(m)(1)(A)(ii)) (emphasis added). Federal Rule of Civil Procedure 69(a), which governs enforcement of a judgement for the payment of money, states that the procedures used to enforce a judgment “shall be in accordance with the practice and procedure of the state in which the district court is held….” In California, a judgment creditor may credit bid on property subject to a judgment lien. Cal.Code Civ. P. § 701.590(b). Therefore, credit bidding is an “available … means” of executing the unsatisfied restitution order in favor of the Named Victims. Kaczynski, 416 F.3d at 976.
Accordingly, the proposals in the July 31 Plan to sell the personal items in the internet auction and to allow the Named Victims to credit bid on unsold personal items are approved.
II. Proposal as to Firearms
The July 31 Plan proposes that the firearms be “turned over” to the Named Victims “and th[at] [Kaczynski] … be credit[ed] three hundred [dollars] ($300.00) towards his restitution debt.” (Gov’t Status Report, filed July 31, 2006, at 4.) Kaczynski does not challenge this amount of credit, but argues “crediting” the restitution order for the value of the firearms would be “inconsistent” with the Ninth Circuit remand decision. (Kaczynski’s Objections, filed August 1, 2006, at 1–2.)
The record does not indicate three hundred dollars of credit for the firearms constitutes negligible value. Consequently, crediting Kaczynski this amount would not inconsistent with the Ninth Circuit remand decision. See Kaczynski, 416 F.3d at 976 (indicating property having more than “negligible value” can be used to reduce the amount of restitution a defendant owes a victim). Therefore, the proposal in the July 31 Plan to sell the firearms to the Named Victims for three hundred dollars credit is approved.
III. Proposal as to Bomb-Making Materials
The July 31 Plan states “[t]he Named Victims … request that no bomb-making materials be sold,” and proposes to “appropriately dispose” of all the bomb-making materials described on an attached list. (Gov’t Status Report, fled July 31, 2006, at 4; id. Ex. D.) Kaczynski argues he “does not believe the items on the list are bomb-making materials,” and asserts all of the items must be either sold at the auction or returned to him unless “they constitute ‘per se contraband.’ ” (Kaczynski’s Response, Aug. 1, 2006, at 2.) The government rejoins that Kaczynski “represented to [the Ninth Circuit] that he was not seeking the return of [these] items,” and also asserts the bomb-making materials cannot be returned to Kaczynski because “prison regulations prohibit [him] from possessing [them].” (Gov’t Status Report, filed July 31, 2006, at 1.)
The remand decision states “Kaczynski does not seek the return of any property that constitutes contraband.” Kaczynski, 416 F.3d at 974, n. 4. Kaczynski argues the term “contraband” does not include all items the government characterizes as bomb-making materials because many of the items could be used for “legitimate, lawful purposes.” (Kaczynski’s Response, Aug. 1, 2006, at 2.) However, even if Kaczynski is correct on this point, the property may not be returned to him unless he establishes that he may lawfully possess the items while in prison. United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir.1987) (stating that “[t]o prevail on a Rule 41[ (g) ] motion, a criminal defendant must demonstrate that … he is entitled to lawful possession of the seized property”).
Federal prison regulations prohibit Kaczynski from possessing any “material pro-
