Monday, January 12, 2009
Panel Approves Revised Plan for Sale of ‘Unabomber’ Items
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday approved a district judge’s revised plan for the sale of writings and other materials seized from the Montana cabin of convicted “Unabomber” Theodore Kaczynski in 1996.
The items will be sold in order to pay up to $15 million in restitution to four named victims, ordered at the time of sentencing. Kaczynski pled guilty in 1998 to several counts of transporting or mailing explosives with the intent to kill, resulting in three deaths and nine injuries.
He later attempted to withdraw the plea, which he had offered in exchange for the withdrawal of the government’s request for the death penalty, but the sentencing judge and the Ninth Circuit both ruled that the plea had been voluntary. He is currently serving four life terms plus 30 years in a maximum security prison.
A Harvard graduate who holds advanced degrees in mathematics from the University of Michigan, Kaczynski argued in his writings that technological advances have reduced human freedom. He has said his bombings were blows against what he regarded as the tyranny of technology.
Kaczynski asked that his seized property, including guns, instructions and other materials for making bombs, and correspondence be returned so that he can donate it to the University of Michigan for its Labadie Collection of social protest literature and memorabilia.
The collection houses a diverse collection of items focusing on anarchism, abolitionism, early labor radicalism, socialism, and communism, among other movements, including several hundred pages of Kaczynski correspondence, although the university has agreed to keep the identities of the correspondents secret until 2049.
The government opposed the motion for return of the property, proposing that it be allowed to keep the items, have them appraised at a value that would not reflect their enhanced status resulting from the defendant’s “celebrity,” and distribute that amount of money to the victims. Prosecutors said this would be preferable to being forced to participate in the spectacle of a public sale at which the defendant’s fame would inflate the sales prices.
U.S. District Judge Garland Burrell of the Eastern District of California denied Kaczynski’s motion, raising the possibility that the government could proceed with its plan. But in a 2005 ruling, the Ninth Circuit said selling the property for “nominal” or “garage sale” value would be inconsistent with the purposes of the restitution statute.
Since the money would go to the victims, not Kaczynski, the sale of the items for full market value would not permit the defendant to profit from his crimes, the court reasoned.
It remanded the case for development of a new restitution plan, and appointed pro bono counsel to represent the interests of the victims, including those who were not identified in court proceedings and did not seek restitution.
Credit Towards Award
On remand, the government proposed that a sale of most of the items be publicized and conducted over the Internet, that the defendants’ writings be redacted to exclude all information that could be used to identify actual and intended victims and their families, and that Kaczynski’s weapons be turned over to the named victims in exchange for a $300 credit towards the restitution award.
The government also proposed that if any items did not sell over the Internet, the named victims be entitled to receive them in exchange for additional credit.
Burrell largely approved the plan over the defendant’s objections. He did, however, rule that the Labadie Collection could have the bomb-making instructions, which the government wanted to destroy, although the plan allows the government to dispose of various bomb-making materials seized from the defendant’s residence.
Kaczynski, representing himself on appeal, argued that the restitution statute and the revised plan violate his rights under the First Amendment. Judge Michael Daly Hawkins, writing Friday for the Ninth Circuit, disagreed.
Hawkins noted that Burrell’s order permits Kaczynski to have copies of all written materials that were seized. The lack of possession of the originals, the appellate judge wrote, may have an economic effect on the defendant but in no way prevents him from communicating his ideas.
“The First Amendment protects ideas and the freedom to express them,” the judge reasoned. “...Kaczynski cites no authority for the proposition that the original pieces of paper on which his ideas were written are independently deserving of constitutional protection.....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.”
Hawkins went on to reject objections to the plan by pro bono counsel for the unnamed victims, who argued that the property should be donated or destroyed, rather than sold, in order “to minimize publicity and prevent re-opening old wounds,” the judge explained.
The district judge, Hawkins wrote, acted well within his discretion in balancing the interests involved.
“The sale of Kacyznski’s property is undoubtedly a sensitive issue for everyone involved,” the jurist explained. “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 Kaczynski....The government’s proposal and the district court’s order approving that Plan fully comply with our limited remand.”
Judge Mary C. Schroeder and Senior Judge William C. Canby Jr. concurred in the opinion.
The case is United States v. Kaczynski, 06-10514
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