Petition for Writ of Certiorari — Zackary Ellis Sanders, Petitioner v. United States

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APPENDICES to Petition for WRIT of Certiori

Zackary Ellis Sanders

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7054

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ZACKARY ELLIS SANDERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. T.S. Ellis, III, Senior District Judge. (l:20-cr-00143-TSE-l)

Decided: July 9,2024

Argued: March 22, 2024

Amended: July 10, 2024

Before NIEMEYER, KING, and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King

and Judge Benjamin joined.

ARGUED: Jonathan Shapiro, WASHINGTON & LEE UNIVERSITY SCHOOL OF

LAW, Lexington, Virginia, for Appellant. Joseph Attias, OFFICE OF THE UNITED

STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Nina J. Ginsberg,

DIMUROGINSBERG, PC, Alexandria, Virginia, for Appellant. Jessica D. Aber, United

States Attorney, Aidan Taft Grano-Mickelsen, Assistant United States Attorney,

Richmond, Virginia, William dayman, Trial Attorney, Annie Zanobini, Assistant United

States Attorney, Seth Schlessinger, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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NIEMEYER, Circuit Judge:

Following Zackary Sanders’s convictions for violating federal child pornography

laws, the district court ordered the forfeiture, pursuant to 18 U.S.C. § 2253(a), of nine

electronic devices on which Sanders stored child pornography and with which he

committed the crimes. Objecting to the forfeiture, Sanders contended that § 2253(a) is not

so broad as to require the forfeiture of non-contraband items contained on the nine

electronic devices, such as personal photographs, personal business records, and the like.

Accordingly, he requested that the district court order the government “to allow his forensic

expert to segregate and make digital copies of non-contraband” items. The district court

refused his request, concluding that “nowhere does [§ 2253(a)] provide that only some

portion of the property containing child pornography should be subject to forfeiture. Nor

does the statute provide that non-contraband material on the devices should be separated

from contraband materials on the devices and returned to a defendant.”

On appeal from the district court’s order, Sanders challenges the court’s reading of

§ 2253(a). He also claims, for the first time on appeal, that the forfeiture order’s inclusion

of his non-contraband items was “plainly excessive under the Eighth Amendment.”

For the reasons that follow, we affirm.

Following an investigation, the FBI uncovered evidence that Sanders had, for over

two years, engaged in communications with underage boys, some as young as 13 years old,

through various social media and communication applications. In these communications,

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Sanders had the minors send him videos and pictures of themselves naked and in

compromising positions — writing degrading words across their bodies, masturbating, or

slapping their testicles repeatedly — some of which he later used as blackmail when one

of the minors threatened to disclose Sanders’s conduct. Sanders stored these videos and

photos, as well as other depictions of child pornography downloaded from the Internet, on

the same electronic devices that he used to communicate with the minors.

Sanders was indicted in 12 counts for the production, receipt, and possession of

child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), 2252(a) and (b). The

indictment also provided Sanders with notice that “all matters that contain visual

depictions” of child pornography and “any property . . . used or intended to be used to

commit” the child pornography offenses, including his various electronic devices, would

be forfeited as part of his sentence upon conviction.

Following a seven-day trial, a jury convicted Sanders on all 12 counts.

Prior to sentencing, the government filed a motion, pursuant to 18 U.S.C. § 2253(a),

for the forfeiture of nine devices — three laptops, two Apple iPads, two Apple iPhones,

and two thumb drives — that it had seized from Sanders and that Sanders had used to

produce, receive, and possess child pornography. Simultaneously, it opposed Sanders’s

contemporaneous motion under Federal Rule of Criminal Procedure 41(g) for return of the

non-contraband files stored on the devices. In his Rule 41(g) motion, Sanders also objected

to the entry of the proposed order of forfeiture. While Sanders acknowledged that he was

not entitled to the return of any property subject to forfeiture, he argued that the forfeiture

statute did not reach so broadly as to require the forfeiture of non-contraband items that

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were also stored on the electronic devices. He claimed that they represented “more than a

decade of [his] life, including personal photographs, personal and business records,

educational records, records of theater performances, contact information and emails.” He

requested that the court “direct the government to allow his forensic expert to segregate

and make digital copies of non-contraband data and image files that are stored on the

electronic devices subject to forfeiture using a protocol that was previously approved by

the FBI and the prosecution team for producing discovery.”

Following additional briefing on the issue, the district court ordered the forfeiture

of the nine electronic devices in their entirety and denied Sanders’s request to copy non

contraband items. The court observed that, as a textual matter, § 2253(a) made no

exception for “non-contraband material” or “non-contraband portions of property,” and it

therefore concluded that “there [was] no doubt that the plain and unambiguous text of 18

U.S.C. § 2253(a) requirefd] the forfeiture of the electronic devices in their entirety.” The

district court also observed that the process of distinguishing contraband and non

contraband material in this case would have been “more complicated than merely

separating pornographic images from non-pomographic ones” because evidence at trial

had “demonstrated that [Sanders] offered employment in his businesses to several of the

minor victims.” As such, “some of the business files [Sanders] [sought] to be returned may

[have] contained] information identifying [Sanders’s] minor victims,” requiring a

“detailed review of each file to ensure that no contraband material was inadvertently

disclosed to the defendant,” which would have been “entirely unworkable given finite

government resources.” Finally, the court observed that any burden on Sanders from the

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loss of access to non-contraband files was “a result of [his] own wrongdoing,” as he was

“the one who decided to commingle family photographs and business records with images

of child pornography.”

From the district court’s order, dated August 19, 2022, Sanders filed this appeal.

And for the first time on appeal, he also challenges the district court’s forfeiture order as

an “excessive fine” under the Eighth Amendment.

The criminal forfeiture statute at issue and as relevant provides:

A person who is convicted of an offense ... involving a visual depiction [of

child pornography]... shall forfeit to the United States such person’s interest

in —

(1) any visual depiction ... or any book, magazine, periodical, film,

videotape, or other matter which contains any such visual depiction . . . ;

[and]

(3) any property, real or personal, used ... to commit . . . such [child

pornography] offense....

18 U.S.C. § 2253(a). Thus, these provisions require the forfeiture, following convictions

involving child pornography, of (1) all depictions of child pornography, (2) any matter

containing such depictions, and (3) any property used to commit the crimes involving

depictions of child pornography.

In this case, the district court found that all nine of the electronic devices at issue

contained visual depictions of child pornography and that all nine devices were used to

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commit the child pornography offenses of conviction.

Accordingly, it ordered the

forfeiture of all nine devices “in their entirety” to the government.

While Sanders agrees that the nine devices were used to commit the crimes and

therefore were forfeitable, he contends that the scope of the forfeiture must be limited to

the devices themselves and the actual depictions of child pornography in the devices and

may not include non-contraband items, such as family pictures and business documents

that he had stored on them. To make his argument, he focuses on the definitional scope of

two terms — “other matter,” as used in § 2253(a)(1), and “property,” as used in

§ 2253(a)(3). He argues that “other matter” refers to “any computer file,” not the entire

electronic device, and similarly that “property” refers to the devices themselves and only

the contraband computer files, but not the non-contraband computer files. Accordingly,

he contends that the district court erred in refusing to order the government to return to him

non-contraband files contained on the nine electronic devices.

Before addressing the reasoning underpinning each of Sanders’s arguments, we will

begin with the text of the forfeiture statute, see Taylor v. Grubbs, 930 F.3d 611, 616 (4th

Cir. 2019), and, in light of Sanders’s arguments, specifically with the text of the two

subsections at issue, § 2253(a)(1) and § 2253(a)(3).

As to § 2253(a)(1), the text provides that a defendant convicted of a crime involving

child pornography forfeits two classes of things: (1) “any visual depiction” of child

pornography and (2) “any book, magazine, periodical, film, videotape, or other matter

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which contains any such visual depiction” of child pornography. 18 U.S.C. § 2253(a)(1)

(emphasis added). While the forfeiture of any “depiction” does not give rise to any

argument here, the second portion, forfeiting any “matter” that contains such a depiction,

does.

To be sure, standing alone, “any ... other matter” is a broad term. But “[t]o strip a

word from its context is to strip that word of its meaning.” Biden v. Nebraska, 143 S. Ct.

2355, 2378 (2023) (Barrett, J., concurring).

In context, “matter” is given meaningful

definition from at least three separate textual sources. First, its context with “any book,

magazine, periodical, film, [or] videotape” suggests that “matter” shares meaning with

those neighboring words, giving it a more precise meaning under the interpretive canon of

noscitur a sociis. See United States v. Williams, 553 U.S. 288, 294 (2008) (recognizing

the canon to “counsel[] that a word is given more precise content by the neighboring words

with which it is associated”). Thus, “matter” cannot be read, by force of that canon, to

refer to earth, rock, air, or water; rather, it would refer to any medium, like a “videotape”

or a “film,” that could contain a recording of visual depictions, such as electronic devices.

Second, “any other matter” is restricted to things that can contain visual depictions,

inasmuch as the term “matter” is followed in the text by the modifying clause, “which

contains any such visual depictions.” While trees, bushes, and grass are matter, they cannot

contain visual depictions; but electronic devices can. Thus, the latter, but not the former,

falls within the statute’s scope.

Third, the statute limits “any other matter” to something that can contain visual

depictions of child pornography, and “visual depictions” is a term defined to include “data

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18 U.S.C. § 2256(2)(B)(5).

Thus, because matters

containing visual depictions include matters that can contain data stored on a computer

disk, the nine devices at issue in this case would qualify as “matter.”

Moreover, the forfeiture statute’s inclusion of “any other matter” was deliberately

broad so as to serve as a catchall to encompass devices or media that could hold or contain

visual depictions of child pornography. This is evidenced by Congress’s direction that the

scope of forfeiture be liberally construed.

See 18 U.S.C. § 2253(b) (incorporating

provisions of the Controlled Substances Act, 21 U.S.C. § 853 (addressing the criminal

forfeiture of property)); 21 U.S.C. § 853(o) (providing for the liberal construction of

forfeiture “to effectuate its remedial purposes”).

We thus readily conclude that § 2253(a)(1) requires the forfeiture of electronic

devices that contain visual depictions of child pornography.

Sanders argues to the contrary that “any other matter” refers only to contraband

computer files, not the entire electronic device. We find, however, that this reading is

textually unsupportable. Sanders argues that books, magazines, periodicals, films, and

videotapes, unlike electronic storage devices, are items that can be “separately viewed,

copied, and transmitted, and from which content cannot be removed without destroying the

original form.” He maintains that the devices themselves, unlike the files stored within

them, “share none of these features.” He explains,

Nor does child pornography often appear in books, magazines, periodicals,

films, and videotapes that are not also dedicated to that content further

distinguishing them from storage devices like computers and cellphones

which rarely store information solely devoted to child pornography. Because

the focus of § 2253(a)(1) is to remove depictions of child pornography from

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circulation, forfeiting physical devices storing large quantities of personal

information unrelated to any child pornography offense does not advance the

purposes of subsection (a)(1) or reduce the amount of child pornography in

circulation and was not a proper basis upon which to forfeit Sanders’s legally

possessed file[s].

Yet, Sanders overlooks that the criminal forfeiture of matters containing child pornography

does not simply serve the function of removing the visual depictions of child pornography

themselves. That is covered by the first portion of § 2253(a)(1) (providing for the forfeiture

of all visual depictions). Rather, the purpose of the entire forfeiture provision is also to

serve as punishment and deterrence. See Kaley v. United States, 571 U.S. 320,323 (2014).

Sanders does, however, raise a legitimate policy argument based on the fact that

today computers and cellphones regularly store large quantities of personal information,

even though they may also contain contraband. And this argument has gained traction in

the context of Fourth Amendment searches and seizures. See Riley v. California, 573 U.S.

373, 396-97 (2014) (noting the special considerations at play with searches of cellphones

under the Fourth Amendment because “[a] phone not only contains in digital form many

sensitive records previously found in the home; it also contains a broad array of private

information never found in a home in any form”). But this argument fails to recognize the

distinction between Fourth Amendment searches and statutory criminal forfeitures. In

requiring the forfeiture of devices “containing” contraband, Congress imposed a penalty

both to punish and to discourage the production, receipt, and possession of child

pornography. Kaley, 571 U.S. at 323. Necessary to the imposition of that punishment,

which comes at the end of process, is the prior adjudication of guilt with the attendant

procedural protections afforded by the Constitution. See, e.g., 18 U.S.C. § 2253(a) (“A

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person who is convicted of an offense under this chapter . . .

In contrast, the Fourth

Amendment provides on the front end safeguards that ensure that searches and seizures

conducted to collect evidence to prosecute crimes reflect certain property and privacy

interests. See Carpenter v. United States, 585 U.S. 296, 304 (2018). As such, Sanders’s

argument compares apples to oranges. Moreover, any such policy argument designed to

modify the punishment of forfeiture must be addressed to Congress. See Nickey Gregory

Co., LLC v. AgriCap LLC, 597 F.3d 591, 608 (4th Cir. 2010) (“The judiciary . . . should

not insert itself in these policy matters by questioning or debating legislative judgments, as

it is constituted only to comprehend, interpret, and apply what Congress has duly

provided”).

We hold that by the clear text, § 2253(a)(1) provides for the forfeiture of electronic

devices containing child pornography.

As to § 2253(a)(3), the second provision placed at issue by Sanders, the text provides

for the forfeiture of “any property . . . used ... to commit” crimes involving child

pornography. Again, “property” is restricted by the text to refer to property used to commit

the offense of conviction. We conclude that “property” as used in § 2253(a)(3) is not

ambiguous and includes the nine electronic devices that were concededly used to commit

the crimes of which Sanders was convicted.

In this case, the forfeited electronic devices were made up of mechanisms and

components such as central processing units, memories, hard drives, and other items

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allowing for communication with the Internet, all of which enabled Sanders to

communicate with the underage boys, to produce visual depictions of child pornography,

to receive images of child pornography both from the boys and from the Internet, or to

store and possess the images on his devices. While the images themselves were certainly

contraband and therefore forfeitable, they were not themselves the property used to commit

the relevant crimes. The entire devices were, and therefore they were subject to forfeiture.

Sanders acknowledges that the electronic devices are forfeitable as property used to

commit the child pornography offenses but argues that the non-contraband files contained

on them are not. More specifically, relying on the statutory definition of property, which

includes both tangible and intangible property, see 18 U.S.C. § 2253(b); 21 U.S.C. § 853(b)

(defining property to include “tangible and intangible property”), Sanders argues that

§ 2253(a)(3)’s authorization to forfeit “property” applies only to the electronic devices and

does not reach non-contraband property contained within them. He reasons that while the

definition of property includes two forms — tangible and intangible — the district court

treated them as the same. If they were treated as separate property, he argues, the court

would have been required to order the government to return the separate non-contraband

property, as “numerous other courts have previously held,” citing Fourth Amendment

cases, such as Trulockv. Freeh, 275 F.3d 391 (4th Cir. 2001), United States v. Williams,

592 F.3d 511 (4th Cir. 2010), and In re Search Warrant Issued June 13, 2019, 942 F.3d

159 (4th Cir. 2019). Sanders explains further that “[n]either case law nor common sense

suggests any reason to distinguish a computer from an analogous file cabinet containing a

large number of documents when determining whether property was improperly seized.”

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He argues that the same, by analogy, should apply to forfeitures of electronic devices and

their contents.

Sanders’s argument, however, faces several barriers that he has not hurdled. First,

the cases to which he cites are Fourth Amendment cases, and not forfeiture cases. As

noted, forfeiture is a punishment created by Congress that is circumscribed by the

requirements of the Eighth Amendment and not by the scope of seizures regulated by the

Fourth Amendment.

But more importantly, § 2253(a)(3) does not so limit the term “property” when

requiring that any property used to commit a child pornography offense must be forfeited.

If property referred separately to electronic devices and the files on them, as Sanders

contends, such that files on the devices could be sorted into contraband and non-contraband

files, then the files themselves, whether contraband or not, would have to fit the definition

of property in § 2253(a)(3). Yet they do not do so. Property as used in § 2253(a)(3), is

defined to be property “used to commit” the child pornography offense.

18 U.S.C.

§ 2253(a)(3) (emphasis added). But the files in the electronic devices here — whether

pornographic or not — were not used to commit the offenses. They did not enable Sanders

to communicate with underage boys; they did not enable Sanders to instruct the boys about

how to create sexual images; they did not enable Sanders to receive images; they did not

enable Sanders to store them. They were themselves the product of the electronic devices’

various mechanisms and components and Sanders’s use of them. Thus, property, as used

in § 2253(a)(3), could not refer simply to the files to which Sanders refers.

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Moreover, Sanders points to no court precedent, and we have found none, that

interprets “property” in § 2253(a)(3) to refer to electronic devices as distinct from the files

contained on them. Indeed, courts have rejected that “the text of § 2253(a)(3) allows for

subdivision of the property” at issue. United States v. Hull, 606 F.3d 524, 528 (8th Cir.

2010).

Sanders’s argument that computer files are “property” that can be distinguished

from the device itself also fails to acknowledge the physical reality of electronic devices.

Computer files representing “images” are simply data contained as electronic pulses stored

on magnetic fields in hard drives and other computer memory, which can be accessed with

instructions from a central processing unit, programs, and applications also functioning

with electronic pulses. SeeAOL, Inc. v. St. Paul Mercury Ins. Co., 347 F.3d 89, 94-95 (4th

Cir. 2003). In physical terms, thus, the recorded electronic pulses are incorporated by

magnetism into the physical mechanisms of the devices, such that they are one.

In that vein, Sanders has thus not explained how the government would give him

such files as “property” and how he would receive them. Computer files are not like

photographs in a box, some of which could simply be selected, removed, and physically

returned. Rather, they are nothing but invisible electronic pulses stored in computer

memory. As such, they can be erased or copied, but they cannot, as electronic matter, be

extracted as is and delivered. See AOL, 347 F.3d at 95 (“All data, information, and

instructions used in a computer are codified into a binary language, and the binary language

is processed by the computer by the operation of switches that are ... configured on or off

by electricity”). Yet, even as Sanders argues that computer files are distinct property that

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can be “returned” to him, he seeks relief that belies the argument. He does not seek the

extraction and return of the electronic data representing non-contraband files, even if that

were possible. Rather, he seeks a court order “direct[ing] the government to allow his

forensic expert to segregate and make digital copies of non-contraband data and image files

that [were] stored on the electronic devices subject to forfeiture.” (Emphasis added). As

such, he does not argue that the government unlawfully possesses the non-contraband files,

but rather that he, as well as the government, should have access to them. Such a right to

access, however, must, in the first instance, be authorized by Congress.

We conclude that in the context of § 2253(a)(3), “property” can only mean the entire

device used to commit the offense, including the image files stored on it. See United States

v. Noyes, 557 Fed. App’x 125, 127 (3d Cir. 2014) (“There is nothing in [§ 2253(a)(3)]

which indicates that only a portion of the ‘property’ can be forfeited”).

At bottom, in enacting § 2253(a)(3), Congress made clear that it requires the

forfeiture of any property used to commit an offense involving child pornography, and

therefore, we conclude that the district court did not err in ordering forfeiture of the nine

electronic devices in their entirety as property that Sanders used in committing the offenses

of conviction.

Ill

Sanders also contends, for the first time on appeal, that the “district court’s forfeiture

of non-contraband files . . . was unconstitutionally excessive under the Eighth

Amendment’s Excessive Fines Clause.” He acknowledges that because he failed to present

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the argument to the district court, it is “reviewable for plain error.” See Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 731 (1993).

Sanders argues that the forfeiture of “personal, family and business” files was

“unconstitutionally excessive,” because such property had “incalculable value” — some

were “one-of-a-kind.” Thus, their forfeiture was a “disproportional” penalty. Other than

making that claim in his briefing, however, he provides no further detail or evidentiary

support of the claim. Nor does he provide nor attempt to provide any monetary value of

the non-contraband files stored on those devices. Indeed, he does not even purport to

provide the value of the nine electronic devices forfeited. Rather, citing Riley’s recognition

that cellphones for many Americans hold “the privacies of life,” 573 U.S. at 403 (cleaned

up), he claims that because the non-contraband contents of his electronic devices were

important to him, their forfeiture was excessive punishment.

It is now well-established that criminal forfeiture is punishment subject to the

Excessive Fines Clause of the Eighth Amendment. See United States v. Bajakajian, 524

U.S. 321, 334 (1998); United States v. Jalaram, Inc., 599 F.3d 347, 351 (4th Cir. 2010).

And “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the

principle of proportionality: The amount of the forfeiture must bear some relationship to

the gravity of the offense that it is designed to punish.” Bajakajian, 524 U.S. at 334. “[I]f

it is grossly disproportional to the gravity of a defendant’s offense,” a criminal forfeiture

violates the Eighth Amendment. Id. (emphasis added).

To make the determination of whether a forfeiture is “grossly disproportional,” we

consider four factors: “(1) the amount of the forfeiture and its relationship to the authorized

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penalty; (2) the nature and extent of the criminal activity; (3) the relationship between the

charged crime and other crimes; and (4) the harm caused by the charged crime.” United

States v. Bennett, 986 F.3d 389, 399 (4th Cir. 2021); see also Jalaram, 599 F.3d at 35556. And the party challenging the constitutionality of the forfeiture under the Eighth

Amendment must carry the burden of demonstrating gross disproportionality by addressing

the relevant factors. See United States v. Ahmad, 213 F.3d 805, 816 (4th Cir. 2000).

In this case, Sanders has failed to satisfy, by any measure, any relevant factor. First,

he has produced no evidence to value the forfeited information or even to support his bald

assertion that the files he seeks — “personal photographs, personal and business records,

educational records, records of theater performances, contact information and emails” —

are unavailable anywhere else. This failure alone is particularly stark given that the

authorized penalty for his twelve counts of conviction was $250,000 per count, plus other

special assessments, for potential liability of over $3 million. See 18 U.S.C. § 3571(b).

Moreover, he has failed even to show or claim the value of the nine forfeited electronic

devices, which surely could not have exceeded even $25,000, as two of the devices were

thumb drives, two were Apple iPhones, and two were Apple iPads. While he has, to be

sure, asserted a genuine interest in having non-contraband files returned — or copied, as

he requests — he has provided no authority that would justify evaluating non-contraband

files on the basis of his subjective interest. Thus, Sanders has provided no evidence to

establish that the value of the forfeited data nears, much less exceeds, the authorized fines

for the conduct. See Jalaram, 599 F.3d at 356-57 (concluding that a $385,000 forfeiture

was not grossly disproportionate in light of the offense’s $350,000 maximum fine).

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Sanders also fails to address the second and fourth factors relating to the nature and

extent of his criminal activity and the harm that it caused — generally, the “gravity” of his

criminal conduct. But the record shows that Sanders was convicted of five counts of

production of child pornography, six counts of receipt of child pornography, and one count

of possession of child pornography. It also shows that for a period of over two years,

Sanders communicated with minor boys and had them record videos of themselves

engaged in sexualized conduct. His offenses occurred over a period of years and caused

substantial harm and indeed life-long trauma to several minors and their families. Courts

have consistently recognized that child pornography offenses of this type are serious

offenses that cause substantial harm. See Hull, 606 F.3d at 530; see also New York v.

Ferber, 458 U.S. 747, 758 n.9 (1982) (recognizing scientific literature showing that many

“sexually exploited children are unable to develop healthy affectionate relationships in later

life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults”).

At bottom, the nature and extent of Sanders’s criminal activity was extensive, and the harm

that his activity caused was serious.

Finally, the third factor — the relationship between the charged crime and other

crimes — also does not weigh in Sanders’s favor. Though the child pornography crimes

here were not necessarily “connected with other offenses,” Jalaram, 599 F.3d at 356,

Sanders clearly “fit[s] into the class of persons for whom the statute was principally

designed,” Bajakajian, 524 U.S. at 338. He has thus not been punished pursuant to a

prophylactic measure without having committed the underlying malum in se crime, a

circumstance about which the Bajakajian Court was concerned. 524 U.S. at 338.

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Under the plain error standard, Sanders was required to show at least (1) that there

was an error; (2) that the error was plain; and (3) that the error affected his substantial

rights. See Olano, 507 U.S. at 734. In this case, however, he has not carried his burden

of even showing error. The forfeiture of the nine electronic devices, with the data contained

on them at the time of forfeiture, was clearly authorized by statute and was not grossly

disproportional to the gravity of the offenses for which Sanders was convicted.

Accordingly, we reject his Eighth Amendment argument.

The judgment of the district court is

AFFIRMED.

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i ofal Pages:(4 of 4}

FILED: July 9,2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7054

(1:20-cr-00143-TSE-l)

UNITED STATES OF AMERICA

Plaintiff - Appellee

ZACKARY ELLIS SANDERS

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ NWAMAKA ANOWL CLERK

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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA,

)

ZACKARY ELLIS SANDERS,

Defendant.

Criminal Action No. l:20-cr-143

MEMORANDUM OPINION

A jury, following a seven-day trial, convicted Defendant Zackary Ellis Sanders of five

counts of production of child pornography, six counts of receipt of child pornography, and one

count of possession of child pornography. Now before the Court are the government’s motion for

a preliminary order of forfeiture (Dkt. 610) and defendant’s motion for return of non-contraband

seized property (Dkt. 607). The government seeks forfeiture of nine electronic devices, all of

which were used in the commission of the offenses of conviction, and which were seized by FBI

agents on February 12, 2020 in the course of executing a search warrant at Defendant’s home.

Defendant concedes that the electronic devices themselves are subject to mandatory' forfeiture,

but defendant nonetheless seeks the return of certain files contained on these devices, including

defendant’s business records and family photograph, which defendant argues are not subject to

mandatory forfeiture. Defendant seeks an order directing the government to preserve and return

copies of the non-contraband content on the devices. The motions have been fully briefed and a

forfeiture hearing was held April 29,2022.1 The motions are therefore ripe for disposition.

i Ordinarily, a forfeiture order is entered at the time of sentencing, and sentencing in this case

occurred on April 1, 2022. At the time of defendant’s sentencing, however, defendant requested

additional time to respond to the government’s proffered preliminary forfeiture order and

requested that the forfeiture hearing be continued to a later date. See Defendant’s Reply in

Support of Defendant’s Motion for Return of Property, United States v. Sanders, l:20-cr-00143

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The factual and procedural background of this case has been recounted in prior Orders

and need not be fully repeated here. See, e.g., Sealed Order, United Slates v. Sanders, l:20-cr143 (E.D. Va. Apr. 15, 2022) (Dkt. 642) (summarizing defendant’s convicted offenses and the

trial evidence supporting those convictions). In essence, in October 2021, following a seven-day

trial, defendant was convicted by a jury oflwelve counts of possession, receipt, and production

of child pornography. The trial evidence established that Defendant coerced, persuaded, and

enticed minor victims to record videos of themselves engaged in sexualized conduct (e.g.

slapping their testicles) and then to send those videos to Defendant. The trial evidence also

established that Defendant amassed a collection of child pornography from various websites and

that Defendant stored that child pornography on various electronic devices. As a result, the

government seeks forfeiture of the following nine electronic devices, all of which contain child

pornography or were used in commission of the offenses of conviction:

(a) 1B1 - 4GB Sandisk Cruzer Edge thumb drive (‘TB1“);

(b) 1B2 - HP Elite Book 755 laptop (“1B2”);

(d) 1B5 - HP laptop S/N: 5CH1262Y5Y (“1B5’*);

(e) 1B6 - HP laptop S/N: CNF8255WH5 (“1B6”);

(0 1B19 - Apple iPad, S/N: DMPVGGCPHDDV (“IB 19”);

(E.D.Va. Mar. 31, 2022) (Dkt. 612 at 1). Defendant’s motion to continue the forfeiture hearing

was granted, and the forfeiture hearing was continued until Aril 29,2022.

During defendant’s sentencing, counsel for both parties agreed that Fourth Circuit precedent

established that a sentencing court may retain jurisdiction to enter a forfeiture order after

sentencing, provided that, as occurred here, the sentencing court makes clear at the time of

sentencing that a forfeiture order would be forthcoming at a later time. See United States v.

Martin, 662 F.3d 301,307 (4th Cir. 2011).

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(g) 1B22 - Apple iPad, S/N: DMPHM3K7DVGF (“1B22”);

(h) 1B24 - Apple iPhone, FCC ID: BCG-E2430A (“1B24”);2 and

(i) 1B27 - Apple iPhone S/N; C39VJ0XDJCL6 (“1B27”).

Trial testimony and admitted evidence establishes that all of these electronic devices

contained child pornography and were used by Defendant in the commission of the offenses of

conviction. Specifically, trial testimony included:

•

Special Agent Christopher Ford testified that he imaged and examined devices 1B1, 1B2,

IB3, and IBS, and that those devices each contained images of child pornography

(relating to the possession of child pornography charges).

•

Agent Ford also testified that he examined 1B19 and that, based on Agent Ford’s

examination, IB 19 was used to chat online with minors to produce and receive child

pornography.

•

Agent Ford testified that he examined 1B22 and that 1B22 was used to chat online with

minors to produce and receive child pornography.

•

Agent Ford testified that he examined 1B27 and that 1B27 was used to receive child

pornography.

In addition to the trial testimony, the government submitted two declarations in support

of forfeiture. First, Special Agent Emily Eckert submitted a declaration in support of the

government’s forfeiture motion in which Eckert explained that a forensic examination of the

electronic devices found images and videos of child pornography on each device. See

Declaration of Special Agent Emily T. Eckert, United States v. Sanders, l:20-cr-00143 (E.D.Va.

Mar. 29,2022) (Dkt. 610-1). Second, FBI Special Agent Andrew Kochy also submitted a

declaration in support of the government’s forfeiture motion in which Agent Kochy described

the burden the government would bear if the government were required to review the files on

these electronic devices and segregate contraband from non-contraband files. See Declaration of

2 The government’s proposed forfeiture order incorrectly identified device 1B24 as an Apple

iPad, see Dkt. 610, but the government corrected this error during the April 22 forfeiture hearing.

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Special Agent Andrew Kochy, United Slates v. Sanders, l:20-cr-00143 (E.D.Va. Mar. 29, 2022)

(Dkt. 610-1 at 7). Specifically, Agent Kochy stated that an FBI agent would be required to

'‘inspect every picture, text message, email, document, and file” on these devices to ensure that

the files Defendant seeks contain no contraband or evidence of Defendant’s crimes.3 Dkt. 610-1

at 9. Thus, agents would be required to engage in the time-consuming effort of reviewing each

file for contraband content before separating contraband content in order to separate contraband

from non-contraband files.

III.

The forfeiture of property in child pornography prosecutions is governed by 18 U.S.C.

§ 2253. In essence, the parties dispute the proper scope of that statutory provision. Section

2253(a) provides that defendants who are convicted of child pornography offenses are required

to forfeit certain property used in connection with those offenses. See 18 U.S.C. § 2253(a).

Because Section 2253(a)’s forfeiture provisions are mandatory, district courts lack authority to

deny forfeiture even in the presence of compelling circumstances or equitable considerations. In

this respect, the Fourth Circuit has been clear that “[t]he plain text of the statute thus indicates

that forfeiture is not a discretionary element of sentencing.” United States v. Blackman, 746 F.3d

137, 143 (4th Cir. 2014). Indeed, in Blackman, the Fourth Circuit explicitly held that the district

court erred in “believe[ing] that it could withhold forfeiture on the basis of equitable

considerations.” Id. Thus, equitable considerations must play no role in determining whether the

electronic devices are subject to forfeiture in their entirety.

3 As discussed in more detail below, the term “contraband” refers to all property subject to

mandatory forfeiture. The term “contraband” encompasses not only images of child

pornography, but also includes any electronic files used in the commission of the convicted

offenses as well as any information identifying or relating to the minor victims in this case.

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The government bears the burden of “establish[ing] a nexus between the property for

which it is seeking forfeiture and the crime by a preponderance of the evidence.” United States v.

Martin, 662 F.3d 301,307 (4th Cir. 2011). The government has clearly satisfied its burden in this

case, as the trial evidence and the declarations of Special Agents Eckert and Kochy, see Dkt.

610-1, establish that all nine electronic devices at issue here contain visual depictions of child

pornography and were used by defendant in the commission of his child pornography offenses.4

Defendant does not contest that all nine electronic devices are subject to forfeiture.

Although the parties agree that the nine electronic devices are subject to mandatory

forfeiture under § 2253, the parties disagree about whether § 2253 applies to non-contraband

files stored on those devices. The government argues that the provisions of § 2253

unambiguously require forfeiture of the electronic devices in their entirety, and that the

defendant is not entitled to the return of certain non-contraband files stored on those devices. See

Dkts. 610,641. Defendant, in contrast, argues that the forfeiture statute does not apply to the

non-contraband files contained on those files, and that the government is required to return to

defendant non-contraband files which the government can easily identify and separate from the

contraband files. Specifically, the defendant seeks the return of certain allegedly non-contraband

files—business records and family pictures—stored on the devices designated as 1B2, 1B19, and

1B27.

4 Under Rule 32.2(b)(1)(B), Fed. R. Crim. P., the determination of a nexus between the property

and the crime of conviction “may be based on evidence already in the records ... or information

presented by the parties ... after the verdict or finding of guilty.” Rule 32.2(b)(1)(B); accord

United States v. Farkas, 474 Fed. App’x. 349, 360 (4th Cir. 2012) (holding that a district court

may rely on additional evidence submitted during sentencing in determining the scope of a

forfeiture order). Thus, the declarations of Special Agents Eckert and Kochy are properly

considered as part of the factual record at this stage of proceedings.

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Section 2253(a) specifically identifies three categories of property subject to mandatory

forfeiture:

(1) any book, magazine, periodical, film, videotape, or other matter which

contains any such visual depiction [of child pornography], which was

produced, transported, mailed, shipped or received in violation of this

chapter;

(2) any property, real or personal, constituting or traceable to gross profits or

other proceeds obtained from such offense; and

(3) any property, real or personal, used or intended to be used to commit or to

promote the commission of such offense or any property traceable to such

property.

18 U.S.C. § 2253(a).

Notably, nowhere does the statute provide that only some portion of the property

containing child pornography should be subject to forfeiture. Nor does the statute provide that

non-contraband material on the devices should be separated from contraband materials on the

devices and returned to a defendant. Instead, the statute clearly requires forfeiture of “any ...

matter which contains” a visual depiction of child pornography, and thus requires the forfeiture

not only of the visual depiction itself, but also the matter or device on which that visual depiction

is stored. 18 U.S.C. § 2253(a)(1). Accordingly, any and all property used to commit a child

pornography offense must be forfeited to the government under § 2253(a)(3).5 The statute on its

face thus requires that Defendant must forfeit the nine electronic devices in their entirety. And as

5 This result is also consistent with the Fourth Circuit’s interpretation of forfeiture provisions in

other areas of criminal laws. For example, the Fourth Circuit has held that the forfeiture laws

governing drug prosecutions, see 21 U.S.C. § 881(a), requires forfeiture of an entire property

even if drug sales occurred only on a small portion of that property. See United States v. Santoro,

866 F.2d 1538, 1542-43 (4th Cir. 1989) (holding that the statutory text, and not the defendant’s

“subjective characterization of the property,” must “serve as the legal basis” for determining

what property is subject to forfeiture).

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discussed below, none of Defendant’s arguments against forfeiture are persuasive and thus

Defendant’s opposition to forfeiture of the entire device must fail.

Because the parties disagree on the scope of 18 U.S.C. § 2253, the question presented in

this matter is a question of statutory interpretation. Thus, the analysis must “begin, as always in

deciding questions of statutory interpretation, with the text of the statute.” Othi v. Holder, 734

F.3d 259,265 (4th Cir. 2013). Section 2253’s text makes unmistakably clear that the

government’s position is correct; the electronic devices at issue are subject to forfeiture in their

entirety under two subsections of § 2253.

First, the electronic devices are subject to forfeiture under § 2253(a)(1) because they are

“any ... other matter which contains any such visual depiction” of child pornography. 18 U.S.C.

§ 2253(a)(1). There is no dispute that each of the nine electronic devices contain images of child

pornography, and thus each electronic device falls within the scope of § 2253(a)(1). Notably,

Section 2253(a)(1) makes no exception for non-contraband material contained on the electronic

devices, and instead requires that any and all matter containing child pornography (i.e. the nine

devices at issue here) are subject to forfeiture. To the contrary, § 2253(a)(1) clearly requires

forfeiture of the matter containing the visual depictions—i.e. the electronic storage devices.

Second, the nine electronic devices are also subject to forfeiture in their entirety under

§ 2253(a)(3), which requires forfeiture of “any property, real or personal, used or intended to be

used to commit or to promote the commission of such offense or any property traceable to such

property.” 18 U.S.C. § 2253(a)(3). Here, the electronic devices the government seeks to be

forfeited quality' as property used to commit the offenses, given that these electronic devices

were all used by the defendant to access and store visual depictions of child pornography.

Defendant also used these electronic devices (i) to direct his minor victims to produce sexually

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explicit images of themselves and (ii) to receive those images from his victims. See Dkt. 610-1 at

4-5. Thus, these electronic devices were also used to facilitate the convicted offenses of

production and receipt of child pornography. Like Section 2253(a)(1), Section 2253(a)(3) applies

to any property used to commit a child pornography offense and does not contain an exception

for non-contraband portions of property. Accordingly, many of the electronic devices are subject

to forfeiture in their entirety under § 2253(a)(3).

Thus, there is no doubt that the plain and unambiguous text of 18 U.S.C. § 2253(a)

requires the forfeiture of the electronic devices in their entirety if the devices contain child

pornography or were used to commit child pornography offenses. As the Fourth Circuit has

made clear in statutory interpretation cases, where, as here, “the text is unambiguous, [the]

inquiry is complete." Taylor v. Grubbs, 930 F.3d 611,616 (4th Cir. 2019) (citing Nat 7 Ass’n of

Mfrs. v. Dep 7 o/Def,---- U.S.

, 138 S. Ct. 617,631 (2018)). Indeed, the Supreme Court

has observed that criminal forfeiture provisions “punish wrongdoing ... [and] deter future

illegalityKaley v. United States, 571 U.S. 320,323 (2014). And the plain language of §

2253(a) reflects Congress’s clear purpose to deter and prevent further child pornography

offenses. As discussed below, a review of persuasive caselaw confirms this result.

Although the Fourth Circuit has not ruled on this precise issue, two well-reasoned

opinions of other federal courts of appeals analyzing this issue have reached the conclusion that

in child pornography cases, non-contraband files stored on contraband electronic devices must be

forfeited along with the devices themselves. In United States v. Noyes, 557 Fed. App’x. 125 (3d

Cir. 2014), the Third Circuit held that electronic devices used in connection with a child

pornography conviction were subject to forfeiture in their entirety, including all of the files,

contraband and non-contraband, stored on those devices. As occurred here, the defendant in

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Noyes requested an order requiring the government to return to defendant any non-contraband

electronic files stored on those devices. The Noyes Court denied this request, observing that the

forfeiture statute in child pornography cases required defendants to forfeit “any property, real or

personal, used or intended to be used to commit or to promote the commission of such offense or

any property traceable to such property.’* Noyes, 556 Fed. App’x at 127 (citing 18 U.S.C. §

2253(a)(3)). The Noyes Court explained that u[t]here is nothing in the statute which indicates that

only a portion of the property can be forfeited,” Noyes, 557 Fed. App’x at 127, and accordingly

the Noyes Court held that the child pornography forfeiture statute required forfeiture of the

electronic devices as well as all files stored on those devices, including non-contraband files.

The Second Circuit reached a similar conclusion in United States v. Wernick, 673 Fed.

App’x. 21,25 (2d Cir. 2016). There, as here, a defendant convicted of a child pornography

offense sought return of non-contraband files stored on an electronic device subject to mandatory

forfeiture under 18 U.S.C. § 2253(a)(3). The Second Circuit denied defendants request,

explaining that in child pornography prosecutions electronic devices containing child

pornography were “still forfeitable [in their entirety] even if commingled with legitimate

property.” Wernick, 673 Fed. App’x at 25. The Second Circuit also explained that such a request

would be difficult to grant even if defendant identified specific files, as “[i]t is impossible

confidently to conclude that none of the data requested was used to facilitate the offenses of

conviction (such as contact information for parties to the crimes or records of internet chats

concerning the criminal activity).” Id.

In his briefs opposing forfeiture, defendant cites various out-of-circuit cases to argue that

the electronic devices are not subject to forfeiture in their entirety. But this caselaw fails to

persuade, as none of the cases cited by defendant involve construction of 18 U.S.C. § 2253, the

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governing statute in this case. Accordingly, none of these cases are applicable and therefore these

cases do not suggest, yet alone require, a conclusion different from the result reached here

Defendant argues that an opinion of the Ninth Circuit, United States v. Gladding, 775

F.3d 1149 (9th Cir. 2014), reached the opposite result and requires that the government return

defendant’s non-contraband files. This is an inaccurate reading of Gladding. The Gladding Court

interpreted a district court’s forfeiture order, not the text of § 2253(a). At issue in Gladding was

whether the district court’s forfeiture order which excluded “noncontraband files even though

those files were intermingled with files containing child pornography,” id. at 1153, nonetheless

applied to non-contraband files. The government in Gladding sought forfeiture of the non

contraband files notwithstanding that those files were not included in the forfeiture order. The

Ninth Circuit acknowledged that “this type of forfeiture order [issued in Gladding] is

uncommon...” because “in the normal course, a defendant forfeits all the files on an electronic

storage device when it forfeits the device itself, whether those files are contraband or not.” Id. at

1153, n. 1. But the government in Gladding never argued that the forfeiture order should be

amended to cover all the files on the electronic devices, and there is no indication that the

Gladding Court considered the proper interpretation of § 2253(a). To the contrary, the Ninth

Circuit explicitly “d[id] not express an opinion on the validity of the district court’s order

requiring [defendant] to forfeit only contraband files” and further, the Gladding Court declined

to “preclude the district court from amending its forfeiture order on remand to include the

noncontraband files that [defendant] seeks in his motion to the extent permitted by law.” Id.

Thus, the Gladding Court expressly declined to consider the issue presented in this case, namely

whether the child pornography forfeiture statute, 18 U.S.C. § 2253(a), requires forfeiture of all

files housed on electronic storage devices if those devices are used to commit child pornography

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offenses. Accordingly, Gladding does not suggest that defendant should prevail on his motion

for return of non-contraband property.

Defendant also cites additional caselaw which does not involve application of § 2253(a)

and is therefore inapplicable to the instant case. For example, defendant cites United States v.

Conrad, 2013 WL 4028273, No. 3:12-cr-00134-K-34 (TEM) (M.D. Fla. May 14,2013), which

Defendant claims stands for the proposition that courts have developed a standard practice for

separating contraband and non-contraband materials in forfeiture disputes. But Conrad involved

a motion for return of property under Rule 41, Fed. R. Crim. P., and the opinion relied on by

defendant does not even cite, yet alone analyze, 18 U.S.C. § 2253(a), which controls the

mandatory forfeiture in this case. Defendant also cites United States v. Reaid, 4:10-cr-00042

(N.D. FI., June 11,2012) for the proposition that courts may order the return of non-contraband

property. Once again, however, the Reaid opinion did not entail an analysis of § 2253(a); that

opinion dealt instead with a motion lor return of property under Rule 41. Thus, the Reaid opinion

does not concern the proper scope of § 2253(a), which, as discussed above, compels the

forfeiture of the electronic devices in their entirety even if the device contains some non

contraband material. In sum, defendant relies on inapplicable and unpersuasive cases, none of

which interprets § 2253(a), the statute that undoubtedly governs this child pornography forfeiture

dispute.

As discussed above, the plain text of § 2253(a) requires forfeiture of the electronic

devices in their entirety, and the Fourth Circuit has held that courts imposing mandatory

forfeiture under § 2253(a) may not decline to require forfeiture based on equitable

considerations. See Blackman, 746 F.3d at 143. But even if equitable considerations were

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considered, it is clear that those considerations favor a ruling requiring Defendant to forfeit the

electronic devices in their entirety.

First, the government has demonstrated, through trial testimony and declarations

submitted in support of the instant forfeiture motion, that compliance with defendant’s request

for return of some Files would impose an unwarranted and substantial burden on government

resources. In his declaration, FBI Special Agent Kochy advised that it would take considerable

time for FBI forensic examiners to comb through the electronic devices at issue and segregate

contraband from non-contraband files. See Dkt. 610-2. The government also notes that the task

of separating contraband from non-contraband files is more complicated than merely separating

pornographic images from non-pomographic ones. For example, the trial evidence in this case

demonstrated that the Defendant offered employment in his businesses to several of the minor

victims. Thus, some of the business files the Defendant seeks to be returned may contain

information identifying defendant’s minor victims, and thus such files could only be returned to

the Defendant with identifying information redacted. See 18 U.S.C. § 3509, 3771. It would

necessarily take detailed review of each file to ensure that no contraband material was

inadvertently disclosed to the defendant. This review would require government personnel to

devote substantial time; given the number of child pornography cases prosecuted in this District,

manual review of every electronic device subject to forfeiture would be entirely unworkable

given finite government resources.6

6 Defendant, in his briefing on this issue, has offered to pay the government for the costs of

identifying and returning to defendant the non-contraband files stored on the electronic devices.

Defendant’s offer to pay the government is insufficient. As the government rightly notes,

however, even if defendant assisted with the cost of reviewing the files, an FBI technician would

still be required to review the files and determine which were contraband and which were not

contraband. This would require that FBI personnel take time away from other jobs, which cannot

be compensated for by Defendant’s payments.

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Second, any burden to the Defendant in this case is a result of the Defendant’s own

wrongdoing. It is clear that the Defendant is the one who decided to commingle family

photographs and business records with images of child pornography. Given that the purpose of

criminal forfeiture is to punish and deter criminals, equity requires a denial of Defendant’s

motion. Forfeiture of the devices in their entirety also serves a significant deterrent purpose. As

the Fourth Circuit has observed, "the substantive purpose of criminal forfeiture is not to provide

protection for defendants but to deprive criminals of the fruits of their illegal acts and deter

future crimes.” Marlin, 662 F.3d at 309. Forfeiture of the electronic devices in their entirety is a

significant deterrent to those who consider trafficking in images of child pornography.

IV.

In sum, Defendant asks for the creation of an exception to a statute’s mandator}' statutory

forfeiture requirement, based on the premise that it is unfair to deprive Defendant of family

photographs and business records stored on the forfeited devices. But the exception Defendant

seeks comes not from the statute’s clear text, which contains no such exception for non

contraband files housed on a contraband device; instead, Defendant’s proposed exception comes

from reliance on equitable considerations. But the Fourth Circuit has explicitly held that

sentencing courts may not deny forfeiture based on equitable consideration in cases involving

forfeiture under 18 U.S.C. § 2553. See Blackman, 746 F.3d at 143 (“Insofar as the district court

believed that it could withhold forfeiture on the basis of equitable considerations, its reasoning

was in error.”). Instead, the plain and unambiguous text of § 2253(a) requires that the

government’s motion for forfeiture be granted, the defendant’s motion for the return of non

contraband property be denied, and that the electronic devices at issue be forfeited in their

entirety.

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An Order reflecting the issues in this Memorandum Opinion will issue separately.

The Clerk is directed to send a copy of this Memorandum Opinion to all counsel of

record.

Alexandria, Virginia

August 19,2022

T. S. Ellis, m jLS

United States District Judge

Case l:20-cr-00143-TSE Document 662 Filed 08/19/22 Page 1 of 1 PagelD# 13932

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA,

ZACKARY ELLIS SANDERS,

Defendant.

)

Criminal Action No. l:20-cr-143

)

ORDER

This matter comes before the Court on (i) the government’s motion for a preliminary

order of forfeiture (Dkt. 610) and (ii) Defendant’s motion for return of non-contraband seized

property (Dkt. 607).

For the reasons stated in the Memorandum Opinion issued this same day,

It is hereby ORDERED that the government’s motion for a preliminary order of

forfeiture (Dkt. 610) is GRANTED.

It is further ORDERED that Defendant's motion for return of non-contraband seized

property (Dkt. 607) is DENIED.

The Clerk of the Court is directed to provide of this Order to all counsel of record.

Alexandria, VA

August 19,2022

T.S. Ellis, III JP-T

United States District Judge

ii^

USCA4 Appeal: 22-7054

Doc: 88

Filed: 09/06/2024

Pg: 1 or 1

FILED: September 6,2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7054

(1:20-cr-00143-TSE-l)

UNITED STATES OF AMERICA

Plaintiff - Appellee

ZACKARY ELLIS SANDERS

Defendant - Appellant

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Esd-JL-Ap-P^JLIS on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Niemeyer, Judge King, and

Judge Benjamin.

For the Court

/s/ Nwamaka Anowi. Clerk

Supreme Court of the United State s

Office of the Clerk

Washington, DC 20543-0001

November 27, 2024

Scott S. Harris

Clerk of the Court

<202) 479-3011

Ms. Nina Jean Ginsberg

DiMuro, Ginsberg & Lieberman

1001 N. Fairfax Street, Suite 510

Alexandria, VA 22314

Re: Zackary Ellis Sanders

v. United States

Application No. 24A518

Dear Ms. Ginsberg:

The application for an extension of time within which to file a petition

for a writ of certiorari in the above-entitled case has been presented to The

Chief Justice, who on November 27, 2024, extended the time to and including

February 3, 2025.

This letter has been sent to those designated on the attached

notification list.

Sincerely,

Scottj-L-ifaTris^ Clerk

Katie Heidrick

Case Analyst

* £>

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.