North Dakota v. Kremer
James Kremer appealed an order calling for the forfeiture and destruction of property involved in his criminal convictions for possessing images of sexual conduct by minors. In 2016 Kremer pled guilty to three class C felony counts of possessing prohibited materials. for which he was sentenced to serve ten years in prison followed by three years of supervised probation. During the first year after his release from incarceration, Kremer was prohibited from possessing "any equipment which allows you to access the internet." During the final two years of his probation, Kremer was allowed "to access the internet as per your probation officer." In December 2016, the State moved for the items to be forfeited and destroyed because the State alleged the items had been used or intended to be used to facilitate the commission of a criminal offense and because the items were illegal for Defendant to possess based upon Defendant's sentence in this matter. Defendant argued he did not want to possess the items, but all tax information, personal documents, personal photos, business documents, school e-books and documents, and account information contained on the items needed to be saved, and that after saving such information Defendant's family would then be able to sell the items, and such would not be "illegal" based upon Defendant's sentence. Rejecting this premise, the district court ordered forfeiture and destruction of Kremer's X-Box, PlayStation, laptop, and portable hard drive which were in the custody of the Federal Bureau of Investigation. The court found the laptop and hard drive "were used in the commission of the crime" and all four items "were either used in the commission of the crime . . . and/or enable the defendant to have access to the internet, an action specifically prohibited by his Criminal Judgment." The North Dakota Supreme Court determined the district court did not err in ordering forfeiture and destruction of the laptop and hard drive, but erred with respect to the X-Box and Playstation. With regard to the game systems, the State argued the "only way that we know that Mr. Kremer is not going to get these items back and access the internet when he is released from prison is to forfeit them." The Supreme Court found the State cited no authority for its proposition that the possibility defendant might use otherwise unforfeitable property in an unlawful manner after completion of his criminal sentence rendered the property forfeitable. View "North Dakota v. Kremer" on Justia Law
