IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN THE MATTER OF THE SEARCH
OF SEIZED ITEMS:

Mag. No. 1?-850-2

Apple Mac Pro Computer
Apple iPhone 6 Plus Cellular Telephone
Western Digital My Book for Mac
External Hard Drive
Western Digital My Book VelociRaptor
Duo External Hard Drive

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SUPPLEMENTAL ORDER
AND NOW, this 5th day of October, 2015, having issued an Order, dated September 30,

2015, granting the Government's Motion to Hold Francis Rawls in Contempt and ordering that
Francis Rawls be remanded to the custody of the United States Marshals to be incarcerated until
such time that he fully complies with Judge Reuter's Order of August 27, 2015, the Court issues
this Supplemental Order to articulate the reasons for its September 30th Order. The Court issued
the September 30th Order for the following reasons:
1. "It has long been recognized that courts possess the inherent authority to hold persons in
contempt." United States v. Harris, 582 F.3d 512, 514 (3d Cir. 2009) (citations omitted).
"Civil contempt orders are intended to be coercive or compensatory in nature, and do not
require, inter alia, a jury trial. Rather, civil contempt is imposed by the judge upon a
finding that one has failed to comply with a valid court order." Id. (citations omitted).
"With civil contempt, the contemnor will be released subject to compliance with some
condition. He is thus understood, in a by-now familiar observation, to 'carr[y] the keys
of his prison in his own pocket.'" Id. at 515 (quoting Int'l Union, United Mine Workers
of Am. v. Bagwell, 512 U.S. 821, 828 (1994)).

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2. While a jury trial is not required for a civil contempt proceeding, due process requires
that a potential contemnor be given notice and a hearing. Newton v. A.C. & S. Inc., 918
F.2d 1121, 1127 (3d Cir. 1990). Importantly, civil contempt proceedings are not an
opportunity for an individual to attack the validity of the underlying court order by
relitigating issues that were raised or that could have been raised the underlying
proceeding. See United States v. Rylander, 460 U.S. 752, 756 (1983) ("'It would be a
disservice to the law if we were to depart from the long-standing rule that a contempt
proceeding does not open to reconsideration the legal or factual basis of the order alleged
to have been disobeyed and thus become a retrial of the original controversy."' (quoting
Maggio v. Zeitz, 333 U.S. 56, 69 (1948))); United States v. Edgerton, 734 F.2d 913, 917
(2d Cir. 1984) ("The basic premise that the issues raised (or those that could have been
raised) at an enforcement hearing are res judicata with respect to the same parties at a
later contempt was strongly endorsed by the Supreme Court ... [a]nd our decision in
[United States v.]Secor[, 476 F.2d 766 (2d Cir. 1973)] is clearly on point. The appellant
there was barred from relitigating his claimed Fifth Amendment privilege at his contempt
hearing since he had raised it at the enforcement hearing, lost, and failed to appeal.").
3. "In a civil contempt proceeding, the contempt must be proved by clear and convincing
evidence." In re Battaglia, 653 F.2d 419, 422 (9th Cir. 1981) (citing United States v.
Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980)); see also NLRB v. Blevins Popcorn Co.,
659 F.2d 1173, 1183 (D.C. Cir. 1981). "In a civil contempt proceeding such as this, of
course a defendant may assert a present inability to comply with the order in question ...
[w ]here compliance is impossible, neither the moving party nor the court has any reason
to proceed with the civil contempt action. It is settled, however, that in raising this

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 defense, the defendant has a burden of production." Rylander, 460 U.S. 752, 757 (1983)
(citations omitted). More specifically, where the defense to a civil contempt proceeding
is based on memory loss, courts have employed the following burden-shifting
framework:
A civil contempt proceeding on a witness' asserted memory loss
requires a three-step analysis that shifts the burden of production to
the witness, but always leaves the burden of proof with the
government. First, the government must make a prima facie
showing of contempt; i.e., that it made an authorized request for
information, that the information was relevant to the proceedings,
that the information was not already in the possession of the
government, and that the witness did not comply.
Second, once the government has presented its prima facie case,
the witness must provide some explanation on the record for his
failure to comply. If the witness fails to meet this "burden of
producing evidence," the government's prima facie case is
sufficient to meet its burden of proof for a finding of contempt.
The witness may meet his burden, however, where, as here, he
testifies that he does not remember the events in question.
Finally, ifthe witness meets his burden of production by claiming
a loss of memory, the government must carry its burden of proof
for a finding of contempt by demonstrating that the witness in fact
did remember the events in question, thereby establishing a willful
failure to comply.
Battaglia, 653 F.2d at 422-23 (internal citations omitted).
4. Here, the Government's prima facie case of contempt was largely, if not entirely,
uncontested. See 9/30/15 Hr'g Tr. 3:2 - 5:4. The Government made an authorized
request for information that was relevant to the proceedings, and which was not already
in its possession. 1 It is undisputed that Francis Rawls has not fully complied with the

On July 29, 2015, the Government obtained a search warrant for certain electronic media
previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1.
On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis
Rawls to assist in the execution of a previously executed search warrant. Dkt. No. 3. That same day, the
Honorable Thomas J. Reuter, United States Magistrate Judge, granted that application by way of Order,

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 terms of the August 27th Order, which required him to produce the relevant materials in a
fully unencrypted state.2 9/30/15 Hr'g Tr. 4:14 - 5:4; 139:5-15; 140:22 - 142:3. Because
the Government satisfied its burden of making out a prima facie case of contempt, the
which directed Francis Rawls to produce all of the above-captioned electronic media in a fully
unencrypted state on or before August 14, 2015. On August 12, 2015, Perry de Marco, Jr., Esq., counsel
for Francis Rawls, made a letter request for 30 days to respond to the Government's All Writs Act
Application. Dkt. No. 4. In a letter, dated August 12, 2015, Assistant United States Attorney Michael
Levy opposed the requested extension. Dkt. No. 5. On August 13, 2015, counsel for Mr. Rawls again
wrote to Judge Reuter to request additional time to challenge the Government's All Writs Act
Application. Dkt. No. 6. Later on August 13, 2015, Judge Reuter issued an Order staying the August 3rd
Order, and allowing Francis Rawls to respond to the Government's All Writs Act Application on or
before August 27, 2015. Dkt. No. 7. At approximately 8: 15 PM on August 26, 2015, counsel for Mr.
Rawls faxed Judge Reuter an undated Motion to Quash Government's Application to Compel. Dkt. No.
8. On August 27, 2015, Judge Reuter issued an Order denying Francis Rawls's request for
reconsideration of the August 3rd Order. Dkt. No. 9. The August 27th Order required Francis Rawls to
comply with the August 3rd Order by no later than September 4, 2015. Id. Importantly, the August 27th
Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth
Amendment privilege against self-incrimination. Id. n.1. In addition, the August 27th Order informed
the parties that: "Any party may file objections to this Order. See Loe. R. Crim. P. 50.2(1V). Failure
to file timely objections may constitute a waiver of any appellate rights. United States v. Polishan, 336
F.3d 234, 240 (3d Cir. 2003)." Id. Despite this admonition, Francis Rawls did not file objections to the
August 27th Order, nor did he seek review of that order by way of appeal, writ of mandamus, or
otherwise. 9/30/15 Hr'g Tr. 3:2-12.
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On September 4, 2015, Mr. Rawls appeared at the Criminal Investigation Division of the
Delaware County District Attorney's Office. 9/30/15 Hr'g Tr. 84:12 - 85:2. The various electronic
media were presented to Mr. Rawls in a controlled environment so that he could provide them in an
unencrypted state, as required by the August 27th Order. 9/30/15 Hr'g Tr. 85:3-23. While Mr. Rawls
produced some of the media in an unencrypted state, he did not provide the Western Digital My Book for
Mac External Hard Drive ("Hideaway Cloud") or the Western Digital My Book VelociRaptor Duo
External Hard Drive ("ThunderCloud") in an unencrypted state. 9/30/15 Hr'g Tr. 86:3 -93:14.
Following Mr. Rawls' failure to fully comply with the August 27th Order, on September 4, 2015, Judge
Reuter noticed a hearing on the Government's Motion for Contempt for September 10, 2015. Dkt. No.
10. In papers dated September 8, 2015, the Government filed a Motion for Order to Show Cause Why
Francis Rawls Should Not be Held in Contempt. Dkt. No. 11. The previously noticed hearing on the
contempt motion was conducted as scheduled on September 10, 2015. Dkt. No. 13. In an Order, dated
September 14, 2015, Judge Reuter certified various facts for use by the District Court, found that Mr.
Rawls should be held in contempt, granted the Government's motion, and ordered that Mr. Rawls appear
before a United States District Judge to show cause why he should not be adjudged in contempt. Dkt. No.
14. The Court held telephone conferences with counsel for the Government and counsel for Mr. Rawls
on September 16, 2015, and September 18, 2015, and orally notified counsel during the September 18,
2015 telephone conference that a contempt hearing would take place on September 30, 2015 at 2:00 PM.
Subsequently, written notice of the September 30, 2015, contempt hearing was emailed to counsel for the
parties. On September 29, 2015, the Government filed a Memorandum of Law in Support of Motion to
Hold Francis Rawls in Contempt. Dkt. No. 16. The de nova contempt hearing was conducted before this
Court as scheduled on September 30, 2015. It is undisputed that from September 4, 2015, through the
present, Mr. Rawls has not fully complied with the terms of the August 27th Order.

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 burden of production then shifted to Mr. Rawls to "provide some explanation on the
record for his failure to comply." Battaglia, 653 F.2d at 422. At the September 30th
Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any
documentary or physical evidence into the record, and the only evidence he elicited was
in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls
offered no on-the-record explanation for his present failure to comply with the August
27th Order. In the absence of any explanation from Mr. Rawls, the Government's prima
facie showing of contempt satisfies the burden of proof for a finding of civil contempt.
Rylander, 460 U.S. at 761; Battaglia, 653 F.2d at 422.
5. In light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls
to be in civil contempt of court. 9/30/15 Hr' g Tr. 145: 12-13. Mr. Rawls was informed
on the record that, in order to obtain his compliance with the August 27th Order, he
would be remanded into federal custody and incarcerated until such time as he fully
complied with the terms of the August 27th Order. 9/30/15 Hr'g Tr. 145:13-23 Mr.
Rawls was informed that he could purge himself of the civil contempt order by agreeing
to comply with (and subsequently complying with) the August 27th Order. Id. At the
conclusion of the hearing, Mr. Rawls was given ten minutes to speak with his attorney
about his situation to decide whether he wanted to purge himself of the contempt before
being removed from the courtroom by the United States Marshals. Id. After those ten
minutes elapsed, Mr. Rawls made no indication that he would comply with the August
27th Order, so Mr. Rawls was taken into custody by the United States Marshals. 3

Before adjourning the proceedings, and with Mr. Rawls present, the Court denied Mr. Rawls' oral
motion to stay the contempt order pending appeal, granted Mr. de Marco, Jr.'s motion to withdraw as
counsel for Mr. Rawls, and scheduled as status of counsel hearing for 2:00 PM on Monday, October 5,
2015. 9/30/15 Hr'g Tr. 145:25 - 147:25.

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 6. Mr. Rawls will be incarcerated indefinitely until he agrees to comply with and actually
does comply with the August 27th Order. 4 To be clear, Mr. Rawls' incarceration is
imposed to coerce his future compliance with the August 27th Order, and is NOT
imposed to punish him for his past failures to comply. As soon as Mr. Rawls notifies the
Court that he is prepared to fully comply with the August 27th Order, arrangements will
be made to transport Mr. Rawls to an appropriate location in Delaware County so that he
may effectuate his compliance by producing the Hideaway Cloud and Thundercloud
external hard drives in a fully unencrypted state. As soon as the Court is notified that Mr.
Rawls has complied with the terms of the August 27th Order, Mr. Rawls' contemptrelated incarceration will be terminated.

For the reasons stated above, IT IS HEREBY ORDERED that this Court's September
30th Order shall remain in full force and effect until such time as Francis Rawls fully complies
with Judge Reuter's Order of August 27, 2015.

BY THE COURT:

L. FELIPE REST~PO I
UNITED STATES DISTRICT JUDGE

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Alternatively, if Mr. Rawls is able to show that the finding of civil contempt should be lifted for
some other reason, the Court will entertain any timely and appropriate motion or request to that effect.
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