Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-28-2009
USA v. Roberts
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2228
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 07-2228
UNITED STATES OF AMERICA
v.
GEORGE ROBERTS, JR.,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00278-2)
District Judge: Honorable Richard P. Conaboy
Submitted Under Third Circuit LAR 34.1(a)
April 21, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges
(Filed: April 28, 2009)
OPINION
SLOVITER, Circuit Judge.
The issue presented by the appeal is whether a convicted felon is entitled to the
return of his non-contraband, non-subject-to-forfeiture firearms.
Appellant, George Roberts, Jr., who pled guilty to aiding and abetting the unlawful
manufacture of a pipe bomb, a felony in violation of 26 U.S.C. § 5861(f) and 18 U.S.C. §
2, appeals from the District Court’s order granting the Government’s motion for the
destruction of firearms seized from Roberts. The District Court had previously denied
Roberts’ motion for return of property pursuant to Federal Rule of Criminal Procedure
41(g).1
Roberts sought the return of ten firearms, assorted ammunition, and miscellaneous
tools seized in connection with his arrest. The Government responded that it would
return the miscellaneous tools to Roberts’ mother but argued that Roberts, as a convicted
felon, could not possess the firearms.2 The District Court denied Roberts’ motion, but
1
Federal Rule of Criminal Procedure Rule 41(g) provides,
in pertinent part, that “[a] person aggrieved by an unlawful search
and seizure of property or by the deprivation of property may move
for the property’s return . . . in the district where the property was
seized. The court must receive evidence on any factual issue
necessary to decide the motion.”
2
Section 922(g)(1) of title 18 provides in pertinent part:
It shall be unlawful for any person . . . who has been
convicted in any court of . . . a crime punishable by
imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
2
noted that, if it was true, as Roberts had stated, that his father was the owner of the
firearms, his father should intervene in any attempt by the Pennsylvania State Police
(“PSP”) to dispose of the firearms.
The Government then moved for an order authorizing the PSP to destroy the
firearms. Roberts opposed the motion, asking that the firearms be returned to his mother,
who is not a felon, or, alternatively, that his mother be permitted to sell the firearms and
keep the proceeds to benefit his children. The District Court granted the Government’s
motion authorizing the destruction of the firearms and ammunition. It is that order that is
before us. We will affirm.3
In United States v. Felici, the court, noting that because convicted felons are
prohibited from possessing guns, 18 U.S.C. § 922(g), held that they are also barred from
constructively possessing firearms by transferring them to a third party. 208 F.3d 667,
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate
or foreign commerce.
See also 18 U.S.C. § 922(d)(1) (“It shall be
unlawful for any person to sell or otherwise dispose
of any firearm or ammunition to any person knowing
. . . that such person . . . is under indictment for, or
has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding
one year.”).
3
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction over the District Court’s final order
pursuant to 28 U.S.C. § 1291.
3
670 (8th Cir. 2000) (“Any firearm possession, actual or constructive, by a convicted felon
is prohibited by law.”). We are persuaded by the Felici decision.
The Eleventh Circuit has also so held in United States v. Howell, 425 F.3d 971,
977 (11th Cir. 2005). Roberts argues that he was not a convicted felon when he acquired
the firearms and thus his possession of them was lawful. The Howell court rejected that
argument as irrelevant because 18 U.S.C. § 922(g) “was designed to work retroactively,
and once an individual becomes a felon, he will be in violation of 18 U.S.C. § 922 if
found to be in possession of a firearm. Obviously, the courts cannot participate in a
criminal offense by returning firearms to a convicted felon.” Id.; see also United States v.
Craig, 896 F. Supp. 85, 86, 89 (N.D.N.Y. 1995) (rejecting reliance on 18 U.S.C. §
924(d)(1), which provides that seized firearms shall be returned “‘to the owner or
possessor or to a person delegated by the owner or possessor’” because “an ‘individual
may not create an agent who has greater power than the individual himself possesses.’”
(quoting, respectively, 18 U.S.C. § 924(d)(1) and. N.Y. Dep’t of Corr. Servs., 479
N.Y.S.2d 703, 704 (N.Y. Sup. Ct. 1984))).
For the reasons set forth above and by the District Court, we will affirm the order
on appeal.
4