Henderson v. United States

Issues 

May a court order the government to transfer or sell firearms to a third party on behalf of a convicted felon, who may not possess firearms under 18 U.S.C. § 992(g)?

Oral argument: 
February 24, 2015

In this case, the Supreme Court of the United States will have the opportunity to resolve a circuit split and determine whether a convicted felon may request that the government transfer possession of a felon’s non-contraband firearms to a third party. Henderson, a convicted felon, requested that the FBI transfer possession of the firearms to a third party interested in purchasing the firearms. The FBI denied his request, asserting that convicted felons may not possess firearms and that a transfer to a third party would give Henderson constructive possession in violation of federal law. Henderson, however, argues that his inability to possess firearms under federal law does not terminate his entire ownership interest in non-contraband firearms. The Supreme Court’s ruling will implicate ownership rights of convicted felons’ non-contraband firearms.

Questions as Framed for the Court by the Parties 

“The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated.” Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977))). 18 U.S.C. § 922(g), however, makes it “unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm.”

The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them.

Facts 

Petitioner Tony Henderson is a former Border Patrol Agent who was charged with distributing marijuana, a felony under 21 U.S.C. § 841(a)(1). He was arrested on June 7, 2006. As a condition of his bond, Henderson voluntarily surrendered firearms to the Federal Bureau of Investigation (“FBI”) two days later (on June 9, 2006). Henderson later pleaded guilty to the drug charge, which made him a convicted felon.

While serving his sentence, Henderson contacted the FBI and requested transfer of the surrendered firearms to a potential buyer, Robert Rosier. From December 2008 to December 2009, Henderson contacted the FBI several times. In December 2009, the FBI notified Henderson that he had 30 days to file a claim with the FBI to seek return of the firearms. Henderson and Rosier both filed claims for the non-contraband firearms within the 30-day period. In 2010, the FBI denied Henderson’s request and stated that a transfer of the firearms to a third party would be in violation of federal law. Henderson later submitted a request for reconsideration, which the FBI also denied.

On July 16, 2010, Henderson filed in federal district court under Fed.R.Crim.P. 41(g) in an effort to order the government to transfer ownership of the firearms to Rosier or Henderson’s wife. A magistrate judge recommended the district court to deny the motion because 18 U.S.C. § 922(g) (“§ 922(g)”) prohibited convicted felons from possessing firearms and determined that a transfer of firearms to a third party amounted to constructive possession. The district court, agreeing with the magistrate judge, denied the motion and Henderson appealed to the Eleventh Circuit Court of Appeals (“Eleventh Circuit”). The Eleventh Circuit similarly denied Henderson’s motion, holding that the requested transfer would give Henderson constructive possession of the firearms, which would conflict with § 992(g). Although Henderson’s conviction was unrelated to the possession of firearms, the Eleventh Circuit determined that, on equitable grounds, Henderson had “unclean hands” and therefore could not demand the government to return his firearms. Subsequently, Henderson appealed to the Supreme Court of the United States.

Analysis 

This case involves a dispute concerning whether a convicted felon, for whom it is unlawful to possess firearms under § 922(g)(1), may have non-contraband firearms that are held by the government transferred to a third party under Federal Rule of Criminal Procedure 41(g) (“Rule 41(g)”) or under principles of equity. Henderson argues that both Rule 41(g) and principles of equity support allowing felons to transfer non-contraband firearms to a third party because such a transfer would not result in actual or constructive possession of the firearms by the convicted felon. The United States contends that because Rule 41(g) only allows for property to be returned to the movant, and because the movant in this case is a convicted felon who may not lawfully possess firearms, the firearms may not be transferred under Rule 41(g). Additionally, the United States argues that because Henderson requested that the firearms be transferred to his wife or a friend, this would result in Henderson having actual or constructive possession of the firearms and even principles of equity would not allow a transfer of this nature.

DOES § 922(G) BAR THE TRANSFER OR SALE OF FIREARMS TO THIRD PARTIES?

Under § 922(g)(1), convicted felons may not “possess . . . any firearm.” Henderson argues that this language indicates that although a felon may not actually or constructively possess the firearms, the firearms may legitimately be transferred to a third party without violating § 922(g)(1). Henderson suggests that the courts should interpret the term “possess” according to its common law meaning, entailing the right to control or the right to exclude. Under such an interpretation, the transfer of firearms from the government to a third party would not afford the felon either constructive or actual possession of the firearms at any time because he has no control over the firearm. Henderson contends that to interpret “possess” in a manner that prohibits the transfer of the firearms to a third party “effectively destroys all [the felon’s] remaining nonpossessory interests in the property . . . and transforms a ban on possession into a ban on alienation.” Referencing other sections of the same act, Henderson argues that Congress’ specific inclusion of terms such as “receive, . . . conceal, store, barter, sell, or dispose” in contrast to “possess,” or “owner” in contrast to “possessor,” indicate “that Congress did not intend this provision to extinguish gun owners’ nonpossessory interests in their firearms.”

The United States argues that, although § 922(g)(1) does not terminate a felon’s ownership interest in firearms, “it prohibits [the felon] from exercising control over firearms through others (constructive possession).” The United States contends that transferring the firearms to a third party of the felon’s choosing would amount to constructive possession, and is therefore prohibited under § 922(g)(1). The United States asserts that if a felon may choose which third party to transfer firearms to, that felon is exercising the “right to control” and “right to exclude” that are central to the common law definition of “possession” and that this amounts to unlawful constructive possession. However, the United States concedes that allowing the transfer of firearms to a federally licensed firearms dealer with no connection to the felon where the firearms would be sold and the funds transferred to the felon would not amount to constructive possession and would not violate § 922(g)(1).

DOES RULE 41(G) BAR THE TRANSFER OR SALE OF FIREARMS TO THIRD PARTIES?

Rule 41(g) of the Federal Rules of Criminal Procedure states that a person deprived of property may move in court to have that property returned and if the court grants the motion, the court “must return the property to the movant.” Henderson argues that, according to the notes made by the Advisory Committee to the 1989 amendment to the rule, “reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property.” Henderson suggests that Rule 41(g) evokes principles of equity and that courts have significant flexibility to determine appropriate methods of achieving the purpose of the rule, such as ordering the sale of the firearms or transferring them to a third party, without violating § 922(g)(1) by giving a felon possession of firearms.

The United States argues that the Court should apply a literal interpretation of Rule 41(g) and find that the property can only be returned to the movant. Applying a strict literal interpretation of the rule, the United States contends that under Rule 41(g), the Court may not properly transfer the firearms to a designated third party and would only have authority to transfer possession to the movant, which in this case would be a violation of § 922(g)(1).

DOES EQUITY ALLOW FOR THE TRANSFER OR SALE OF FIREARMS TO THIRD PARTIES?

According to Henderson, principles of equity allow courts flexibility in determining a method of transferring firearms to a third party in order to grant relief to the person dispossessed of the firearms. Henderson argues that the Court “may and should reach into its equitable tool-box to devise an alternate, less drastic [form of] relief tailored to the necessities and facts of the case.” These forms of relief, according to Henderson, could include the government authorizing a sale or selling the firearms and giving the funds from the sale to the felon. Relief could also include transferring the firearms to a third party, as long as the felon does not exercise constructive possession of the firearms through the third party.

The United States contends that the relief requested by Henderson did not eliminate the possibility that he would continue to exercise control over the firearms, and that therefore the government could refuse to transfer possession of the firearms to a third party. Specifically, the United States argues that because Henderson only requested that the firearms be transferred to his wife or a friend as the third party, the district court and Tenth Circuit exercised their equitable jurisdiction appropriately by determining that it would not grant the relief requested.

APPLICATION OF THE UNCLEAN HANDS DOCTRINE

Henderson argues that the Eleventh Circuit’s alternative finding that he had “unclean hands” as a convicted felon and was therefore barred from seeking equitable relief was inappropriate because the unclean hands doctrine only applies “where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation.” Henderson contends that because he was convicted of drug distribution—a crime that had no connection to the use or possession of his firearms—that denying him compensation for the non-contraband firearms would be a misapplication of the doctrine.

The United States chose not to rely on the unclean hands doctrine “as a basis for affirming the court of appeals’ decision.”

Discussion 

This case presents the Supreme Court with an opportunity to clarify whether a court may order the government to transfer or sell non-contraband firearms to a third party on behalf of a convicted felon, notwithstanding § 992(g). Henderson contends that such a transfer would not result in actual or constructive possession of the firearms. The United States counters that if such a transfer would give a convicted felon constructive possession of the firearms, that transfer is prohibited under § 992(g). The Supreme Court’s resolution of this case will impact convicted felons’ ownership rights of non-contraband firearms.

OWNERSHIP INTERESTS IN FIREARMS

The Brady Center to Prevent Gun Violence (“Brady Center”), in support of the United States, argues that convicted felons should not have the right to transfer firearms to third parties because convicted felons should not have control over their firearms. Advocating for a broad interpretation of § 922(g), the United States and supporting amici contend that giving a convicted felon the right to determine the recipient of firearms would defeat the purpose of § 922(g) because felons may still have access to their firearms. Furthermore, the Brady Center asserts that construing the statute narrowly would increase the risk of convicted individuals trafficking firearms that they should not have possession rights over.

In opposition, Henderson and supporting amici argue that possession is simply one of many property interests, so a prohibition on possessing firearms should not terminate an ownership interest. Amici in support of Henderson assert that a broad interpretation of the statute would terminate convicted felons’ right to own firearms and result in a monetary loss. They also argue that denying a felon the ability to transfer firearms to a third party could create possession issues for lawfully licensed gun owners and for individuals in court proceedings, perhaps prompting authorities to make unfounded claims about a gun owner’s possession rights in order to seize an owner’s gun collection. Additionally, the National Association of Criminal Defense Lawyers, in support of Henderson, contends that denying convicted felons the ability to transfer their firearms to a third party would result in a deprivation of due process—the right to have a fair trial in a forfeiture proceeding.

FURTHERANCE OF LEGISLATIVE INTENT TO REDUCE VIOLENCE AND ARMS-RELATED OFFENSES

The Brady Center in support of the United States argues that a narrow interpretation of the statute would permit convicted felons, individuals who are more likely to commit firearms-related offenses, to possess guns. Advocating for a broad interpretation of the statute, the Brady Center argues that prohibiting convicted felons from transferring firearms to a third party of their choosing would reduce the risk of the use of prohibited firearms and trafficking activities.

Amici in support of Henderson counter that allowing transfer would encourage convicted felons to voluntarily surrender their firearms to law enforcement instead of engaging in unlawful activities to prevent seizure of the firearms. The amici also argue that allowing transfer of firearms to a third party furthers legislative intent because convicted felons, prohibited from possessing firearms, have an option to terminate their ownership interests entirely. Moreover, the National Rifle Association argues that construing transfer as constructive possession would unfairly expose a convicted felon’s family and friends to potential criminal liability.

Conclusion 

In this case, the Supreme Court will determine whether a convicted felon may have a court transfer possession of the felon’s non-contraband firearms to a third party. The Court may also choose to further define what level of relationship between the felon and a third party constitutes constructive possession, as well as potentially decide whether it would instead be appropriate to transfer the firearms to a licensed federal firearms dealer for sale on behalf of the felon. The ruling in this case will impact the convicted felons’ ownership rights in their non-contraband property that has been seized by the government.

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