Tuesday, October 21, 2014

Who gets the guns?

The client, just convicted of being a felon-in-possession, asks to get his gun back. Instead, part of the plea petition probably included a forfeiture to any claim on the weapon by the defendant. The US Supreme Court just granted cert yesterday in Henderson v. United States on this question,


"The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated.” . . . .18 U.S.C. § 922(g) 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

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 noncontraband 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.
(internal citations omitted)

Notice the Tenth has not written on the issue. Argument is not yet scheduled.

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