                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

USA v. Rearick
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3952




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DPS-178                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-3952
                     ______________________________________

                           UNITED STATES OF AMERICA

                                              v.

                            HAROLD E. REARICK, JR.
                                               Appellant
                     ______________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (D.C. Crim. No. 03-cr-00123)
                            District Judge: Alan N. Bloch
                    _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
            Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

                                     March 30, 2006

      BEFORE: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed: May 31, 2006)
                                 ____________________

                                       OPINION
                                _____________________
PER CURIAM

       On November 7, 2003, after entering a plea of guilty, Harold E. Rearick, Jr. was

convicted in the United States District Court for the Western District of Pennsylvania of

theft of government funds. See 18 U.S.C. § 641. Rearick was sentenced to a 12 month
term of imprisonment to be followed by a three year period of supervised release, and was

ordered to pay restitution in the amount $ 45,188. For the three year period of his

supervised release, Rearick was prohibited from “possess[ing] a firearm or destructive

device.” When Rearick failed to voluntarily surrender to commence serving his sentence,

a warrant was issued for his arrest. On February 4, 2004, Rearick was arrested at his

home in Vandergrift, Pennsylvania. During the arrest, eight pistols, two shotguns, two

rifles, and two BB guns were confiscated from Rearick’s home because he “lived alone

and the residence was to be unoccupied during the time that he was incarcerated.” No

charges were ever filed against Rearick in connection with the seizure of the weapons.

       On October 21, 2004, the government notified Rearick’s retained plea counsel,

Thomas Ceraso, that it intended to file a motion to destroy the weapons found in

Rearick’s home. At that time, Ceraso indicated that he had no objection to the entry of an

order requiring the destruction of the property. Accordingly, on November 17, 2004, the

government filed in the District Court a motion to destroy the weapons. By order entered

November 19, 2004, the District Court granted the motion and directed the United States

Marshall Service to destroy Rearick’s weapons. On June 23, 2005, Rearick filed in the

District Court a pro se motion for return of property pursuant to Federal Rule of Criminal

Procedure 41(g). By order entered June 29, 2005, the District Court denied Rearick’s

Rule 41(g) motion.

       Rearick filed a timely notice of appeal from the June 29 order. However, because



                                             2
he failed to pay the required filing fees or apply to proceed in forma pauperis on appeal,

Rearick’s appeal was dismissed on November 1, 2005, for failure to prosecute pursuant to

Third Circuit LAR 3.3 and Third Circuit LAR Misc. 107.1(a). Rearick subsequently filed

a timely motion to reopen the appeal. See Third Circuit LAR Misc. 107.2(a) (a motion to

set aside an order dismissing an appeal for failure to prosecute must be filed within ten

days from the date of dismissal and should be granted if the appellant demonstrates good

cause for the failure to prosecute). Because Rearick has demonstrated good cause for the

failure to prosecute, see id., his motion to reopen is granted.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Rearick has

been granted leave to proceed in forma pauperis on appeal, this Court must dismiss his

appeal if it is “frivolous.” 28 U.S.C. § 1915(e)(2)(B). A frivolous appeal has no arguable

basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful

review of the record, we will dismiss this appeal as frivolous because Rearick’s claim

lacks an arguable basis in law or fact.

       This Court reviews a District Court’s decision under Fed. R. Civ. P. 41(g) for

abuse of discretion. United States v. Albinson, 356 F.3d 278, 281 (3d Cir. 2004). Under

the circumstances presented here, we conclude that the District Court did not abuse its

discretion in denying Rearick’s Rule 41(g) motion. First, Rearick’s judgment of

conviction and sentence specifically prohibits him from “possess[ing] a firearm or

destructive device” during the period of his supervised release. Rearick has not cited, nor



                                              3
have we found, any case law to support the proposition that the government is obligated

to maintain control of and provide storage for Rearick’s weapons until such time as his

supervised release period expires in 2008. Second, it appears from the record that

Rearick is a convicted felon. See 18 U.S.C. § 641 (criminalizing the theft of a “thing of

value of the United States,” and providing that if the value exceeds $ 1000, the District

Court can sentence the defendant to a maximum of ten years in prison); 18 U.S.C. § 1(1)

(explaining that an offense “punishable” by a term of imprisonment “exceeding one year”

is a felony). It appearing that Rearick is a convicted felon, he is not entitled under Rule

41(g) to the return of the weapons seized from his house. 1 See, e.g., 18 U.S.C. § 922(g);

United States v. Howell, 425 F.3d 971, 977 (11th Cir. 2005) (“any firearm possession,

actual or constructive, by a convicted felon is prohibited by law”); United States v. Felici,

208 F.3d 667 (8th Cir. 2000). Finally, Rearick does not dispute that the government gave

notice of the motion to destroy property to Attorney Ceraso and that Ceraso consented to

the motion. Because our system deems notice to counsel as notice to the client, Rearick

cannot now argue that he was unaware of the motion. See, e.g., United States v. Indoor

Cultivation Equip. from High Tech. Indoor Garden Supply, 55 F.3d 1311, 1318 (7th Cir.

1995). The fact that Rearick did not take advantage of his opportunity to be heard does

not support the conclusion that his due process rights were denied.



       1
         Rearick’s status as a convicted felon would not, however, preclude his
possession of the two BB guns. U.S.S.G. § 1B1.1 (“A weapon, commonly known as a
‘BB’ or pellet gun . . . is a dangerous weapon but not firearm.”).

                                              4
      Having found no merit to this appeal, we will dismiss it pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Appellee’s motion for summary affirmance is, thus, denied as moot.

Rearick’s motion for the appointment of counsel is likewise denied. Tabron v. Grace, 6

F.3d 147, 155 (3d Cir. 1993).




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