                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Roberts" (2009). 2009 Decisions. Paper 1471.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1471


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                      NOT PRECEDENTIAL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
