Criminal Action No. 11-243
Judge Cathy Bissoon
Defendant's Motion (Doc. 75) for return of seized property is DENIED. Defendant requests that the firearms identified in his Motion be returned to his "proxy," so that they may be sold by the proxy to pay off Defendant's special assessment, thereby lowering his "prison custody classification points." See id. at ¶¶ 6-7, 14. The Court of Appeals for the Third Circuit, however, has rejected a materially similar request, holding that such a transaction would constitute "constructive possess[ion]" of firearms by a convicted felon. See U.S. v. Roberts, 2009 WL 1132341, *1 (3d Cir. Apr. 28, 2009) (citing and relying on United States v. Felici, 208 F.3d 667, 670 (8 Cir. 2000) and United States v. Howell, 425 F.3d 971, 977 (11 Cir. 2005)). Although the Government, in compliance with its duty of candor to the Court, has identified non-binding decisions that may be read to support a different conclusion, see Govt's Br. (Doc. 76) at 6, the Court declines to follow those decisions to the extent that they are inconsistent with the Roberts decision, cited supra.
Finally, the Court notes that the Government has attached to its briefing two exhibits, the first being a list of seized items that it believes are subject to a destruction order, and the second being a list of items that it believes may lawfully be returned to Defendant. See Govt's Br. at 7-8; see also id. at 8 (inviting Defendant to identify designee to accept delivery of property that may be returned). As to the first list, the Court does not currently have before it a motion for a destruction order, and, as to the second list, Defendant remains free to accept the Government's invitation to return his property as described, if he has not already done so.
IT IS SO ORDERED.
United States District Judge
cc (via ECF email notification): All Counsel of Record cc (via First-Class U.S. Mail): Timothy D. Johnson
Federal Correctional Institution Elkton
P.O. Box 10
Lisbon, OH 44432