Henderson v. United States

HENDERSON v. UNITED STATES

certiorari to the united states court of appeals for

the eleventh circuit No. 13–1487. Argued February 24, 2015—Decided May 18, 2015 After being charged with the felony offense of distributing marijuana, petitioner Tony Henderson was required as a condition of his bail to turn over firearms that he lawfully owned. Henderson ultimately pleaded guilty, and, as a felon, was prohibited under 18 U. S. C. § 922(g) from possessing his (or any other) firearms. Henderson therefore asked the Federal Bureau of Investigation, which had custody of his firearms, to transfer them to his friend. But the agency refused to do so. Hen-derson then filed a motion in Federal District Court seeking to transfer his firearms, but the court denied the motion on the ground that Hender-son's requested transfer would give him constructive possession of the firearms in violation of § 922(g). The Eleventh Circuit affirmed. Held: A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by § 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. And because § 922(g) bans constructive as well as actual possession, it also prevents a court from ordering the transfer of a felon's guns to someone willing to give the felon access to them or to accede to the felon's instructions about their future use. The Government goes further, arguing that § 922(g) prevents all transfers to a third party, no matter how independent of the felon's influence, unless that recipient is a licensed firearms dealer or other third party who will sell the guns on the open market. But that view conflates possession, which § 922(g) prohibits, with an owner's right merely to alienate his property, which it does not. After all, the Government's reading of § 922(g) would prohibit a felon from disposing of his firearms even when he would lack any control over and thus not possess them before, during, or after the disposition. That reading would also extend § 922(g)'s scope far beyond its purpose; preventing a felon like Henderson from disposing of his firearms, even in ways that

guarantee he never uses them again, does nothing to advance the statute's goal of keeping firearms away from felons. Finally, the Government's insistence that a felon cannot select a third-party recipient over whom he exercises no influence fits poorly with its concession that a felon may select a firearms dealer or third party to sell his guns. The Government's reading of § 922(g) is thus overbroad.

Accordingly, a court may approve the transfer of a felon's guns consistently with § 922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon's request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any in-fuence over the firearms, the court has equitable power to accommodate the felon's transfer request. Pp. 625–631. 555 Fed. Appx. 851, vacated and remanded. Kagan, J., delivered the opinion for a unanimous Court.

Daniel R. Ortiz argued the cause for petitioner. With him on the briefs were Toby J. Heytens, John P . Elwood, Mark T. Stancil, and David T. Goldberg.

Ann O'Connell argued the cause for the United States. With her on the brief were Solicitor General Verrilli, Assistant Attorney General Caldwell, Deputy Solicitor General Dreeben, and Vijay Shanker.*

Government agencies sometimes come into possession of firearms lawfully owned by individuals facing serious criminal charges. If convicted, such a person cannot recover his guns because a federal statute, 18 U. S. C. § 922(g), prohibits any felon from possessing firearms. In this case, we consider what § 922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party. We hold that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.

The Federal Government charged petitioner Tony Hender-son, then a U. S. Border Patrol agent, with the felony offense of distributing marijuana. See 21 U. S. C. §§ 841(a)(1), (b)(1)(D). A Magistrate Judge required that Henderson surrender all his firearms as a condition of his release on bail. Henderson complied, and the Federal Bureau of Investigation (FBI) took custody of the guns. Soon afterward, Hen-derson pleaded guilty to the distribution charge; as a result of that conviction, § 922(g) prevents him from legally repossessing his firearms.

Following his release from prison, Henderson asked the FBI to transfer the guns to Robert Rosier, a friend who had agreed to purchase them for an unspecified price. The FBI denied the request. In a letter to Henderson, it explained that “the release of the firearms to [Rosier] would place you in violation of [§ 922(g)], as it would amount to constructive possession” of the guns. App. 121.

Henderson then returned to the court that had handled his criminal case to seek release of his firearms. Invoking the court's equitable powers, Henderson asked for an order directing the FBI to transfer the guns either to his wife or to Rosier. The District Court denied the motion, concluding

We granted certiorari, 574 U. S. 958 (2014), to resolve a circuit split over whether, as the courts below held, § 922(g) categorically prohibits a court from approving a convicted felon's request to transfer his firearms to another person. 2 We now vacate the decision below.

A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, § 922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person's) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike. 2A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 39.12, p. 55 (6th ed. 2009) (hereinafter O'Malley); see National Safe Deposit Co. v. Stead, 232 U. S. 58, 67 (1914) (noting that in “legal terminology” the word “possession” is “interchangeably used to describe” both the actual and the constructive kinds). Actual possession exists when a person has direct physical control over a thing. See Black's Law Dictionary 1047 (5th ed. 1979) (hereinafter Black's); 2A O'Malley § 39.12, at 55. Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. See Black's 1047; 2A O'Malley § 39.12, at 55. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others.

The Government argues that § 922(g) prohibits still more—that it bars a felon, except in one circumstance, from transferring his firearms to another person, no matter how independent of the felon's influence. According to the Government, a felon “exercises his right to control” his firearms, and thus violates § 922(g)'s broad ban on possession, merely by “select[ing] the[ir] first recipient,” because that choice “determine[s] who [will] (and who [will] not) next have access to the firearms.” Brief for United States 24. And that remains so even if a felon never retakes physical custody of the guns and needs a court order to approve and effectuate the proposed transfer. The felon (so says the Government) still exerts enough sway over the guns' disposition to “have constructive possession” of them. Id., at 25. The only time that is not true, the Government claims, is when a felon asks the court to transfer the guns to a licensed dealer or other party who will sell the guns for him on the open market. See id., at 20–22; Tr. of Oral Arg. 18–21. Because the felon then does not control the firearms' final destination, the Government avers, he does not constructively possess them and a court may approve the transfer. See ibid.

Finally, the Government's expansive idea of constructive possession fits poorly with its concession that a felon in Hen-derson's position may select a firearms dealer or other third party to sell his guns and give him the proceeds. After all, the felon chooses the guns' “first recipient” in that case too, deciding who “next ha[s] access to the firearms.” Brief for United States 24; see supra, at 627. If (as the Government argues) that is all it takes to exercise control over and thus constructively possess an item, then (contrary to the Government's view) the felon would violate § 922(g) merely by selecting a dealer to sell his guns. To be sure, that person will predictably convey the firearms to someone whom the

someone under his influence. The felon's management of the sale thus exemplified, and served as evidence of, his broader command over the guns' location and use—the very hallmark of possession. But as just explained, that kind of control is absent when a felon can do no more than nominate an independent recipient for firearms in a federal agency's custody. The decisions the Government invokes thus have no bearing on this case; nor does our decision here, which addresses only § 922(g)'s application to court-supervised transfers of guns, prevent the Government from bringing charges under § 922(g) in cases resembling those cited.

Accordingly, a court facing a motion like Henderson's may approve the transfer of guns consistently with § 922(g) if, but only if, that disposition prevents the felon from later exercis-ing control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. See, e. g., United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon's motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under § 922(g). A court may also grant a felon's request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer.

Neither of the courts below assessed Henderson's motion for a transfer of his firearms in accord with these principles. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.