686 F.3d 90 (2nd Cir. 2012), 11-660-cr(L), United States v. Zaleski

Docket Nº:11-660-cr(L), 11-1888-cr(CON).
Citation:686 F.3d 90
Opinion Judge:LOHIER, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Alan ZALESKI, Defendant-Appellant.
Attorney:William T. Koch, Jr., Lyme, CT, for Defendant-Appellant. Stephen B. Reynolds, Paul A. Murphy, Assistant United States Attorneys (Sandra S. Glover, Assistant United States Attorney, of counsel, on the brief), for David B. Fein, United States Attorney, District of Connecticut, for Appellee.
Judge Panel:Before: NEWMAN, LOHIER, and DRONEY, Circuit Judges.
Case Date:July 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 90

686 F.3d 90 (2nd Cir. 2012)

UNITED STATES of America, Appellee,

v.

Alan ZALESKI, Defendant-Appellant.

Nos. 11-660-cr(L), 11-1888-cr(CON).

United States Court of Appeals, Second Circuit.

July 13, 2012

Argued: June 1, 2012.

Page 91

William T. Koch, Jr., Lyme, CT, for Defendant-Appellant.

Stephen B. Reynolds, Paul A. Murphy, Assistant United States Attorneys (Sandra S. Glover, Assistant United States Attorney, of counsel, on the brief), for David B. Fein, United States Attorney, District of Connecticut, for Appellee.

Before: NEWMAN, LOHIER, and DRONEY, Circuit Judges.

LOHIER, Circuit Judge:

Alan Zaleski, a convicted felon, appeals from an order of the United States District Court for the District of Connecticut (Burns, J. ) denying his motion under Federal Rule of Criminal Procedure 41(g) (" Rule 41(g)" ) for an order requiring the Government to transfer to a third party seized firearms and ammunition that Zaleski lawfully owned before his felony conviction. Under Zaleski's proposed order, the third party would sell the firearms and ammunition for Zaleski's financial benefit. This appeal principally requires us to decide whether a district court may ever properly order such a transfer after the defendant becomes a convicted felon unable to possess a firearm under 18 U.S.C. § 922(g)— an issue of first impression in this Circuit. Contrary to the District Court's ruling, we conclude that Section 922(g) does not categorically prohibit such an arrangement. On appeal, Zaleski has waived his other challenge to the District Court's order. Accordingly, the order of the District Court is AFFIRMED in part and VACATED in part, and we REMAND for proceedings consistent with this opinion.1

BACKGROUND

The facts relevant to this appeal are not in dispute. After discovering a large cache of firearms, ammunition, and explosives at Zaleski's home in Berlin, Connecticut, police arrested Zaleski and seized the weapons. Zaleski was indicted and ultimately convicted of fifteen counts of possessing machine guns, in violation of 18 U.S.C. §§ 922( o ) and 924(a)(2); one count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); and twelve counts of possessing firearms, silencers, and destructive devices that were not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The District Court sentenced Zaleski, who had not previously been convicted of a felony, principally to 101 months' imprisonment and ordered that he forfeit to the Government fifteen fully automatic machine guns and machine pistols, a shotgun, four homemade silencers, six hand grenades, and improvised explosive devices, all of which he unlawfully possessed.

The forfeited weapons represented a small fraction of the items that the police seized from Zaleski's home. The remaining seized weapons were lawfully possessed when Zaleski was arrested and were not subject to the forfeiture order. Nonetheless, they remained in the Government's custody pending resolution of the Government's motion for an order pursuant to the All Writs Act, 28 U.S.C. §...

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