United States v. Tony Henderson

Case: 12-14628 Date Filed: 01/28/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________
No. 12-14628
Non-Argument Calendar
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D.C. Docket No. 3:06-cr-00211-TJC-TEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY HENDERSON,
a.k.a. Hollywood,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 28, 2014)
Before PRYOR, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Tony Henderson, a former federal prisoner and current convicted felon,
appeals from the district court’s denial of his motion for return of property,
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namely, nineteen firearms that he voluntarily surrendered to the United States.
After review of the parties’ briefs and the record, we affirm.
Mr. Henderson, who was once a United States Border Patrol Agent, was
charged with, among other crimes, the distribution of marijuana, in violation of 21
U.S.C. § 841(a)(1). On June 9, 2006, two days after he was arrested, Mr.
Henderson voluntarily surrendered nineteen firearms to the Federal Bureau of
Investigation. Though Mr. Henderson’s conditions of bond required him to
surrender “law enforcement firearms and credentials,” D.E. 8 at 2, Mr. Henderson
maintained that he surrendered the nineteen personal firearms to the FBI for
“safekeeping as a condition of the bond” because “the judge felt that [he] was a
suicide risk.” D.E. 182 at 11. Mr. Henderson eventually pled guilty to the
narcotics charge, and he became a convicted felon upon his adjudication of guilt on
December 6, 2007.
The FBI refused to return the firearms after Mr. Henderson proposed to
transfer them to a purported buyer in 2008, and another in 2009. Mr. Henderson
moved the district court under Fed. R. Crim. P. 41(g) to allow him to transfer
ownership to the 2009 buyer or to his wife. The magistrate judge, relying on 18
U.S.C. § 922(g) and our decision in United States v. Howell, 425 F.3d 971 (11th
Cir. 2005), recommended denial of the motion because Mr. Henderson was a
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convicted felon. The district court adopted the recommendation, and denied Mr.
Henderson’s Rule 41 motion. This appeal followed.
In Howell, we affirmed the denial of a convicted felon’s Rule 41 motion for
return of firearms because § 922(g) made the felon unable to possess the firearms
(actually or constructively) lawfully. See 425 F.3d at 976-77 (citing United States
v. Felici, 208 F.3d 667, 670 (8th Cir. 2000)).
We review questions of law dealing with the district court’s denial of a Rule
41(g) motion de novo, and we review findings of fact for clear error. See Howell,
425 F.3d at 973. A Rule 41(g) movant must show a possessory interest in the
property held by the government, and because a Rule 41(g) motion is one in
equity, courts will weigh “all equitable considerations in order to make a fair and
just decision.” Id. As a result, a Rule 41(g) movant must come to the court with
clean hands. See id.On appeal, Mr. Henderson raises the same arguments he presented to the
district court.1 He argues that the FBI’s failure to provide him, and his wife and
family, with any notice of his disqualification of firearm ownership as a felon prior
to his adjudication of guilt affords him relief legally and equitably. Mr. Henderson
1
Mr. Henderson also argues, for the first time on appeal, that several of the nineteen
firearms are not covered by 18 U.S.C. § 922(g). We do not address this argument because he did
not present it below. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys. . . .
But, issues not raised below are normally deemed waived.”) (citations omitted).
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argues that Howell does not apply because in that case the government provided
the defendant with notice of seizure by including the word “seized” on the
defendant’s property receipt. Mr. Henderson invites us instead to rely on cases
from other circuit and district courts which afforded defendants relief under
circumstances he argues are similar to his. See Appellant’s Br. at 10-11 (citing
Cooper v. Greenwood, 904 F.2d 302 (5th Cir. 1990); United States v. Miller, 588
F.3d 418 (7th Cir. 2009); United States v. Zaleski, 686 F.3d 90 (2d Cir. 2012);
United States v. Brown, 754 F. Supp. 2d 311 (D.N.H. 2010)).
We decline this invitation because, like the district court, we find that our
decision in Howell controls. We denied Rule 41 relief in Howell because of the
concern with courts violating 18 U.S.C. § 922(g) by delivering actual or
constructive possession of firearms to a convicted felon. The method in which the
government obtained the firearms was immaterial. See Howell, 425 F.3d at 976-
977. The fact that the government acquired Mr. Henderson’s firearms because of a
voluntary surrender pursuant to a judge’s concern for his safety does not alleviate
the concern that by granting Mr. Henderson actual or constructive possession of a
firearm, a court would violate § 922(g). See id. at 976 (“Requiring a court to return
firearms to a convicted felon would not only be in violation of federal law, but
would be contrary to the public policy behind the law.”). Similarly, we see no
reason to hold in this case that the FBI was required to provide notice to Mr.
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Henderson about § 922(g), as Mr. Henderson acknowledged in his plea agreement
that as a felon he would be deprived of the right to possess firearms. See D.E. 128
at 8.
Further, Mr. Henderson’s equitable argument rings hollow. We held in
Howell that a defendant convicted of a drug offense had unclean hands to demand
return of his firearms even though, as with Mr. Henderson, that defendant did not
use those firearms in furtherance of his offense. See Howell, 425 F.3d at 974.
In sum, because Mr. Henderson cannot possess firearms as a convicted
felon, and because he seeks equitable relief with unclean hands, we affirm the
denial of his Rule 41(g) motion.
AFFIRMED.
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