United States v. Rearick

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-31-2006
USA v. Rearick
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3952
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DPS-178 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3952
______________________________________
UNITED STATES OF AMERICA
v.
HAROLD E. REARICK, JR.
Appellant
______________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. No. 03-cr-00123)
District Judge: Alan N. Bloch
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
March 30, 2006
BEFORE: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: May 31, 2006)
____________________
OPINION
_____________________
PER CURIAM
On November 7, 2003, after entering a plea of guilty, Harold E. Rearick, Jr. was
convicted in the United States District Court for the Western District of Pennsylvania of
theft of government funds. See 18 U.S.C. § 641. Rearick was sentenced to a 12 month
term of imprisonment to be followed by a three year period of supervised release, and was
ordered to pay restitution in the amount $ 45,188. For the three year period of his
supervised release, Rearick was prohibited from “possess[ing] a firearm or destructive
device.” When Rearick failed to voluntarily surrender to commence serving his sentence,
a warrant was issued for his arrest. On February 4, 2004, Rearick was arrested at his
home in Vandergrift, Pennsylvania. During the arrest, eight pistols, two shotguns, two
rifles, and two BB guns were confiscated from Rearick’s home because he “lived alone
and the residence was to be unoccupied during the time that he was incarcerated.” No
charges were ever filed against Rearick in connection with the seizure of the weapons.
On October 21, 2004, the government notified Rearick’s retained plea counsel,
Thomas Ceraso, that it intended to file a motion to destroy the weapons found in
Rearick’s home. At that time, Ceraso indicated that he had no objection to the entry of an
order requiring the destruction of the property. Accordingly, on November 17, 2004, the
government filed in the District Court a motion to destroy the weapons. By order entered
November 19, 2004, the District Court granted the motion and directed the United States
Marshall Service to destroy Rearick’s weapons. On June 23, 2005, Rearick filed in the
District Court a pro se motion for return of property pursuant to Federal Rule of Criminal
Procedure 41(g). By order entered June 29, 2005, the District Court denied Rearick’s
Rule 41(g) motion.
Rearick filed a timely notice of appeal from the June 29 order. However, because
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he failed to pay the required filing fees or apply to proceed in forma pauperis on appeal,
Rearick’s appeal was dismissed on November 1, 2005, for failure to prosecute pursuant to
Third Circuit LAR 3.3 and Third Circuit LAR Misc. 107.1(a). Rearick subsequently filed
a timely motion to reopen the appeal. See Third Circuit LAR Misc. 107.2(a) (a motion to
set aside an order dismissing an appeal for failure to prosecute must be filed within ten
days from the date of dismissal and should be granted if the appellant demonstrates good
cause for the failure to prosecute). Because Rearick has demonstrated good cause for the
failure to prosecute, see id., his motion to reopen is granted.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Rearick has
been granted leave to proceed in forma pauperis on appeal, this Court must dismiss his
appeal if it is “frivolous.” 28 U.S.C. § 1915(e)(2)(B). A frivolous appeal has no arguable
basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful
review of the record, we will dismiss this appeal as frivolous because Rearick’s claim
lacks an arguable basis in law or fact.
This Court reviews a District Court’s decision under Fed. R. Civ. P. 41(g) for
abuse of discretion. United States v. Albinson, 356 F.3d 278, 281 (3d Cir. 2004). Under
the circumstances presented here, we conclude that the District Court did not abuse its
discretion in denying Rearick’s Rule 41(g) motion. First, Rearick’s judgment of
conviction and sentence specifically prohibits him from “possess[ing] a firearm or
destructive device” during the period of his supervised release. Rearick has not cited, nor
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have we found, any case law to support the proposition that the government is obligated
to maintain control of and provide storage for Rearick’s weapons until such time as his
supervised release period expires in 2008. Second, it appears from the record that
Rearick is a convicted felon. See 18 U.S.C. § 641 (criminalizing the theft of a “thing of
value of the United States,” and providing that if the value exceeds $ 1000, the District
Court can sentence the defendant to a maximum of ten years in prison); 18 U.S.C. § 1(1)
(explaining that an offense “punishable” by a term of imprisonment “exceeding one year”
is a felony). It appearing that Rearick is a convicted felon, he is not entitled under Rule
41(g) to the return of the weapons seized from his house. 1 See, e.g., 18 U.S.C. § 922(g);
United States v. Howell, 425 F.3d 971, 977 (11th Cir. 2005) (“any firearm possession,
actual or constructive, by a convicted felon is prohibited by law”); United States v. Felici,
208 F.3d 667 (8th Cir. 2000). Finally, Rearick does not dispute that the government gave
notice of the motion to destroy property to Attorney Ceraso and that Ceraso consented to
the motion. Because our system deems notice to counsel as notice to the client, Rearick
cannot now argue that he was unaware of the motion. See, e.g., United States v. Indoor
Cultivation Equip. from High Tech. Indoor Garden Supply, 55 F.3d 1311, 1318 (7th Cir.
1995). The fact that Rearick did not take advantage of his opportunity to be heard does
not support the conclusion that his due process rights were denied.
1
Rearick’s status as a convicted felon would not, however, preclude his
possession of the two BB guns. U.S.S.G. § 1B1.1 (“A weapon, commonly known as a
‘BB’ or pellet gun . . . is a dangerous weapon but not firearm.”).
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Having found no merit to this appeal, we will dismiss it pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Appellee’s motion for summary affirmance is, thus, denied as moot.
Rearick’s motion for the appointment of counsel is likewise denied. Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993).
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