In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2256

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

L EROY F. M ILLER,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
           No. 3:04-cr-138—Robert L. Miller, Jr., Chief Judge.


 S UBMITTED O CTOBER 15, 2009—D ECIDED N OVEMBER 19, 2009




   Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. Leroy Miller was convicted
of aiding and abetting the possession of firearms by
Ricky Fines, a felon. Last year we affirmed Miller’s con-
viction and 10-month sentence. 

(7th Cir.
2008). Miller then asked the district court to return the
34 firearms that had been seized at his farm. See Fed. R.
Crim. P. 41(g). To retain them, Miller contended, the
United States needs an order of forfeiture—but forfeiture
2                                               No. 09-2256

may be initiated only within 120 days of the seizure.
18 U.S.C. §924(d)(1). A timely administrative pro-
ceeding was filed but abandoned; the United States
concedes that it was defective. The indictment, which
includes a count seeking forfeiture, was returned more
than 120 days after the seizure. The United States ac-
knowledges that it is too late to commence a forfeiture
proceeding. But it maintains that the district court never-
theless must order the functional equivalent of forfei-
ture, because Miller’s felony conviction prevents him
from possessing the weapons and makes their return
unlawful.
  Miller responded by asking the district judge to order
the United States to sell the weapons for his account or
deliver them to someone legally entitled to possess them.
The judge declined and instead authorized the United
States to destroy the guns. 2009 U.S. Dist. L EXIS 39458
(N.D. Ind. Apr. 28, 2009). The judge concluded that the
United States is not obliged to act as a felon’s auctioneer,
and that handing the guns over to one of Miller’s
relatives would leave him in constructive possession,
which would be as unlawful as physical possession. The
judge recognized that the United States, having missed
the statute of limitations for initiating a forfeiture pro-
ceeding, has no legal entitlement to the weapons.
Forced to choose between unlawful outcomes, the
judge thought it best for the United States to destroy the
guns. Miller’s appropriate remedy, the judge thought,
would be to collect just compensation from the United
States for a taking. (The judge suggested a suit under
42 U.S.C. §1983, but as that statute applies only to state
No. 09-2256                                                  3

actors the judge surely meant a suit under the Tucker Act,
28 U.S.C. §§ 1346(a)(2), 1491.)
   The district court’s disposition finds support in the
decisions of two circuits. See United States v. Felici,

, 670 (8th Cir. 2000); United States v. Howell, 

, 972–73 (11th Cir. 2005). These decisions con-
clude that the United States is not obliged to confer a
benefit on a felon by selling guns as his agent, and that
any other approach would permit the felon to main-
tain unlawful possession of the weapons. One court of
appeals has concluded, to the contrary, that the United
States must sell the weapons for the felon’s account
if, by missing the statutory deadline, it disables itself
from obtaining an order of forfeiture. Cooper v.
Greenwood, 

, 304 (5th Cir. 1990).
   The fifth circuit has the stronger position—and not just
because the contrary view nullifies the statute of limita-
tions. The district court’s middle ground—the United
States destroys the guns, then pays their value as just
compensation for a taking—differs from an order to sell
the weapons only by requiring an extra round of
litigation and replacing the weapons’ actual value (which
a sale will determine) with an estimate (in any Tucker Act
litigation the parties may disagree about how much the
guns would have fetched, had they been sold). It is hard
to see how either the United States or Miller can be
made better off by replacing an actual sale with litigation
in which the parties will offer expert evaluations of the
weapons’ market value, and the Treasury will be out
of pocket that amount (because destroying the guns
4                                               No. 09-2256

does not produce any revenue to cover the cost of a
judgment under the Tucker Act).
  More than that. We do not see why all alternatives to
sale or destruction necessarily would be unlawful. One
of the weapons (a Deutsche Waffen Fabriken Argentino
1891 model) appears to be an antique that Miller may
possess lawfully despite his conviction. 18 U.S.C.
§921(a)(3), (16). As for the other 33: constructive
possession means control or dominion over property
without actual custody of it. See United States v. Caldwell,

, 758 (7th Cir. 2004). So if the United States
were to surrender the firearms to someone willing to
accept Miller’s instructions about their disposition, then
Miller would retain constructive possession. But there
are other possibilities:
    ! Gift of the firearms to one of Miller’s friends
        or relatives. If the United States fears that the
        recipient will treat Miller as the weapons’
        beneficial owner, the transfer could be condi-
        tioned on the recipient’s written acknowledg-
        ment that returning the guns to Miller or
        honoring his instructions would aid and
        abet Miller’s unlawful possession—the felony
        of which Miller himself has been convicted—
        and thus subject the recipient to criminal
        prosecution.
    ! Transfer of the firearms in trust to a reliable
        trustee (such as a bank) that promises to put
        them in a safe deposit vault and not return
        them to Miller, or honor any of his instructions
No. 09-2256                                               5

        about them, unless he regains his ability to
        possess them lawfully.
    ! Storage of the firearms by the United States
        while Miller’s firearms disability continues.
   Miller’s inability to possess firearms lasts only as long
as his conviction. A pardon thus would end the disability.
18 U.S.C. §921(a)(20); Beecham v. United States, 

(1994). And the Attorney General is authorized to
lift the firearms disability even for felons who have not
been pardoned. 18 U.S.C. §925(c). Although appropria-
tions riders have hampered restorations under §925(c),
see United States v. Bean, 

(2002), the Attorney
General must implement that statute when funds are
available.
   Because the United States did not commence a timely
forfeiture proceeding, Miller’s property interest in the
firearms continues even though his possessory interest
has been curtailed. If the United States does not want to
sell them for his account, then it must offer Miller some
other lawful option: having a trustee sell or hold the
guns, or giving them to someone who can be relied on
to treat them as his own. The judgment of the
district court is vacated, and the case is remanded for
further proceedings consistent with this opinion.




                          11-19-09