by your honor you can see the references on page seventy one one seventy one thirty two and page one ninety five of joint appendix on page seventy one in his renewed request disposition of property  not mention the word licensed gun dealer but he said transfer for sale did not limit it to any used to kill or person and i'm page one thirty two in his objections to the magistrate judge's record and recommendation he asked the court already rule that any kind of sale by anyone was prohibited because he was a felon that is clear justice o my or he would have to when he went up on appeal he cited the crown case to the court court which had held that a court ordered sale was ok yes your honor and despite him citing the crown case the eighth circuit continued with its own precedent and said no one could sell it not even the court ownership who gets to decide who to whom he's going to sell what he owns yes your honor it is it me in this particular case because it was one of the remedies that he actually requested be possible b prefer remedy this court should have the power to approve sales in transfers so long as the recipients are not under the control or influence of the owner so long as they themselves are legally entitled to own suggested resawing quire signed statements from the proposed transferees that they will never let the the owner again have control or influence over the use of the guns there are example it's a case by case forty one was amended in nine hundred eighty nine pointed out that they had ancillary jurisdiction to this and sense which does not violate common and or peacock versus thomas because in this case the asked for it under general ethical principles which other courts have allowed is the government they try to narrowly characterize his request as one to rule forty one gee and now takes a very narrow approach towards the word return and suggests that he is unable he should be unable to see transfer of his guns for that reason it's not just return right it's return the property to the movement so how does this fit under forty one j well it's kind of promp a transaction under rule forty one g your honor is asking for the guns to be transferred and as part of that transfer for him to receive payment he's not asking for the gun itself admittedly he's asking by transferring the property is necessarily receiving constructive possession of it and that building is wrong for people e six different independent reasons it violates the plain language of the statute it violates traditional understanding common law under standings of what possession entails if i were to statutory structure and at least two canons of statutory interpretation it violates the statutory purpose by preventing felons from completely alienating their interest in their guns it also allows the government to accomplish a forfeiture without any due process or end joiners it raises serious takings due process fourth amendment second  amendment conserve just so i understand the scope of your position you say that the district court has discretion to figure out you know whether a particular person whom your client or someone else wants to sell the gun to is an appropriate recipient of the gun but in the absence of that does the district court just have discretion or must the district court ensure that the gun is sold through a gun dealer in other words if  gun dealer it's possible that there might be some argument about the a particular whether a particular gun dealer would be appropriate or not can i ask you a question about your argument that a district court would have the discretion to prevent the transfer of a gun from the convicted felon to a third party who has some acquaintance with the convicted felon a friend let's say if let's say it's a friend who lives two blocks away now if this friend doesn't is not himself a convicted felon or doesn't have some other aspect of his record that would prevent him from buying a firearm he could go to a licensed firearm dealer presumably and purchase it directly right yes your so why should the scituate and that would be true even though he is a friend of the convicted felon and there might be some risk that he would allow the convicted felon to use the firearm so why should the situation be different when the district court is considering whether the firearm can be transferred from the convicted felon to this individual it shouldn't be any different but i thought you understood that i thought you were saying that the district court would have the discretion to prevent that transfer if the district court thought there was some risk that this individual would allow the convicted felon to have access to the firearm in it s hearing the district court is not insufficiently convinced that there is independence between the owner and the transferee it might as an exercise of its actual discretion because it is a question of equity refuse the direct transfer and put it up first put the firearms up for sale through a licensed gun dealer and then that individual could go to the licensed firearm dealer and buy exactly the same gun yes your honor so i don't see how this t at the extreme end of the extreme just justice alito imagine a situation where someone in this position is proposing transfer to an unindicted drug kingpin something like that the government dropping kingpin wanted but it is not outside of the court's authority to take that fact into account those circumstances were i believe would be very few and far between in most cases so long as the i mean why wouldn't that be the normal situation his first preference is that it should be sold to two individual acts and if the court cannot reject that it should go there and the second buyer meaning i can understand he can't just sit think someone who's himself ok but if he's to making a good face sale why should the district court have any power to chime that person down just assume we were the district court shouldn't have that power and last the public interest which is always a concern in equity would be  violated by it in those cases would be few and far between the one i mentioned the sale proposed transfer to an unindicted drug kingpin might be extreme enough for that to be possible but ordinarily the court district court should have not have that power and  ricci's why is it required that the court arrange for some transfer whether to a gun or otherwise is it principles of equity that require that is it something else where granted there's no statutory or to it there's always prevails regularly and it was a no statutory buy but i guess i'm asking a further question because you said in response to my earlier question it's not just discretionary it's required you know at least to a gun dealer and i guess i'm i'm asking what is the source of that requirement well bet requirement has several sources part of it is the due process called where a government can't basically effect a forfeiture without recording any process which eleventh circuit rule would allow the also concerns under the takings clause there's a does also may well be you know reasonable seizure under the fourth amendment there are excessive fine cause issues that this goes over those constitutional doubts and concerns that argue in favor come mr chief just yes and may have please the court if a convicted felon selects the recipient of his firearms and negotiates the terms of a transfer but then relies on someone else to deliver the firearms he still has the power and intention at a given time to exercise to many and control over those firearms which amounts to constructive possession where do the vote ability to sell something depends upon not possession if i knock my car with a garage for a month the garage has possession but they can't sell the car i don't have possession but i can sell the car i don't see how it gets to be constructive possession all he's asserting is a right to ownership which carries with it the right to sell the definition of constructive possession which everybody agrees is included within the word possession in one thousand and two g is when a person has the power an intention at a given time to exercise dominion and control over the property either directly or through others and it's a position that if he is selecting the recipient excluding others from receiving it and negotiating the terms of the sale that he is has the power in intention at that time to exercise dominion and control over those firearms we've cited simply doesn't he doesn't have much control when the government is holding them and he's just trying to sell them he doesn't want to control them we just want to use them he doesn't want to possess them constructively or otherwise in fact he wants to get rid of them which is what the statute is supposed to accomplish great so we agree that the convicted felon can sell the firearms they can be sold there's a question of who should be selling them on our end we think that they should go to a licensed firearms dealer of a federal firearms license  the firearms dealer what that's that fits within your very broad definition of control i don't think so and let me explain why he picks the firearm dealer he is not exercising any control over where the firearms land the firearms dealer is expected and a licensed seller of firearms so we don't expect him to keep them or be subject to the convicted felons control at all if he's nominated someone or selling them to a specific person then he has exercise control over where they are going he is excluded others and we think that amounts to then suppose his friend comes forward and says i don't really intend to possess this i'm going to sell it that wouldn't be controlled well i think there's so as i was saying it was a question o we think the f l the petitioner thinks he can sell it himself to to a friend and we think that amounts to constructive possession in the middle there's a question of can a neutral third party sell them and as we think the federal firearms licensed dealer is the right one to sell but on my theory of constructive possession i've just laid out you point out yes any third party could if the court determines that they are not subject to the felons control execute the sale however a court sitting in equity should not be required to so i don't know why that isn't exercising control or it seems to me you're drawing a very artificial only you can only exercise during control when you determine where they end up but i don't see that comes within within the term constructive possession if he is just as if there is just a party that's appointed to sell the firearms for him and we have to get rid of them somehow and so we think the best way to do it is to give them to a licensed firearms how constructive possession makes makes that distinction really go we it's just more of it's it's harder to say he's exercising dominion and control when they are just being given to a neutral third party who's going to sell them in an arm's length transaction to the entire practical reason why we think it's ok for the felon to suggest or say where which firearms dealer he thinks they should go to is because the government when we when we said how about if we just select it we've said we don't really have the resources and the power to be going out and finding firearms dealers frog so we're happy if the felon wants to appoint one when if he wants to donate them to some he wants to donate them to the texas national guard he do that i mean the federal firearms dealer doesn't help you  i mean i think any when you go i mean you know he can't do it or not i think anything that it comes where it comes down to he is exercising dominion and control over the firearms through the sale amounts to construct of the federal government he says i'm sorry about  control i mean he says i'm not going to propose any figure i'm going to lift the federal government and the reason why is because we already have them frankly so he doesn't have to transfer possession to us in order for us to have them all he would be doing is abandoning any interest in them we're lucky you and i and i also want to make clear mr khan to commit to ask why why it is that we're looking at it in terms of the sale i mean this is this constructive possession question it would seem to me to make a lot more sense to ask the person who's going to end up getting it is there a chance that the original owner can control what that person does with it another way you know i give it to my wife i give it to my best friend and i'm really in a position where i'm controlling the use of the firearm and that seems to me to make perfect sense not the question of like who controls and there's some i agree with you justice kagan that it makes perfect sense to look at whether the felon has control over the person that gets the firearms but i think there's a separate time period that we need to look at during the sale to determine whether he's exercising dominion and control over where does all this come from i mean to me when somebody uses the word constructive acts that just means it's not and then it's a way of pretending that it's x when it isn't so i start with that and see what you're wrong about your course he doesn't have any possession of it you have a session and when he wants to do this he wants to wrong with it i think just as prior we are not pulling our constructive possession position out of thin air i'm sure there are things like that and i don't understand any piece of it that has something in that like we have the cases try your attention the cases we've cited on pages twenty five and twenty six of our brief that involved convicted felons who are out in the world and they are negotiating sales of firearms and they are saying hey buyer do you want to buy this firearm let's negotiate the terms get into the hands of the crime boss of the area don't let the things that you were just talking about how come and you look to see how much trouble it is what's likely to happen and make sense and it isn't likely these bad things to happen those cases though are not concerned with we want to double check on who the buyer is and see if that buyer is going to be subject to the convicted felons control they're looking at the felons ability to move guns around throughout the world that seems to me very different than the situation here ms o'connell because in that case what the gang leader has is a situation where somebody else is holding a gun for him and he can say anything to that person he can say use the gun he can say keep the gun in your closet he can say sell it  a person a a person b a person c he has total freedom over it and that's very different from the situation here where the only thing that a person with a person in mr henderson's position can do is to sever the gun to a person whom the court approves i don't i don't think that any of the cases but i was just referring to involved situations where the convicted felon has control over  person that's receiving the gun all of them just have to do with the convicted felons ability to make a gun appear somewhere when he says to him to show that he yet he's exercising dominion and control over the guns by negotiating the terms of their sale and to have the gun given to my best friend or to somebody else that doesn't sound much like dominion and control when we count that because the guns are in our possession and the petitioner needs a court order in order for them to go somewhere that the court is exercising also some control over the weapons but i reserve in this right to nominate somebody to receive them the convicted felon is also exercising control over their weapons i point out that in the petitioners opening brief when he described the man attributes of possession he said the right to control and the right to exclude and his theory in the reply brief that i'm just nominating somebody is certainly an exercise of the right to exclude other people from getting their hands on the fire the reality is that the world is not going to guns you're there so that there's no exclusion if i wanted to go into that case and asked the court to consider me rather than the nominee to quarterback woody and the court could see i'm the better own earth and the person they nominated so i don't know what the why this nomination it's the one who decides whether the person who's not nominated is appropriate or not right the court the court can say yes or no after weighing x equitable factors but if it says yes then the felon is exercising a right to control and to exclude what it you want to have happen the gun was taken away from him yes he can't possess it anymore it's in the hands of the court i guess or the government ok now it seems it's eighteen ninety one collector's item is a gun collector nobody is claiming it's profitable or anything ok what do you think should happen we think it should go to a federal firearms license dealer for a sale and i want to make clear that if the if the court disagrees with our constructive possession theory i think that's probably where justice scalia is and i don't know how many other people are in that boat but i think the court should certainly make clear in its opinion that because the district court looking at this relief is sitting in equity it is not required to broker a sale between a convicted felon and his friend the court could still order that the firearms instead be sent to an f f l i do think that it would should be sold through federal firearms dealer is a late idea that this was not something the government proposed at any stage below until the case came here right right we certainly didn't propose that but i also don't think it's correct to say that the petitioner was was proposing this as relief that he wanted he did what was your position before you changed it here in this court about what should happen to the guns i mean i think in the eleventh circuit federal law enforcement officers that have these guns and are trying to decide what to do with them when they get the request coming in from the felons were were certainly under the impression that how well controlled and that they certainly couldn't give it to somebody that was selected by the convicted felon but also that they couldn't sell it as the federal government ever used these guns no and if not these particular ones with guns that were forced to do it by a convicted felon and someone who couldn't sell them to anyone at least until you change position so they could sell them to firearms dealers just sat around gathering  dust they do because we don't know if if the opinion is affirmed if there's you know nothing to do with guns we don't gain title to them i think there would need to be an extra step in a lot of the court of appeals cases that present this issue when the convicted felon found his real forty one g motion the government filed in response a motion for permission to destroy the firearms or something like that but there is nothing like that in this case we wouldn't gain title to them but we think we do agree that our position maybe not necessarily in this case because the relief that petitioner was asking for was always to have it transferred to somebody in specific but i completely agree that we have stead in briefs before we understood how to also prohibit a sale so what i think the  appropriate relief for this court to what the court should do to dispose of the case would be to affirm the eleventh circuit holding that the convicted felon cannot select somebody to receive his firearms but then remain and for if the court adopts our federal any permissible sale because that circuit had none and so to come back and say to us that we should leave it in their discretion as to whether it should go to a  federal federally licensed firearms dealer it seems as if the government has set a trap for a pro se litigant we are we are certainly not trying to do that the position that i think i just articulated was if the court agrees with what we've said in our brief in our view of constructive possession it should affirm what the eleventh circuit said with respect to he cannot transfer the firearms to a person of his choosing but we would not impose a remain on for the court of appeals to  that doctrine the unclean hands doctrine typically requires the uncleanliness of your hands to be tied to the equitable relief you are seeing is that i mean i could getting away from what i call the legal mumbo somebody who's going to do his bidding every five minutes i mean maybe even agree with that and now you're taking the opposite extreme you're saying the only way to administer this is the only thing really you can do with it is you can sell it to a federal through a federal firearms dealer and they're probably intermediate positions you know somebody has a very valuable antique weapon norman's used to shoot her someplace and he says i don't want to sell it i'll i'm going to be able to possess it again in ten years no forgive me for whatever it is and maybe you should accommodate that or maybe you shouldn't i have no feeling for how important it is to have an absolute rule you've given some good reasons for  supposed to do just say everybody agrees here you can't so with your best friend you will keep it to say they were all in that rule the government's position is now let's do something else with it maybe absolute maybe not go work it out eleventh circuit go work it out lower court what should we do yeah i think that's that is a perfectly fine solution i think whatever the court is going to hold with respect to constructive possession we certainly hope that the court will agree with us that it transferred to a person selected by the convicted felon as an act of constructive possession but we're totally fine with licensed firearms dealer option and i know it's not something we could have worked out with him now because he is still presenting in this court the preferred option that they be given to his friend so that h it to i think i tried to explain and in response to a question from justice kagan earlier i don't think it's necessarily true that the firearms dealer is the only neutral third party that can sell firearms and under our theory of constructive possession he wouldn't be controlling the destination of the firearms if they were given to somebody other than a licensed firearms dealer who was not subject to the control of the convicted felon but we certainly think the given the statutory backdrop where what we have said is yes he can get those district court has to figure out who's going to sell these firearms and maybe the police can nominate firearms dealers but i tried to say before was that i don't the federal government certainly the agencies that i am here representing  said they don't necessarily have the resources to in every case like this go out and try to find firearms dealer to do this so we don't don't we it's an act of constructive possession for him to pick the neutral third party that's going to make an arm's length transaction to the entire universe of justice alito what would happen if someone is on trial for a felony and has in this house a number of firearms and then the person is convicted so what how can that person deal with the firearms in the house without exercising constructive possession in your view so this is probably the one scenario where somebody like i don't know the couldn't have made arrangements beforehand but we don't really expect him to because he could be holding out hope he's going to be acquitted i think if he has fine arms in the house and then he is convicted and he becomes a convicted felon i mean maybe he's i presume he's going to jail maybe he will stay home first but you're right that does propose sort of a dilemma where we're saying he can't tell somebody else what to do with the firearms i think if the courts were looking at that below and of course that's not something that is a problem in this case because this petitioner pleaded guilty and h agreement that he was about to become prohibited from possessing firearms and i think that if courts determine in a particular case that it was a problem like all of a sudden i am in a status where i can't possess firearms and if i go home i'm immediately in violation  statute that courts could determine that there is like a statutory background principle that you have a reasonable amount of time to come into compliance with my can we do that well because that that is not the type of a petition  pleads guilty is not in that position he knew when he pleaded guilty that he was about to lose his ability to possess minobu i mean your whole argument the reason i took it that the government wants this firearm thing part of our healer is they said look there are a lot of guns and these guns should be safe and we're afraid he'll give them to a friend and we're afraid it may be the gang boss will get them and the only safe thing to do is really the firearms do it ok but now we think of the similar kind of case it's just happened at the conference to get the guns first there in his house and then you say well the solution there is it's a reasonable time yes a reasonable time to do with him what he wants as long as he gets out of his possession i think if you're going to say he has to get into a pharmacy this is a very complicated more so than i ever thought and it seems to me that might best be worked out by lower courts under the principle that we don't want these guns back in the hands of either his control or people who might misuse them i think if he is a person who pleaded guilty and so he had advance knowledge that he was about to become somebody who couldn't possess firearms including constructive possession very couldn't can exercise dominion and control over them that he should be required to to get rid of those firearms before he pleads guilty and if he still has them in his house after he does so there is no reasonable period of time for that person to you know exercise his own control over  where the the answer is can the convicted felon exercise dominion and control over the firearms in their location so if they're in like the master bedroom and they're not locked up and he has access to them anytime he wants it then he would he would yes and it was because he was the one that is selling the firearms to the friend he was selecting the friend he's excluding other people from owning them he was exercising control over the sale or the transfer to his friend it is a kind of i think it's implicit in what you're saying but i just wanted to make it clear only you say that rule forty one she is not the appropriate mechanism you have no doubt the courts do have the equitable authority to do this is that correct that's correct and i i mean i hope that justice sotomayor that it's not the case that people are upset with with the government's preferred think that in our brief we tried to correct some wrongs that had happened in this case we have abandoned that forty one g argument we've abandoned the unclean hands argument  the weapons that are not firearms were have been returned to mr henderson and we think we've come up with a solution transferring the weapons to a federal license firearms dealer that allows him to obtain the economic value of the firearms without exercising control over them did describe that if these are if obviously if if the property that we have is contraband it's not being returned to anybody but we also would reserve the right to make arguments and he says where the property were holding is derivative contraband like it's a firearm that's been used to shoot somebody or it's something that is used if you have for forfeiture of the situation well i what i'm saying is if we miss those deadlines or something like that we would reserve the right in a derivative contraband case to make a unclean hands arguing about just forgetting the words dominion and constructive and just look to the word possession and say that that sometimes includes control and what you want to prevent of these arms in a way that allows him possibly to control them in the future control now in a way that likely puts them in the hands of bad people for the future that way all we have to do is look at the word possession we have to add that it includes for purposes of the statute certain kinds of control and then you have to say this is the simple rule and this will prevent too bad kinds of control now is there something wrong with it if so we've done send it back so that you can argue to the district court why your rule is necessary to prevent these two bad kinds of control just i think your your second car we would go a little bit further under the government's theory surely we think that if the firearms are given back to somebody over the convicted felon is going to exercise control that would be constructive possession but we also think that regardless of the person who's on the receiving end of the firearms is a good person or a bad person is an exercise of them and i know that's the part that it's hard for me to accept well you're willing to allow that control in the case that justice alito put where he was convicted and it's in his house and i don't see anything bad that flows from that kind of control and i don't see why you have to read the statute to include that kind of control to achieve any purpose that the statute had so court you know make clear in its opinion that a district court acting in equity is not required to accept convicted felons choice or direction about where he wants to firearms to go and that even if you don't think that it's bad to have firearms go to necessarily anybody or maybe there's a very good person that the convicted felon knows and wants to have it the line is drawn when you become a convicted felon with the firearm store charge a commission for selling these guns yes and who would pay that it would it would come out of the sale price so that if the if the convicted felon could sell this without going to a dealer for a montana supreme court case includes effects an area where the person wanted to designate their father to sell them in the court said i'm not required the father has no plan to sell them i'm going to give them to that balance to thank you counsel mr ickes you have fourteen minutes remaining or treated a civil action is not a rule fifty four c the federal civil procedure he's entitled to whatever relief is appropriate even if he did not request it second you started if you're going to give us five pages in  n farms which must be com made by the sale transfer storage to firearms but justice ginsburg was correct and not particularly reference a licensed gun to or it was objections to the measure judge's record a recommendation which appears on page one thirty two of the in his eleventh circuit brief he said alternatively i request the court recognize my continued ownership interest in the property value and for its sale for my benefit for my wife's or adult children's benefit or allow me to designated neutral third party to take firearms without the lecture and warning from the district court that might be a criminal offense i third in this case the firearms were turned over long before petitioner pleaded guilty they were turned over by order of a court setting the conditions for the rightly that's one fear if this court were to dispose of the case other rid them by reversal there's also the other problem that not only would that not resolve the circuit conflict equips the government's taking a very different view of the eleventh