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Court Can Order Third Party to Sell Felon's Arsenal

By Robyn Hagan Cain | Last updated on

Alan Zaleski likes his firepower. After discovering a large cache of firearms, ammunition, and explosives at Zaleski's home in Berlin, Conn., police arrested Zaleski and seized the weapons. Zaleski was indicted and ultimately convicted of 15 counts of possessing machine guns, one count of possessing a firearm with an obliterated serial number, and 12 counts of possessing firearms, silencers, and destructive devices that were not registered to him in the National Firearms Registration and Transfer Record.

Following his conviction, Zaleski was left with an unusual problem: Despite the fact that he was busted for illegal firearms, he also owned lawfully-obtained weapons.

Now we all know that it's a crime to be a felon in possession a firearm, so what's a former gun-toting felon to do? Zaleski had a creative solution: He asked a district court to transfer his lawfully-obtained weapons and ammo to a federally-licensed gun dealer, who would then sell the items for Zaleski's financial benefit and take a 20 percent cut of the gross.

The district court wasn't impressed by Zaleski's display of ingenuity, and denied the motion. In a matter of first impression for the Second Circuit Court of Appeals, the appellate court concluded that federal law does not categorically prohibit such an arrangement.

In addition to sentencing Zaleski to 101 months' imprisonment, the district court ordered him to forfeit 15 fully automatic machine guns and machine pistols, a shotgun, 4 homemade silencers, 6 hand grenades, and improvised explosive devices, all of which he unlawfully possessed. The forfeited weapons, however, represented only 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.

The lawfully-obtained weapons remained in the government custody while the government waited for court authorization to "retain and ultimately destroy" them.

Zaleski estimates that the non-forfeited weapons are worth over $100,000; they include guns, 65,000 rounds of ammunition, ammunition magazines, body armor, grenades, a grenade launcher, gun and grenade parts, explosive chemicals, and materials for making fuses and pipe bombs. The government argued to the district court that the non-forfeited items could not properly be returned to Zaleski because, as a convicted felon, he was prohibited from possessing firearms, ammunition, destructive devices, or parts thereof.

It is well-settled that upon the termination of criminal proceedings, seized property, other than contraband, should be returned to the rightful owner. The Second Circuit Court of Appeals concluded that transferring the weapons to the gun dealer for sale was a reasonable solution because it deprived Zaleski or constructive or physical possession, while allowing Zaleski to retain the value of non-forfeited property that he lawfully possessed before he was convicted.

After we get past the shock of learning that grenades and grenade launchers can be lawfully-obtained weapons, this will probably seem like a smart compromise. What do you think?

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