State v. Fadness, 2012 MT 12

Fadness shot at three moving vehicles on US Highway 93 south of Darby, Montana, after dark, on September 11, 2006.
Law enforcement identified the suspect vehicle from video and arrested Fadness, finding a Walther .22 with laser sight and silencer and a Beretta .22 in his vehicle.
A search of Fadness’s vehicle yielded additional firearms, accessories, ammunition, and specialized outdoor equipment; all items were admitted at trial.
Fadness admitted the shootings but claimed he did not intend to hit anyone; the jury convicted him on three counts of attempted deliberate homicide, and the court sentenced him to three concurrent 40-year terms with 20 years suspended, plus various conditions including firearm prohibitions.
In July 2010, the Ravalli County Attorney petitioned to dispose of seized/evidentiary items under §§46-5-306 through -309, MCA; Paragraph 7d concerned firearms, ammunition, and related items and proposed sale with proceeds to Fadness’s father; the district court held a hearing and ultimately disposition was at issue as to whether non-contraband items and firearms could be released or must be sold by the State.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Paragraph 7d items not firearms or ammunition should be released to Fadness’s parents.	Fadness argued those non-firearm items should be released to his parents for sale or held in trust for him.	State argued all Paragraph 7d items should be disposed of by sale or transfer to a dealer due to possession restrictions.	Partially reversed; non-firearm items must be released to parents.
Whether Fadness is entitled to possession of the firearms, ammunition, and deadly weapons listed in Paragraph 7d.	Fadness contends he should have possession, or at least access, under state law.	State argues federal law and sentencing conditions prohibit possession by a felon and the court can restrict possession.	Affirmed; Fadness not entitled to possession of firearms/ammunition.
Whether the district court abused its discretion by authorizing the State to sell the firearms and give proceeds to Fadness’s father rather than releasing items to his parents for sale.	Fadness prefers release to parents so they can sell for his benefit.	Sale by State with proceeds to Fadness’s father is a permissible disposition under §46-5-308, MCA.	Affirmed; State sale is permissible; proceeds to father as agent for Fadness is valid.

United States v. Felici, 208 F.3d 667 (8th Cir. 2000) (constructive possession concerns for third-party hold)
United States v. Howell, 425 F.3d 971 (11th Cir. 2005) (holding that placing firearms with a relative in trust can imply possession; disposal options limited)
Parsons v. United States, 472 F. Supp. 2d 1169 (N.D. Iowa 2007) ( Third-party designation for disposal not equivalent to constructive possession)
Letasky v. City of Billings, 336 Mont. 178 (Mont. 2007) (distinguishes suspended-sentence conditions from court mandates)
State v. Severson, 2000 Mont. Dist. LEXIS 1878 (Mont. Dist. 2000) (release to third party did not confer constructive possession (distinguished)} ,{)
Meader, 184 Mont. 32, 601 P.2d 392 (Mont. 1979) (defines constructive possession in Montana)
Parsons, 472 F. Supp. 2d 1169 (N.D. Iowa 2007) (see above)
Nelson, 2008 MT 359, 346 Mont. 366, 195 P.3d 826 (Mont. 2008) (relates to federal vs. state law in conditional restrictions (Nelson))
Letasky, 2007 MT 51, 336 Mont. 178, 152 P.3d 1288 (Mont. 2007) (distinguishes suspended-sentence conditions from mandates)