322 F.Supp. 272 (D.Colo. 1971), Crim. A. 70-CR-243, United States v. Gullett

Docket Nº:Crim. A. 70-CR-243
Citation:322 F.Supp. 272
Party Name:United States v. Gullett
Case Date:January 11, 1971
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 272

322 F.Supp. 272 (D.Colo. 1971)

The UNITED STATES of America, Plaintiff,

v.

Edward D. GULLETT, Defendant.

Crim. A. No. 70-CR-243.

United States District Court, D. Colorado.

Jan. 11, 1971

James L. Treece, U.S. Atty. by Richard J. Spelts, Asst. U.S. Atty., Denver, Colo., and Harry H. Ellis, Senior Atty., Chief Counsel, I.R.S., Dallas, Tex., for plaintiff.

James E. Hautzinger, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

Defendant has been indicted in three counts for violating the National Firearms Act, 26 U.S.C. § 5801 et seq. (1964) as amended, 26 U.S.C. § 5801 et seq. (Supp.1970). He has moved to dismiss the indictment on two grounds: (1) a timely assertion of the fifth amendment privilege against self-incrimination is a complete defense to all charges; (2) the National Firearms Act, as amended, cannot be sustained as

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a valid exercise of Congress' taxing power or any other enumerated power. Both sides have submitted extensive briefs and the question is now before us.

I.

The National Firearms Act has repeatedly been attacked on self-incrimination grounds. Two sections of the pre-1968 version were at issue in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), decided contemporaneously with Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). In Haynes the Supreme Court ruled that a timely assertion of the privilege was a defense to a prosecution for violation of former section 5851, which forbade the possession of certain classes of firearms not registered with the Secretary of the Treasury or his delegate. The court found that the crime created by section 5851 was not meaningfully distinguishable from the section 5841 crime of failure to register possession of certain firearms and that compliance with the registration provision would have compelled petitioner to provide evidence facilitating his prosecution for violation of either the making or transfer clauses of section 5851. The registration requirement posed a substantial, rather than merely remote, risk of self-incrimination because those persons required to register were, with few exceptions, 'inherently suspect of criminal activities' and the correlation between the obligation to register and violations of the act was 'exceedingly high.' 390 U.S. at 96-97, 88 S.Ct. 722, 19 L.Ed.2d 923. Since the National Firearms Act was not a regulatory scheme of general application, id. at 98, 88 S.Ct. 722, 19 L.Ed.2d 923; cf. Marchetti v. United States, 390 U.S. 39, 55-57, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the court found inapplicable the required records exception to the privilege against self-incrimination.

In response to the Haynes decision, Congress amended the firearms act, 26 U.S.C. § 5801 et seq. (Supp.1970). It expanded somewhat the classes of 'gangster-type' weapons subject to regulation and taxation (machineguns, sawed-off shotguns, short-barreled rifles, mufflers, silencers, 'conversion kits,' destructive devices, etc.) and provided that all weapons covered by the act, not just those imported, made or transferred in violation of the taxing sections, must be registered. 1968 U.S. Code Cong. & Adm.News 4434. In addition, Congress attempted to avoid the self-incrimination problem in the prior legislation by placing the burden of registration upon the transferor of a firearm, 26 U.S.C. § 5841(b), and by providing that, as to violations of law occurring prior to or concurrently with application or registration, any information obtained may not be used against any person required to comply with the act. Id. § 5848; 1968 U.S.Code, supra, at 4435.

Defendant in this case is charged with violating subsections 5861(b), (d) and (i) of the amended act: possessing a firearm transferred to him without prior payment of the transfer tax required by section 5811 and without the prior filing of a written application form, as required by section 5812; possessing a firearm not previously registered to him in the National Firearms Registration and Transfer Record, as required by section 5841; and possessing a firearm not identified by a serial number, as required by section 5842. Defendant maintains that, despite Congress' effort to purge the act of any self-incrimination problem, compliance with the provisions enumerated in the first two counts would have forced him to incur an appreciable risk of self-incrimination as to future acts made criminal by both federal and Colorado law. Defendant's reasoning is as follows: In order to make transfer of a 'gangstertype' weapon legal from the transferee's point of view, he must secure the transferor's compliance with the statutory requirements of application for transfer, registration and payment of the transfer

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tax. Registration must include the name and address of the transferee and his photograph and fingerprints, as well as identification of the firearm. 26 U.S.C. § 5812 (Supp.1970). Thus, the transferee must see to it that the transferor records information which may later drove incriminating to the transferee. Defendant claims that in his case the risk of incrimination was appreciable because of the following circumstances: he was indicted under the National Firearms Act on July 1, 1970, for violations occurring from June 26 to July 1; in July he was arrested, tried for and convicted of a 'short check felony' in Colorado; the acts upon which the conviction was based occurred in June. Since compliance with the firearms act would have provided evidence that defendant owns a sawed-off shotgun, he argues that he would have faced a very real risk of prosecution for violation of Colo.Rev.Stat.Ann. § 40-11-10 (Supp.1965), which prohibits a felon from carrying or using certain concealed weapons; 18 U.S.C. 922(h) (Supp.1970) and 18 U.S.C. Appendix § 1202 (1969), which prohibit a felon's possession of certain weapons sufficiently connected with interstate commerce, and Colo.Rev.Stat.Ann. 40-11-1 (1963), which prohibits an unauthorized person from using or carrying certain concealed weapons

Defendant's argument raises several difficult problems. However, we need not decide whether compliance with the National Firearms Act on the part of a transferor can be considered 'self-incrimination' as to a transferee, United States v. Minor, 396 U.S. 87, 91 & n. 3, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), or whether there is any real possibility that a transferor would comply with the act at the behest of a transferee, id. at 92-94, 90 S.Ct. 284, 24 L.Ed.2d 283, since we have concluded that defendant's risk of incrimination for possible future criminal acts was remote and hypothetical.

It is true, of course, that the privilege against self-incrimination extends not only to past criminal acts but also to those which may be committed in the future. Marchetti v. United States, 390 U.S. 39, 53-54, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). The proper equity is whether there are 'substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination.' Id. at 53, 88 S.Ct. at 705, 19 L.Ed.2d 889. First, we find it extremely unlikely that compliance with the firearms act would have produced any evidence tending to convict defendant of violations of the above-mentioned Colorado laws. While the federal statutes which defendant has cited prohibit a felon's possession of a firearm, a term embracing sawed-off shotguns, 18 U.S.C. § 921(a) (3) (Supp.1970), id. Appendix § 1202(c) (3) (1964), the Colorado felon's statute prohibits the carrying or use of concealed weapons specified in Colo.Rev.Stat.Ann. § 40-11-10 (Supp.1965) or other Colorado statutes. It may therefore be argued that the ownership evidenced by compliance with the National Firearms Act is not relevant on the issues of use, carrying or concealment and, even if relevant, the evidence is weak and not likely to be very...

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