409 F.2d 511 (7th Cir. 1969), 17125, Gillespie v. United States

Docket Nº:17125.
Citation:409 F.2d 511
Party Name:Geodice GILLESPIE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:April 02, 1969
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 511

409 F.2d 511 (7th Cir. 1969)

Geodice GILLESPIE, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 17125.

United states Court of Appeals, Seventh Circuit.

April 2, 1969

Geodice Gillespie, Edmond J. Leeney, Patrick J. Galvin, Hammond, Ind., for appellant.

Alfred W. Moellering, U.S. Atty., Hammond, Ind., for appellee.

Before CASTLE, Chief Judge, FAIRCHILD, Circuit Judge, and HOFFMAN, District Judge.

CASTLE, Chief Judge.

This appeal arises from the denial by the District Court of petitioner's motion to vacate his sentence, under 28 U.S.C. § 2255. Petitioner, upon his plea of guilty, was convicted of violating 26 U.S.C. § 5851 1 by possessing a firearm which had not been registered pursuant to 26 U.S.C. § 5841. 2 Petitioner contends that

Page 512

the combination of Dugan v. United States, 341 F.2d 85 (7th Cir. 1965), which held § 5841 unconstitutional on the ground that it required disclosure of incriminating evidence in violation of the Fifth Amendment, 3 and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), which held that § 5841 and § 5851 must be read together, results in the conclusion that both sections are unconstitutional.

We are of the opinion, however, that a full reading of both of the above cases discloses that Haynes, in effect, overruled Dugan and the other cases cited by petitioner insofar as they declared § 5841 unconstitutional on its face. The court in Haynes reversed, a conviction for violating § 5851, and in so doing overruled a line of cases which had distinguished § 5841 from § 5851. The Court stated:

'We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical. '* * * We hold that petitioner's conviction under the registration caluse of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register.' 390 U.S. at 94-95, 88 S.Ct. at 729.

The Court then went on to...

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