Capooth v. United States, Civ. A. No. 63-H-843.

Decision Date18 February 1965
Docket NumberCiv. A. No. 63-H-843.
Citation238 F. Supp. 583
PartiesPete CAPOOTH, Jr., Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Southern District of Texas

Harvin C. Moore, Jr., Houston, Tex., for plaintiff.

Woodrow Seals, U. S. Atty., William M. Schultz and James R. Gough, Asst. U. S. Attys., Houston, Tex., for defendant.

BREWSTER, District Judge.

The petitioner brought this action under 28 U.S.C.A. § 2255 seeking to set aside his conviction on his plea of guilty to a one count indictment charging him with unlawful possession of a sawed-off shotgun with a barrel 7¼ inches long which had not been registered with the Secretary of the Treasury or his delegate, in violation of Sections 5851 and 5861, Title 26 U.S.C.A.

The petitioner insists that his sentence is invalid for the same reason that the conviction was vacated in Russell v. United States, 9 Cir., 1962, 306 F.2d 402. His position is untenable because the statutory defect or omission that caused the Court to hold in Russell that the charges there involved could not be predicated on a violation of Section 5851 was cured by an amendment effective before the date of the offense alleged against the petitioner here. Frye v. United States, 9 Cir., 1963, 315 F.2d 491; Starks v. United States, 9 Cir., 1963, 316 F.2d 45; Sipes v. United States, 8 Cir., 1963, 321 F.2d 174; Taylor v. United States, 10 Cir., 1964, 333 F.2d 721; Hazelwood v. United States, D.C.N.D.Cal., 1962, 208 F.Supp. 622.

The information in the Russell case charged that on or about October 28, 1956 the defendants had possession of two sawed-off shotguns, each with a barrel of less than eighteen inches in length, "which they unlawfully, wilfully and knowingly failed to register with the Collector of Internal Revenue for the District in which the said defendants resided." The following recitation in the heading was the only attempt to identify the particular statute under which the charge was brought: "Information. * * * 26 USCA 5851, Illegal Possession of Firearms. * * *" While Section 5851 provided a number of offenses based on unlawful possession of firearms without having complied with statutory regulations in Chapter 53, Title 26 U.S. C.A., relating to the making and transfer of firearms at the time alleged in the indictment in the Russell case, it failed to contain any provision for an offense based on possession of a firearm without having complied with the statute requiring registration. The Court held that the offense could not, therefore, be predicated upon Section 5851, and that it had to be based upon Section 5841 requiring all persons having possession of firearms to register with the Secretary of the Treasury or his delegate the identity of the firearm and of the person having possession of it. The Court held the conviction of Russell was invalid and should be set aside because it was necessarily predicated upon a violation of his privilege against self-incrimination.

Subsequent to the conviction of Russell, Congress amended Section 5851,1 effective September 2, 1958, by adding a provision making it an offense to possess any firearm which has not been registered as required by Section 5841. The result was that after that amendment the possession of a firearm, coupled with non-compliance with any one of the eight enumerated sections of Chapter 53, one relating to the making, another to the registration, and the balance to the transfer of firearms, became an offense punishable as provided in Section 5861. Waters v. United States, 10 Cir., 1964, 328 F.2d 739.

The indictment under which the petitioner here was convicted charged an offense based on the 1958 amendment of Section 5851, and alleged the date of the offense to be March 4, 1962, over three years after the effective date of the amendment.2 Similar convictions based on offenses subsequent to the amendment have been upheld in the Frye, Starks, Sipes, Taylor and Hazelwood cases, supra. The opinions in Frye and Starks were written by Judge Duniway of the Ninth Circuit, who sat on the panel which decided the Russell case. The basis of the holdings is that possession, and not failure to register, is now the gist and the substantive element of the offense.

Judge Duniway pointed out this distinction in the Starks case, supra, 316 F.2d at pages 45-46, where he said:

"The parties are agreed that the statute involved is section 5851, not section 5861, which merely defines the penalty. Appellant's contention is based upon our decision in Russell v. United States, 9 Cir., 1962, 306 F.2d 402. In that case we held that section 5841, which requires every person possessing a firearm to register it, is unconstitutional because by the act of registering, the possessor necessarily incriminates himself. Appellant urges that it follows from this decision that the portion of section 5851 here involved is also unconstitutional for the same reason. That section reads as follows:
"`It shall be unlawful for any person * * * to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury."
"This same contention was presented to us in the recent case of Frye v. United States, 9 Cir., 1963, 315 F.2d 491. We rejected the contention, pointing out that the defendant was not charged with failure to register the weapon, as was the defendant Russell, but was charged with possession of an unregistered weapon. Section 5841, considered in Russell, makes it an offense to fail to register, and we held in Russell that to that extent, it is invalid. It is the possession of a gun that no one has registered, not the failure by appellant to register, that is the essence of the offense with which appellant was charged in this case. Appellant did not have to accept or acquire possession of the gun, and when he did so, that gun not having been registered by any one, the offense was complete. We adhere to the views expressed in Frye." (Emphasis ours).

In commenting on this distinction of the Russell case, the Tenth Court of Appeals said in the Taylor case, supra, 333 F.2d at page 722:

"It is notable that this distinction has been observed in the Ninth Circuit which decided the Russell case. See Frye v. United States, 315 F.2d 491 (9th Cir.1963) and Starks v. United States, 316 F.2d 45 (9th Cir.1963). Indeed, as Judge Blackmun of the Eighth Circuit noted in Sipes v. United States, 321 F.2d 174, 178 (8th Cir.1963), the distinction is intimated in Russell itself at pp. 406-407 of 306 F.2d. It has likewise been recognized previously by this Court in Mares v. United States, 319 F.2d 71 (10th Cir.1963), which involved, as here, violation of Sections 5821 and 5851 of 26 U.S.C. * * *"

The National Firearms Act was originally passed in 1934. With some few corrective amendments it has been carried forward as parts of the Internal Revenue Codes of 1939 and 1954. Except for the Russell case, decided twenty-eight years after the original passage of this wholesome law,3 the Act has survived all attacks on its constitutionality, including, as Sipes v. United States, supra, says at page 177 of 321 F. 2d, those based on "Tenth Amendment, purpose, nonrevenue, proportion-of-tax-to-value, and prohibitive-character arguments." Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 722 (1937); United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Section 5851, itself, has withstood challenges of its constitutionality on all additional grounds. Page v. United States, 8 Cir., 1960, 282 F.2d 807; United States v. Decker, 6 Cir., 1961, 292 F.2d 89; Mares v. United States, 10 Cir., 1963, 319 F.2d 71; Frye v. United States, supra; Starks v. United States, supra; Sipes v. United States, supra. From the cases decided since Russell v. United States, including the two by the Ninth Circuit itself, it now appears that it was the application of Section 5841 to the facts of the Russell transaction, rather than the statute itself, which was held to be unconstitutional. As Judge Rives said in Shuttlesworth v. Birmingham Board of Education, D.C.Ala., 162 F.Supp. 372, 384, affirmed, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, a statute may be unconstitutional in its application in some instances, and yet be constitutional in itself. The Court is of the opinion that the petitioner's conviction here was based upon a valid statute constitutionally applied.

The government had the petitioner present at a hearing of this case under a writ of habeas corpus ad...

To continue reading

Request your trial
6 cases
  • Sims v. Baggett
    • United States
    • U.S. District Court — Middle District of Alabama
    • October 2, 1965
    ...545, 54 S.Ct. 830, 78 L.Ed. 1411 (1934); Smiley v. Kansas, 196 U.S. 447, 454-55, 25 S.Ct. 289, 49 L.Ed. 546 (1905); Capooth v. United States, 238 F.Supp. 583 (S.D.Tex.1965); Shuttlesworth v. Birmingham Board of Education, 162 F.Supp. 372 (N.D.Ala.1958), aff'd 358 U.S. 101, 79 S.Ct. 221, 3 L......
  • Deckard v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 7, 1967
    ...United States, supra, 319 F.2d 71, 73 (10 Cir. 1963); Hazelwood v. United States, 208 F.Supp. 622 (N.D.Cal.1962); Capooth v. United States, 238 F.Supp. 583 (S.D. Texas 1965). The Ninth Circuit itself, as we noted in Sipes, p. 178 of 321 F.2d, has drawn this distinction. Frye v. United State......
  • Schwander v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 27, 1967
    ...United States v. Forgett, 349 F. 2d 601 (6 Cir. 1965), cert. den. 383 U.S. 926, 86 S.Ct. 929, 15 L.Ed.2d 845 (1966); Capooth v. United States, 238 F.Supp. 583 (S.D.Tex.1965); Hazelwood v. United States, 208 F.Supp. 622 (N.D.Cal. 11 The indictment read: "That * * * James Willard Lovelace wil......
  • Lovelace v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 3, 1966
    ...3 L.Ed.2d 145 (1958), a statute may be constitutional in itself, but unconstitutional in its application. See also Capooth v. United States, 238 F.Supp. 583 (S.D. Tex.1965). Other significant alleged errors are without merit but will be discussed. The defendant contends (1) there was unnece......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT