DePugh v. United States

• Decision Date: 30 September 1968
• Docket Number: 18733 and 18772.,No. 18732,18732
• Citation: 401 F.2d 346
• Parties: Robert Bolivar DePUGH, Appellant, v. UNITED STATES of America, Appellee. Walter P. PEYSON, Appellant, v. UNITED STATES of America, Appellee. Troy HAUGHTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

401 F.2d 346 (1968)

Robert Bolivar DePUGH, Appellant, v. UNITED STATES of America, Appellee.

Walter P. PEYSON, Appellant, v. UNITED STATES of America, Appellee.

Troy HAUGHTON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18732, 18733 and 18772.

United States Court of Appeals Eighth Circuit.

September 30, 1968.

Charles B. Blackmar, St. Louis, Mo., for appellants, DePugh and Peyson; Albert L. Rendlen, of Rendlen & Rendlen, Hannibal, Mo., William H. Costello, and William J. Gilwee, Kansas City, Mo., on the briefs.

William J. Gilwee, Kansas City, Mo., for appellant Haughton; J. Whitfield Moody and John J. Cosgrove, Legal Aid & Defender Society of Greater Kansas City, Kansas City, Mo., on the briefs.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee; F. Russell Millin, former U. S. Atty., and Calvin K. Hamilton, present U. S. Atty., on the briefs.

Before MEHAFFY, GIBSON and LAY, Circuit Judges.

PER CURIAM.

Defendants DePugh, Peyson and Haughton were convicted by trial to a jury of violations of the National Firearms Act. The indictment was cast in three counts.¹

The first count charges each of the named defendants with conspiracy to violate (1) 26 U.S.C. ? 5811, by transferring firearms as defined in 26 U.S.C. ? 5848, without paying the required tax; (2) 26 U.S.C. ? 5821, by making firearms as defined in 26 U.S.C. ? 5848, without paying the required tax; and (3) 26 U.S.C. ? 5851, by receiving and possessing firearms as defined in 26 U.S.C. ? 5848, which had not been registered as required by 26 U.S.C. ? 5841.

Count II charges DePugh and Peyson with violation of 26 U.S.C. ? 5851, through possession of a single specifically described firearm on which the making tax had not been paid and the declaration of intention to make had not been filed in violation of 18 U.S.C. ? 2, and 26 U.S.C. ?? 5851 and 5861.

Count III charges DePugh and Peyson with unlawfully possessing firearms which had not been registered as required by 26 U.S.C. ? 5841, in violation of 18 U.S.C. ? 2, and 26 U.S.C. ?? 5851 and 5861.

The three defendants were associated with the Minute Men organization. DePugh was the National Coordinator; Peyson, an employee of DePugh, was involved in the operation; and Haughton was the West Coast Coordinator for the organization.

Motions in arrest of judgment and for new trial were timely filed and denied by the district court, its opinions being reported in 266 F.Supp. 417, 266 F.Supp. 435 and 266 F.Supp. 453 (W.D. Mo.1967).

When the case was originally submitted to this court, we directed that additional briefs be filed in view of the Supreme Court's opinion in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923 (1968).

The Government concedes that Haynes, supra, requires a reversal and remand for new trial on Count I, striking therefrom the allegations of conspiracy to violate 26 U.S.C. ? 5851 by possession of an unregistered firearm required to be registered under the provisions of 26 U.S.C. ? 5841. The Government also concedes that Count III must be reversed and remanded with directions to dismiss this count upon the authority of Haynes, supra, since that count charges DePugh and Peyson with a violation of 26 U.S.C. ? 5851 by possession of an unregistered firearm.

The concessions of the Government are proper insofar as they go. See Sizemore v. United States, 393 F.2d 656 (8th Cir. 1968); Drennon v. United States, 393 F.2d 342 (8th Cir. 1968); Dillon v. United States, 389 F.2d 381 (8th Cir. 1968); and Cedillo v. United States, 391 F.2d 607 (9th Cir. 1968).

The problem we have, therefore, is determination of whether the transfer and making charges in the conspiracy count as well as Count II survive Haynes and the rational? of the gambling cases handed down by the Supreme Court on the same day ?€” 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. 716, 19 L.Ed.2d 906 (1968).

Preliminarily, we note that each of the Supreme Court cases cited above gives complete and exhaustive treatment to the subject of self-incrimination, and we therefore refrain from a repetition of the cases, statutes and regulations cited therein insofar as possible. We call attention to the fact that this is a Missouri case and that Missouri statutes make it unlawful for any person to sell, deliver, transport, possess or control any machine gun.² Additionally, we note that Grosso, supra, holds that a defendant may not be convicted of a conspiracy to evade payment of the tax if the constitutional privilege would properly prevent his conviction for failure to pay the tax.

COUNT I

After eliminating the properly conceded charge of registering a firearm, there remain the charges of conspiracy to transfer and to make firearms as described by ? 5848 without the tax having been paid thereon. There is no contention that the firearms are not of a description defined by the federal statute and neither is it contended that defendants failed to assert their constitutional privilege against self-incrimination.

The Government in its supplemental brief suggests that we reverse and remand Count I only insofar as it alleges a conspiracy to make, but advances no argument or suggestion as to disposition of the transfer charge in Count I.³

This is of no consequence, however, as we have concluded that insofar as the charge of defendants being transferors or makers is concerned, the teachings of Haynes, Marchetti and Grosso, supra, leave us no alternative but to reverse Count I in its entirety with an order to dismiss the count. This is so because a transferor and a maker are required by federal statute and treasury regulations to file self-incriminating applications in the same form as the one discussed by the Supreme Court in Haynes, supra. The Court held filing of such applications was self-incriminating and a properly asserted plea of self-incrimination constituted "a full defense to prosecutions either for failure to register a firearm under ? 5841 or for possession of an unregistered firearm under ? 5851." Haynes, supra, 390 U.S. at 100, 88 S.Ct. at 732.

The Transferor.

Title 26 U.S.C. ? 5814 provides in part:

"(a) General requirements. ?€” It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Secretary or his delegate. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this chapter: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof.

"(b) Contents of order form. ?€” Every person so transferring a firearm shall set forth in each copy of such order the manufacturer\'s number or other mark identifying such firearm, and shall forward a copy of such order to the Secretary or his delegate. The original thereof, with stamp affixed, shall be returned to the applicant."

The regulations relative to the transfer of firearms are set forth in 26 C.F.R. 179.95-179.106. The form to be filled out is called Transfer Form 4. Section 179.99 requires the applicant to attach a copy of a photograph taken within one year, his fingerprints and a character certification made by the local chief of police, sheriff of the county, United States attorney, United States marshal, or another person whose certification is acceptable to the Director, Alcohol and Tobacco Tax Division.

The regulations relative to making of a firearm are set forth in 26 C.F.R. 179.75-179.84. Section 179.78 provides for an individual declarant to attach his photograph, affix his fingerprints, and supply the same certificate as required in Form 4 above. The making form is designated as Form 1A.

In order to complete the transfer application, the transferor must describe the firearm and affix an appropriate National Firearms Stamp.⁴

Thus, it is seen that the transfer of a firearm as described in Count I of the indictment requires an individual to give in advance information of a self-incriminating nature, revealing either the unlawful making or receiving of a firearm without payment of the tax. Therefore, the teachings of the Supreme Court in the cited cases accord a defendant, under proper claim of his constitutional privilege, a full defense to his prosecution. The fact that the self-incriminating evidence is required in advance of the transfer is of no consequence. Marchetti, supra, 390 U.S. at 52, 53, 54, 88 S.Ct. 697.

The Maker.

What we have said with reference to a transferor is equally applicable to a maker of a firearm under 26 U.S.C. ? 5821. Here also the statute requires the maker to pay the tax in advance of the making and ? 5821(e) provides:

"(e) Declaration. ?€” It shall be unlawful for any person subject to the tax imposed by subsection (a) to make a firearm unless, prior to such making, he has declared in writing his intention to make a firearm, has affixed the stamp described in subsection (d) to the original of such declaration, and has filed such original and a copy thereof. The declaration required by the preceding sentence shall be filed at such place, and shall be in such form and contain such information, as the Secretary or his delegate may by regulations prescribe. The original of the declaration, with the stamp affixed, shall be returned to the person making the declaration. If the person making the declaration is an individual, there shall be included as part of the declaration the fingerprints and a photograph of such individual."

Here again we are confronted with a situation we cannot distinguish from the Supreme Court cases as there obviously is no material difference in the requirements of the statutes and application forms provided by the Secretary relative to the self-incriminating information required of the taxpayer. If we...