Dillon v. United States, 18754.
| Decision Date | 13 February 1968 |
| Docket Number | No. 18754.,18754. |
| Citation | 389 F.2d 381 |
| Parties | William Ray DILLON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Herbert I. Fredman, St. Louis, Mo., for appellant.
Robert H. Kubie, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. Fitzgibbon, Jr., U. S. Atty., was on the brief.
Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
Defendant William Ray Dillon has taken this timely appeal from his conviction by a jury and the resulting sentence on a single count indictment charging him with violation of 26 U.S.C.A. § 5851 by willfully and knowingly possessing a described shotgun having a barrel length of eleven inches which had not been registered as required by 26 U.S. C.A. § 5841.
Defendant, as a basis for reversal, urges the "Court erred in failing to dismiss indictment under which appellant was prosecuted, tried, and found guilty and sentenced, as said indictment attempts to enforce a statute which deprives appellant of his rights under the terms of the Fourth and Fifth Amendments of the United States Constitution by compelling appellant to testify against himself."
For the reasons hereinafter stated, we hold defendant is entitled to a reversal upon such ground, and hence we deem it unnecessary to set out or reach other asserted errors.
The indictment in this case reads:
Defendant filed a motion to dismiss the indictment, as follows:
"Comes now the defendant and moves the Court dismiss the indictment against him for the following reasons: That said indictment which charges defendant with failing to register a Hopkins and Allen .12 gauge shotgun, Serial No. Z0068, having a barrel length of 11 inches, as required by Section 5841, Title 26, United States Code, in violation of Section 5851, Title 26, United States Code is in violation of defendant\'s rights under the provisions of Amendments Two, Four, Five and Six of the United States Constitution."
This case was here argued and submitted on September 15, 1967. We have withheld decision awaiting the decision of the Supreme Court in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, which case was decided on January 29, 1968. We are convinced that Haynes requires a reversal in the case before us.
In Haynes (see footnote 1) the motion to dismiss merely asserted § 5851 was unconstitutional. The Court determined the issue of the Fifth Amendment privilege against self-incrimination was properly asserted. In our present case, defendant asserts that the offense charged is in violation of defendant's rights under the provisions of Amendments Two, Four, Five and Six to the Constitution of the United States. Thus the motion here is somewhat more specific than the Haynes' motion. Moreover, here as in Haynes the Government does not argue or suggest that the claim of Fifth Amendment privilege was not adequately raised.
The indictment in Haynes charges a violation of § 5851 by knowingly possessing a firearm which had not been registered as required by § 5841. Such indictment differs in no material respect from the indictment in the present case. In Haynes, the Supreme Court points out the decision has no bearing upon the authority of Congress to regulate the manufacture, transfer or possession of firearms or to tax activities wholly or in part unlawful. It states the narrow issue before it to be "whether enforcement of § 5851 against petitioner, despite his assertion of the privilege against self-incrimination, is constitutionally permissible."
The Court then states:
"The questions necessary for decision are two: first, whether petitioner\'s conviction under § 5851 is meaningfully distinguishable from a conviction under § 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner\'s obligation to...
To continue reading
Request your trial
-
Scogin v. United States
...Drennon v. United States, 393 F.2d 342 (8th Cir. 1968); Harris v. United States, 390 F.2d 616 (8th Cir. 1968); Dillon v. United States, 389 F.2d 381 (8th Cir. 1968). Similar reasoning compels us to hold that appellee did not waive the defense of self-incrimination by his plea of guilty. It ......
-
Reed v. United States
...his constitutional privilege against self-incrimination and that the conviction under Count II cannot stand. See Dillon v. United States, 389 F.2d 381 (8th Cir., February, 1968). We agree and reverse the judgment under Count II with directions to dismiss that This result does not dispose of......
-
Wainwright v. United States
...8 Cir., 391 F.2d 266 (1968); Harris v. United States, 8 Cir., 390 F.2d 616 (1968). The same result was reached in Dillon v. United States, 8 Cir., 389 F.2d 381 (1968), but here the defense was raised at the trial An examination of the transcript of the record made at the trial shows that pe......
-
United States v. Lugo-Baez
...5 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). 6 See United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 7 See Morgan v. United States, 391 F.2d 237, ......