King v. United States, 23637.

• Decision Date: 29 July 1966
• Docket Number: No. 23637.,23637.
• Citation: 364 F.2d 235
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: John J. KING, Appellant, v. UNITED STATES of America, Appellee.

364 F.2d 235 (1966)

John J. KING, Appellant, v.UNITED STATES of America, Appellee.

No. 23637.

United States Court of Appeals Fifth Circuit.

July 29, 1966.

William C. Garrett, Charles F. Hawkins, Eugene R. Lyerly, Kilgore & Kilgore, Dallas, Tex., for appellant.

B. H. Timmins, Jr., Asst. U. S. Atty., James F. Gaulding, Asst. Regional Counsel, I. R. S., Melvin M. Diggs, U. S. Atty., Dallas, Tex., for appellee.

Before TUTTLE, Chief Judge, and BROWN and COLEMAN, Circuit Judges.

TUTTLE, Chief Judge:

The United States Government is entitled to retain possession and permanent title to the rifle and pistol that were found by the Warren Commission to have been used in the tragic killing of President Kennedy and Dallas Police Officer Tippit.The question before us on this appeal is whether the government may obtain such title by forfeiture, without compensation to the owner, or must resort to condemnation by the exercise of eminent domain, in which event the owners must be compensated.

It would certainly be convenient and it would tend to hasten the termination of of what must appear to many to be a very distressful bit of litigation were we able to accept the government's present theory and affirm the trial court's judgment forfeiting the weapons to the United States as a species of Deodands.¹We conclude, however, that it would strain the fabric of the law beyond repair were we to accept the theory which the government propounds to achieve this result.

The United States contends that the dealers who sold the weapons to Oswald were required by the Federal Firearms Act to keep correct records of all sales (with criminal sanctions for violations); that Oswald bought the weapons by use of a fictitious name (Hidell); that he, therefore, "caused" the dealer to keep false records: that the Federal statute provides that: "any firearms * * * involved in any violation of the provisions of * * * the Firearms Act or any rules or regulations promulgated thereunder shall be subject to * * * forfeiture * * *"; these firearms were "involved" in a violation of the record keeping regulations promulgated under the Act; therefore, they were forfeit to the United States.

Our problem would be simple if the Federal Firearms Act expressly prohibited the ordering of firearms from dealers by the use of false names.There is no such expressed prohibition.

The pertinent statutory and regulatory provisions are —

15 U.S.C.A. § 903(d):

Licensed dealers shall maintain such permanent records of importation, shipment, and other disposal of firearms * * * as the Secretary of the Treasury shall prescribe.

26 C.F.R. § 177.51:

Each licensed * * * dealer shall maintain complete and adequate records * * *.The records will show and include:

* * * * * *

(c) The disposition made of each firearm including the name and address of the person to whom sold and the date of disposition.

There is no provision in the Federal Firearms Act requiring a purchaser to use his true name when ordering weapons from a dealer licensed under the Act.It may be argued, though tenuously, that upon the authority of Walker v. United States, 192 F.2d 47(10th Cir.1951), Oswald could have been punished for his use of a fictitious name under 18 U.S. C.A. § 1001, which prohibits the knowing and willful making of false or fraudulent representations in any matter within the jurisdiction of an agency or department of the United States.But this is of no moment here, for to sustain its claim of forfeiture, the government is obliged to prove a violation of the Firearms Act, in order to bring the case within the ambit of 15 U.S.C.A. § 905(b), which provides:

Any firearm * * * involved in any violation of the provisions of * * * the Federal Firearms Act or any rules or regulations promulgated thereunder shall be subject to seizure and forfeiture * * *.

The first requisite under this forfeiture statute is that a violation of this particular Act be established.A second essential element is that firearms sought to be forfeited be "involved in" the violation.Appellant's briefs raise substantial doubt that § 905(b) should be construed to encompass a firearm with respect to which no more "involvement" can be shown than that it was the subject of a violation of the record-keeping requirements imposed upon dealers.If the statutory language "any violation" were to be literally applied, then a dealers failure to post the record of a transaction by the close of business of the day following shipment (as required by 26 C.F.R. § 177.51) would result in a forfeiture of the firearms "involved" in the transaction even though the purchaser was wholly innocent of any default.It would strain the rules of construction to the breaking point for us to give this language the effect sought for it here.However, we need not decide this issue because of the graver question whether there was any violation of the statute.

With respect to that question, the government contends that Oswald's failure to use his own name in ordering the weapons, when combined with the subsequent entry in the dealer's records of the pseudonyms he did use, resulted in violations of § 903(d) of the Act(quoted above).The court below accepted this position, stating that "This the applicable regulation, 26 C.F.R. § 177.51 means, of course, the name by which the purchaser could be identified, not a fictitious name which would not disclose but would conceal his identity."As authority for this proposition, the government abstracts the following passage from Hensley v. United States, 171 F.2d 78(9 Cir.1948):

"It cannot be said that the law (as here) may require certain important and pertinent information to be entered on a prescribed form for the use of a public official in aid of law enforcement, but must tolerate such information when it is false."Id. at 82.

The context in which this statement was made has an important bearing upon its contribution to the solution of this case.In the Hensley case, the defendants were wholesale liquor dealers convicted under indictments charging them with willfully making false entries in required records with respect to the names and addresses of persons to whom they shipped distilled spirits.On appeal from their convictions, the defendants asserted that they were not required to give names and addresses, because the form calling for that information exceeded the power granted the Commissioner of Internal Revenue under the applicable statute.The Court of Appeals upheld the Commissioner's authority and sustained the convictions.Its comment relating to false information (quoted above) was directed to the facts of the case before it, in which the jury necessarily found that wholesale liquor dealers had willfully and deliberately falsified records which they were required to keep, by reporting therein that stated quantities of liquor had been sent to certain named parties at given addresses — when in fact some other disposition of the liquor had been made by them.

Bearing in mind that there is no requirement in the Federal Firearms Act that a purchaser use his true name, there is some doubt whether the Hensley decision can have any application whatever to the facts of the case before this Court.In an important sense, the information reflected in the records of the firearms dealers in this case cannot be deemed false at all.The pertinent regulation requires recordation of the name and address of the person to whom a firearm is sold.The weapons here were in fact addressed to "A. Hidell," or "A. J. Hidell," and these names were recorded in the appropriate records.Can it be said that the dealers, even if they had had knowledge that a false name had been used in the order, would have been at liberty under the regulation to record the name "Oswald" instead of "Hidell," when in fact the shipment was addressed to the latter?Here the absence of a prohibition in the Act against the use of pseudonyms by purchasers takes on an especial significance.If the use of a pseudonym (or, to give it the more sinister characterization, a "fictitious" name) is not unlawful in the first instance, then by what chameleonic process is its entry upon a dealer's records transformed into a crime, when the entry correctly reflects the actual facts of the shipment?

Cases construing the Act have said that its purpose is to prevent the transportation and possession of firearms by criminals who, by their past conduct, have demonstrated their unfitness to be trusted with them.Cases v. United States, 131 F.2d 916(1 Cir.1942);United States v. Platt, 31 F.Supp. 788(S.D.Tex.1940).That purpose is translated into law in § 902 of the Act.Under the provisions of that section, any member of the specified class of convicted criminals, fugitives from justice, or indicted suspects, who engages in or causes interstate or foreign commerce in any firearm, or receives any firearm which has been transported in such commerce, is guilty of a crime no matter what name or pseudonym he may use in ordering or purchasing the weapon.Had Congress deemed it necessary to the effective administration of the Act that all purchasers use their correct names in ordering firearms it could, and should, have enacted a statute to that effect.The imposition of such a requirement upon purchasers through an inference drawn from a record-keeping obligation imposed upon licensed dealers would seem to transgress the permissible limits of judicial construction.

Assuming, however, for the purposes of this discussion that § 903(d)could be violated by the entry of a false name in the records required to be kept thereunder, the narrower question is presented whether the evidence sustains the trial court's determination that such a violation occurred in this case.The answer to this question depends upon the proper interpretation of 18 U.S.C.A. § 2, which provides:

§ 2. Principals.

(a) Whoever commits an offense against the United States or aids,

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