Lovelace v. United States

• Decision Date: 03 March 1966
• Docket Number: No. 22628.,22628.
• Citation: 357 F.2d 306
• Parties: James Willard LOVELACE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

357 F.2d 306 (1966)

James Willard LOVELACE, Appellant, v. UNITED STATES of America, Appellee.

No. 22628.

United States Court of Appeals Fifth Circuit.

March 3, 1966.

Robert M. Brinson, Rome, Ga., for appellant.

F. D. Hand, Jr., Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., for appellee.

Before GEWIN and BELL, Circuit Judges, and HUGHES, District Judge.

HUGHES, District Judge.

In this case, appellant, hereinafter called defendant, was arrested by police officers in Rome, Georgia, about midnight, Friday, November 29, 1963. He was held in the city jail until Monday, December 2, 1963, when he was taken into custody by federal officers and taken before a U. S. Commissioner, where he was charged with possessing an unregistered firearm. He had been held in state custody on charges of carrying a concealed weapon.

Defendant was indicted by a federal grand jury and thereafter entered a plea of not guilty, was tried, found guilty and sentenced to 5 years in the custody of the attorney general. Notice of Appeal was filed on May 4, 1965.

The indictment on which defendant was charged reads as follows:

"The Grand Jury Charges:

That, on or about the 29th day of November, 1963 in the Rome Division of the Northern District of Georgia, James Willard Lovelace wilfully and knowingly did possess a firearm, that is a shotgun having a barrel length of 15 7/8 inches, which had not been registered by the defendant with the Secretary of the Treasury or his delegates, as required by Section 5841, Title 26 United States Code."

Defendant contends that section 5851, when directed to failure to register firearms according to section 5841, is unconstitutional in that it violates the privilege of the accused against self incrimination.

In Russell v. United States, 306 F.2d 402 (9th Cir. 1962), the information contained the following heading: "26 USCA 5851, Illegal Possession of Firearms, * * *" and charged the defendants with the possession of two shotguns "which they unlawfully, wilfully and knowingly failed to register with the Collector of Internal Revenue for the District in which the said defendants resided."

At the time Russell was alleged to have committed the offense which led to his conviction, section 5851 provided a number of offenses based on unlawful possession of firearms without having complied with statutory regulations in chapter 53 of Title 26 of the United States Code, but it did not contain any provision for an offense based on possession without having complied with section 5841 requiring registration. The Court held that since the information charged the defendants with possession of sawed off shotguns "which they failed to register" the offense was not based on section 5851 as the heading of the information stated, but that it had to be based on section 5841, requiring all persons having possession of a firearm, as defined in the Act, to register with the Secretary of the Treasury the identity of the firearm and the person having possession of it.

The second sentence of section 5841 provides:

"No person shall be required to register * * * with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with."

In vacating Russell's sentence the Court held that section 5841 abridged Russell's 5th amendment privilege against self incrimination, stating:

"It follows that any person who, in conformity with section 5841, registers information concerning a firearm, thereby admits that he is in possession of such firearm, and that he did not acquire or make it in compliance with section 5851." (306 F.2d at 408.

"* * * Russell was required, under section 5841, to provide information as to past conduct (or present status) which was actually or presumptively unlawful." Id. at 410.

Subsequent to the Russell case, Congress amended Section 5851¹ so that at the time the offense in this case allegedly occurred the applicable language of the statute read:

"It shall be unlawful for any person to receive or possess any firearm * * * which has not been registered as required by section 5841."

Since the effective date of the amendment, the Ninth Circuit has decided two cases, Frye v. United States, 315 F.2d 491 (1963), and Starks v. United States, 316 F.2d 45 (1963), in which convictions, based on Section 5851, were upheld. Both opinions were written by Judge Duniway who sat on the panel in the Russell case. Each is distinguishable from the Russell case.

In the Frye case it was charged that Frye and another "had in their possession * * * a firearm * * * which had not been registered with the Director, Alcohol and Tobacco Tax Division." Judge Duniway pointed out:

"The statute makes possession of an unregistered firearm an offense. * * * The defendant in this case was not charged with failing to register the weapon as was the defendant Russell. He was simply charged with possession of an unregistered weapon." 315 F.2d at 494.

Likewise in the Starks case the indictment charged that the defendant did "knowingly possess a firearm * * * which firearm had not been registered as required by Section 5841 * * * said possession being in violation of Sections 5851 and 5861 * * *." In upholding the conviction the Court stated in reference to the Russell 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." 316 F.2d at 46.

In differentiating the Starks case from the Russell case the Court pointed out that:

"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 anyone, the offense was complete." 316 F.2d at 46.

In Dugan v. United States, 341 F.2d 85 (7th Cir. 1965), the Court stated it was in agreement with Russell v. United States and held that the "registration requirement of § 5841 violates the privilege against self-incrimination established by the fifth amendment to the United States constitution." 341 F.2d at 86. While the information under which Dugan was tried is not set out in full, the language of the Court indicates that the defendant himself was charged with having failed to register as in the Russell case and not as in the Frye and Starks cases where the defendant had been charged with possession of a firearm "which had not been registered."

United States v. Fleish, 227 F.Supp. 967 (E.D.Mich.1964), is a case with facts and decision similar to the Dugan case. In passing on section 5841, the Court stated:

"Every registration in compliance with Section 5841 inevitably incriminates the registrant. Each registration inevitably declares, not an intention to act, but current criminal activity." 227 F.Supp. at 972.

In the case at bar the defendant is charged with possession of a firearm "which had not been registered by the defendant." The offense charged includes not only the possession of a firearm, but also the failure to register by the defendant himself. Such registration would clearly incriminate him as he would thereby have to admit that he was in possession of a firearm which he did not acquire in compliance with section 5851. The offense would not be complete by proof simply that the defendant had a firearm which no one had registered as in Frye and Starks but would require proof that the defendant himself had not registered it. The District Judge in his charge instructed the jury that the defendant would be guilty of the offense contained in this indictment if he possessed the shotgun "and if the defendant did not register that as required by law * * *." He added that the burden would be on the Government to show that he had not registered the same.

The indictment by requiring proof that the defendant himself had not registered the gun has applied section 5851 in an unconstitutional manner. As stated by Judge Rives in Shuttles-worth v. Birmingham Board of Education, 162 F.Supp. 372, (N.D.Ala.), aff'd, 358 U.S. 101, 79 S.Ct. 221, 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 unnecessary delay in bringing him before a committing magistrate, and (2) the district judge erroneously admitted the gun into evidence.

With reference to the alleged delay in bringing the defendant before a magistrate, the evidence shows that he was arrested on Friday night by Rome city police, but was not taken before a magistrate during his detention by state authorities. The following Monday morning he was turned over to federal officers who brought him before a United States Commissioner at 1:30 p. m. on the same day.

Rule 5(a) of the Federal Rules of Criminal Procedure² requires federal officers to take an arrested person before a United States Commissioner "without unnecessary delay." In order to enforce this requirement in its capacity as supervisor of the administration of federal criminal justice, the Supreme Court has declared that any statement or confession obtained from a prisoner during a period of unnecessary delay in violation of the rule shall be inadmissible at the defendant's trial in a federal court. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, ...