Sipes v. United States

• Decision Date: 12 November 1963
• Docket Number: No. 17221.,17221.
• Citation: 321 F.2d 174
• Parties: Norman Gene SIPES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

321 F.2d 174 (1963)

Norman Gene SIPES, Appellant, v. UNITED STATES of America, Appellee.

No. 17221.

United States Court of Appeals Eighth Circuit.

July 17, 1963.

Certiorari Denied November 12, 1963.

Roger Milo Hibbits (court-appointed) St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made oral argument for appellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

Certiorari Denied November 12, 1963. See 84 S.Ct. 208.

BLACKMUN, Circuit Judge.

Norman Gene Sipes, 18 years of age, was charged by information with having in his possession in St. Louis on July 13, 1962, in violation of 26 U.S.C. § 5851, a certain firearm, with a barrel less than 16 inches in length, made in violation of § 5821. Sipes has been represented by court appointed counsel since the issuance of that information. In the manner prescribed by Rules 7(b) and 23(a), F.R.Cr. P., he waived indictment and trial by jury. He entered a plea of not guilty. He was convicted by the court and sentenced for treatment and supervision under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). Defense motions to dismiss the information and for judgment of acquittal were appropriately made but were denied by the court.

With leave of the district court, the defendant appeals in forma pauperis. The complete transcript has been provided at government expense. The defense asserts here, as it did in the trial court, that § 5851 is violative of rights guaranteed by the Tenth, Fifth, and Sixth Amendments to the Constitution, and that the evidence is insufficient to show that the weapon in question was a firearm within the meaning of the statute.

The statute. The National Firearms Act, 26 U.S.C.A. §§ 5801-5862, as amended, is a part of the Internal Revenue Code of 1954. The original Act, that of June 26, 1934, Pub.L. 73-474, ch. 757, 48 Stat. 1236, was similarly codified as §§ 2720-2733 of the 1939 Code. The present Act includes in its definition of a firearm "a rifle having a barrel * * * less than 16 inches in length"; a rifle is defined to mean "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder". § 5848. Except for stated exemptions, a license tax is imposed annually upon each importer, manufacturer and dealer in firearms, § 5801, and an excise tax is imposed "on firearms transferred in the United States", § 5811, and "upon the making in the United States of any firearm (whether by manufacture, putting together, alteration, any combination thereof, or otherwise)", § 5821. Unless certain other provisions of the Act have been complied with, every person "possessing a firearm" is required to register its number or other identifying mark and certain personal information. § 5841. Section 5851, which is vital here, reads:

"It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811 * * * or which has at any time been made in violation of section 5821, or 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 firearms, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury."

The phrase "or to possess any firearm which has not been registered as required by section 5841" was added to the statute in 1958 by Pub.L. 85-859, § 203(h) (2), 72 Stat. 1428.

The facts. The facts, except possibly with respect to scienter, are not in dispute. Young Sipes was seen about 11:15 P.M. on July 13, 1962, by two officers of the St. Louis Police Department. He was running and had the weapon in question in his possession. It was a .22 of Stevens manufacture. It possessed a cocking lever which was not in the condition in which it was originally manufactured. The weapon had a cartridge in its chamber when it was taken from Sipes. Its barrel measured no more than 14½ inches. An officer of the St. Louis police laboratory testified that he fired the gun successfully on his first attempt; that its lever pin and spring were missing; that the weapon was not in its normal condition; that it nevertheless could be operated by pulling back on the hammer; that "there would certainly be no problem in firing it"; that there were no front or rear sights on the weapon; that he assumed "there had been a sight on the end of the barrel"; that there was no advantage in firing the weapon from the shoulder; and that it could be fired from the hand as well as from the shoulder. Sipes had not filed a declaration of intent to make this firearm, as contemplated by § 5821(e), and the weapon had not been registered.

Sipes testified that he had had possession of a weapon which looked like the one the prosecution introduced in evidence; that he found it "when it was buried"; that this was on July 8 or 9, 1962; that he did not know it was an "illegal weapon" or that he was violating the law when he had it or that there was a tax or registration which was required or that the gun was made in violation of any statute; that he had attempted to fire it but was not successful because it had no firing pin; that he put a shell in the gun and pulled the trigger but the gun did not fire; that he did not attempt to fire it again; that the firing pin "would be here where the nail is"; and that the nail in the weapon "as it is now * * * is as the firing pin".

The Tenth Amendment. The defense position as to the reservation of powers clause is not an unfamiliar one. It is argued that the Act, and particularly § 5851 with its reference to § 5821, is an unconstitutional attempt by Congress to regulate under the guise of a revenue measure an activity, namely, the regulation of firearms, which is reserved to the states; that the Act was not meant to raise revenue; that the tax imposed upon "the making" of a firearm is greater than the cost of a .22 rifle; that this demonstrates that the tax is an absolute prohibition against the owner "from making the highly penal modification" of sawing off the barrel; that the motives of Congress with respect to this legislation are not hidden; that in 1960, in connection with Pub.L. 86-478, 74 Stat. 149, which amended the Act, Congress clearly acknowledged its motives and primary purpose:

"The primary purpose of the original 1934 Act was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types which it was thought would be used primarily by the gangster-type element. * * * The purpose of this was, of course, to include within the category of weapons subject to these taxing and control provisions the sawed-off shot guns and sawed-off rifles likely to be used by the gangster element. * * *" Senate Report No. 1303, 86th Cong., 2d Sess., 1960-1 C.B. 848, 849-50, U.S. Code Congressional & Administrative News, 1960, pp. 2111, 2112-13; and House Report No. 914, 86th Cong., 2d Sess.;

that the carrying of concealed weapons is a matter the states have controlled through legislation for many years see, for example, V.A.M.S. § 564.610; that amendments to the statute indicate that revenue is not a consideration; that there was no way for this appellant to pay the "making" tax; and that the statutory provisions are "extraneous to any tax need".

So far as this issue is concerned, we find ourselves again in the not uncommon situation where this court, as an inferior federal court and at a late date, has little room in which to move. The same arguments have already been made to the Supreme Court and have been decided adversely to the defense. In Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the Court passed upon a challenge to the 1934 Act. The report, pp. 507-10, discloses the presence of all the Tenth Amendment, purpose, nonrevenue, proportion-of-tax-to-value, and prohibitive-character arguments. The Court upheld the statute, noted that on its face it was a taxing measure, and said, pp. 513-514 of 300 U.S., p. 556 of 57 S.Ct.:

"Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. But a tax is not any less a tax because it has a regulatory effect * * * and it has long been established that an Act of Congress which on it face purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. * * *

"Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts. * * * They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution."

This approach was reaffirmed in United States v. Miller, 307 U.S. 174, 177-178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), and with respect to a tax on wagers, in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953). That there is now an outright manifestation of legislative purpose is not a factor sufficient in itself for a holding of invalidity under the Tenth Amendment. United States v. Kahriger, supra, pp. 27-28 of 345 U.S., pp. 512-513 of 73 S.Ct. "So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power". Barenblatt v. United States, 360 U.S. 109, 132, 79 S.Ct. 1081, 3 L.Ed. 2d 1115 (1959); Communist Party of U. S. v. Subversive Activities Control Board, 367 U.S. 1, 86, 81 S.Ct. 1357, 6...