U.S. v. Alkhafaji

• Decision Date: 06 February 1985
• Docket Number: No. 84-1080,84-1080
• Citation: 754 F.2d 641
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Shakir Wadi ALKHAFAJI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 641

754 F.2d 641

UNITED STATES of America, Plaintiff-Appellant, v. Shakir Wadi ALKHAFAJI, Defendant-Appellee.

No. 84-1080.

United States Court of Appeals Sixth Circuit.

Argued Oct. 5, 1984.

Decided Feb. 6, 1985.

Leonard R. Gilman, U.S. Atty., Patricia G. Reeves, Detroit, Mich., for plaintiff-appellant.

John J. Davey, argued, Madison Heights, Mich., for defendant-appellee.

Before LIVELY, Chief Judge, KRUPANSKY, Circuit Judge and CELEBREZZE, Senior Circuit Judge.

LIVELY, Chief Judge.

The question in this case is whether a disclosure requirement of the Gun Control Act of 1968, 18 U.S.C. Sec. 921 et seq. (1982), violates the Fifth Amendment privilege against compulsory self-incrimination. More specifically, we must decide whether a conviction under 18 U.S.C. Sec. 922(e) for delivering firearms to an airline for transportation without written notice to the carrier can withstand a Fifth Amendment challenge. This is a question of first impression in this court, and it is a question on which other courts of appeals have reached opposite conclusions.

I.

The defendant Alkhafaji is a citizen of Iraq who has lived in this country as a resident alien since 1976. In the fall of 1982, Alkhafaji decided to return to his native country for a visit. He purchased a ticket from Pan Am for an October 21, 1982 flight from Detroit, Michigan to Bagdad, Iraq, via New York City and London, England. A few hours before boarding he checked fifteen or sixteen pieces of luggage with the airline. Acting on a tip from the Federal Bureau of Investigations, a customs inspector searched Alkhafaji's luggage and found three shotguns and eight handguns. The luggage also contained car parts and other miscellaneous items.

A grand jury for the Eastern District of Michigan indicted Alkhafaji for attempting to export firearms illegally, a violation of 22 U.S.C. Sec. 2278 (Count One), and for delivering firearms to a common carrier without providing the carrier written notice that the firearms were in his luggage, as required by 18 U.S.C. Sec. 922(e) (Count Two). During the trial on these charges Alkhafaji testified the shotguns and two of the handguns belonged to a friend who had been transferred unexpectedly from the Iraqi embassy in Washington to Turkey. He also testified that the remaining handguns and the car parts and other miscellaneous items in his luggage were purchased as gifts for his relatives.

A jury found Alkhafaji not guilty on Count One and guilty on Count Two. Defense counsel then filed a motion for "judgment notwithstanding the verdict," ¹ contending that Alkhafaji's prosecution for violation of 18 U.S.C. Sec. 922(e) was barred by the Fifth Amendment to the Constitution. He supported this argument with a recent decision of the Ninth Circuit in United States v. Flores, 729 F.2d 593 (9th Cir.1983), which held that requiring compliance with Sec. 922(e) by a person illegally transporting firearms constitutes compulsory self-incrimination in violation of the Fifth Amendment. At about the same time, however, the Fourth Circuit reached the opposite conclusion in United States v. Wilson, 721 F.2d 967 (4th Cir.1983). The district court agreed with the reasoning of the Ninth Circuit and granted defendant's motion to set aside the guilty verdict. The government appeals, urging this court to follow Wilson rather than Flores. Since this appeal was filed the Ninth Circuit has vacated its panel decision in Flores and granted rehearing en banc. United States v. Flores, 732 F.2d 1438 (9th Cir.1984).

II.

A.

The Supreme Court has examined a number of statutes requiring self-reporting of information that could tend to incriminate the reporter. Both the Ninth Circuit in Flores, and the district court in this case found Sec. 922(e) to be similar to those statutes the Court has found to violate the Fifth Amendment privilege against compulsory self-incrimination. These include statutes requiring registration by Communist Party members, registration of sawed-off shotguns and other illegal weapons, and the taxation of gambling and marahuana transactions. The government, however, argues that Sec. 922(e) does not have the offensive characteristics the Court found in those statutes. Rather, it contends, the statute is much more like those requiring the filing of an income tax return or requiring drivers to stop and identify themselves after an automobile accident, statutes which the Court has found do not offend the Fifth Amendment. In support of this position the government also points to court of appeals decisions which have found that reports which must be filed with the Securities and Exchange Commission (SEC), or that must be filed before taking money out of the United States, likewise do not violate the Fifth Amendment.

B.

Alkhafaji argues that correct application of Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), requires affirmance of the district court's judgment vacating his conviction. In Albertson the Supreme Court set aside an order issued by the Subversive Activities Control Board requiring the petitioners to register under the Subversive Activities Control Act of 1950. The registration form required an admission that the registrant was a member of the Communist Party of the United States and this admission could be used to prosecute the registrant under various laws which made membership in that party illegal. The Supreme Court found that the registration requirement was "inconsistent" with the guarantee against compulsory self-incrimination. In doing so, the Court emphasized several factors. First, the requirement was directed at "a highly selective group inherently suspect of criminal activities," rather than the public at large. Second, the claim of constitutional protection was "not asserted in an essentially non-criminal and regulatory area of inquiry"; rather, the inquiry took place in an area "permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of the crime." Id. at 79, 86 S.Ct. at 199. Finally, compliance with the requirement would create a substantial likelihood of prosecution.

The Albertson, criteria were applied by the Supreme Court in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), a prosecution for failing to register a sawed-off shotgun for taxation. The Court found that the statute apparently was intended to require taxation only of "gangster type" weapons. Further, the registration requirement was part of a law which made possession and transportation of certain firearms illegal under many circumstances. It existed as part of an "area permeated with criminal statutes" rather than an area concerned primarily with government regulation in a non-criminal setting.

The Supreme Court decided two other cases on the same day as the Haynes decision. In Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the Court struck down a statute making it a crime to willfully fail to pay an occupational tax on wagering and to register as one conducting wagering. There were numerous laws making wagering a crime, and the Court found that the information obtained from the registration and issuance of a wager license would be readily available to prosecutors enforcing such laws. This information, divulged on pain of prosecution, "would surely prove a significant 'link in a chain' of evidence tending to establish his guilt." Id. at 48, 88 S.Ct. at 703 (citations omitted). The Court also applied the Albertson criteria to reverse a conviction in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). This to, was a case involving the tax on wagering. The opinion highlighted the additional duty of one engaged in the wagering business to file monthly returns with the Internal Revenue Service on a form which revealed the details of the wagering business actually being carried on. As in Marchetti, the Court found that the combination of state and federal anti-gambling laws placed Grosso "entirely within 'an area permeated with criminal statutes,' where he is 'inherently suspect of criminal activities.' " Id. at 64, 88 S.Ct. at 712.

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court reversed a conviction under the Marihuana Tax Act. Central to its determination of a Fifth Amendment violation was the finding that the purpose of the Act was to bring to light violations of the marihuana laws. Since possession of marihuana is illegal in every state, compliance with requirements of the Act would create a "real and appreciable" risk of incrimination. Id. at 18, 89 S.Ct. at 1539. By complying, a person identified himself as a member of a "selective" and "suspect" group, since persons legally in possession of marihuana were "virtually certain" either to be registered or to be exempt from obtaining an order form required by regulations. Id.

C.

The government relies upon a group of cases in which the Supreme Court and the Second Circuit found no Fifth Amendment problem with disclosure requirements which could potentially provide some basis for a criminal prosecution.

In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), the Supreme Court upheld the conviction of one engaged in illegal liquor traffic for willfully refusing to file an income tax return. Writing for the Court, Justice Holmes found that "the protection of the Fifth Amendment was pressed too far" in the decision of the court of appeals reversing the conviction. Id. at 263, 47 S.Ct. at 607. The defendant could have objected to answering specific questions on grounds of Fifth Amendment privilege, but could not refuse to file the return. "It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income...