U.S. v. Flores

• Decision Date: 21 February 1985
• Docket Number: No. 82-1445,82-1445
• Citation: 753 F.2d 1499
• Parties: UNITED STATES of America, Appellee, v. Virgilio Patricio FLORES, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1499

753 F.2d 1499

UNITED STATES of America, Appellee, v. Virgilio Patricio FLORES, Appellant.

No. 82-1445.

United States Court of Appeals Ninth Circuit.

Argued Sept. 11, 1984.

Submitted Dec. 28, 1984.

Decided Feb. 21, 1985.

John T. Bannon, Jr., Dept. of Justice, Washington, D.C., for appellee.

Carla M. Woehrle, Talcott, Vandevelde & Woehrle, Los Angeles, Cal., for appellant.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, SNEED, KENNEDY, ANDERSON, TANG, SCHROEDER, PREGERSON, FERGUSON, NELSON, NORRIS, and BEEZER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Appellant Flores was convicted under the Federal Gun Control Act, 18 U.S.C. Sec. 922(e) ¹, for failing to provide written notice to a carrier before shipping firearms. Appellant contends that (1) the notice requirement violated his Fifth Amendment privilege against self-incrimination, and (2) the district court erred in holding that the offense does not require proof of specific intent. We reject appellant's contentions and affirm. ²

I. BACKGROUND

Beginning in early February, 1982, appellant began discussing the purchase of twenty-two revolvers with a gun shop clerk. Unknown to the appellant, the clerk was actually an undercover agent of the Bureau of Alcohol, Tobacco & Firearms. Appellant told the clerk that appellant would be taking the guns out of the country to Ecuador to be used by "the civilian guards." Appellant also told the clerk that the guns would be concealed in false bottoms of some luggage to be checked in as stowed baggage at an airline. Appellant purchased the twenty-two revolvers, and discussed with the clerk, on several occasions, the construction of false bottoms in two steamer trunks. Appellant told the clerk that he intended to pack clothing over the guns and, if there were any inquiries, he would say the trunks contained only clothing.

On February 27, 1982, appellant checked the two steamer trunks as baggage for travel on Ecuatoriana Airlines to Quito, Ecuador. At no time did appellant give oral or written notice to Ecuatoriana or the check-in personnel that the steamer trunks contained firearms. Appellant was not a licensed firearms dealer. Pursuant to a federal search warrant, the trunks were then searched, the twenty-two revolvers were found, and appellant was arrested.

The district court ruled that section 922(e) does not include an element of specific intent regarding knowledge of the duty to report a shipment of firearms, and that the reporting requirement does not violate appellant's Fifth Amendment privilege against self-incrimination. The district court then found appellant guilty of violating section 922(e).

II. ANALYSIS

Whether section 922(e) conflicts with the Fifth Amendment and/or requires proof of specific intent are questions of law requiring de novo review. United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

A. The Fifth Amendment

Appellant does not deny that he attempted to ship guns in the manner charged, nor that he failed to give the required notice to the carrier. Rather, he takes the position that by complying with the requirements of giving notice to the carrier, he would be compelled to confess to a number of criminal acts in violation of his Fifth Amendment rights.

"Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one." California v. Byers, 402 U.S. 424, 427, 91 S.Ct. 1535, 1537, 29 L.Ed.2d 9, 17 (1971) (plurality opinion). A question such as this must be considered with great care, for it is our belief that the privilege against self-incrimination, as well as all other fundamental constitutional protections, may only be limited for the most substantial of reasons. See United States v. Carlson, 617 F.2d 518, 521 (9th Cir.1980), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980). We are confronted, in this situation, with a conflict between two critical interests: the government's need to regulate for the safety of its citizens, and the privilege against self-incrimination. This tension creates a serious question which, as the Supreme Court has said, "must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly." California v. Byers, 402 U.S. 424, 427, 91 S.Ct. 1535, 1537, 29 L.Ed.2d 9, 17 (1971) (plurality opinion).

When balancing appellant's assertion of the Fifth Amendment privilege against the government's need for disclosures, we must consider the importance and character of the public interests, and the purposes of section 922(e). While it is true that the privilege must be given a "liberal construction in favor of the right it was intended to secure," Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951), we believe that the Fifth Amendment does not always demand substantial undercutting of valid and essential government regulation when the means to effect that regulation necessarily include disclosure of information which could lead to self-incrimination. See California v. Byers, 402 U.S. 424, 448, 91 S.Ct. 1535, 1548, 29 L.Ed.2d 9, 29 (1971) (Harlan, J., concurring).

The appellant relies on a line of Supreme Court decisions which struck down various reporting or registration requirements. He cites Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), as authority for his argument that section 922(e) must be struck down under the Fifth Amendment. These cases, however, and the statutory provisions they invalidated, are clearly distinguishable from the facts at bar.

In each of the cited cases, the Supreme Court found a notice requirement in an area of activity "permeated with criminal statutes," or directed at a group of persons "inherently suspect of criminal activities." In addition, compliance with requirements in each of the four cases produced an immediate or "real and appreciable" hazard of self-incrimination due to the fact that the statutes were largely designed to discover the respective defendant's involvement in the prohibited activity.

Marchetti, for example, struck down a statute that required anyone involved in wagering to register in detail with the Internal Revenue Service as a wagerer and pay an occupational tax. The lists of wagering taxpayers were then made readily available to state and federal authorities for prosecution. Wagering, however, is widely prohibited under both federal and state law. On similar grounds, the Court in Grosso overturned defendant's conviction for failure to pay an excise tax on wagering.

In Haynes, the defendant was required to register with the government, and pay an occupational tax, when transacting in certain firearms. The application of the statute was limited to only the types of weapons used principally by persons engaged in unlawful activities. The Court found that the registration requirements, which were extensive and included fingerprints and photographs, were almost entirely directed at those persons who gained possession of the proscribed weapons without complying with the Act's other requirements. A registration would, therefore, threaten immediate criminal prosecution.

Finally, Leary dealt with the Marijuana Tax Act which required defendant to identify himself as a transferee of marijuana who had not registered and paid an occupational tax. Once again, due to nationwide prohibitions on the drug and its use, such a registration was tantamount to a compelled guilty plea, and subjected defendant to real and appreciable dangers of prosecution, since the information gathered was to be given by the I.R.S. to state and local authorities upon request.

The statutory notice requirement at bar is different. Admittedly, the transport of firearms is an activity "permeated with criminal statutes." Yet, unlike the statutes in the Marchetti line of cases, the notice requirement at bar is not directed at a group of persons "inherently suspect of criminal activities." Section 922(e) is directed at a universe of people. It requires simple written notice to the carrier anytime firearms are being shipped to an unlicensed person. Such a shipment cannot be said to be per se illegal. In fact, there are many situations in which firearms shipment to an unlicensed person is fully permissible, and in all such cases notice must be given to the carrier under section 922(e). We agree with the Fourth Circuit that, "[w]hile the notice requirements are marginally more stringent for persons delivering weapons illegally, this hardly raises the specter of the 'substantial hazards of self-incrimination' with which the Court has been concerned." United States v. Wilson, 721 F.2d 967, 974 (4th Cir.1983) (quoting Marchetti v. United States, 390 U.S. 39, 61, 88 S.Ct. 697, 709, 19 L.Ed.2d 889 (1968)).

The Gun Control Act of 1968, 18 U.S.C. Secs. 921 et seq., was an important step taken by Congress directed at aiding the several states in developing effective gun legislation, by way of limiting the travel of guns over state and national borders. State legislation had been ineffective up to that point, due to the ease with which firearms could be mail-ordered or transported in interstate or foreign commerce. 114 Cong.Rec. H21783 (daily ed. July 17, 1968) (statement of Rep. Celler).

While the majority of the Act sets forth requirements for licensing and transporting, section 922(f) ³ prohibits any common carrier from knowingly shipping any firearm in violation of the Act. Section 922(e) was added...