United States v. Black, 72-1177

Decision Date07 May 1973
Docket NumberNo. 72-1177,72-1178.,72-1177
Citation472 F.2d 130
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Ralph BLACK and David Anthony Leach, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Albert C. Hawes, Covington, Ky. (Court-appointed — CJA), and J. Gregory Wehrman, Wehrman & Wehrman, Covington, Ky. (Court-appointed), for defendants-appellants.

Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee; Eugene Siler, U. S. Atty., Lexington, Ky., on briefs.

Before PHILLIPS, Chief Judge, and McCREE and MILLER, Circuit Judges.

Certiorari Denied May 7, 1973. See 93 S.Ct. 2161.

PER CURIAM.

Appellants Black and Leach were tried and convicted in the district court for the Eastern District of Kentucky under the provisions of the National Firearms Act, 26 U.S.C. § 5801 et seq.

It appears that Black inherited from his deceased father about sixteen machine guns, mostly of foreign make. The guns were collected by Black's father while he was in the army. In preparation for entry into the Peace Corps Black attempted to sell the guns. Leach, a friend of Black's, acted as broker for the sale, locating a potential buyer. The potential buyer, Heines, informed the F.B.I. of the appellants' activities. The F.B.I. advised Heines to complete the sale. After the completion of the gun transfer from Leach to Heines, the appellants, Black and Leach, were arrested and charged with violations of 26 U.S.C. §§ 5861(b), (d), and (e), 5871, and 5811.

The National Firearms Act makes illegal the possession or sale of certain types of guns, mainly sawed-off shotguns and machine guns, unless the transferor registers with the Internal Revenue Service and pays a transfer tax of $200 per gun. Black and Leach did not comply with the registration provisions, nor pay the transfer tax as required by this statute.

Appellants challenge their convictions on the ground that the National Firearms Act is unconstitutional in that it violates their fifth amendment rights against self-incrimination. While this challenge was successful in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Act has since been amended to remove its constitutional deficiencies. The amended statute has been upheld in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Our circuit also has recently upheld the statute against challenges to it on constitutional grounds. United States v. Wilson, 440 F.2d 1068 (6th Cir. 1971). Consequently we find the arguments of the appellants to be without merit.

Appellant Black also challenges his conviction on the ground that the tax in question is excessive. It has been recognized that in the case of the National Firearms Act the amount of the tax is reasonable and within the discretion of Congress. We find no merit in this contention. See United States v. Wilson, supra.

Appellant Leach challenges his conviction on two additional grounds, (1) that he was never in possession of the guns, and (2) that his fourth amendment rights were violated. Leach argues that since he did not own the guns, and acted only as a broker for Black, he was never in possession of the firearms in violation of the Act. The Eighth Circuit has held that constructive possession is sufficient to uphold a conviction under the Act. See United States v. Holt, 427 F.2d 1114, 1117 (8th Cir. 1970). There is little doubt from the record before us that Leach had constructive possession of the machine guns in his capacity as broker....

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  • United States v. Craven
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 8, 1973
    ...of the named firearms. Possession may be either actual or constructive and it need not be exclusive but may be joint. United States v. Black, 472 F.2d 130 (6th Cir. 1972); United States v. Holt, 427 F.2d 1114 (8th Cir. 1970). Actual possession exists when a tangible object is in the immedia......
  • U.S. v. Franks
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 12, 1975
    ... 511 F.2d 25 ... UNITED STATES of America, Plaintiff-Appellee, ... Herman FRANKS, ... United States, 496 F.2d 527 (6th Cir. 1974), United States v. Black, 472 F.2d 130 (6th ... Cir. 1972), cert. denied, 411 U.S. 969, 93 S.Ct ... ...
  • U.S. v. Taylor
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 16, 1984
    ...v. Hawke, 505 F.2d 817, 823 (10th Cir.1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 658 (1975); United States v. Black, 472 F.2d 130, 131 (6th Cir.1972), cert. denied sub nom. Leach v. United States, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691 (1973). Accordingly, proof that ......
  • U.S. v. Richardson, 74-1201
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 21, 1974
    ...United States v. Craven, 6 Cir. 1973, 478 F.2d 1329, 1333, cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85; United States v. Black, 6 Cir. 1972, 472 F.2d 130, 131, cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691; United States v. Holt, 8 Cir. 1970, 427 F.2d 1114, 1117.3 See......
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