United States v. Fleish

Decision Date13 March 1964
Docket NumberCrim. A. No. 24766.
Citation227 F. Supp. 967
PartiesUNITED STATES of America, Plaintiff, v. Louis FLEISH, Defendant.
CourtU.S. District Court — Western District of Michigan

Lawrence Gubow, U. S. Atty., Paul J. Komives, Asst. U. S. Atty., Detroit, Mich. (Robert H. Pytell, Asst. U. S. Atty., Detroit, Mich., on the brief), for plaintiff.

William G. Comb, Detroit, Mich., for defendant.

LEVIN, Chief Judge.

Defendant, Louis Fleish, brings this motion under Section 2255 of Title 28 United States Code for vacation of a sentence imposed upon him on April 7, 1939, by the Honorable Edward J. Moinet, then a judge of this Court.

The fundamental question raised by this motion is whether a provision of the National Firearms Act, 26 U.S.C. § 5841,* requiring registration by persons possessing certain weapons, contravenes the self-incrimination clause of the Fifth Amendment to the United States Constitution.

A 27-count indictment was returned on June 2, 1938, charging Defendant with three violations of the National Firearms Act with respect to each of nine different weapons. Count I charged that Defendant had received and possessed a certain firearm transferred in the United States "upon which firearm the tax required by law had not been paid." (26 U.S.C. § 5854(b)).** Count II charged that Defendant had received and had been in possession of that firearm and that that firearm "* * * had been transferred without a written order from the person seeking to obtain such article on an application form issued * * * by the Commissioner of Internal Revenue. * * *" (26 U.S.C. § 5851)***. Count III charged Defendant with possessing that firearm "without registering with the Collector of Internal Revenue * * * the number or other mark identifying such firearm together with the name, address, and place where such firearm was usually kept, and place of business or employment of such persons * * *" (26 U.S.C. § 5841). Those three counts are substantially similar to each of eight succeeding sets of counts charging three violations with respect to eight other weapons.

During the trial, thirteen counts were dismissed, and the remaining fourteen counts were submitted to the jury, which returned, on April 7, 1939, a verdict of guilty as to each of them.

On that same day, Judge Moinet sentenced Defendant to five years, the maximum sentence permitted by the statute, on Count I, which charged failure to pay the tax, and on Counts III, XII, XV, XVIII, and XXI, which charged failure to register as required by Section 5841, these six sentences to run consecutively. The Court also imposed a fine of two thousand dollars. No sentence was imposed on the other eight counts, six of which did not relate to the registration provision.

The United States Court of Appeals for the Sixth Circuit affirmed the judgment. Fleish, et al., v. United States, 6 Cir., 123 F.2d 1015 (1941). The question presented by this motion was not presented or ruled upon.

Defendant began serving his thirty-year sentence on May 5, 1939. He was paroled on November 4, 1957, but, having allegedly violated the terms of his parole, he is now serving the remainder of his original sentence. Defendant may become eligible for release on or about October 12, 1967. See 18 U.S.C. § 4161.

Defendant has made numerous collateral attacks on his conviction and consequent imprisonment.1 However, he has never previously attacked the constitutionality of Section 5841.

The precise question presented here has been ruled upon by the United States Court of Appeals for the Ninth Circuit in a well-considered decision, Russell v. United States, 306 F.2d 402 (1962). The Court there held that Section 5841 contravenes the Fifth Amendment privilege against self-incrimination. This Court agrees.

However, the Government attacks the decision in Russell, raising arguments perhaps not presented to the Ninth Circuit. Therefore, although following the decision in Russell, this Court believes that it ought to make some additional observations.

Section 58412 requires every person possessing a firearm, as that term is defined in Section 5848(1),3 to register with the Secretary or his delegate certain information concerning himself and the firearm. However, the Act provides that one need not register if (1) he acquired the firearm by transfer or importation or if he made it himself, and (2) he fully complied with the provisions of Chapter 53 of Title 26 U.S.C. in so making, transferring, or importing the firearm.

The Court in Russell, supra, stated:

"* * * 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 5851.4 * * * "Section 5841 therefore compels every person in possession of a firearm, as defined in the Act, to be a witness against himself concerning compliance with statutes for violation of which there is a heavy penalty."5 306 F.2d 408, 409.

The Government disputes this analysis on the ground that situations could arise where one might be guilty of failing to register in compliance with Section 5841 and yet not be guilty of violating any other laws. Cited as an example is the situation of a person who may have possessed the weapon prior to the effective date of the statute. This argument assumes a narrower definition of self-incrimination than that made by the Supreme Court in Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118;

"The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime."

The Supreme Court has yet to declare a registration statute null and void on the ground that it violated the self-incrimination clause of the Fifth Amendment, but language in several decisions of that Court lends support to the decision in Russell, supra.

In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), the defendant was convicted for refusing to file an income tax return. The defendant argued that since his income was derived from a business, the operation of which violated the National Prohibition Act, the filing of a return would necessarily incriminate him, and therefore, under the Fifth Amendment, he was excused from filing. Writing for the Court, Justice Holmes stated 274 U. S. at pages 263, 264, 47 S.Ct. at pages 607, 71 L.Ed. 1037:

"* * * If the form of the return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. * * * If the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law." (Emphasis added.)

Section 5841 differs from the provisions requiring the filing of income tax returns in that the only major effect of Section 5841 is to produce incriminating information.

In Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed. 2d 625 (1961), the Court divided 5 to 4 on a wide range of constitutional issues.6 The majority opinion, written by Mr. Justice Frankfurter, did not reach the question of whether the registration provision in the Subversive Activities Control Act, 50 U.S.C. § 781 et seq., was unconstitutional as a violation of the selfincrimination clause. However, dictum on this point, distinguishing the case before the Court from Sullivan, supra, supports the decision in Russell:

"Perhaps Sullivan is distinguishable, however, from the situation of registration under the Subversive Activities Control Act. Tax returns must be filed generally, and answers to tax return questions may involve any of a wide variety of activities, whereas the obligation to file a registration statement compels a few particular individuals to come forward, to identify themselves, and to suggest, at least, their connection with a relatively limited potential sphere of criminal conduct. Then, too, in Sullivan, Mr. Justice Holmes assumed that some, at least, of the answers to the questions on the tax return would not have been incriminating, whereas in the case of the registration statement, any claim of the privilege would involve the withholding of all information * * *." 367 U.S. 108, 109, 81 S.Ct. 1417, 6 L. Ed.2d 625.

It should be noted that this dictum is wholly consistent with the following position taken in the dissent written by Mr. Justice Brennan, in which the Chief Justice concurred, except that this dissent takes the view that the self-incrimination question should have been reached:

"A claim of privilege on the registration form which names the official would be self-defeating. For if the admission of officership in the Communist Party is incriminating, then a claim of privilege by name would amount to the very same admission — the claimant would be asserting that he could not complete, sign or file a form because the admission of his officership would incriminate him. * * * Claiming the privilege here does more than attract suspicion to the claimant; it admits an element of his possible criminality. Moreover, registration is unique because of the initial burden it puts on the potential defendant to come forward and claim the privilege. He may thereby arouse suspicions that previously had not even existed and, indeed, virtually establish a prima facie case against himself. The usual situation in which the privilege is invoked is a judicial, legislative, or administrative proceeding in which the person claiming it appears because there is already some reason to think that
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  • United States v. Thompson
    • United States
    • U.S. District Court — District of Delaware
    • November 19, 1968
    ...1963); Mares v. United States, 319 F.2d 71 (C.A.10, 1963); Russell v. United States, 306 F.2d 402 (C.A.9, 1962); United States v. Fleish, 227 F. Supp. 967 (E.D.Mich.1964). 5 The constitutionality of a prosecution for possession of an unlawfully transferred firearm was an issue in a case dec......
  • Haynes v. United States
    • United States
    • U.S. Supreme Court
    • January 29, 1968
    ...States, 9 Cir., 306 F.2d 402; Dugan v. United States, 7 Cir., 341 F.2d 85; McCann v. United States D.C., 217 F.Supp. 751; United States v. Fleish, D.C., 227 F.Supp. 967. See also Lovelace v. United States, supra, 357 F.2d at 309. 10 In particular, the United States emphasizes the position o......
  • Deckard v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 7, 1967
    ...v. United States, 357 F.2d 306, 307-309 (5 Cir. 1966); McCann v. United States, 217 F.Supp. 751 (D.Colo.1963); United States v. Fleish, 227 F.Supp. 967 (E.D.Mich.1964). See United States v. Mares, 208 F.Supp. 550, 551 (D.Colo. 1962), aff'd 319 F.2d 71 (10 Cir. 1963). On the other hand, as i......
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