United States v. Freed, No. 345

• Court: United States Supreme Court
• Writing for the Court: DOUGLAS
• Citation: 91 S.Ct. 1112,28 L.Ed.2d 356,401 U.S. 601
• Docket Number: No. 345
• Decision Date: 05 April 1971
• Parties: UNITED STATES, Appellant, v. Donald FREED and Shirley Jean Sutherland

401 U.S. 601 91 S.Ct. 1112 28 L.Ed.2d 356 UNITED STATES, Appellant,

v.

Donald FREED and Shirley Jean Sutherland.

No. 345. Argued Jan. 11, 1971. Decided April 5, 1971.

Leave to File Petition for Rehearing Denied June 7, 1971.

See 403 U.S. 912, 91 S.Ct. 2201.

Syllabus

In Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, the Court held invalid under the Self-Incrimination Clause of the Fifth Amendment provisions of the National Firearms Act, which constituted parts of an interrelated statutory scheme for taxing certain classes of firearms primarily used for unlawful purposes, and made the potentially incriminating information available to state and other officials. To eliminate the defects revealed by Haynes, Congress amended the Act so that only a possessor who lawfully makes, manufactures, or imports firearms can and must register them. The transferor must identify himself, describe the firearm, and give the name and address of the transferee, whose application must be supported by fingerprints and a photograph and a law enforcement official's certificate identifying them as those of the transferee and stating that the weapon is intended for lawful uses. Only after the transferor's receipt of the approved application form may the firearm transfer be legally made. A transferee does not and cannot register, though possession of an unregistered firearm is illegal. No information or evidence furnished under the Act can be used as evidence against a registrant or applicant 'in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence,' and no information filed is, as a matter of administration, disclosed to other federal, local, or state agencies. Appellees, who had been indicted under the amended Act for possession and conspiring to possess unregistered hand grenades, filed motions to dismiss, which the District Court granted on the ground that the amended Act, like its predecessor, compels self-incrimination and that the indictment contravenes due process requirements by failing to allege scienter. Appellees also contend that the provisions relating to fingerprints and photographs will cause future incrimination. Held:

1. The revised statutory scheme of the amended Act, which significantly alters the scheme presented in Haynes, does not involve any violation of the Self-Incrimination Clause of the Fifth Amendment. Pp. 605—607.

Page 602

2. The amended Act fully protects a person against incrimination for past or present violations, and creates no substantial hazards of future incrimination. P. 606.

3. The amended Act's prohibition against a person's 'receive(ing) or possess(ing) a firearm which is not registered to him,' requires no specific intent and the absence of such a requirement in this essentially regulatory statute in the area of public safety does not violate due process requirements either as respects the substantive count or the conspiracy count. Pp. 607 610.

Reversed.

Matthew J. Zinn for appellant.

Luke McKissack, Hollywood, Cal., for appellees.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Following our decision in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes.¹

At the time of Haynes 'only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.' Id., at 87, 88 S.Ct. at 725. Under the Act, as amended, all possessors of firearms as defined in the Act²

Page 603

are covered, except the Federal Government. 26 U.S.C. § 5841 (1964 ed., Supp. V).

At the time of Haynes any possessor of a weapon included in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Federal Government made available to state, local, and other federal officials. Id., at 95 100, 88 S.Ct., at 729—732. Under the present Act³ only possessors who lawfully

Page 604

make, manufacturere, or import firearms can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person 'to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.'⁴

At the time of Haynes, as already noted, there was a provision for sharing the registration and transfer information with other law enforcement officials. Id., at 97—100, 88 S.Ct., at 730—732. The revised statute explicitly states that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant 'in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.'⁵ The scope of the privilege extends, of course, to the hazards of prosecution under state law for the same or similar offenses. See Malloy v. Hogan, 378 U.S. 1, 84 ,S.Ct. 1489, 12 L.Ed.2d 653; Marchetti v. United States, 390 U.S. 39, 54, 88 S.Ct. 697, 705, 19 L.Ed.2d 889. And the appellees, apparently fearful that the Act as written does not undertake to bar the use of federal filings in state prosecutions, urge that those risks are real in this case. It is said that California statutes⁶ punish the possession of grenades and that federal registration will incriminate appellees under that law.

The solicitor General, however, represents to us that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of nonregistration may be necessary to an investigation or prosecution under the present Act.

The District Court nonetheless granted the motion to dismiss on two grounds: (1) the amended Act, like the

Page 605

version in Haynes violates the Self-Incrimination Clause of the Fifth Amendment; and (2) the conspiracy 'to possess destructive devices' and the possession charged do not allege the element of scienter. The case is here on direct appeal. 18 U.S.C. § 3731. And see United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863; United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487.

I

We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person 'shall be compelled in any criminal case to be a witness against himself.' As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor—not the transferee—does the registering. The transferor pays the transfer tax and receives a stamp⁷ denoting payment which he affixes to the application submitted to the Internal Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transferee. In addition, the application must be supported by the photograph and fingerprints of the transferee and by a certificate of a local or federal law enforcement official that he is satisfied that the photograph and fingerprints are those of the transferee and that the weapon is intended for lawful uses.⁸ Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transferee. At that time he is to give the approved application to the transferee.⁹ As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities

Page 606

and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law.¹⁰

The transferor—not the transferee—makes any incriminating statements. True, the transferee, if he wants the firearm, must cooperate to the extent of supplying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful possessor of the firearm. Indeed, the only transferees who may lawfully receive a firearm are those who have not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future. But the claimant is not confronted by 'substantial and 'real" but merely 'trifling or imaginary, hazards of incrimination'—first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. Marchetti v. United States, supra, 390 U.S., at 53—54, 88 S.Ct., at 705. Cf. Minor v. United States, 396 U.S. 87, 94, 90 S.Ct. 284, 287, 24 L.Ed.2d 283. Since the states and other federal agencies never see the information, he is left in the same position as if he had not given it, but 'had claimed his privilege in the absence of a * * * grant of immunity.' Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1610, 12 L.Ed.2d 678. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination.¹¹

Appellees' argument assumes the existence of a periphery of the Self-Incrimination Clause which pro-

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tects a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.

Another argument goes to the question of entrapment. But...