United States v. Schofer

• Citation: 310 F. Supp. 1292
• Decision Date: 05 February 1970
• Docket Number: No. 69 CR 362.,69 CR 362.
• Parties: UNITED STATES of America, v. Charles Savage SCHOFER, Defendant.
• Court: U.S. District Court — Eastern District of New York

310 F. Supp. 1292

UNITED STATES of America, v. Charles Savage SCHOFER, Defendant.

No. 69 CR 362.

United States District Court, E. D. New York.

December 15, 1969.

Memorandum and Order February 5, 1970.

Edward John Boyd, V, Brooklyn, N.Y. (Edward R. Neaher, U. S. Atty., of counsel), for the Government.

Edward J. Kelly, Huntington Station, N.Y. (Milton Adler, New York City, of counsel), for defendant.

DOOLING, District Judge.

Defendant has been indicted (1) for knowingly possessing a "firearm" within the definition of Internal Revenue Code § 5845(a) which had not been registered to him as required by Section 5841 of the Code — a violation of Section 5861(d) of the Code; and (2) for willfully and knowingly transferring a "firearm" in violation of Section 5812 of the Code (which forbids the transfer of a "firearm" unless the transferor applies for Treasury Department approval of the transfer); such a transfer violates Section 5861(e).

Defendant moves to dismiss the indictment on the ground that the Code provisions, enacted by the National Firearms Act (Title II of Public Law 90-618, 90th Congress, 82 Stat. 1213) are violative of defendant's Fifth Amendment right not to be required to incriminate himself. Haynes v. United States, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923.

Haynes found that a timely asserted claim of privilege under the Fifth Amendment furnished a complete defense to the crime of former Section 5851, that is, possessing a firearm that had not been registered as required by former Section 5841. The Court noted that the National Firearms Act provisions of the Internal Revenue Code were so limited as to guarantee that "only weapons used principally by persons engaged in unlawful activities" were taxed, and that the tax on the making and transfer of the firearms was supplemented by comprehensive provisions assuring that any possessor fully identified himself as the maker or transferee of the firearm either by himself registering it (Section 5841), or by furnishing his transferor with an order form (a copy of which would be filed with the Treasury Department) fully identifying the transferee (Section 5814(a), (b)), or by filing a notification of his intention to make the weapon and prepaying the tax before making the weapon (Section 5821(e)). The Court pointed out that any failure to comply with any requirement of the Act was a felony (Section 5861) and that, specifically, Section 5851 made it a crime to receive or possess a weapon made or transferred in violation of specified sections of the law (including Sections 5821 and 5814) or "to possess any firearm which has not been registered as required by Section 5841." Haynes was indicted under Section 5851 for knowingly possessing a firearm not registered under Section 5841. The Court put the problem as one of determining, first, whether a conviction under Section 5851 for possessing an unregistered weapon was substantively different from one under Section 5841 for failing to register a possessed weapon, and, if not, second, would compliance with Section 5841 have compelled Haynes to provide incriminatory evidence. Haynes argued that the two sections were one in substance, that a Section 5841 conviction would punish the defendant for failing to incriminate himself, and that, therefore, a timely claim of Fifth Amendment privilege should provide a complete defense. The Government argued that Section 5851 was meant to punish only the acquiring of an unregistered firearm whereas Section 5841 was meant to punish only the present possessor who failed — after acquiring it — to register his possession. The Court, however, rejected the Government's interpretation of Section 5851 as directed only to getting possession of a weapon that was already an unregistered weapon when possession was acquired; the Court declined, that is, to limit Section 5851 to possession of the kind of firearm that had already become an illicit weapon before the defendant acquired it. The Court interpreted Section 5851 as applying to any possessor who up to the time at which he was charged had not registered the firearm. So interpreted, the elements of the offense of Section 5851, which explicitly made it an offense to possess a firearm not "registered as required by Section 5841," were held to be identical with those of Section 5841. Possession and non-registration were, the Court observed, equally fundamental ingredients of both offenses. The Court rejected the suggestion that Section 5841 might be read as creating a status of (manifestly) illegal possession which, if one (voluntarily) assumed it, automatically waived the Fifth Amendment privilege.

Turning, then, to the question whether enforced registration would have compelled self-incrimination, the Court found in the statutory scheme a high but not inevitable correlation between obligation to register and violations since the registration required to avoid Section 5851 prosecution would mainly be by possessors who had obtained the firearm "without complying with the Act's other requirements" and who "are immediately threatened by criminal prosecutions under" Sections 5851 and 5861 (e. g., for having failed to furnish a Section 5814(a) order form to the transferor upon the acquisition, or by failing to file under Section 5821(e) a declaration of intention to make the weapon — such failures preventing the possessor from claiming the exemptive benefit of the second sentence of Section 5841 and being themselves delinquencies punishable under Section 5861). In addition, under Section 5851, the Court pointed out, proof of possession shifts to defendant the burden of explaining the possession. The Court rejected an argument that the statute was validated by the fact that innocent possessors could be imagined who could register the weapons with impunity, reiterating that the statute was directed at a class suspect of criminality and in an area of activity permeated with criminal statutes. However, the Court concluded that this last circumstance prevented total invalidation of Section 5851 on its face and it held that accused possessors were sufficiently protected if permitted to present their Fifth Amendment privilege as a defense. The Court declined to avoid the problem by restricting federal and state use of registration disclosures in criminal cases, particularly in view of Section 6107 of the Code authorizing disclosure of lists of excise taxpayers to state prosecutors.

The Gun Control Act of 1968 (Public Law 90-618, 90th Congress) provides in Title I, amending Title 18, Crimes and Criminal Procedure, for licensing dealers in weapons inclusively defined and dealers in "destructive devices," for the regulation of the dealing in such weapons and devices, and for the prohibition and punishment of acts subversive of the scheme of control through licensing and regulation. Title II, the National Firearms Act, like its predecessor Chapter 53 of the Internal Revenue Code, deals with the classes of firearms peculiarly identified with unlawful activities. While the definitions are not the same as those of former Section 5848 (and the "destructive device" definition is entirely new), the changes appear to amend the law in the direction of its earlier aim and not to broaden it in the direction of including firearms which are characteristically owned by law-abiding citizens.

However, Chapter 53 as now rewritten relieves possession of an unregistered weapon of that "high correlation" between the obligation to register and violation noted by Haynes, for under the present provisions the possessor is not, as such, under a duty to register. The duty to register attaches to manufacturers, importers, transferors and makers of firearms; notification to the Treasury Department must precede manufacture, and Treasury Department authorization to import, make or transfer a firearm must be obtained before one imports, makes, or transfers the firearm, and such notification or authorization effects registration (Sections 5841(b), (c), 5812, 5822, 5844 Internal Revenue Code, as amended). The scheme of registration is such that any possessor of any firearm will be identifiable from the Central Registry if the law has been complied with by manufacturers, importers, makers and transferors. But the scheme of the statute does not, as the predecessor did, require possessors of unregistered firearms to effect registrations that would in the general (but not necessarily every) case identify an earlier offense and identify the registrant as the one who committed it. For example, under old Section 5851 it was illegal to possess an unregistered firearm, under old Section 5841 a possessor was required to register his possession unless (in effect) the weapon had been registered to him; a transferee-possessor under old Section 5814 could lawfully become such only by filling up an official order form that fully identified him (with fingerprints and photograph); and a maker-possessor had to have filed a notification of intention to make. Hence the general case of unregistered possession was the case in which the possessor had become the transferee of the firearm without issuing the order form of Section 5814 or had become the maker-possessor without filing a notification of future making under Section 5821(e); indeed his criminal neglect of these duties fastened on him a duty to register under old Section 5841 and if he failed that duty he was indictable under old Sections 5851 and 5861. The amended Chapter 53 sets no such trap. A transferee does not have to fill up an order form for filing. Section 5812 imposes on the transferor the duty of obtaining approval of a proposed transfer (which is to be denied if the transfer, receipt or possession would place the transferee in violation of law), and it forbids the transferee to take possession unless the Treasury Department has approved the transfer and registration of the firearm. Similarly (as before) the maker...