United States v. Tous, 72-1209.

Decision Date05 May 1972
Docket NumberNo. 72-1209.,72-1209.
Citation461 F.2d 656
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Harold TOUS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael D. Nasatir, of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.

William D. Keller, U. S. Atty., Eric A. Nobles, Leslie E. Osborne, Jr., Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before HAMLEY, CHOY and GOODWIN, Circuit Judges.

PER CURIAM:

This is an appeal from a conviction under 26 U.S.C. § 5861(d) (possessing an unregistered machine gun) and a sentence of one year's probation. We affirm.

The first point asserts that a conviction cannot stand without evidence that the defendant received or transported the firearm through interstate commerce. Interstate activity, however, is not an element of the crime under 26 U.S.C. § 5861. The statute is silent on the score of commerce. It is a valid exercise of the power of Congress to tax. United States v. Giannini, 455 F.2d 147 (9th Cir. 1972).

The second point is that, because he was unaware of the statute's amnesty and registration provision, the defendant was unable to comply with the registration clause of the statute. Ignorance of the statute's amnesty provisions is no defense. Congress can impose upon those who keep machine guns a reasonable duty to inquire about the obligations that may accompany such possession. See United States v. Freed, 401 U.S. 601, 609-610, 91 S.Ct. 1112, 28 L. Ed.2d 356 (1971).

Affirmed.

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10 cases
  • U.S. v. Hall
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 30 Abril 1999
    ...Cir.1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994), citing with apparent approval United States v. Tous, 461 F.2d 656, 657 (9th Cir.1972) (per curiam ), which held that § 5861(d) was within the scope of the taxing The government obtained and executed search warra......
  • U.S. v. Furrow
    • United States
    • U.S. District Court — Central District of California
    • 19 Septiembre 2000
    ...has twice sustained Section 5861 under the taxation power: United States v. Giannini, 455 F.2d 147 (9th Cir. 1972), and United States v. Tous, 461 F.2d 656 (9th Cir.1972). In Giannini, the court reasoned: "The statute is part of a comprehensive scheme to levy and collect taxes upon activiti......
  • U.S. v. Alverson
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 4 Enero 1982
    ...623 F.2d at 57 n.1. We have held that section 5861(d) "is a valid exercise of the power of Congress to tax." United States v. Tous, 461 F.2d 656, 657 (9th Cir. 1972) (per curiam); accord, United States v. Petrucci, 486 F.2d 329, 331 (9th Cir. 1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937......
  • U.S. v. Mack
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Enero 1999
    ...already determined that the passage of § 5861(d) was a permissible exercise of Congress's taxing power. See United States v. Tous, 461 F.2d 656, 657 (9th Cir.1972) (per curiam). Thus, the statute is not vulnerable to a Commerce Clause challenge. Further, after Lopez, in United States v. Han......
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