United States v. Whalen, 71-Cr.-686.

• Decision Date: 21 January 1972
• Docket Number: No. 71-Cr.-686.,71-Cr.-686.
• Parties: UNITED STATES of America v. Robert A. WHALEN, Defendant.
• Court: U.S. District Court — Southern District of New York

337 F. Supp. 1012

UNITED STATES of America v. Robert A. WHALEN, Defendant.

No. 71-Cr.-686.

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

January 21, 1972.

Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, New York City, for the United States; by Howard Wilson, Asst. U. S. Atty., of counsel.

Greenspan, Aurnou, Davis & Fredericks, White Plains, N. Y., for defendant; by Joel Martin Aurnou, Barry I. Fredericks, White Plains, N. Y., of counsel.

OPINION

CROAKE, District Judge.

This criminal action charges violations of the National Firearms Act, as amended, 26 U.S.C. §§ 5801 et seq. ("the Act"). The first eight counts of the indictment, filed on June 24, 1971, charge the possession of eight unregistered firearms, in violation of 18 sic: 26 U.S.C. §§ 5861 (d) and 5871. The next six counts, counts nine through fourteen, charge transfer of five of these firearms, plus one other firearm, all without payment of the transfer taxes and without registration of the transfer, in violation of 18 sic: 26 U.S.C. §§ 5811, 5812, 5841, 5861(e), and 5871. The three remaining counts, numbered fifteen through seventeen, charge transfer of the three remaining firearms listed in the first eight counts, without having made a pre-transfer application for a Treasury Department authorization, in violation of 18 sic: 26 U.S.C. §§ 5852, 5861(e), and 5871. Transfer taxes are not alleged to be owing on these three weapons; defendant disputes, among other things, the allegations that any taxes are owing at all. The maximum punishment for the acts charged is ten years' imprisonment and a $10,000 fine on each count. 26 U.S.C. § 5871.

This is a somewhat unusual case in that the weapons involved do not appear to have been involved by their owner in other unlawful activities frequently expected of possessors of such weapons. This action, then, is not brought as a substitute for prosecution of other crimes more nefarious but also more difficult of proof; rather, it is apparently intended to enforce the Governmental regulatory and, to a lesser extent, its tax system.¹

Defendant herein is a Korean War veteran and a policeman from 1959 through 1969 with the New York villages of Ossining and Croton. Having left those employments under honorable circumstances, he is currently in the employ of the Penn Central Railroad. He is now charged with possession and transfer, as noted above, of nine allegedly inoperable souvenir machine guns and machine pistols ("the guns"), all acquired while he was a member of the police departments, authorized and designated to possess them by his Chief of Police under the then applicable law. The illegal transfer of which he is accused was to have been in connection with a publicly advertised sale of his collection of war trophies and memorabilia, of which the guns were a part.

It is not alleged that defendant's possession of the guns was secretive at any time; in fact, two were used in 1963 at Camp Smith in upper New York State in the company of the Chief of Police and under the supervision and guidance of the FBI. When defendant left the police force, he had the barrels of the guns welded shut. (The permanence of the steel welding is apparently a disputed matter.) Several of the guns are apparently missing vital parts allegedly unobtainable by private citizens, or have damaged parts, and at least one gun fires allegedly unobtainable ammunition. Upon defendant's arrest, and a subsequent search of his home, no ammunition for these or any other weapons was discovered. In short, the presence of "gangster-type weapons" in this case is fortuitous; there is not the hint of an allegation that defendant is or was in any way associated with "gangsters." See U.S.Code Cong. & Admin.News 1968, p. 4434; see also 4412-4413.

I

Defendant has now moved to dismiss the indictment on three general grounds: that the Act does not apply to him; that, if it does, it is unconstitutional; and that, in any event, defendant's Sixth Amendment rights to a speedy trial have been infringed.

The first ground for dismissal is that the Act cannot be read to incriminate the activities charged. The initial argument in this regard appears to be that the guns were rendered "unserviceable"² under 26 U.S.C. § 5845(h) by defendant's actions on leaving the police force — the welding shut of the barrels and consequent destruction of the temper of their steel, the insertion of steel rods in the barrels, the use of other techniques to render the guns inoperable — and also, in some instances, by the absence of unobtainable vital parts or ammunition. It is then contended that the "unserviceable firearms" are neither "machine guns,"³ 26 U.S.C. § 5845(b), nor "firearms," 26 U.S.C. § 5845(a) (6); compare 18 U.S.C. § 921(a) (3), 26 U.S.C. § 4181; see United States v. Schofer, 310 F.Supp. 1292, 1296 (E.D.N.Y. (1970), and consequently, it is contended, are not required to be registered, 26 U.S.C. §§ 5861(d), 5841(b), (c), and are freely transferable without application for authorization, 26 U.S.C. §§ 5861(e), 5812.

It may be noted in this regard that defendant cannot be heard to claim that his weapons are eligible for classification as "antique firearms" under 26 U.S.C. § 5845(g), despite their actual value primarily as archaic weapons. All are of twentieth-century manufacture, and the statutory cut-off date for inclusion in this category is the year 1898 (evidently chosen because it marks the end of the Spanish-American War).

The proper classification of the guns is additionally complicated by defendant's continued references to all of them as "De-Activated War Trophies," or "Dewats." Technically, this term refers to a category analogous to "unserviceable firearms" administratively established pursuant to

"... the war trophy firearms deactivation program, inaugurated in 1945 as a safety measure which would permit, under certain conditions, returning servicemen to retain war trophies and also afford the opportunity to effect the registration, and control of subsequent transfers, of deactivated firearms. Of the many thousands of war trophy firearms registered under this program, a large number were rendered unserviceable by steel welding the breach end of the barrel closed. . . ." Rev.Rul. 55-590, 1955-2 Cum.Bull. 483.

The reason for the establishment of this program was to alleviate the administrative burden of investigating the large number of annual tax-free transfers of unserviceable firearms. The method chosen was to provide for possible elimination of some firearms from the "unserviceable" firearms category:

... after a firearm has been transformed into a curio by the prescribed method of deactivation, under the supervision of an inspector of the Alcohol and Tobacco Tax Division, such article will be known as a "DEWAT" (and thereafter future transfers will not have to be separately registered). Ibid. emphasis supplied.

A later administrative ruling, Rev.Rul. 57-227, emphasized that an Internal Revenue Service inspector must witness the deactivation process in order for the weapon to qualify as a Dewat. The system eventually proved unsatisfactory, and was restricted, effective July 1, 1958, to persons lawfully possessing "unserviceable" weapons in full compliance with previously applicable registration and transfer provisions of law. Rev.Rul. 58-8, 1958-1 Cum.Bull. 690. The Regulations currently in force under the present statute do not include any procedure for Dewat classifications.

In other words, the Dewat program was an attempt by the Service to administratively repeal what it considered to be onerous statutory registration provisions applicable to transfers of unserviceable firearms occurring after initial registrations of the weapons had been effected. The initial registration requirement was always maintained; certain deactivation procedures were mandatory at all times, and the termination of the program, but not of the list of Dewat registrations maintained in the National Firearms Registration and Transfer Record ("the Registry"), 26 U.S.C. § 5841(a), has eliminated any opportunity to cure previous noncompliance with procedural requirements.

Of defendant's nine guns, the only one actually classified and registered in the Registry as a Dewat is the one listed in Counts 2 and 16 of the indictment. As to that weapon, the applicable regulations in force before the 1968 amendments to the statute provided that all future transfers would not have to be registered. After those statutory amendments, registration of such transfers became mandatory, as is explained below; a person who had relied upon the previous administrative assurances was thereby put in jeopardy of unwitting violation of law.

At first blush this would appear to be "unfair," and perhaps even a violation of due process. However, it has been determined that,

"The Act requires no specific intent or knowledge that the firearms were unregistered ... the only knowledge required to be proved was knowledge that the instrument possessed was a firearm ...

* * * * * *

"... This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of firearms is not an innocent act." United States v. Freed, 401 U.S. 601, 607, 609, 91 S.Ct. 1112, 1117, 28 L.Ed. 2d 356 (1971).

It would therefore appear that proof at trial of good faith reliance upon the administrative assurances quoted above might be sufficient to negate requisite knowledge that the Dewat possessed was a firearm within the meaning of the amended Act.

If the requisite knowledge were proved, however, there would be no constitutional ex post facto problems present merely because of the enactment of the 1968 amendments. Those amendments clearly apply only to transfers occurring after their effective date. In addition, the amendatory legislation provides a one-month amnesty period during which time contraband...