United States v. Wolfe

• Decision Date: 03 September 1969
• Docket Number: Crim. No. 28506.
• Parties: UNITED STATES v. Porter Marcellas WOLFE.
• Court: U.S. District Court — District of Maryland

303 F. Supp. 671

UNITED STATES v. Porter Marcellas WOLFE.

Crim. No. 28506.

United States District Court D. Maryland.

September 3, 1969.

Stephen H. Sachs, U. S. Atty., and Stephen D. Shawe, Asst. U. S. Atty., Baltimore, Md., for United States.

H. Carl Butler, Baltimore, Md., court appointed, for defendant.

HARVEY, District Judge:

In this criminal case, the defendant has been charged in a 2-count indictment with violations of various sections of the National Firearms Act. In Count I, it is charged that, in violation of 26 U.S.C. § 5851, the defendant willfully and knowingly possessed a sawed-off shotgun which had been made at a prior time in violation of 26 U.S.C. § 5821.¹ In Count II, it is alleged that the defendant willfully and unlawfully made a sawed-off shotgun in violation of the aforesaid § 5821.

The defendant has duly filed a motion to dismiss the indictment. Numerous grounds were set forth in the formal motion, but defendant's attorney has stated that the only issue being pressed here is whether under the Supreme Court's decision in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), this prosecution is constitutionally permissible as to either of these two counts. In any event, this Court is satisfied that the other points relied upon by the defendant are without merit.

A hearing was originally scheduled on the pending motion for August 8, 1969. After reviewing the pleadings and legal memoranda, this Court concluded that counsel had not sufficiently discussed all of the recent cases which dealt with the issues before the Court. Additional memoranda were therefore requested, and a further hearing was held on August 27, 1969, at which time the matter was fully argued by counsel.

The Haynes case, although concerned generally with the National Firearms Act, ruled only on questions presented by §§ 5841 and 5851 relating to the possession of unregistered firearms. The Supreme Court held that a properly pleaded claim of the privilege against self-incrimination barred a prosecution under §§ 5841 and 5851.² The Court concluded that Congress intended the clause of § 5851 referring to registration to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. Furthermore, it held that in view of the registration provision of § 5841 the constitutional privilege against self-incrimination was a complete defense to a prosecution either for failure to register a firearm under § 5841 or for the possession of an unregistered firearm under § 5851.

The Court carefully declined to rule on other provisions of the National Firearms Act which was described as "an interrelated statutory system for the taxation of certain classes of firearms" (390 U.S. at page 87, 88 S.Ct. at page 725). In fact, the Court's decision applied only to one of the three clauses contained in § 5851, namely, that provision which made it illegal to possess an unregistered firearm.

§ 5821 requires that any person who wishes to make a firearm must declare his intention to do so to the Secretary of the Treasury and pay a tax of $200 on each firearm so made.³ Under the clause of § 5851 that applies in this case, it is unlawful for any person to possess a firearm made in violation of other provisions of the Act (in this case § 5821).⁴ In the pending indictment, it is alleged that the defendant was both the maker and the possessor of the sawed-off shotgun in question.

The first question to be determined here is whether the two sections here involved should be construed together in this case. Defendant has been charged with unlawfully making the weapon and also with unlawfully possessing the weapon. The conclusion is inescapable that if defendant made this sawed-off shotgun, then he must likewise also have possessed it at the time the making was complete. Therefore, as in Haynes, the elements of the offenses are identical as applied to this defendant who is charged with being both the maker and the possessor. The facts here differ from those present in other cases in which the possessor was not the maker and the courts upheld prosecutions under § 5851 and § 5821. See Reed v. United States, 401 F.2d 756 (8th Cir. 1968); Burton v. United States, 414 F.2d 261 (5th Cir. July 30, 1969). The inquiry under both counts then must be directed to determining whether the declaration required under § 5821 to be made by the defendant as the maker results in his self-incrimination. If no prosecution is legally permissible under § 5821, then both the first and second counts must be dismissed.

Of all the cases which have been referred to this Court, the decision of the Ninth Circuit Court of Appeals in United States v. Benner (decided June 10, 1969), would appear to be the closest on the facts. There, a defendant who was charged with being both the maker and the possessor was convicted of illegally possessing a firearm under § 5851 which had been made in violation of § 5821. In considering the same issue that has been presented here, the Court carefully reviewed the Haynes case as well as other recent decisions of the Supreme Court dealing with the constitutional privilege against self-incrimination, namely, Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). The Court held that under these decisions of the Supreme Court the defendant's privilege against self-incrimination was not infringed by prosecution under §§ 5821 and 5851 under the circumstances there present.

As the Benner opinion pointed out, there are three separate possession crimes under § 5851, as follows: (1) possession of a firearm transferred in violation of the Act (namely, § 5814); (2) possession of a firearm made in violation of the Act (namely, § 5821); and (3) possession of a firearm not registered as required by the Act (namely § 5841).⁵ Under Haynes, it is clear that no prosecution under § 5851 may proceed because of a violation of § 5841. Other cases have held that no prosecution is possible under § 5851 for violations of § 5814. See United States v. Miller, 406 F.2d 1100, 1105-1106 (4th Cir. 1969); DePugh v. United States, 401 F.2d 346 (8th Cir. 1968); United States v. Thompson, 292 F.Supp. 757 (D.Del.1968).

Defendant here urges that since prosecutions under two of the three original clauses of § 5851 have been held unconstitutionally impermissible, prosecution under the third clause must for like reasons fail. At first blush, such a contention is indeed appealing, based as it is on the argument that § 5851 should be construed consistently as to all three of its clauses. However, closer scrutiny of the Haynes case and of the different factors that would apply to the prosecution of a maker and possessor of a firearm under the Act suggests that all three of these situations are not so alike as to be necessarily controlled by the same legal principles.

This fact was emphasized by the Court in the Benner case. The Court said (at pages 4 and 5 of the slip sheet opinion):

"The maker of the firearm does not, by declaring his intent to make a firearm, of necessity make any declaration of an intention to do these or any other illegal acts. The firearm made could be legally possessed in most states, and we specifically note that it could be legally possessed in Oregon. Its use could be not only legal but laudable, i. e., law enforcement officers in pursuit of dangerous criminals, by persons with permits to carry concealed weapons in defense of their lives, by householders in defense of their homes and persons. We perceive a difference between a law which requires the declaration that one is engaged in an activity which is in itself criminal and one which requires a person to declare an intention to engage in an activity which is not in itself criminal and which does not of necessity lead to any criminal act."

Marchetti, Grosso, Haynes and Leary all proscribe a statement by a defendant which is self-incriminating when made. In Marchetti and Grosso, the Court was concerned with gambling, which is widely prohibited under federal and state laws. In both opinions, the Court emphasized that the law of the state in which the accused allegedly conducted his activities (Connecticut in Marchetti and Pennsylvania in Grosso) had adopted legislation punishing gambling, wagering and ancillary activities. 390 U.S. at page 46, 88 S.Ct. at page 703, and 390 U.S. at page 64, 88 S.Ct. at page 711. Leary dealt with possession of marihuana, which is unlawful in all of the states. Again, the Supreme Court emphasized that possession of marihuana was illegal in New York, the state where the accused claimed the transfer occurred, and also in Texas where he was arrested and convicted. In Haynes, though, the Court found self-incrimination because of provisions of federal law, namely other sections of the National Firearms Act itself. That case involved a situation where registration of a firearm under § 5841 would have made the registrant at once criminally responsible under the Act for possessing a weapon in violation of the provisions of § 5851. The Supreme Court said the following in this connection (390 U.S. at page 96, 88 S.Ct. at page 730):

"The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act's other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5851 and 5861." (Emphasis added)

Under Miller and the other cases involving § 5814, supra, a transferor who filed the necessary application for the transfer of a firearm would likewise immediately incriminate himself under the possession and making provisions of §§ 5821 and 5851.

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