421 F. 2d 784 - United States v. Sher

Appellant, in the District Court for the Western District of Washington, was convicted of receiving and possessing a firearm in violation of 26 U.S.C. § 58511 which had been transferred in violation of 26 U.S.C. § 5814.2 The firearm in question was a Steyr machine gun, possession of which is made a crime under Washington State law.3

On several occasions before and during trial appellant sought to secure dismissal of the charges against him upon the ground that the provisions of § 5814 required him to incriminate himself and that, consequently, conviction was barred by the Fifth Amendment. All such motions were denied.

In our judgment, the charges must be dismissed on authority of Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Benner v. United States, 417 F.2d 421 (9th Cir. 1969).

Haynes did not involve § 5814. It struck down a conviction under § 5851 for possession of a firearm which had not been registered as required by § 5841. Since such registration would have compelled Haynes to provide self-incriminating information, it was held that the enforcement of § 5851 against the petitioner, given his timely assertion of the privilege, was not constitutionally permissible. 390 U.S. at 100, 88 S.Ct. 722.

The Government seeks to distinguish the present case upon the ground that § 5814 does not require the transferee of a firearm to incriminate himself since the section's requirements all antedate transfer and thus would occur prior to the commission of any state crime. All the would-be transferee need do to avoid incriminating himself, says the Government, is refrain from committing the crime.

A similar argument was considered and rejected in Marchetti v. United States, supra. Discussing an earlier case. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), the Court stated:

"The Court held in Lewis that the registration and occupational tax requirements do not infringe the constitutional privilege because they do not compel self-incrimination, but merely impose on the gambler the initial choice of whether he wishes at the cost of his constitutional privilege, to commence wagering activities. The Court reasoned that even if the required disclosures might prove incriminating, the gambler need not register or pay the occupational tax if only he elects to cease, or never to begin, gambling. There is, the Court said, `no constitutional right to gamble.' 348 U.S. at 423, 75 S.Ct. at 418.

We find this reasoning no longer persuasive. The question is not whether petitioner holds a `right' to violate state laws, but whether, having done so, he may be compelled to give evidence against himself." 390 U.S. at 51, 88 S.Ct. at 704.

The Court rejected the reasoning of Lewis that the privilege is inapplicable to prospective acts:

"The central standard for the privilege's application has been whether the claimant is confronted by substantial and `real,' and not merely trifling or imaginary, hazards of incrimination. * * * We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence." 390 U.S. at 53-54, 88 S.Ct. at 705.

That the hazard of incrimination presented in the instant case was not trifling or imaginary seems apparent. Admittedly, transfer under the Act is not prohibited; it is simply taxed. See Leary v. United States, 395 U.S. 6, 20, 22, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).4 Nor is possession made illegal per se. But possession of a machine gun is, as we have noted, made criminal under the laws of the State of Washington.5

While the Government is not required under the Act to make its records available to state law enforcement agencies, as was the case with the marihuana tax (Leary) and gambling occupation tax (Marchetti), there was, nevertheless, nothing in the Act as it read at the time of the offense to assure "the necessary confidentiality or immunity to overcome the privilege." See the opinion of Justice Brennan [concurring] in Grosso v. United States, 390 U.S. at 72-73, 88 S.Ct. at 716. Without such assurance it is difficult to believe that the Government's laudable concern with the "gangster-type element"6 would not result in Federal co-operation with state agencies. In fact, the record indicates that it was in part the high level of co-operation between state and Federal officials that resulted in this conviction.

Under similar circumstances this court recently held that the requirement of a prospective declaration of intent to violate state laws respecting firearms is subject to the Fifth Amendment privilege. Benner v. United States, supra. Benner was convicted under 26 U.S.C. §§ 5851 and 5821 (declaration of intent to manufacture a firearm). In Oregon it was illegal for a convicted felon to be in possession of a concealable weapon. This court held that if Benner had been a convicted felon at the time of his manufacture of the firearm, that conviction was to be set aside as a violation of his Fifth Amendment rights.7 417 F.2d at 425-426.

Applying the Benner rationale, we conclude that the effect of the § 5814 declaration requirements read in light of Washington law is to require the self-incrimination prohibited under the Fifth Amendment. Accord: United States v. Miller, 406 F.2d 1100, 1106 (4th Cir. 1969).

Accordingly, the judgment is reversed.