Donald Walter Lewis, Appellant, v. United States of America, Appellee, 408 F.2d 1310 (10th Cir. 1969)

Buron Keith Watson, Denver, Colo., for appellant.

Warwick Downing, II, Denver, Colo., for appellee (Lawrence M. Henry, U. S. Atty., and Robert E. Long, Asst. U. S. Atty., Denver, Colo., on the brief).

Before HILL and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.

BRATTON, District Judge.

The appellant Donald Walter Lewis was tried to a jury and convicted upon an information filed in the United States District Court for the District of Colorado charging him with a violation of § 5851¹  of the National Firearms Act, 26 U.S.C. §§ 5801-62, in that he unlawfully possessed a firearm, as defined by § 5848(1)²  of the Act, which had not been made pursuant to the provisions of § 5821³  of the Act.

The information filed against Lewis charged that he knowingly and unlawfully possessed a 12-gauge shotgun with a barrel length of 15 1/8 inches upon which, prior to its making, no making tax had been paid and for which no written declaration of intention to make had been filed with the Secretary of the Treasury.

Counsel for the defense timely filed an unsuccessful motion to dismiss the information upon the ground that the privilege against self-incrimination, as guaranteed by the Fifth Amendment, provided Lewis with a complete defense to the prosecution of him under § 5851.

The issues presented for resolution on this appeal are essentially those presented to the trial court upon the motion. We are asked to determine whether, in view of the decision in Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968), the charge against Lewis under § 5851 of the Act is meaningfully distinguishable from a charge under § 5851 of the Act for failure to pay a making tax and to file a declaration of intention to make a firearm covered by the Act. If the offenses covered by the two sections are indistinguishable, we are then asked to determine whether compliance with § 5821 of the Act would have compelled Lewis to incriminate himself, thus furnishing him with a complete defense to the prosecution.

Appellant contends that the doctrine of Haynes v. United States, supra, should be extended to cover the present case.

In Haynes, the Court considered the question of whether that portion of § 5851⁴  making possession of a firearm not registered pursuant to § 5841⁵  was identical to and hence indistinguishable from the offense under § 5841 of failure to register possession of a firearm. It concluded that the registration clause of § 5851 incorporated the requirements of § 5841, so that a conviction under § 5851 was tantamount to a conviction under § 5841 and thus subject to any constitutional deficiencies found to be applicable to § 5841. The Court then found that the obligation to register under § 5841 was directed principally at persons who had obtained possession of a firearm without complying with the Act's other requirements and that they were therefore immediately threatened by criminal prosecutions under § 5851. The formal acknowledgment of possession and the supplementary information required to be furnished under the section and its accompanying regulation, 26 C.F. R. § 179.120, were found to substantially increase the risks of criminal prosecution. Thus, the Court held, a proper claim of the constitutional privilege against self-incrimination provided a full defense to prosecutions either for failure to register under § 5841 or for possession of an unregistered firearm under § 5851.

Haynes does not require a finding that the offense under § 5851 of possession of a firearm which was made without paying the tax or filing the declaration required by § 5821 is indistinguishable from the offense under § 5821 of failing to pay the tax and to file the declaration prior to making.

In discussing § 5851 in its entirety, the Court in Haynes noted that violations of the making provision of § 5821, upon which the offense under § 5851 of possession of a firearm made in violation of the § 5821 provisions is premised, can have occurred, in the language of that clause of § 5851, "at any time." This phrase, lacking in that portion of § 5851 dealing with possession of a firearm not registered pursuant to § 5841, was found by the Court to be a significant factor. The Court concluded that its omission from the registration portion of § 5851 was inconsistent with a construction of the registration clauses of §§ 5851 and 5841 which would permit § 5851 to punish acceptance of the possession of a firearm which was never registered by any prior possessor and permit § 5841 to punish only a present possessor who has failed to register the fact of his possession.

The Court noted that, had a phrase analogous to the phrase "at any time" been used in the registration clause as it was in the making clause, the above construction would have clearly been the correct one.

The offense under § 5851 of possession of a firearm which was made in violation of the making provisions of § 5821 is aimed only at present possession, and the offense consists of accepting or retaining possession of a firearm made at any time by any person without compliance with § 5821.

The offense under § 5821 is aimed only at making the gun without complying with its requirement. The offense is complete and the maker has violated § 5821 when the gun is made without the prior declaration and tax.

Since the failure to declare and pay the tax cannot be rectified after the weapon is made, there is no action required or, indeed, permitted of any possessor of a covered weapon made in violation of § 5821 which would prevent such possession from violating § 5851.

Thus, unlike the offenses under §§ 5851 and 5841 considered in Haynes, the elements of the offenses under §§ 5851 and 5821 are not identical. See Taylor v. United States, 333 F.2d 721 (10th Cir. 1964); Sipes v. United States, 321 F.2d 174 (8th Cir. 1963), cert. denied 375 U.S. 913, 84 S. Ct. 208, 11 L. Ed. 2d 150 (1963).

The distinction drawn by the court in Haynes has recently been followed in cases rejecting claims identical to those here made. DePugh v. United States, 401 F.2d 346 (8 Cir. 1968); United States v. Taylor, 286 F. Supp. 683 (1968).

Thus, the issue of whether the offense under § 5851 of possession of a firearm made in violation of § 5821 is properly distinguishable from the offense under § 5821 of failure to comply with the section's provisions must be resolved against the appellant.

It follows that appellant cannot claim that his timely assertion of the privilege against self-incrimination in the court below provided a full defense to the prosecution under § 5851.

Even if it were assumed that appellant is correct in contending that the privilege against self-incrimination is available under § 5821, he would still have to bring himself within the purview of that section in order to invoke it. This he has failed to do. He stands charged and convicted under the separate offense set out in § 5851.

Appellant's lack of standing to assert the privilege against self-incrimination he alleges to be available as a defense under § 5821 is not the only insurmountable problem in the argument he here advances. He recognizes that in Mares v. United States, 319 F.2d 71 (10th Cir. 1963), a case involving an offense identical to the one with which he was charged, it was held that the privilege against self-incrimination was not available under § 5821. He contends, however, that the Haynes doctrine compels a re-examination of Mares.

His contention is based upon the unjustified assumption that both the requirements of § 5821 and the effect of compliance therewith are substantially analogous to those of § 5841, so that, if the privilege is available under § 5841, it is available under § 5821.

The differences between the requirements of §§ 5821 and 5841 were illuminated in Mares v. United States, supra, and in Russell v. United States, 306 F.2d 402 (9th Cir. 1962).

In Russell v. United States, supra, the registration provision of § 5841 was found to be subject to an assertion of the privilege against self-incrimination because registration under § 5841 amounted to an admission that the registrant possessed a firearm and that he did not make or acquire it in compliance with the Act. Thus, registration disclosed a violation of other laws.

In Mares v. United States, supra, the defendant relied on Russell in an effort to show that the privilege against self-incrimination found to apply to § 5841 also applied to a prosecution under § 5851 premised upon § 5821. In rejecting this contention, the court held that no self-incrimination inhered in the filing of the declaration of intent to make a firearm or in payment of the making tax prior to its making, i. e., no violation of other laws was thus compelled to be disclosed. On the contrary, the requirements of. § 5821 were held to establish the legality, rather than.illegality, of the possession of such a firearm. Id. 319 F.2d at 73.

The holding of the Court in Haynes is identical to and is based upon the same considerations as the holding in Russell, which was considered by the court in Mares. There is no indication in Haynes that the distinction drawn in Mares between §§ 5821 and 5841 is not still viable, and Mares remains controlling in the present case. It should further be noted that the present case arose in Colorado which has no criminal statute covering the subject firearm.

It is concluded that appellant's conviction pursuant to 26 U.S.C. § 5851 is not invalid as in derogation of his Fifth Amendment privilege against self-incrimination.

Affirmed.