Cite as Drennon v. U.S., 393 F.2d 342 (8th Cir. 1968)

               Joseph Michael Drennon, Appellant,

                               v.

               United States of America, Appellee.

                           No. 18972.

         United States Court of Appeals, Eighth Circuit.

                         April 30, 1968.

     Ray A. Gerritzen, of Gerritzen & Gerritzen, St. Louis, Mo.,
for appellant.

     John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for
appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the
brief.

     Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge,
and VAN PELT, District Judge.

     VAN OOSTERHOUT, Chief Judge.

     Defendant Drennon was convicted by a jury upon each of three
counts of an indictment, all of which charged possession of a
firearm which had not been registered as required by 26 U.S.C.A.
section 5841 in violation of 26 U.S.C.A. section 5851. A fine of
$1,000 was imposed upon the Count I conviction. Sentence on Counts
II and III was suspended and defendant was placed on three years
probation on such counts. This is a timely appeal from such
conviction and sentence.

     Defendant did not in the trial court nor in his original brief
upon this appeal attack the constitutionality of section 5851 nor
did he assert his constitutional privilege against
self-incrimination. The trial was held in July of 1967. The
decision of the Supreme Court in Haynes v. United States, 390 U.S.
85, 88 S.Ct. 722, 19 L.Ed.2d 923, was filed on January 29, 1968.
Such opinion holds that a proper claim of self-incrimination
provides a full defense to a prosecution for possession of an
unregistered firearm under section 5851.

     Defendant, by motion filed February 12, 1968, and supplemental
motion filed March 1, 1968, urges that Haynes requires a reversal
of his conviction. The supplemental motion sets forth the
contention that prior to the Supreme Court's decision in Haynes
appellate courts had uniformly upheld the constitutionality of
section 5851 and that no appellate court had recognized that
compliance with the provisions of section 5851 would be violative
of defendant's constitutional privilege against self-incrimination
guaranteed by the Fifth Amendment. The government has filed a
memorandum and resistance to defendant's motion, asserting that
Haynes does not apply because defendant did not assert his
constitutional privilege at any time during the trial or in his
brief upon appeal.

     The defendant's motions, as well as numerous other grounds
relied upon for reversal in brief, were argued and submitted on
April 3, 1968. For reasons hereinafter stated, we hold that the
defendant did not voluntarily waive his privilege against
self-incrimination and that such privilege constitutes a complete
defense to the section 5851 charges made against him. We deem it
unnecessary to set forth or discuss other asserted errors relied
upon for reversal.

     There is adequate substantial evidence in the record to
support a finding that the defendant had in his possession the
three machine guns described in the three indictment counts, that
they were capable of being fired and that they were the type of
weapons which were required to be registered by section 5841. We
are satisfied from a careful examination of the record that
registration of the machine guns involved would constitute a
violation of defendant's privilege against self-incrimination under
the Fifth Amendment. Thus had the self-incrimination issue been
raised, there is no doubt that a reversal would here be required.

     We now reach the crucial issue in this case, which is whether
the defendant voluntarily waived his constitutional right against
self-incrimination by failing to raise such issue in the trial
court. We hold that he did not.

     In Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19
L.Ed.2d 906, decided on the same day as Haynes, one of the issues
presented was whether defendant's conviction based upon counts
charging failure to pay an occupational tax on gambling in
violation of 26 U.S.C.A. section 4411 could be upheld. The Court
had held in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697,
19 L.Ed.2d 889, that section 4411 requiring gamblers to pay an
occupational tax created a real and substantial danger of
self-incrimination and that the assertion of the privilege against
self-incrimination provided a complete defense to prosecution under
section 4411. Such reasoning is almost identical to that used in
Haynes as a basis for the reversal of a conviction under 26
U.S.C.A. section 5851.

     In Grosso, the defendant had not asserted self-incrimination
as to the section 4411 counts. The Court held that in light of the
decisions in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510,
97 L.Ed. 754, and Lewis v. United States, 348 U.S. 419, 75 S.Ct.
415, 99 L.Ed. 475, which were overruled in respects pertinent in
Marchetti, that, "We are unable to view his failure to present this
issue as an effective waiver of the constitutional privilege." The
Court goes on to say:

     "Since the record is barren of any evidence on which a finding
     of waiver of the privilege against self-incrimination might
     properly be predicated, and since, absent such a waiver,
     reversal of the conviction would be inevitable in light of our
     holdings today in this case and in Marchetti, we consider that
     the entire case should now be finally disposed of at this
     level. In the special circumstances presented, this course
     seems to us to be dictated by considerations of sound judicial
     administration, in order to obviate further and entirely
     unnecessary proceedings below." 

     We followed Grosso in reversing a section 4411 conviction in
Harris v. United States, 8 Cir., 390 F.2d 616. The Grosso reasoning
on the issue of lack of voluntary waiver of the privilege against
self-incrimination applies by analogy to the voluntary waiver issue
in our present case.

     Prior to the Supreme Court's decision in Haynes, Courts of
Appeals had uniformly held that section 5851 was constitutional and
that it was not violative of the privilege against
self-incrimination. In Haynes v. United States, 5 Cir., 372 F.2d
651, 653, the court observes:

     "[I]t cannot be ignored that Section 5851 has at least eight
     times been held Constitutional. We have been cited, and we
     find, no case to the contrary. We are presented no issue of
     choice as to the weight of authority--the decisions all
     sustain Constitutionality."

Decisions supporting the above statement are cited in footnote 9 to
the Haynes opinion. To like effect, see Deckard v. United States,
8 Cir., 381 F.2d 77, 80; see also Sipes v. United States, 8 Cir.,
321 F.2d 174, 178; Page v. United States, 8 Cir., 282 F.2d 807,
811.

     Thus upon the basis of the unanimity of the decided cases as
of the date of the trial, a reasonable basis existed for
defendant's belief that pursuit of his self-incrimination defense
would be fruitless.

     The Supreme Court in Haynes squarely rejected the basis upon
which the Courts of Appeals had held that section 5851 would not
violate the privilege against self-incrimination. Defendant has
raised the self-incrimination defense at the earliest possible
moment after the Haynes decision and prior to the submission of
this case to us upon appeal.

     In Deckard, supra, we upheld a post-conviction coram nobis
collateral attack upon a 26 U.S.C.A. section 5841 conviction. We
recognized that coram nobis relief should be granted sparingly and
only under compelling circumstances to correct errors of a most
fundamental character. Upon our determination that the registration
requirements of section 5841 were violative of the privilege
against self-incrimination, we set aside the conviction even though
defendant had entered a plea of guilty to the charge and had not
raised the self-incrimination issue at his trial. We recognized
that the privilege against self-incrimination was a substantial
constitutional right and that the criminal information filed was
constitutionally vulnerable because section 5841 upon which it
rested by its registration provisions calls for self-incrimination.
The Haynes holding that the elements of offenses proscribed by
sections 5841 and 5851 are identical makes the reasoning upon which
Deckard is based applicable to our present case. The situation in
our present case is somewhat stronger than that in Deckard, as here
the attack is made upon direct appeal, not in a collateral
proceeding.

     The problem remains whether any purpose is to be served by
remanding this case to the trial court for further proceedings.
Here, as in Grosso and Harris, the record is barren of any evidence
upon which a finding of voluntary waiver of the privilege against
self-incrimination might properly be predicated. See Dillon v.
United States, 8 Cir., 389 F.2d 381, 383. Accordingly, we follow
the pattern set in Grosso and reverse the judgment of conviction
outright.