Cite as Hazelwood v. U.S., 208 F.Supp. 622 (N.D.Ca. 1962)

                 Emil L. HAZELWOOD, Petitioner,

                               v.

              UNITED STATES of America, Respondent

                         Crim No. 38099.

      United States District Court N. D. California, S. D.

                         Sept. 7, 1962.

     Charles R. Best, Jr., San Francisco, Cal., for petitioner.

     Cecil F. Poole, U. S. Atty., and Jerrold Ladar, Asst. U. S.
Atty., San Francisco, Cal., for respondent.

     WOLLENBERG, District Judge.

     This matter comes before the court on motion of petitioner
seeking relief under 28 U.S.C. section 2255 and is filed in forma
pauperis.  A hearing was held on September 5, 1962.

     Defendant was indicted and pleaded guilty on October 31, 1961
to one count of knowingly possessing an unregistered sawed-off
shotgun in violation of 26 U.S. C.  section 5851 [footnote 1] and
section 5861 [footnote 2]. Defendant was sentenced under Section
5010(b) of Title 18 U.S.C. and is now incarcerated in the federal
penitentiary at McNeil Island.

     As Section 5851 incorporated Section 5841, which requires the
registration of sawed-off shotguns, and the indictment of defendant
under Section 5851 relied on Section 5841 in charging possession of
an unregistered shotgun, petitioner seeks to vacate and set aside
his sentence in the light of the recent holding in Russell v.
United States (9th Cir. 1962) 306 F.2d 402 which found Section 5841
unconstitutional and in violation of petitioner's right against
self-incrimination as guaranteed in the Fifth Amendment to the
Constitution when it was used as the substantive crime itself in
conjunction with Section 5861.

     The government properly distinguishes prosecution under
Sections 5851 and 5861 for possession of an unregistered shotgun
from the Russell case, which found defendant guilty under Sections
5841 and 5861 of failing to register the gun in question.  The
government points out that by incorporating Section 5841 into
Section 5851, possession is the crime charged, and Section 5841,
dealing with registration becomes only a status by which it can be
determined what types of possession are illegal.  Requiring reg-
istration through the use of its taxing powers is the means by
which the court obtains jurisdiction over the crime of possession
and establishes a standard for its application.  As failure to
register is not the crime charged in Section 5851, failure to
register by the defendant is not a substantive element of that
offense.

     The real issue is whether or not possession of an unregistered
gun, jurisdiction admitted, can be made a valid offense not in
violation of constitutionally protected rights.  I think it can. 
This is not the case, like Section 5841, of requiring a party to
act (to register a gun) thereby violating his Fifth Amendment
rights.  Russell v. United States, supra.  It is merely a situation
making a certain status illegal (possession of an unregistered
gun).  To avoid this illegal status, the party may register the gun
prior to possessing it and thereby avoid an act which would, as in
Russell, by registering after possession, violate his Fifth
Amendment rights.

     It is unclear whether or not Russell found Section 5841
unconstitutional per se or only when it was relied upon to be
itself the substance of an offense used in conjunction with the
criminal penalties of Section 5861.  It would seem both reasonable
and desirable, however, to still find Section 5841 useful as a
requirement and also as a status upon which Section 5851 may
continue to rely and not to find it unconstitutional per se.

     For these reasons, petitioner's motion to vacate his sentence
is hereby denied.

     In view of petitioner's affidavit of poverty filed on August
13, 1962 in conjunction with another motion, the court at this time
hereby grants petitioner the right to appeal this order to the
Circuit Court in forma pauperis, deeming it to be in good faith.

                            FOOTNOTES

1. Section 5851 reads as follows: "It shall be unlawful for any
person to receive or possess any firearm which has at any time been
transferred in violation of sections 5811, 5812(b), 5813, 5814,
5844, or 5840, or which has at any time been made in violation of
section 5821, or to possess any firearm which has not been
registered as required by section 5841. * * *"

2. Section 5861 reads: "Any person who violates or fails to comply
with any of the requirements of this chapter shall, upon
conviction, be fined not more than $2,000, or be imprisoned for not
more than 5 years, or both, in the discretion of the court".