Cite as U.S. v. Benner, 289 F.Supp. 860 (D.Or 1968)

              United States of America, Plaintiff,

                               v.

                Charles Edward Benner, Defendant.

                          No. CR 68-85.

            United States District Court, D. Oregon.

                          June 5, 1968.

     Richard C. Helgeson, Asst. U. S. Atty., Sidney I. Lezak, U. S.
Atty., District of Oregon, Portland Or., for plaintiff.

     William V. Bierek, Portland, Or., for defendant.

                      FINDINGS AND OPINION

     KILKENNY, District Judge:

     Defendant is charged under 26 U.S.C. section 5851 with
knowingly, willfully, unlawfully and feloniously possessing a sawed
off firearm in violation of 26 U.S.C. section 5821. The facts are
not in dispute. Defendant's only defense is that section 5851, as
applied to section 5821, violates his Fifth Amendment rights
against self-incrimination. He relies on the recent cases of
Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d
889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19
L.Ed.2d 906 (1968) and Haynes v. United States, 390 U.S. 85, 88
S.Ct. 722, 19 L.Ed.2d 923 (1968). In my view, those cases are
distinguishable.

     Under the provisions of 26 U.S.C. section 5821, it is
obligatory on any person who wishes to make a firearm, whether by
manufacture or alteration, to declare his intention to the
Secretary of the Treasury and provide his fingerprints and
photograph prior to the making. Moreover, such person must pay a
tax of $200.00 on each firearm so made. Section 5851 declares it
unlawful for any person to possess or receive a firearm made in
violation of section 5821.

     The decision in Haynes is restricted to a declaration that
section 5851, making it unlawful for any person to possess a
firearm not registered under section 5841, violated the Fifth
Amendment. Clearly, in order to register the gun under section
5841, the person had to admit that he possessed it unlawfully.
Here, defendant is not charged with failure to register the gun. He
is charged with a violation of a separate provision of section
5851, making it unlawful to receive or possess an illegally made
firearm. Decision on this point was expressly reserved in Haynes,
390 U.S. 91, 88 S.Ct. 722. The decisions in Marchetti and Grosso,
in my opinion, have no application to the admitted facts in this
case. There, the taxpayers were, in effect, required by the
applicable statute to declare that they were engaged in illegal
activities. Here, as previously mentioned, defendant is only
charged with the act of possessing an unlawfully made gun. Nowhere,
does the statute require him to make a declaration which would be
incriminatory in nature.

     I find that on or about February 3, 1968, in the District of
Oregon, that defendant did knowingly, willfully, unlawfully and
feloniously possess a firearm, to-wit: a Savage .22 Magnum Rim Fire
rifle with 7 1/2 inch barrel, overall length 17 3/4 inches, but
sawed off to pistol grip, no serial number, which had been made in
violation of Title 26, section 5821, United States Code; in
violation of Title 26, section 5851, United States Code, and that
defendant is guilty of the crime as charged in the information.

     The foregoing shall serve as my findings and conclusions. The
matter is referred to the Probation Department for a pre-sentence
report and placed on my sentencing calendar for June 26, 1968, at
10:30 A. M., at which time defendant and his attorney shall appear.