IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION, AT CLEVELAND UNITED STATES OF AMERICA, Plaintiff, vs. INDICTMENT VALMORE J. FORGETT, JR., Criminal No. 23652 Defendant. REPLY BRIEF IN SUPPORT OF DISMISSAL OF INDICTMENT CARPENTER, BENNETT & MORRISSEY Attorneys for Defendant 744 Broad Street Newark 2, New Jersey CHARLES J. IRWIN On the Brief ARGUMENT Where, as in the instant case, the constitutionality of a legislative act is the central issue, a duty of complete assessment is placed upon the litigants and upon the court. Pursuant to that obligation, the National Firearms Act has been reviewed from inception by defendant and analyzed herein. As the Court will see from the following summary, the act as originally implemented in the year 1934 was not violative of individual rights. It was subsequently contaminated by the passage of time and the attendant change of status of certain guns theretofore unregulated through their classification by the Act as firearms subject to governmental control. Under the terms of the National Firearms Act (c.757, section 18, 48 Stat. 1240) which was enacted to take effect June 26, 1934 the term "firearm" was legally defined for the first time and the weapons which fell within the boundaries of said definition were subjected to certain taxes and to regulations purportedly required to facilitate the collection of said taxes. Among the more important regulatory provisions of the law as then constituted was section 1132 (d) which was the forerunner of section 5841 under examination herein. Section 1132 (d) provided as follows: "Registration of Firearms; presumption from failure to register. (a) Within 60 days after the thirtieth day after June 26, 1934, every person possessing a firearm shall register with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept and place of business or employment, and If such person is other than a natural person, the name and home address of an executive officer thereof: Provided, that no person shall be required to register under this section with respect to any firearm acquired after the thirtieth day after June 26, 1934, and in conformity with the provisions of sections 1132 to 1132 q." It must be remembered that on June 26, 1934, the effective date of the National Firearms Act, possession of a gun defined to be a firearm was not a federal crime. By the terms of the Act, however, possession on or after September 24, 1934 of a firearm which had not been registered by the possessor in accordance with section 1132 (d) was a crime punishable by a $2000.00 fine and/or five years imprisonment. To understand section 1132 (d) it is helpful to break the section into two segments or clauses, the first of which we shall call the requirements clause. The requirements clause provides: "(a) Within 60 days after the thirtieth day after June 26, 1934, every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept and place of business or employment, and if such person is other than a natural person, the name and home address of an executive officer thereof ... ." The second clause, we shall call the "escape clause" since it sets forth circumstances whereby registration pursuant to the above quoted requirements clause is not necessary. The "escape clause" provides: ". . . Provided, that no person Shall be required to register under this section with respect to any firearm acquired after the thirtieth day after June 26, 1934, and in conformity with the provisions of sections 1132 to 1132 q. The undeniably obvious intent of section 1132 (d) was to secure information with respect to all firearms then in existence thereby permitting their taxation and regulation thenceforth. All those in possession of firearms were given sixty days following July 26, 1934 to register same, which registration was not an admission of any illegal act or status since possession of a firearm was not a crime. Section 1132 (b) and 1132 (c) of the original Act established a system regulating the transfer of firearms. Other sections dealt with their importation or manufacture. Transfer could only be accomplished legally with the use of a form furnished by the commissioner, a copy of which form was required to be filed with him. Thus, sections 1132 (d), 1132 (b) and 1132 (c) were designed to locate and trace the movements of firearms. They could have resulted in burdensome and confusing double or triple registration of the same weapon during the initial period of enforcement. For example: A, possessing a firearm might register same sometime after July 26, 1934 in accordance with section 1132 (d) and then, prior to September 24, 1934, transfer said firearm to B and accomplish a form of registration through the mechanics of 1132 (c) whereupon B would be obliged to register the said firearm prior to September 24, 1934 in accordance with section 1132 (d). The necessity for such a hodgepodge of registration was precluded by the "escape clause" quoted above. Before further discussing the original law, it is enlightening at this stage to examine section 5841 of the present Act and compare it with section 1132 (d). Like 1132 (d), section 5841 is divisible into two segments or clauses. The requirements clause of 5841 is substantially the same as the requirements clause of 1132 (d), to wit: "Every person possessing a firearm shall register with the Secretary or his delegate the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept and place of business or employment, and if such person is other than a natural person, the name and home address of an executive officer thereof. The "escape clause" on its face is also substantially the same, providing in effect that registration is not required under the circumstances enumerated therein. It provides that: "No person shall be required to register under this section with respect to firearms with such person acquired by transfer or importation or which such person made, if the provisions applied to such transfer, importation or making, as the case may be, and if the provisions which applied thereto were complied with. However, by the passage of time and the attendant change of status of certain guns unregulated before the National Firearms Act the above quoted "escape clause" of section 5841, as will be seen, has become an insidious "entrapment clause". The registration provisions of The National Firearms Act at inception provided merely that by September 24, 1934 one must register all firearms in his possession, possession carrying no criminal implications whatsoever. One was not required to register firearms received in conformity with section 1132 (b) and (c) of the provisions relating to manufacture or importation. As thus conceived and initially implemented the Act was a valid exercise by Congress of the taxing power, as was properly held in Sonzinsky v. United States 300 US 506, 81 L Ed 772 (1937.) The Court in that case however never had cause to examine the problems posed by the present indictment. It was not until enactment of the Internal Revenue Code of 1939 that the regulatory provisions of the National Firearms Act menaced the precious right against self-incrimination and the "escape clause" became a clause of entrapment. In the 1939 code section 1132 (d) of the National Firearms Act was redrafted in the following form. Section 3261 (b) Persons in General - "Every person possessing a firearm shall register with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept and place of business or employment, and, if, such person is other than a natural person the name and home address of an executive officer thereof: Provided, that no person shall be required to register under this sub-section with respect to any firearm acquired after July 26, 1934 and in conformity with the provisions of this part and sub-chapter B of Chapter 25." The words of section 3261 (b) are strikingly similar to those of the innocuous section 1132 (d) of the original Firearms Act but an insidious dichotomy which was created by the operation of section 1132 (d) permeated the operation of section 3261 (b) transforming the "escape clause" into an "entrapment clause" and making it violative of the Fifth Amendment protection against self- incrimination. Between June 26, 1934 and September 24, 1934 there was only one broad classification of firearms. All were required to be registered prior to that date either under 1132 (d) or by operation of the other provisions of the Act. From September 24, 1934 and thereafter however there were two classes of firearms: (1) Those which had been registered in accordance with the Act and were consequently under the watchful eye of the Treasury Department and (2) Those which never had been registered as required by 1132 (d) and were therefore "illegal". Because of the existence of the second class noted above, the formerly harmless section 1132 (d) redesignated section 3261 (b) thus effectively required all those who had been in possession of a firearm prior to September 24, 1934 and had failed to comply with 1132 (d) and who were still in possession of said firearm to come forward and identify themselves thereby subjecting themselves to prosecution on the basis of their own admissions. The only weapons which they were required to register were those illegally held as above described or those received since July 26, 1934 but not in conformity with the provisions of the Act and therefore also presumptively illegal, for the Act further provided that it was unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of the transfer provisions. There are numerous firearms still in existence which were never registered under 1132 (d) or which have at some time been transferred in violation of the transfer, importation or manufacturing provisions of the National Firearms Act. These are "illegal" weapons and possession of same is a violation of the Act. Nevertheless, the government seeks to enforce the "requirements clause" of 5841 putting upon each person the burden of coming forward and admitting that he is in possession of an "illegal" firearm and therefore in violation of the Act and subject to the punishments outlined therein. No clearer violation of the Fifth Amendment can be demonstrated. The Hazelwood Case In the case of Hazelwood v. United States, 208 F. Supp. 622 (1962), a motion to set aside a conviction for violation of section 5851 on the authority of the Russell case was denied. The argument advanced by the government and accepted by the Court in that case is capsulized in the following portion of the Court's opinion. "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)". The argument is circular and insupportable. The Court blithely passed over the essence of the question which is the basis for the status of the firearm as illegal. If illegal, it is illegal not because of any inherent characteristic, but rather because not registered. Therefore, said status is based only upon the possessor's failure to act even though the requirement to perform the act if enforced constitutes a violation of his constitutional rights. It is not unlawful to possess a firearm, it is unlawful to possess an unregistered firearm. It is the failure to register which makes the firearm unlawful and if the requirement of registration is unconstitutional and unenforceable, then the failure to meet that requirement cannot alter the legal status of the firearm. If the statute is to be given the effect urged in Hazelwood, then the defendant in such case becomes a criminal for refusal to honor a statute which is unlawful and unenforceable. So it is with section 5855, which forms the basis for the instant indictment. It is not unlawful to ship a firearm in interstate commerce. It is however said to be unlawful to ship an unregistered firearm, but if the registration provision as presently constituted is void and unenforceable, then there is no distinction between firearms and unless a general prohibition is made by statute all may be shipped lawfully. To say as did the Court in the Hazelwood case that the prohibition may be solved by registering the gun prior to possessing it is myopic. The Act does not require the registration of an intention to possess a firearm, it requires registration by those possessing (in possession), and therefore already presumptively in violation of the law. On page 5 of the brief for the United States, the prosecutor alleges that even though "the regulations issued (under section 5841) do not provide any specific grace period within which a person may elect whether to register or dispose of the firearm, it would be a strained construction of the statute to read it as requiring that registration be simultaneous with the act of taking possession." Obviously, if a grace period was specifically afforded during which a person who had come into possession of a firearm which was violative of the National Firearms Act, could register said weapon without thereby admitting the perpetration of a crime, the requirement of such registration would not be constitutionally objectionable. Even if, as the United States attorneys suggest, such a grace period is implicit in the statute, the act nevertheless remains unconstitutional in its present vague form as violative of the due process clause of the Constitution. Indeed in the instant case the indictment is founded upon seizure which occurred a mere few hours after the defendant could have been said to have come into possession of the firearms which he allegedly failed to register. The plaintiff's argument with respect to the presumption created by section 5851 is also circular. Where the term "such firearm" is used in section 5851 it relates to firearms, registration of which is required. As has already been demonstrated, the only firearms for which registration is required are those which never were registered in accordance with section 1132 (d) of the original Act or which have at some time been transferred, imported or manufactured not in conformity with the other provisions of the Act. It would appear therefore that contrary to plaintiff's statement that the government would have to allege and show that the firearm In the defendant's possession had at one time been unlawfully transferred or illegally made, the mere fact of registration would raise the presumption of an unlawful possession. The burden is then upon defendant to in some way not delineated by the statute convince a jury that he should not be convicted. There is no authority as to what manner or measure of proof is required of defendant. This view of the presumption is substantiated by Judge Weicks' decision in United States v. Decker, 292 F 2d 89 (1961) portions of which decision are quoted at page 9 of plaintiff's brief. In answer to our contention that compliance with the registration requirement of section 5841 constitutes an admission of a criminal offense, the plaintiff's brief suggests that this would not be so in the case of registration of a firearm which has been "found" since a finding is not a "transfer" within the meaning of the Act and therefore does not need to be reported under the other provisions of the Act. We submit that this argument is self-defeating. In the first place, the defendant in this case did not find the guns in question. He received them from an agent of the owner and there is no question that the transaction constituted a "transfer" within the reporting requirements of the Act, with the inevitable consequence that his registration of these guns under the provisions of section 5841 would constitute an admission that he had criminally failed to comply with the reporting requirement of the act. In the second place, the argument that the registration under the provisions of section 5841 of a found gun will not expose the finder to serious criminal consequence is fallacious in view of the provisions in section 5851 that it is illegal to have possession of a gun which has at any time been transferred in violation of the act. Obviously, a finder will have no knowledge of the past history of the firearm and will therefore not know when he registers the found firearm whether or not it has been transferred in violation of the Act and he is therefore playing Russian roulette with a criminal conviction when he admits possession of a firearm of unknown ancestry. It must therefore be concluded that compliance with section 5841 will under every conceivable circumstance, except the case where a firearm has been found, constitute a clear, direct and certain admission of crime and that in the unusual circumstance where the registered firearm has been found, the registrant assumes a very high risk that he is admitting the commission of a crime. The Sullivan Case In United States v. Sullivan 274 U.S. 259, 71 L Ed 1037 (1927) the defendant was convicted of wilfully refusing to make a return of his net income and the Circuit Court of Appeals held that the Fifth Amendment protected him from the requirement of the return where the income was derived from illegal traffic in liquor. Justice Holmes said, ". . . if the form of return provided for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all." (274 U.S. 259, 263, 71 L Ed 1037, 1039) The clear implication in the Sullivan case is that the defendant could have reported his income but refused on the basis of the Fifth Amendment to set forth in the return the source of said income. As was pointed out in Russell v. United States, unlike the defendant in Sullivan, one accused of violation of section 5841 is in effect charged with failing to inform the Secretary or his delegate that he was actually or presumably in unlawful possession of a firearm because he or someone else had railed to comply with various provisions of Chapter 53, as specified in section 5851, some of which provisions imposed taxes. Sullivan could report income, but, in the exercise of his Fifth Amendment privilege declined to reveal its source. Hence, compliance with the statute involved did not require self- incrimination. Russell (or any other defendant accused of violation of 5841) could make no report under section 5841 without admitting "actual or presumptive violation of law." Because of the foregoing distinction, United States v. Sullivan is not dispositive of the question raised in United States v. Forgett. The Plaintiff in its brief at page 3 cites United States v. White 322 U. S. 694 (1944) as dispositive of the fact that a corporation does not possess the privilege against self- incrimination. Since the defendant is not a corporation we fail to see the relevancy of the aforesaid case. To say as does plaintiff in the very next paragraph that there is no constitutional right to possess firearms of the type involved in this Act is also irrelevant to the questions here in issue. Neither is there a specific constitutional right to possess narcotics or burglars' tools, but surely that does not mean that the possessor of such items can be required to provide governmental agencies with his name and address and a description of such items in his possession where such possession is presumptively criminal. United States v. Kahringer, 345 U.S. 22 (1953) and Lewis v. United States 348 U.S. 419 (1955) were properly distinguished in Russell v. United States, 306 F 2d 402 (CA 9th Cir., 1962) despite plaintiff's attempt to suggest that section 5841 is prospective, which position is completely without authority or logical support as has already been established. It is not the intention of defendant to suggest that the Russell case is legally binding upon this court, however, defendant does urge that the perceptive reasoning and sound legal basis of the decision is intellectually binding upon this court and any other legal analyst. Judge Doyle in United States v. Mares 208 F. Supp, 550 D Colo) granted dismissal of two criminal counts based upon violation of section 5841 thereby adding his voice to that of Judge Hamley in the Ninth Circuit. Defendant respectfully moves this Honorable Court to add its voice to those who have already examined the serious questions raised by the operation of section 5841 of the National Firearms Act and to Dismiss the Indictment for the reasons set forth herein and in the defendant's initial brief. Respectfully submitted, CARPENTER, BENNETT & MORRISSEY CERTIFICATE OF SERVICE A copy of the foregoing Reply Brief was served upon the United States District Attorney, Merle McCurdy, by hand delivery this 19th day of June, 1963. H. STEPHEN MADSEN