Filed April 6, 1964. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION, AT CLEVELAND UNITED STATES OF AMERICA, Plaintiff, I N D I C T M E N T v. Criminal No. 23652 VALMORE J. FORGETT, JR., Defendant. BRIEF IN SUPPORT OF MOTION TO DISMISS INDICTMENT BAKER, HOSTETLER & PATTERSON Attorneys for Defendant 1956 Union Commerce Building Cleveland, Ohio CARPENTER, BENNETT & MORRISSEY, Of Counsel. CHARLES J. IRWIN, On the Brief. TABLE OF CONTENTS Page Table of Cases ............................................. ii Statement of Facts ......................................... 1 Arguments Presented .......................................... i Point I ...................................................... 2 Point II. ................................................... 20 Point III ................................................... 21 Conclusion ................................................... 24 ARGUMENTS PRESENTED Page POINT I: The Registration Provisions of The National Firearms Act, 26 U. S. C. section 5841 Compels Every Person in Possession of a Firearm to be a Witness Against Himself Concerning Compliance With Federal Statutes For Violation of Which There is a Heavy Penalty And is Therefore Violative of The Fifth Amendment of The Constitution of The United States of America .............................................. 2 POINT II: Since Section 5841, Title 26 U.S.C., is Unconstitutional and Unenforce- able, Section 5855 Which Applies Only to Those Required to Comply With Section 5841 And Prohibits Them From Carrying on an Inter- State Firearms Business is Violative of The Due Process Clause of The Fifth Amendment of the Con- stitution of The United States of America ....................................................... 20 POINT III: Section 5855, Title 26 U.S.C., Restricts a Certain Class of Persons From Shipping Any Firearms, Which Class is Defined as Those Who Are Required to Register Under Section 5841. Since no One Can be Required to Register Under Section 5841, That Portion of Section 5855 Which Relates to That Class of Persons is Impotent ........................................... 21 TABLE OF CASES Page Communist Party of the United States of America v. Subversive Activities Control Board 367 U.S. 1, 6 L. Ed. 2d, 625 (1961) .......................... 8 Communist Party of the United States of America v. Subversive Activities Control Board 223 F.2d 531 (D.C. Cir. 1954) ................................ 10 Barn Ballroom Co. v. Ainesworth 57 Supp. 299 (DC Va. 1945) .................................... 20 Hazelwood v. United States 208 F. Supp. 622 (1962) ...................................... 16 J. Burns Baking Co, v. Bryan 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 ...................... 20 Louis K. Ligett Co., v. Baldridge 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204 ...................... 20 New State Ice Co. v. Liebman 285 U.S. 262, 59 S.Ct. 371, 76 L. Ed. 747 ..................... 20 Russell v. United States 306 F.2d 402 (C.A. 9th Cir. 1962) ........................ 6,7,9,17 Sonzinsky v. United States 300 US 506, 81 L Ed 772 (1937) .............................. 14 United States v. Ansoni 138 F. Supp.451 (N.D. Ill., 1955) aff'd 240 F. 2d 412 (7th Cir. 1957), cert. den'd 353 U.S. 936 (1957) ................................ 9 United States v. Decker 292 F.2d 89 (1961) ........................................... 19 United States v. Kahringer 345 U.S. 22, 73 S.Ct. 510, 97 L Ed. 754 (1952) ................. 2 United States v. Sullivan 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927) .............. 8,9 United States v. White 322 U.S. 694, 88 L Ed. 1543 (1944) ............................. 2 STATEMENT OF FACTS On or about April 21, 1961, the defendant, Valmore J. Forgett, Jr., answered a federal indictment before this court. Said indictment charged that on or about November 15 and November 16, 1959, Mr. Forgett unlawfully shipped in interstate commerce between Oconomowoc, Wisconsin, and East Cleveland, Ohio, firearms within the purview of Section 5848, Title 26 (1954) United States Code, without having registered the said firearms with the Secretary of the Treasury or his delegate, as required by Section 5841, Title 26 (1954) United States Code, and that such failure to register as required was a violation of Section 5855, Title 26 (1954) United States Code. Mr. Forgett, on advice of counsel that he had no defense to the charge, and while simultaneously professing innocence of any criminal acts, entered a plea on January 26, 1962, of guilty to having unlawfully shipped, carried, and delivered in interstate commerce unregistered firearms. He was adjudged guilty under this indictment and a sentence of one year's probation was imposed. Defendant, Valmore J. Forgett, Jr., now moves this honorable Court to dismiss the indictment on the ground that Section 5841, Title 26 United States Code, is unconstitutional as violative of the Fifth Amendment guarantee against self-incrimination and that Section 5855, Title 26 United States Code, on which this indictment is founded, is unenforceable because of the unconstitutionality of Section 5841 and further is itself unconstitutional as violative of the due process clause of the Fifth Amendment of the Constitution of the United States of America. ARGUMENT POINT I THE REGISTRATION PROVISIONS OF THE NATIONAL FIREARMS ACT, 26 U. S. C. SECTION 5841 COMPELS EVERY PERSON IN POSSESSION OF A FIREARM TO BE A WITNESS AGAINST HIMSELF CONCERNING COMPLIANCE WITH FEDERAL STATUTES FOR VIOLATION OF WHICH THERE IS A HEAVY PENALTY AND IS THEREFORE VIOLATIVE OF THE FIFTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. The Fifth Amendment of the Constitution of the United States of America provides that no person, "shall be compelled in any criminal case to be a witness against himself." This privilege, essentially a personal one, grew out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings upon a plane of dignity, humanity and impartiality. It is designed to prevent the use of legal process to force from the lips of the accused the evidence necessary to convict him or to force him to produce and authenticate any personal documents, effects that might incriminate him. The prosecutors are thus forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law. The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime. United States v. White, 322 U.S. 694, 88 L Ed. 1543 (1944.) The privilege is broadly construed to forbid compulsory incrimination not only in every criminal case, but also in any federal inquiry where the information might be useful later to convict of a federal crime. United States v. Kahringer, 345 U.S. 22, S. Ct. 510, 97 L Ed. 754 (1952.) A matter will incriminate if it constitutes or forms an essential part of, or taken in connection with other matters disclosed is a basis for a reasonable inference of such a violation. Uniform Rules of Evidence 21C, Model Code of Evidence Rule 202 (1942). As will be shown, registration in accordance with Section 5841 provides the prosecutor with all of the elements necessary for conviction under various other provisions of the National Firearms Act thereby rendering the said section unenforceable. Section 5841, 26 U.S.C. provides: "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. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation, or which such person made if, the provisions of this chapter applied to such transfer, importation or making, as the case may be, and if the provisions which applied thereto were complied with." The term transfer as used in the above quoted section is defined in Section 5848 (10) Title 26 U.S,C. to include, "to sell, assign, pledge, lease, loan, give away, or otherwise dispose of." It is clear from reading Section 5841 that notwithstanding the statement included therein that "Every person possessing a firearm shall register...", the second sentence so modified the section that the only persons who are in fact required to register are those who have acquired a firearm by making it, importing it, purchasing it, or receiving it as a gift or in connection with an assignment, pledge, lease, loan or other disposition if the provision of Chapter 53 [footnote 1], Title 26, U.S.C. apply to such making, importation or other acquiring and if such provisions have not been complied with. Hence when a person registers in compliance with section 5841 that person admits he has not complied with section 5801, 5811, 5814 or 5821 although one or more of the said provisions was applicable, such person thereby admits a violation of section 5851, Title 26 U.S.C. which provides: "It shall be unlawful for any person to receive or possess a firearm which has at any time been transferred in violation of sections 5811, 5812 (10), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess a firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury." The constitutional arguments raised by the interworking of sections 5841 and 5851 as described above were considered in a very complete, searching and intellectually convincing opinion rendered in the ninth circuit by the Honorable Fred G. Hamley. Russell v. United States, 306 F.2d 402 (C.A. 9th Cir. 1962). The Russell case involved an appeal from an order denying a motion to vacate a sentence imposed on conviction after a plea of guilty of possessing firearms, which defendant Russell unlawfully failed to register in accordance with section 5841, Title 26 U.S.C. The Court after meeting and eliminating every argument advanced in support of the statutes validity, held that section 5841 required unconstitutional self incrimination, since it requires admission of actual or presumptive unlawful possession saying: "It follows that any person who in conformity with section 5841 registers information concerning a firearm thereby admits that he is in possession of such firearm and that he did not acquire or make it in compliance with section 5851 . . . By reason of the rebuttable presumption provided for in the last sentence of section 5851 . . . such act of registration also established prima facie, that the registrant's possession of the firearm is unlawful under section 5851 either because the weapon was at some time transferred by someone in violation of sections 5811, 5812 (b) 5813, 5814, 5844 or 5846 or because the weapon was at some time made by someone in violation of section 5821 . . . . "Section 5841 therefore compels every person in possession of a firearm to be a witness against himself concerning compliance with statutes for violations or which there is a heavy penalty." [footnote 2] Russell v. United States, supra, at 409. The prospective registrant within the scope of the National Firearms Act does not come within the scope of Mr. Justice Holmes' comment in United States v. Sullivan 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), where Mr.Justice Holmes said the taxpayer can "not draw a conjurer's circle around the whole matter by his declaration that to write any word upon the government blank would bring him into danger of the law," 274 U.S. at p. 264. But rather, as Mr. Justice Brennan distinguished in Communist Party of the United States of America v. Subversive Activities Control Board, 367 U.S. 1, 6 L. Ed. 2d. 625 (1961), and as is true with adherence to section 5841 the individual "seeks to draw no such 'conjurer's circle' for [himself] in an essentially known criminal area of inquiry, but to assert [his] privilege against replying to an inquiry in a regulatory area permeated with criminal statutes in circumstances where any work upon the paper responsive to the inquiry would involve [him] in the admission of one of the major elements of a crime ..." 367 U.S. at 199, 6 L. Ed. 2d at 748, in the case of section 5841 actual admission of the crime itself. In United States v. Sullivan, supra, the defendant was convicted of willfully refusing to make a return of his net income. 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. Mr. Justice Holmes said: " ...if the form of return provided called 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 the Russell case, supra, 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 one was actually or presumably in unlawful possession of a firearm because he or someone else had failed 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 there involved did not require self-incrimination. Russell, (or any other defendant accused of violation of section 5841) could make no report under section 5841 without admitting "actual or presumptive violation of law". The dilemma created by apparently well intentioned federal statutes such as the National Firearms Act containing provisions for compulsory registration of information with governmental agencies, which information is on its face incriminating the individual supplying same, has been considered in other areas in which control is desirable. In United States v, Ansoni, 138 F. Supp. 451 (N.D. Ill., 1955) aff'd 240 F. 2d 412 (7th Cir. 1957), cert, den'd 353 U.S. 936 (1957), District Judge William J. Campbell held that section 1173, Title 15, United States Code, was violative of the Constitutional guaranty against self incrimination. That statute required every manufacturer or dealer in gambling devices to file a monthly report of all sales and deliveries of gambling devices as of the close of the preceding calendar month. The Court in that case said inter alia: "The problem here . . . is as simple as it would be if all burglars . . . were required to file monthly reports of burglaries perpetrated during the preceding month together with an inventory of all stolen goods. Such a requirement would certainly simplify the apprehension and prosecution of burglars; but it would be repugnant to the Fifth Amendment to our Constitution of the United States... "Certainly a statute which compels a man to list his crimes under penalty of prison would insure the punishment of many criminals who would otherwise remain unpunished. But such insurance is too costly for any free people, for it may be bought only with a surrender of a good measure of their liberty. 138 F. Supp. at 454. In Communist Party of the United States of America v. Subversive Activities Control Board, 223 F. 2d 531 (D.C. Cir. 1954) the Court of Appeals for the District for Columbia, although not clearly called upon to decide the question, reviewed the registration aspects of the Subversive Activities Control Act of 1950, Title 50 U.S.C. section 781 et seq, particularly noting that the individual required to sign the organization registration statement as an executive official of the party would thereby admit his membership in the part and apparently incriminate himself. However, as the court pointed out, section 4(f) of the act provides that the aforementioned fact of registration cannot be admitted in evidence in any criminal proceeding, Title 50 U.S.C. 782. The court thus pointed up a key distinction between the registration provisions of the Subversive Activities Control Act and section 5841 of Title 26 by virtue of the inclusion in the former act that "no person called upon to sign is in danger of prosecution which depends upon the bare fact of registration". As has already been shown, the same protection is not available under section 5841. Not only may the mere fact of registration be used as evidence in a criminal prosecution, but since the only persons required to register are those who have railed to comply with the act, registration is in itself conclusive of violation. Surely the evils sought to be eliminated by the National Firearms Act are no more pressing than the ever threatening communist conspiracy and yet the self-incriminatory implications of registration which were recognized and specifically written out of the Internal Security Act remain in the National Firearms Act in diametric opposition to the constitutional guarantees of the Fifth Amendment. Recognizing the reluctance of the judiciary to void the what may appear to be clear intent of the legislature, an analysis of the National Firearms Act since inception calculated to reveal the source of the acts infringement on personal rights is appropriate. The act as originally implemented in the year 1934 was not violative of said personal rights. It was subsequently contaminated, as will be shown, by the passage of time and the change of status of certain guns theretofore unregulated through their classification by the Act as "firearms" subject to governmental control. The National Firearms Act (c 757, section 18, 48 Stat. 1240) which was enacted to take effect June 26, 1934, defined by statute the term "firearm" for the first time. The weapons which fell within the boundaries of the said definition were subjected to certain taxes and to regulation which were allegedly implemented to facilitate the collection of the taxes. Among the more important regulatory provisions of the law as it was then constituted was section 1132 (d) which was the forerunner of section 5841 which section is herein protested. 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 required to register firearms received in conformity with section 1132 (b) and (c) or 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), which has been followed in other federal districts, 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. 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 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 rounded 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. 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.) In answer to our contention that compliance with the registration requirement of section 5841 constitutes an admission of a criminal offense, it has been suggested 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 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. POINT II. SINCE SECTION 5841, TITLE 26 U.S.C., IS UNCONSTITUTIONAL AND UNENFORCEABLE SECTION 5855 WHICH APPLIES ONLY TO THOSE REQUIRED TO COMPLY WITH SECTION 5841 AND PROHIBITS THEM FROM CARRYING) ON AN INTERSTATE FIREARMS BUSINESS IS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA Section 5855, Title 26 U.S.C., the Federal statute upon which the present indictment is founded provides: "It shall be unlawful for any person who is required to register as provided in section 5841 and who shall not have so registered, or any other person who has not in his possession a stamp affixed order as provided in section 5814 or a stamp affixed declaration as provided in section 5821 to ship, carry, or deliver any firearm in interstate commerce. (emphasis added) The right to keep and bear arms is guaranteed by the Second Amendment of the Constitution of the United States of America. The occupation of carrying on a firearms business in interstate commerce is a lawful and legitimate occupation subject only to the revenue provisions of the National Firearms Act and as such is a property right of which a civilian may not be deprived except by due process of law as provided by the due process clause of the Fifth Amendment of the Constitution of the United States of America. Barn Ballroom Co. vs. Ainesworth, 57 Supp. 299 (DC Va. 1945); New State Ice Co. vs. Liebman, 285 U.S. 262, 59 S.Ct. 3719 76 L Ed. 747; J. Burns Baking Co. vs. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L Ed. 813; Louis K. Ligett Co. vs. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L Ed. 204. As was shown in the preceding argument, Section 5841 is on its face unconstitutional and unenforceable. A necessary element of conducting the occupation of carrying on a firearms business in interstate commerce is the shipment carrying or delivery of such firearms in interstate commerce. Section 5855 makes compliance with Section 5841 in all instances a prerequisite to shipping, carrying, or delivering any firearm in interstate commerce. We are therefore faced with the situation where carrying on of a lawful and legitimate occupation is conditioned upon compliance with the statute which is on its face unconstitutional and unenforceable. Such a condition is so burdensome and so unreasonable that it constitutes an outright taking of the property right of the individual engaged in such business without due process of law; and for that reason, Section 5855, as it relates to compliance with Section 5841, is unconstitutional and unenforceable under the provisions of the due process clause of the Fifth Amendment of the Constitution of the United States of America. POINT III. SECTION 5855, TITLE 26 U.S.C., RESTRICTS A CERTAIN CLASS OF PERSONS FROM SHIPPING ANY FIREARMS, WHICH CLASS IS DEFINED AS THOSE WHO ARE REQUIRED TO REGISTER UNDER SECTION 5841. SINCE NO ONE CAN BE REQUIRED TO REGISTER UNDER SECTION 5841, THAT PORTION OF SECTION 5855 WHICH RELATES TO THAT CLASS OF PERSONS IS IMPOTENT. The present indictment is founded on an allegation that the defendant unlawfully shipped unregistered firearms in interstate commerce in violation of Section 5855. There is no section of the National Firearms Act which prohibits the shipment of unregistered firearms. On the contrary, Section 5855 makes it a crime to ship any firearm, not merely unregistered firearms, in interstate commerce. The persons who are so prohibited from shipping firearms in interstate commerce are those who, according to the section, are required to register, as required by Section 5841, but who fail to so register. It should be noted that the section does not correlate the registration requirements to the weapons being shipped. If Section 5855 means something other than what is suggested above, then that section is so ambiguous and so vague as to be unconstitutional and unenforceable under the Fifth Amendment of the Constitution of the United States of America. The question presented by Section 5855 is what persons are required to register under Section 5841. As has already been pointed out herein, Section 5841 is unconstitutional on its face and therefore unenforceable. Consequently, it is clear that no one is required to register as provided in Section 5841; and therefore, that portion of Section 5855 which states that one who is required to register and shall not have so registered may not ship, carry, or deliver firearms in interstate commerce is impotent and has no force or effect. The Court should studiously avoid the pitfall of confusion which has been generated by cases holding Section 5851 to be constitutional, notwithstanding the unconstitutionality of Section 5841. Sections 5851 and 5855 are not in para materia in this regard. Section 5851 provides: "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 5846, 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. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury." It must be carefully noted that the above quoted section concerns itself with a firearm which has not been registered in accordance with Section 5841. Section 5851, the possession statute, deals with things, a class of weapon, an unregistered firearm. It does not deal with individuals, a class of persons, as does Section 5855. The courts have held that even though Section 5841 is unconstitutional no one is required to have in his possession an unregistered firearm; and therefore, the unconstitutionality of Sect ion 5841 does not necessarily contaminate the viability of Section 5851. Section 5855 on the other hand, as has already been pointed out, does not deal with things, a class of firearms, unregistered firearms. It deals rather with all firearms but limits the application to individuals, a class of persons, namely, those persons who are required to register under Section 5841 and have not so registered. Since, as has already been established, Section 5841 is unconstitutional and unenforceable, no person can be required to register in compliance with its provision; and therefore, Section 5855 as it relates to this artificial classification of individuals is void and unenforceable, CONCLUSION For all of the foregoing reasons, the defendant, Valmore J. Forgett, Jr., respectfully urges that the indictment pending against him specifies a violation of a Federal act which is unenforceable, and we respectfully move this honorable Court to dismiss the said indictment. BAKER, HOSTETLER & PATTERSON Attorneys for Defendant By H. Stephen Madsen CARPENTER, BENNETT & MORRISSEY 744 Broad Street Newark, New Jersey Charles J. Irwin Of Counsel FOOTNOTES 1. The potentially applicable provisions of the National Firearms Act are: 26 U.S.C. section 5801 "Section 5801. Tax (a) Rate. - On first engaging in business and thereafter on or before the first day of July of each year, every importer, manufacturer, and dealer in firearms shall pay a special tax at the following rates: "(1) Importers or manufacturers, - Importers or manufacturers, $500 a year or fraction thereof; "(2) Dealers other than pawnbrokers. - Dealers, other than pawnbrokers, $200 a year or fraction thereof; "(3) Pawnbrokers. - Pawnbrokers, $300 a year or fraction thereof: Provided, That manufacturers and dealers in guns with combination shotgun and rifle barrels, 12 inches or more but less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and manufacturers and dealers in guns classified as 'any other weapon' under section 5848 (5), shall pay the following taxes: Manufacturers, $25 a year or fraction thereof; dealers, $10 a year or fraction thereof. "(b) Cross reference. For license to transport, ship, or receive firearms or ammunition under the Federal Firearms Act, see section 3 of the Act or June 30, 1938 (52 Stat. 1251; 15 U.S.C. 903). "As amended Sept. 2, 1958, Pub.L. 85-859, Title II section 203 (a), 72 Stat. 1427; June 1, 1960, Pub.L. 86-478, section 1, Stat. 149." 26 U.S.C. section 5811 - "Section 5811. Tax (a) Rate. - There shall be levied, collected, and paid on firearms transferred in the United States a tax at the rate of $200 for each firearm: Provided, That the transfer tax on any gun with combination shotgun and rifle barrels, 12 inches or more but less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and on any gun classified as 'any other weapon' under section 5848 (5), shall be at the rate of $5. The tax imposed by this section shall be in addition to any import duty imposed on such firearm. "(b) By whom paid. - Such tax shall be paid by the transferor: provided, That if a firearm is transferred without payment of such tax the transferor and transferee shall become jointly and severally liable for such tax. As amended Sept. 2, 1958 Pub. L. 85-859, Title II, section 203 (b), 72 Stat. 1427, June 1, 1960, Pub.L. 86-478, section 2, 74 Stat. 149. 26 U.S.C. section 5814 - "Section 5814. Order Forms (a) General requirements. - It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article on an application form issued in blank in duplicate for that purpose by the Secretary or his delegate. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this chapter: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof. "(b) Contents of order form. - Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Secretary or his delegate. The original thereof, with stamp affixed, shall be returned to the applicant. "(c) Exemption in case of registered importers, manufacturers, and dealers. - Importers, manufacturers, and dealers who have registered and paid the tax as provided,for in this chapter shall not be required to conform to the provisions of this section with respect to transactions in firearms with dealers or manufacturers if such dealers or manufacturers have registered and have paid such tax, but shall keep such records and make such reports regarding such transactions as may be prescribed by regulations under this chapter. "(d) Supply. - The Secretary or his delegate shall cause suitable forms to be prepared for the purposes of subsection (a), and shall cause the same to be distributed to officers designated by him. As amended Sept. 2, 1958, Pub.L, 85-859, Title II, section 203 (c), 72 Stat. 1427. 26 U.S.C. 5821 - "Section 5821, Rate, exceptions, etc. (a) Rate. - There shall be levied, collected, and paid upon the making in the United States of any firearm (whether by manufacture, putting together, alteration, any combination thereof, or otherwise) a tax at the rate of $200 for each firearm so made. "(b) Exceptions. - The tax imposed by subsection (a) shall not apply to the making of a firearm - "(1) by an person who is engaged with the United States in the business of manufacturing firearms; "(2) from another firearm with respect to which a tax has been paid, prior to such making, under subsection (a) of this section; or "(3) for the use of- (A) the United States Government, any State, Territory, or possession of the United States, any political subdivision thereof, or the District of Columbia or (B) any peace officer or any Federal officer designated by regulations of the Secretary or his delegate. Any person who makes a firearm in respect of which the tax imposed by subsection (a) does not apply by reason of the preceding sentence shall make such report in respect thereof as the Secretary or his delegate may by regulations prescribe. As amended Sept. 2, 1958, Pub.L. 85-859, Title II, section 203 (d), 72 Stat. 1427. 2. The penalty provision of the National Firearms Act, Section 5851, Title 26 U.S.C. reads as follows: "Section 5851. Possessing firearms illegally 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 5846, 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. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury. As amended Sept. 2, 1958, Pub.L. 85-859, Title II, section 203 (h) (1), (2), 72 Stat. 1428.