Filed April 11, 1963. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DISTRICT UNITED STATES OF AMERICA, Plaintiff Criminal No. 23652 VS. MOTION TO DISMISS THE VALMORE J. FORGETT, JR., INDICTMENT Defendant VALMORE J. FORGETT, JR., the above-named defendant, moves the court to dismiss the indictment on the ground that 26 U.S.C. Section 5841, violation of which section is the crime charged, is violative of the Fifth Amendment of the Constitution of the United States of America and therefore unenforceable, as is more fully shown in the supporting brief attached hereto. BAKER, HOSTETLER & PATTERSON Attorneys for Defendant 1956 Union Commerce Building Cleveland 14, Ohio Of Counsel CARPENTER, BENNETT & MORRISSEY 744 Broad Street Newark 2, New Jersey TABLE OF CONTENTS Page Statement of Facts 1 Argument 5 Exhibits 13 TABLE OF CASES Communist Party of the United States of America v. Subversive Activities Control Board 367 U.S. 1, 6 L.ed. 2d 625 (1961) 9 Communist Party of the United States of America v. Subversive Activities Control Board 223 F.2d 531 (D.C. Cir. 1954) 11 Russell v. United States 306 F. 2d 402 (9th Cir. 1962) 5,8,9 United States v. Ansani 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) 10 United States v. Kahriger 345 U. S. 22, 34, 73 S. Ct. 5101 97 L. ed. 754 6 United States v. Sullivan 274 U. S. 259, 47 S. Ct. 607, 71 L. ed. 1037 9 United States v. White 322 U. S. 694, 83 L. ed. 1543 (1944) 6 STATUTES Page U.S.C. Const. Amend. 5 4,5 15 U.S.C. section 1173 10 26 U.S.C. section 5801 et seq 7,8 26 U.S.C. section 5801 7 26 U.S.C. section 5811 7 26 U.S.C. section 5814 7 26 U.S.C. section 5821 7 26 U.S.C. section 5841 1, 3, 4, 5, 6,7, 9,11,12 26 U.S.C. section 5851 7,8,3 26 U.S.C. section 5848 1 26 U.S.C. section 5848(10) 7 26 U.S.C. section 5855 1 26 U.S.C. section 5861 12 50 U.S.C.A. section 781, et seq. 11 50 U.S.C.A. section 782 11 RULES Fed. Rules Cr. Proc. Rule 12(h), 18 U.S.C.A. 4 Model Code of Evidence, Rule 202 6 Uniform Rule, Evidence, Rule 24 6 STATEMENT OF FACTS On or about April 21, 1961, the defendant, Valmore J. Forgett, Jr., answered a federal indictment before this court, a copy of which is appended hereto as Exhibit "A". 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. See Judgment appended hereto as Exhibit "B." The incidents leading up to the aforesaid indictment and plea may be summarized as follows: On or about October 25, 1959, Mr. Forgett received a telephone call from Mrs. W. David Talmadge. She advised Mr. Forgett that her husband, sole owner of Datal Industries, Inc., a Wisconsin corporation, had been committed to a state psychiatric hospital and it was necessary to immediately dispose of all of the assets of said company consisting principally of firearms and ammunition. Mrs. Talmadge requested Mr. Forgett's assistance to accomplish the sale of said assets. Responding to her request, Mr. Forgett conferred with Mr. Talmadge's attorney, Charles J. Herro, Esq., in Waupaun, Wisconsin, and executed an agreement, under the terms of which Mr. Forgett agreed to sell "all guns and parts thereof and accessories of any and all description and all ammunition" contained in the building occupied by Datal Industries, Inc., as a commission agent for said company. Thereafter, approximately one week later, Mr, Forgett leased a truck, into which was loaded for transportation to New Jersey, all of the materials in the Datal building. The day the truck was loaded the temperature was below zero, the building occupied by Datal Industries, Inc. was without heat, and two men loaded a tractor trailer truck with all of the stock, merchandise, and miscellaneous material found in the building. This included great quantities of small parts, ammunition and weapons, including machine guns, rifles and pistols, many of which were in various stages of assembly or disassembly and were obviously not operable and miscellaneous items such as push brooms and cleaning materials. Because of the frigid temperatures the men worked as rapidly as possible and loaded the truck in approximately four and one-hair hours under extremely adverse conditions which would have made performance of a time consuming physical inventory of the goods loaded an unusual hardship. Instead of performing such an inventory, and with the reasonable expectation of accomplishing the same end, Mr. Forgett, with the aid of Mr. Talmadge's secretary, Miss Avery, went through all of the records of Datal Industries, Inc, and extracted therefrom all of the Internal Revenue Service Form 2s which are forms required by law to be filed immediately upon the manufacture or receipt of any firearm, and which forms should have reflected all of the firearms in the possession of Datal Industries, Inc. Mr. Forgett then prepared a list of all the firearms shown on the aforementioned Form 2s and assumed to have been loaded on the truck and filed with the Director, Alcohol and Tobacco Tax Division, U. S. Treasury Department Form 3s showing the transfer of the aforesaid firearms to Mr. Forgett. Upon the accomplishment of said filing Mr. Forgett assumed that he had fully complied with Section 5841 and the truck started for New Jersey. The truck carrying the merchandise was subsequently stopped at a "weigh station" in Cleveland, Ohio and the shipment seized. It was thereafter ascertained that fifty-two firearms included in the shipment had not been registered when the above described forms were filed and thereupon the indictment herein was brought, and the plea entered as already described. Subsequently in 1962 Mr. Forgett moved this court to permit a withdrawal of a plea of guilty, which motion was granted and on September 20, 1962 an order was filed with the Clerk of this Court withdrawing the plea of guilty and vacating and setting aside the judgment and order of probation entered on January 26, 1962. See copy of order attached hereto as Exhibit "C" Defendant, Valmore J. Forgett, Jr., now moves this Court to dismiss the indictment on the ground that Section 5841, Title 26 (1954) United States Code, is violative of the Fifth Amendment and, therefore, unconstitutional and unenforceable, which motion is made in accordance with the provisions of Federal Rules of Criminal Procedure, Rule 12(b) Title 18 United States Code. ARGUMENT The factual situation herein as described above is not functionally distinguishable from the case of Russell v. United States, 306 F.2d 402 (C.A. 9th Cir. 1962) which was 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, United States Code. In that case the court held that Section 5841 required unconstitutional self- incrimination, since it requires admission of actual or presumptive unlawful possession. In a very complete opinion Circuit Judge Fred G. Hamley squarely met and eliminated every argument advanced in support of the statute's validity, and defendant urges the adoption by this court in the case sub judice of the reasonings and conclusions reached in the Russell case. The Fifth Amendment of the Constitution of the United States provides that no person "shall be compelled in any criminal case to be a witness against himself." This privilege "is essentially a personal one, applying only to natural individuals. It grows 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 individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him . . . The prosecutors are 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." U. S. v. White, 322 U.S. 694, 88 L. ed. 1543 (1944). It has been broadly construed to forbid compulsory incrimination not only in any criminal case, but also in any federal inquiry where the information might be useful later to convict of a federal crime. United States v. Kahriger, 345 U.S, 22, 34, 73 S. Ct. 510, 97 L.ed. 7511. A matter will incriminate a person 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. [footnote 1] The registration provision of the National Firearms Act, 26 U.S.C. section 5841 challenged herein provides as follows: "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." Under the first sentence of Section 5841 every person possessing a firearm as defined in the Act is required to register with the secretary or his delegate certain information concerning such weapon. Under the second sentence of the said section, however, a person possessing a firearm is excused from registering such information if: (1) he acquired the firearm by transfer or importation, or if he made such a firearm and, (2) if there was compliance with the provisions of Chapter 53, Title 26, United States Code, relating to the transfer, importation or making of firearms as the case may be. [footnote 2] Since the term "transfer" is defined in Section 5848(10), Title 26, United States Code, to include, "to sell, assign, pledge, lease, loan, give away, or otherwise dispose of", Section 5841 on its face requires registration of firearms acquired in any way whatsoever and thereby forces persons everywhere, known or unknown, who are in possession of a firearm or firearms and have violated a provision or provisions of the firearms act as enumerated in Section 5851, infra, to come forward and identify themselves. Thus, every person to whom the National Firearms Act applies must register unless he has complied fully with the provisions of the Act. If he has not so complied he must admit it, which admission, when compelled, is violative of the privilege against self-incrimination, since the admitted failure to comply with the prescribed provisions of Chapter 53, Title 26, is prima facie evidence of violation of Section 5851. As was stated in the Russell case supra: "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." Section 5851, Title 26, United States Code,provides: "It shall be unlawful for any person to receive or possess a firearm which has at any time been transferred in violation of 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." (emphasis added.) "By reason of the rebuttable presumption provided for in the last sentence of section 5851 quoted above, 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 violation of which there is a heavy penalty." [footnote 3] 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 Justice Holmes' comment in United States v. Sullivan, 274 U. S. 259, 47 S. Ct 607, 71 L. ed. 1037, where he 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 herein the defendant "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 word 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. The dilemma presented 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 to the individual supplying same, has also been studiously considered in the unrelated areas of gambling, and anti-communist legislation. In United States v. Ansani, 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 of Columbia, although not called upon to decide the question, reviewed the registration aspects of the Subversive Activities Control Act of 1950, [footnote 4] 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 party 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, 50 U.S.C.A. section 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 of section 4(f) id 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 failed to comply with the Act, registration is in itself conclusive of violation. Surely the evils sought to be eliminated by the Federal Firearms Act are no more pressing than the 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 guaranties of the Fifth Amendment. It is apparent from the foregoing that the Legislature and the courts have recognized the dangers inherent to individual constitutional rights through compulsory statutes and where required, have held such statutes to be invalid. It is beyond dispute that the registration required by section 5841, Title 26, United States Code, compels the possessor of a firearm to come forward and by the act of registering as required, give witness that he has failed to comply with the provisions of the National Firearms Act, and therefore is subject to criminal prosecution under section 5861 of said Act. For all of the foregoing reasons defendant moves the court to dismiss the indictment herein as based upon alleged violation of a statute which is constitutional and unenforceable. Respectfully submitted, CARPENTER, BENNETT & MORRISSEY ATTORNEYS FOR DEFENDANT By Elmer J.Bennett A Member of the Firm Charles J. Irwin On the Brief FOOTNOTES 1 Uniform Rules of Evidence 24 Model Code of Evidence Rule 202 (1942) 2 The potentially applicable provisions of the National Firearms Act are: (1) Importers, manufacturers and dealers must pay a special tax. 26 U.S.C. section 5801. (2) A tax must be paid on the transfer of any firearm. 26 U.S.C. section 5811. (3) A transfer can only be made by filing an application for a transfer designating the transferee. 26 U.S.C. section 5814. (4) A tax must be paid upon the manufacture, creation or alteration of a firearm. 26 U.S.C. section 5821. 3 The penalty provision of the National Firearms Act, 26 U.S.C. section 5851 reads as follows: "Any person who violates or falls 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 five years, or both, in the discretion of the court." Aug. 16, 1954, 9:45 a.m. E.D.T. c. 736, 68 A. Stat. 729. 4 section 781 et seq., Title 50, United States Code.