IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION United States of America Plaintiff Criminal No. CR 23652 vs ANSWER TO REPLY BRIEF Valmore J. Forgett, Jr., Defendant The defense principally argues that the registration provisions of section 5841 Internal Revenue Code (26 U.S.C. 5841) are unconstitutional relying on Russell v. U.S. (C.A. 9th 1962) 306 F. 2d 402. Russell was convicted on a plea of guilty of possessing firearms which he unlawfully, wilfully and knowingly failed to register with the "Collector of Internal Revenue". The date of the alleged violation was October 28, 1956. Section 5841 then, as now, required registration with the "Secretary or his delegate". The information filed in the Russell case stated that the offense was a violation of 26 U.S.C. 5851. In 1956 section 5851 did not make it a crime to possess an unregistered firearm. The section was later amended by the Excise Tax Technical Changes Act of 1958 (PL 85-859 of September 2, 1958, 72 Stat, 1275) to make possession of an unregistered firearm a crime. The Court of Appeals for the Ninth Circuit pointed out in the Russell decision that section 5851, as it read at the time of the alleged crime, contained no provision making the possession of an unregistered firearm a crime and the Court construed the information as charging Russell with failing to register the firearm, in violation of section 5851 of the Internal Revenue Code. The Court did note that the Russell information would have charged the crime under section 5851 as the section reads today, (See note 11, 302 F. 2d 407.) The defense urges that the Russell case is dispositive of the charge brought in the instant case and that the Court's reasoning in the Russell case should be accepted in this case. The reliance on the Russell case is misplaced as two recent cases decided by the Ninth Circuit Court of Appeals make clear. In Frye v. U.S. (C. A. 9th March 27, 1963) 315 F. 2d 491 the defendant had been convicted under a one-count indictment charging that he and Barr had in their possession one 12-gauge shotgun with an 8-inch barrel, a firearm as defined in 26 U.S.C. section 5848, which had not been registered with the Director, Alcohol and Tobacco Tax Division, Washington, D. C., in violation of Section 5851. On appeal the defendant attacked section 5851, as read with 5861, as unconstitutional under the due process clause of the Fifth Amendment and also under the Eighth Amendment to the United States Constitution. Evidence in the case discloses that police officers found a sawed-off shot gun in the car in which Frye and Barr had been riding. Shot gun shells were in Frye's pocket and other shells were found in the car. The Government established that the weapon was not registered through a certificate from the Office of the Director, Alcohol and Tobacco Tax Division. The Court distinguished it's decision in the Russell case as not in point since in the Frye case the defendants were not charged with failing to register the weapon as the Court had found to be the case in Russell. On April 11, 1963 the same Court decided Starks v. U.S., 316 F. 2d 45 wherein the defendant had been convicted of one count of an indictment that he did "knowingly possess a firearm as defined in section 5848, Title 26, United States Code * * *, said possession being in violation of sections 5851 and 5861, Title 26, United States Code". On the appeal it was argued among other things that the conviction was contrary to the privilege against self-incrimination under the Fifth Amendment. The Court again distinguished the Russell case, and pointed out that the defendant had not been charged with the failure to register, but instead had been charged with possession of an unregistered weapon. The lack of registration was again established by a certificate from the Office of the Director of Alcohol and Tobacco Tax Division. The other evidence was found to be sufficient to establish possession. Our information is that a petition for certiorari has been filed in the Frye case and that a petition for rehearing has been filed in the Starks case. In Ortiz v. U, S, (C. A. 5th May 17, 1963) 317 F. 2d 277 the conviction of the defendants for failure to register a firearm which they had in their possession in violation of 26 U.S.C.A. 5841 and 5851, was upheld without any discussion of the Russell case or of the constitutionality of the registration requirements under the National Firearms Act. U. S. v. Decker (C.A. 6th 1961) 292 F.2d 89, cert. denied (1961) 368 U. S. 834, referred to by the defense, is, of course, entirely favorable to the Government. In the Decker case the defendants were convicted of conspiracy to possess the firearm required to be registered with the Secretary of the Treasury, which had been transferred in violation of the law and in another count with the substantive defense of possession of the said firearm, in violation of 18 U.S.C. 371 and 26 U.S.C. 5841 and 5851. The defense seeks to distinguish Hazelwood v. U.S. (D. C. Calif. 1962) 208 F. Supp. 622. The decision in this case in the light of the Frye and Starks cases is unquestionably correct. U. S. v. Mares (D. C. Colo. 1962) 208 F. Supp. 550 was cited by the defense. In this case verdicts of guilty for possession of a firearm having failed to register if contrary to 26 U.S.C. 5841 and 5851 were set aside on the motion of the United States Attorney shortly after the Russell case was decided. It is noteworthy that convictions on the counts alleging possession of a firearm made in violation of sections 5821 and 5851 were upheld. The gravamen of the charge in this case is the movement in interstate commerce of unregistered firearms in violation of sections 5855 and 5861, Internal Revenue Code. Forgett and his company were registered and had paid the special occupational tax as dealers under the National Firearms Act. This was also true of W. David Tallmadge from whom Forgett obtained the unregistered firearms. Had Tallmadge lawfully acquired the weapons, or had Forgett arranged for their registration prior to the interstate transportation, there would have been no violation under the Act. Since dealers such as Tallmadge and Forgett are required to maintain records of firearms, Forgett could have easily satisfied himself of the status of the firearms from the records Tallmadge was required to keep, or if unable to locate the record in Tallmadge's files, Forgett could have inquired of the Office of the Director, Alcohol and Tobacco Tax Division where records of registration, manufacture, importation and transfer of all firearms are kept. Under the circumstances there was no compelled self- incrimination such as the Ninth Circuit Court of Appeals found objectionable in the Russell case wherein registration would reveal the fact of illegal possession. The registration of the firearms in this case was required before the interstate transportation. Forgett is not charged with the failure to register but only with the interstate transportation of unregistered firearms. It is clear from the Frye and Starks decisions that the that the Ninth Circuit Court of Appeals has not found the registration requirements of section 5841 unconstitutional per se, but has objected to these on constitutional grounds only in the situation where the charge is the failure to register a firearm in the possession of the defendant and the requirement that the firearm be registered would compel the confession of illegal possession of the firearm. In view of the foregoing the plaintiff, United States of America respectfully moves this Honorable Court to deny defendant Valmore J. Forgett's motion to Dismiss. Respectfully submitted, Merle M. McCurdy United States Attorney Certificate of Service A copy of the foregoing Answer and Brief in support thereof was this 26th day of July, 1963, mailed to Attorney Charles J. Irwin of Counsel of Carpenter, Bennett and Morrissey, 744 Broad Street, Newark 2, New Jersey and to Attorney H. Stephen Madsen of Counsel of Baker, Hostetler and Patterson, Union Commerce Building, Cleveland 44114 Ohio. Merle M. McCurdy United States Attorney