Cite as U.S. v. Forgett, No. 23652 (N.D. Ohio December 20, 1963) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA Criminal No. 23652 v. MEMORANDUM ON MOTION VALMORE J. FORGETT, JR. TO DISMISS INDICTMENT KALBFLEISCH, J Defendant was indicted on March 22, 1961, for violating Section 5855 of Title 26, U.S.C.A. On December 4, 1961, he entered a plea of guilty. On September 20, 1962, Judge McNamee of this Court, who had accepted his plea of guilty and who had imposed sentence, permitted defendant to withdraw his guilty plea and ordered the sentence vacated and set aside. Thereafter defendant filed a motion to dismiss the indictment on the basis that the section under which he was charged violated his rights against self-incrimination under the Fifth Amendment of the United States Constitution. Section 5855 provides that it is unlawful for anyone who is required to register a firearm pursuant to Section 5841 of Title 26, U.S.C.A., and who has not so registered, to ship, carry or deliver any firearm in interstate commerce. That section is a prohibition against certain classes of persons' engaging in interstate firearms shipments; that is, it forbids any person who possesses any firearm in violation of Section 5841 from engaging in interstate shipments of any type of firearm, and it makes no difference whether the firearms which are to be shipped are registered or unregistered. Section 5841 requires that all persons possessing firearms shall register them, and then excepts from registration certain firearms which have been previously properly registered. Section 5851 of Title 26, U.S.C,A., provides that it is unlawful for anyone to possess a firearm which is required to be registered pursuant to Section 5841 if it has not been so registered. The Ninth Circuit Court of Appeals held in Russell v. United States, 306 F. 2d 402, that Section 5841 unconstitutionally required a person to incriminate himself because when it was combined with Section 5851 it required that every person who was guilty of possessing a firearm in violation of Section 5851 must come forward and identify himself by registering that firearm. The Russell case was followed explicitly by the District Court of Colorado in McCann v. United States, 217 F. Supp. 751 (1963), and implicitly in United States v. Mares, 208 F. Supp. 550 (1962), affirmed by the Tenth Circuit at 319 F. 2d 71 (1963). Defendant herein contends that a conviction under Section 5855 would likewise be in violation of his Fifth Amendment rights because he is charged with engaging in interstate commerce in firearms at a time when he possessed unregistered firearms. It should be noted that Section 5855 also precludes from participating in interstate commerce in firearms such persons as are in violation of certain other sections of the National Firearms Act. However, defendant's guilt, if it be ascertained, could only, under the facts as charged, be premised upon his failure to register pursuant to Section 5841. The same Court which decided the Russell case subsequently held that the unconstitutionality of Section 5841 did not preclude a conviction under Section 5851, although the forbidden action charged under Section 5851 was the possession of a firearm which had not been registered as required by Section 5841. Frye v. United States 315 F. 2d 491 (1963), certiorari denied 375 U.S. 849. Judge Hamley, who wrote the Russell opinion, was a member of the Court which decided the Frye case. The Ninth Circuit reiterated the identical view in Starks v. United States, 316 F. 2d 45 (1963). The same conclusion was reached by the District Court of California in Hazelwood v. United States, 208 F. Supp. 622 (1962). The reasoning of these later cases distinguishes the Russell case by saying that the charge under Section 5851 was the possession of an unregistered firearm, not the failure to register, and therefore that the unconstitutionality of Section 5841 does not preclude the use of Section 5841 as a basis for a 5851 conviction. This same view was apparently approved in Sipes v. United States, 321 F. 2d 174 (8th Cir., 1963), certiorari denied 375 U.S. 913. It therefore follows that, assuming that Section 5841 is unconstitutional, as the opinions in the Frye, Starks and Sipes cases did, if Section 5841 may nevertheless be used as a basis for a Section 5851 conviction there appears to be no reason why it may not be used as the basis for a Section 5855 conviction. The defendant's motion to dismiss the indictment will be denied, with leave, however, for defendant to reassert the motion at the time of trial. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, VS No. 23652 Criminal VALMORE J. FORGETT, JR. O R D E R Upon consideration, IT IS ORDERED that the motion of defendant herein to dismiss indictment is hereby denied, with leave for defendant to reassert the motion at time of trial. GERALD E. KALBFLEISCH United States District Judge