Cite as U.S. v. Taylor, 286 F.Supp. 683 (E.D.Wis. 1968)

              UNITED STATES of America, Plaintiff,

                               V.

                 Danny Marvin TAYLOR, Defendant.

                         No. 67-CR-178.

          United States District Court E. D. Wisconsin.

                          May 15, 1968.

     John H. Niebler, Menomonee Falls, Wis., for plaintiff.

     Thomas E. Weil, Asst. U. S. Atty., Milwaukee, Wis., for
defendant.

                       DECISION ON MOTION

                MYRON L. GORDON, District Judge.

     This is a motion by the defendant to dismiss a one count
indictment which accuses him of a violation of 26 U.S.C. section
5851.  The indictment, dated December 7, 1967, charges Mr. Taylor
with the possession of a shotgun which allegedly had been
manufactured in violation of 26 U.S.C. section 5821.

     Mr. Taylor's motion is based upon the recent decision of the
United States supreme court in Haynes v. United States, 390 U.S.
85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), wherein the court ruled
that the constitutional privilege against self-incrimination was a
full defense to one's being prosecuted either for the failure to
register a firearm under section 5841 or for the possession of an 
unregistered firearm under section 5851.  Mr. Taylor argues that he
would be obliged to endure the same type of unconstitutional self-
incrimination if he were to fulfill the obligation imposed upon him
in order to avoid the present prosecution.  See also Marchetti v.
United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968).

     In my opinion, there is an essential difference between the
case at bar and the Haynes case: sections 5821 and 5851 do not
allow one who has acquired possession of a firearm,  which had been
illegally made, to legitimatize his possession by subsequently
complying with the disclosure and taxation provisions of section
5821.  It is an offense under section 5851 to possess a weapon
which has, at any time, been made in violation of section 5821. 
The situation in the case at bar is different from that involved in
the Haynes case.

     Prior to Haynes, several courts had held that notwithstanding
the infirmity of section 5841 as incorporated into section 5851,
there was no constitutional difficulty with section 5821 and its
interplay with section 5861.  Mares v. United States, 319 F.2d 71
(10th Cir.1963); Sipes v. United States, 321 F.2d 174 (8th
Cir.1963); Russell v. United States, 306 F.2d 402 (9th Cir. 1962);
United States v. Fleish, 227 F.Supp. 967 (E.D.Mich.1964).

     The crime charged against Mr. Taylor is the possession of a
firearm which had been made in violation of section 5821.  Under
the statute, the possessor of such a firearm may not correct the
maker's failure to have disclosed an intention to make such
firearm.  Self-incrimination is not required under section 5821
since does not compel a possessor to register or otherwise
incriminate himself.  The constitutionality of this section was up-
held in United States v. Mares, 319 F.2d 71 (10th Cir.1963), which
was decided before the decision in the Haynes case.  At page 73,
the court said:

     "The declaration requirement contained in 26 U.S.C. 5821(e)
     does not violate the constitutional safeguard against self-
     incrimination in respect to prosecutions for possession of
     firearms illegally made * * * Section 5821 requires one who 
     desires to make a firearm to file a declaration of intent with
     the Secretary of the Treasury and to pay the prescribed tax. 
     In contrast with Section 5841, there is no self-incrimination
     inhering in the filing of the latter declaration or the
     payment of the tax.  The declaration and payment required by
     Section 5821 would establish the legality, rather than
     illegality, of the possession of such a firearm."

     For the reasons set forth above,

     It is ordered that the motion to dismiss must be and hereby is
denied.