IN THE UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Respondent, Vs. Case No. 84-1650 Case No. 84-1660 DONALD WALSH and INTERRAND CORPORATION, Defendants/Appellants, APPELLANTS' BRIEF STEVEN R. BAILEY MARTIN V. GRAVIS 2564 Washington Blvd., Suite 2 Ogden, Utah, 84401 Attorneys for Defendants/Appellants BRUCE C. LUBECK Assistant U.S. Attorney 350 So. Main P.O. Box 2750 Salt Lake City, Utah, 84110 Attorney for Plaintiff/Respondent TABLE OF CONTENTS PAGE STATEMENT OF THE ISSUES PRESENTED ON APPEAL ............ 1 STATEMENT OF THE CASE .................................. 2 POINT ONE - ARGUMENT A ................................. 3 ARGUMENT B ................................ 4 ARGUMENT C ................................6 POINT 2 ....................................... 11 RELIEF SOUGHT ON APPEAL ................................ 18 TABLE OF CASES AND STATUTES ARKANSAS VS. SANDERS 442 U.S. 753 (1979) ............. 3, 4, & 5 ILLINOIS VS. ANDREAS -- U.S. --, 77 LEd 2d 1003, 103 SCt (1983) ............................................. 8 SIZEMORE VS. U.S. 393 F 2d 656 (1968) Eighth Circuit ... 11 TORRES VS. PUERTO RICO 442 U.S. 465 (1979) ............. 5 U.S. VS. JACOBSEN -- U.S.--, LEd 2d 85 SCT (1984).. 8 & 9 U.S. VS. RANNEY 524 F 2d 830 (1975) Seventh Circuit .. 13, 14, & 17 U.S. VS. ROSS 456 U.S. 798 (1982) ...................... 5 WALTERS VS. U.S. 447 U.S. 649 (1982) .................. 6 & 7 TITLE 18 U.S.C. Rule 41(b) ............................ 3 TITLE 26 U.S.C. 5800 et. seq ....................... 12, 14, & 18 TITLE 26 U.S.C. 5842(a)(b) .................. 11, 12, 16, 17, & 18 TITLE 26 U.S.C. 5861(d) ................................3 & 15 TITLE 26 U.S.C 5861(i) ........................... 13, 14, 15, & 18 27 CFR 179.103 ......................................... 15 & 16 27 CFR 179.112 ................................ 15 & 16 (i) STEVEN R. BAILEY MARTIN V. GRAVIS Attorneys for Defendants 2564 Washington Blvd., Suite 2 Ogden, Utah, 84401 Telephone: (801) 621-4430 IN THE UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, APPELLANTS' BRIEF Plaintiff/Respondent, ON APPEAL Vs. DONALD WALSH and INTERRAND CORPORATION, Case No. 84-1650 Case No. 84-1660 Defendants/Appellants, STATEMENT OF THE ISSUES PRESENTED ON APPEAL POINT ONE: The Court committed reversible error in refusing to suppress the introduction of the silencers into evidence since the search and seizure of Defendant Donald Walsh's briefcase by the Bureau of Alcohol, Tobacco, and Firearms was a violation of Defendants' Fourth Amendment Rights. POINT TWO: The Court committed reversible error by construing 26 U.S.C. 5861(i) as a strict Mala Prohibita Statute by failing to construe said statute in conjunction with all sections contained in 26 U.S.C. 5800 et. seq., and the Implementing Regulations. STATEMENT OF THE CASE Defendants were each indicted on three counts of possession of unregistered firearms, three counts of interstate transportation - 2 - of unregistered firearms and two counts of possession of firearms without serial numbers. The trial was held on March 21, 22, and 23, 1984. Defendants were convicted by a jury of two counts each of possession of a firearm, to-wit: a silencer, without a serial number and were acquitted on all other counts. Defendant Donald Walsh, was traveling from Washington D.C. to Las Vegas, Nevada, on April 27, 1983, via Western Airlines, (Tran. P.19-20, lines 5 through 19). The plane stopped in Salt Lake City, Utah, and a briefcase of Defendant was mistakenly left at the Salt Lake City Airport. (Tran. P.32, lines 3-8). Said Briefcase did not have any identification on it. (Tran. P.34, lines 3-8) Employees of Western Airlines opened the briefcase on April 28, 1983, to try to determine the owner and found the guns and silencers in the briefcase. (Tran. P.54, lines 9-24). The Western Airlines Employees then called the Bureau of Alcohol, Tobacco, and Firearms. (Tran. P.86, line 7-14) Agent John Minichino of the Bureau of Alcohol, Tobacco, and Firearms arrived at the airport to investigate the guns and the silencers, (Tran. P.92, line 20-25). Mr. Minichino did not know of nor suspect there may be violations of 26 U.S.C. 5861, by the Defendants until after Mr. Minichino had seized the property, since the first items Mr. Minichino viewed in opening the Defendant's briefcase were Defendants' Federal Firearms Manufacturer's License and copies of Form 2, which are firearms registration forms. All documents were in proper order. (Tran. P.111, lines 8-12 - P.94, -3- lines 10-22). POINT ONE ARGUMENT A THE GOVERNMENT LACKED PROBABLE CAUSE TO SEARCH THE BRIEFCASE EITHER WITH OR WITHOUT A SEARCH WARRANT The items in the briefcase that were seized are not items, i.e. contraband, in and of themselves, that are subject to seizure by the Bureau of Alcohol, Tobacco, and Firearms, (hereinafter referred to as BATF). Title 26 U.S.C. 5861(d), (i) and (j) does not make possession of silencers illegal or identify them as contraband; only an unregistered silencer and/or silencers without serial numbers are made illegal by the statute. No other Federal, State or local firearm law makes possession illegal. Rule 41(b), Federal Rules of Criminal Procedure, States: "Property or persons which may be seized with a warrant, - A warrant may be issued under this rule to search for and seize any (i) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or, (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained." The BATF had no evidence at the time that Agent John Minichino observed Mr. Walsh's silencers that would have entitled the BATF to secure a Search Warrant in order to search and seize these silencers legally prior to the illegal seizure of the silencers. (Tran. P.111, lines 4 through 12). In ARKANSAS VS. SANDERS, 442, U.S., 753, (1979) the United States Supreme Court held that, -4- "The Fourth Amendment protects the privacy and security of persons in the important ways. First, it guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, in addition, this Court has interpreted the Amendment to include the requirement that normally, searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause" Therefore, since the BATF could not have seized the property pursuant to a search warrant, and in fact could not have obtained a search warrant due to the lack of probable cause to believe that the property were items that could be seized pursuant to Rule 41(b), the evidence seized should be suppressed. ARGUMENT B THE SEARCH OF THE BRIEFCASE BY THE GOVERNMENT VIOLATED THE FOURTH AMENDMENT OF THE U.S, CONSTITUTION IN THAT IT WAS MADE WITHOUT A PROPERLY OBTAINED SEARCH WARRANT The Defendants had a reasonable expectation of privacy in putting the silencers in the briefcase, and a search of the briefcase could not be made without first obtaining a search warrant as the silencers were not contraband. Defendants' briefcase was found by Miss Linda Erian, an employee of Western Airlines in Salt Lake City, Utah, on the night of April 27, 1983, allegedly without any identification on it. She apparently attempted to open the briefcase to identify the owner but was unable to do so because the case was locked. (Trans, P33, line 4 through P35, line 13.) In the case of ARKANSAS VS. SANDERS, supra, a piece of luggage was searched without a search warrant, but where probable -5- cause to obtain a search warrant existed, the Court held, "A lawful search of luggage generally may be performed only pursuant to a warrant. In CHADICK, we declined an invitation to extend the CARROLL exception to all searches of luggage noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, there is not the slightest danger that (the luggage) or it's contents could have been removed before a valid search warrant could be obtained. 433 U.S. at 13, 53, L.ed 2d 538, 97 S. Ct., 2476. As we observed in that case, luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." In the case of TORRES VS. PUERTO RICO, 442 U.S. 465, (1979) the Court held that luggage is not subject to search without a warrant. To do so, would violate one's Fourth Amendment guarantees, particularly when the government had sufficient time to obtain a search warrant. The case of U.S. VS. ROSS, 456, U.S., 798 (1982) did not overrule ARKANSAS VS. SANDERS, supra, ROSS only enlarged the automobile exemption of warrantless searches to include containers in automobiles. The Court specifically stated: "Our decision today is inconsistent with the disposition in ROBBINS VS. CALIFORNIA and with the portion of ARKANSAS VS. SANDERS on which the plurality in Robbins relied. Nevertheless, the doctrine of stare decisis does not preclude this action. Although we have rejected some of the reasoning in Sanders, we adhere to our holding in that case." The search and seizure of the silencers by the BATF was illegal since BATF failed to obtain a search warrant even though the BATF Agents had more than ample time and opportunity to obtain one. -6- ARGUMENT C THE ILLEGAL SEARCH BY THE GOVERNMENT WAS NOT EXCUSED BY THE PRIOR PRIVATE SEARCH BY A PRIVATE PARTY The BATF could not conduct any search that exceeded the search conducted by a private party (the employees of Western Airlines) without first obtaining a search warrant. The purpose of the search by the Western Airlines Employees was only to find the name of the owner of the briefcase. Upon opening the briefcase, they observed the silencers in the briefcase. (Trans. P54, lines 9 through 24.) Further, a copy of the BATF's registration form was enclosed clearly identifying the owner as Donald Walsh. (Trans., P58, lines 12 through P59, line 21.) In a similar case of WALTER VS. U.S., 447 U.S., 649, (1982) packages were misdelivered by Greyhound Bus Lines and opened by employees of the Company. The contents were found to contain 871 boxes of film depicting homosexual activities and the boxes had suggestive drawings and explicit descriptions of the films. One of the employees even attempted to view a film by holding it up to a light but was unsuccessful. The FBI seized the films and without a search warrant viewed them. After viewing the films the Defendants were charged with obscenity violations. The Court held the films should have been suppressed. Mr. Justice Stevens' opinion clearly stated that, - 7 - "If a properly authorized official search is limited by the particular terms of it's authorization, at least the same kind of strict limitation must be applied to any official use of a private party's invasion of another person's privacy. Even though some circumstances for example, if the results of the private search are in plain view when materials are turned over to the Government may justify the government's re-examination of the materials, surely the government may not exceed the scope of the private search unless it has the right to make an independent search." Mr. Justice White 's concurring opinion goes further in saying, "This does not mean, however, that the government subsequently may conduct the same kind of search that private parties have conducted without implicating Fourth Amendment interests. The contrary view would permit Government agents to conduct warrantless searches of personal property whenever probable cause exists as a result of a prior private search. We have previously held, however, that police must obtain a warrant before searching a suspect's luggage even if they have probable cause to believe that it contains contraband. In ARKANSAS VS. SANDERS U.S. 753, 61 L Ed 2d 235, 99235, 99 S Ct 2586 (1979); UNITED STATES VS. CHADWICK 433 US 1, 53 L Ed 2d 538, 97 S Ct 2476 (1977). The fact that such probable cause may be the product of a private search would not alter the need to comply with the warrant requirements." Thus, if the private parties in these cases had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for it's subsequent screening of them. As Mr. Justice Stevens recognized, petitioners possessed a legitimate expectation of privacy in the films and this exception was infringed upon by the Government's unauthorized screening of them. Unlike the opening of the packages that destroyed their privacy by exposing their contents to the plain view of subsequent observers, a private screening of the films would not have destroyed petitioners' privacy interest in them. Thus the -8- Government's subsequent screening of the films constituted an independent, governmental search that would have infringed on petitioners' Fourth Amendment interest, requiring the government obtaining a search warrant. The United States Supreme Court has had two opportunities to decide similar cases since WALTERS. In the Case of ILLINOIS VS. ANDREAS, -- U.S. --, 77 L Ed. 2d 1003, 103 S Ct -- (1983) the Court held that a search without a warrant after a previous legal search by Customs had revealed marijuana in a package and a DEA officer made a controlled delivery to the Defendant, no warrant was necessary for a subsequent search. In so holding the Court said: "This conclusion is supported by the reasoning underlying the "plain view" doctrine, The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity." The Supreme Court again addressed this issue in UNITED STATES VS. JACOBSEN, -- U.S. --, 80 L.Ed 2d 85, -- S. Ct -- (1984) wherein the Court held that the seizure without a warrant of suspected cocaine after a private search had revealed it's presence was valid. The reasoning of the Court in so holding was that: "Since it was apparent that the tube and plastic bags contained contraband and little else , this warrantless seizure was reasonable, for it is well settled that it is constitutionally reasonable for law enforcement officer to seize "effects" that cannot support a justifiable expect- -9- ation of privacy without a warrant, based on probable cause to believe they contained contraband". In the present case, the items seized were not contraband, nor did Agent Minichino have probable cause to suspect the silencers and other items seized were connected with criminal activity until he seized the items and searched the silencers for serial numbers. (Trans. Pg. 111, line 8 through 12 and P 94 line 10 through line 22). Therefore, the search and seizure of the silencers and other items by the BATF was unconstitutional and an infringement on the Defendants' Fourth Amendment Rights. The BATF went further in their illegal search of the silencers, when they tested the silencers, (Trans. P158, line 3 through P.161 line 7) in order to determine if they were in fact silencers. In fact, Agent Minichino transported the silencers from Salt Lake City, Utah, to Washington D.C. for the test. (Tran. P.107, 18 through 20.) In UNITED STATES VS. JACOBSEN, supra, the court allowed for the testing of contraband after a lawful seizure without a search warrant. The test the Court outlined is as follows: "(w)e must balance the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." In JACOBSEN, supra, the governmental interest that the Court found that justified the search was that the materials were of such a suspicious nature that "made it virtually certain that the substance tested was in fact contraband." -10- In this case, the items seized were not of such a suspicious nature to make it certain they were contraband, since the Defendants' Federal Firearms License and other papers including a Registration Form 2, which indicated the Defendants were properly licensed firearm manufacturers, were in the briefcase. (Trans. P.94, lines 12 through 17 and P.111, line 16 through P.113, line 20.) CONCLUSION This is, in the Trial Judge's opinion, a very close question as to whether the search and seizure were legal, (Tran. P.132, lines 7-9) but as argued above, the search and seizure of Defendant Don Walsh's briefcase and its contents, including the silencers was unreasonable and unconstitutional since at the time of the search and seizure, the BATF did not have probable cause to believe that the items were contraband or evidence of any type of criminal activity. The silencers were not in and of themselves subject to seizure without any further evidence to bring them within the requirements of Rule 41(b) of the Federal Rules of Criminal Procedure. Further, the Defendants had a reasonable expectation of privacy in his luggage, i.e., briefcase and a search of the briefcase was itself unreasonable without first obtaining a warrant. The private search of the briefcase by Western Airline Employees did not allow the government to search the briefcase without first obtaining a warrant, particularly when the BATF agent had sufficient time and opportunity to obtain a warrant. The violation by the BATF of the guarantees afforded by the Fourth Amendment requires the illegally seized silencers be suppressed. -11- POINT 2 5861(i) WAS NOT INTENDED AS A STRICT MALA PROHIBITA STATUTE BUT SHOULD BE INTERPRETED IN CONJUNCTION WITH ALL SECTIONS CONTAINED IN 26 U.S.C. 5800 ET. SEQ., AND IMPLEMENT REGULATIONS The National Firearms Act of 1960, United States Code, Title 26, Sections 5801-5862 contained language similar to the present 26 U.S.C. 5842, by requiring manufacturers and importers of firearms to identify every firearm with a serial number. Section 5852 of the 1960 Act provided that: "It shall be unlawful for anyone to obliterate, remove, change or alter the number or other identification marks required by Section 5843. Whenever on trial for a violation of this section, the defendant is shown to have or to have had possession of any firearm upon which such number or mark shall have been obliterated, removed, changed, or altered, such possession, shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury." No section of the 1960 Act made possession of a firearm without a serial number, a violation of the act; a violation occurred only if the serial number had been removed or changed. In the case of SIZEMORE VS. UNITED STATES, 393, F.2d 656, 1968 (8th Circuit), decided under the National Firearms Act of 1960, the Defendant was convicted of possession of an unregistered firearm under Section 5851 of the 1960 Act. This decision also contained language that a -12- satisfactory explanation of possession was a defense. The Court further held that a person who found an unregistered firearm had a reasonable time in which to register the firearm and one day would be a reasonable time. The National Firearms Act of 1960 was amended by the Gun Control Act of 1968 which includes Sections 26 U.S.C. 5800(i) et. seq., and particularly 5861(i). The stated purpose of the Gun Control Act of 1968, Title I, Section 101, is as follows: "The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition by Federal Regulations of any procedures or requirements other than those reasonable necessary to implement and effectuate the provisions of this title." Title 26 U.S.C. 5842(a) requires that every manufacturer and importer of firearms identify said firearm with a serial number. 26 U.S.C. 5842(b) requires that any person who possess a firearm without a serial number as required by 5842(a) shall identify the firearm with a serial number assigned by the Secretary of the Treasury and other information required by 5842(a). -13- The Defendants, as the manufacturers of the two silencers, had properly registered the silencers and applied for serial numbers with the Bureau of Alcohol, Tobacco and Firearms on the day prior to Mr. Walsh leaving for Las Vegas, Nevada, but had simply not fully completed the manufacturing process by stamping the serial numbers on the silencers which Defendant Don Walsh was prepared to do that day except that the silencers were seized by the B.A.T.F. prior to Mr. Walsh being able to inscribe the assigned serial numbers. (Trans. P.192, lines 1 through 15. The only case that has specifically construed 5861(i) is UNITED STATES VS. RANNEY, 524 F.2d 830, 1975 (7th Circuit), where the Court held that a person who received a firearm without a serial number does not have a reasonable time to apply for a serial number under 5842(b) since the very receipt of the firearm is prescribed by 5861(i). The case of Donald J. Walsh and Interrand Corporation is clearly distinguishable from RANNEY, supra, on this point in that the Defendants were manufacturers of the silencers and were not trying to sell or transfer the silencers, nor did the Defendants receive the firearms from a third-party. Further, the Defendants had lawful possession of said silencers by constructive possession of the briefcase which contained the silencers as well as identifying license and registration forms. It should also be pointed out that the silencers were properly registered to -14- the Defendants; said registration having been received by the Bureau of Alcohol, Tobacco and Firearms one full day prior to the silencers being found by Western Airlines' personnel. From the facts of the trial, there can also be no doubt that the Defendants possessed the silencers for a lawful purpose. Further, in RANNEY, supra, the Defendant had received, not manufactured, from an third party an illegal firearm without a serial number; a firearm the Defendant had no legal right to possess. It should also be pointed out in RANNEY, supra, that the Defendant also attempted to sell an illegal firearm, further compounding the problem. It is this type of transaction that 26 U.S.C. 5861(i), in conjunction with the other sections of 26 U.S.C., 5800 et. seq., and the implementing regulations, was designed to stop, not the activities of licensed manufacturers. As stated before, the clear intent of the Gun Control Act of 1968 was not to impose "undue or unnecessary Federal restrictions or burdens on law abiding citizens." To construe 5861(i) so narrowly as to require that a manufacturer of a firearm put a serial number on the firearm immediately before the completion of manufacture, is an undue burden on the manufacturer of firearms, not to mention that such a requirement is unworkable and impractical. To carry this argument further, every properly licensed -15- manufacture would be guilty of a violation if the serial number is not immediately stamped prior to the completion of manufacture. 27 CFR 179.103 allows a manufacturer one business day after the manufacture of a firearm to register it. 27 CFR 179.112 allows an importer fifteen (15) days after the firearm is released from Customs to register firearms, i.e. silencers. 26 U.S.C. 5861(d) provides that it is unlawful to possess a firearm that has not been registered with the Bureau of Alcohol, Tobacco and Firearms, but as can be seen by 27 CFR 179.103 and 179.112, which were promulgated by BATF, BATF does not construe 5861(d) as narrowly as the government contends that 5861(i) should be construed. Thus, this Court should not interpret 5861(i) so rigidly. The Trial Court in denying Defendants' proposed jury instruction and Motion for Acquittal refused to read 26 U.S.C. 5861(i), which states: "It shall be unlawful for any person (i) to receive or possess a firearm which is not identified by a serial number as required by this chapter;" in conjunction with other appropriate statutes, including 26 U.S.C. 5861(d), which contains almost identical requirements, and implementing regulations. 26 U.S.C. 5861(d) makes it unlawful to: " ... receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Records." -16- The BATF, which promulgated the regulations to register firearms, interprets 26 U.S.C. 5861(d) in such a manner as to allow a leeway in registering firearms. The implementing regulations are CFR 179.103 which states: "All firearms manufactured by him during a single day shall be included on one notice, Form 2 (firearms), filed by the manufacturer no later than the close of the next business day..." and CFR 179.11, which states: "The form 2 (firearms) covering an imported firearm shall be filed no later than fifteen (15) days from the date the firearm was released from customs custody." BATF's application of 26 U.S.C. 5861(d) in conjunction with the above referred to regulations is so lenient; BATF allows a manufacturer to mail Registration Form 2 to the National Firearms Registration and Transfer Record Division and the BATF back dates registration Form 2 to the date of mailing, as testified to by Gary Schaible, Chief of the National Firearms Branch, Alcohol, Tobacco, and Firearms. (Trans. P.171, lines 7-23). Defendants' proposed jury instruction of "If you find there has not been a lapse of reasonable time between the manufacture of the firearm and the time that the firearm was seized, you should find the Defendant not guilty of firearms that do not have serial numbers". (Trans. P.225, lines 1-15) and Defendants' Motion for Acquittal are also supported by the language of 26 U.S.C. 5842(a) and (b) which says: -17- A. Each manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured,imported, or made by a serial number which may not be readily removed, obliterated, or altered, the name of the manufacturer, importer, or maker, and such other identification as the Secretary may by regulations prescribed. B. Any person who possesses a firearm, other than a destructive device, which does not bear the serial number and other information required by subsection (a) of this section shall identify the firearm with a serial number assigned by the Secretary and any other information the Secretary may by regulations prescribe. The clear intent of 26 U.S.C. 5842(b) is that a person who lawfully possesses a firearm which is properly registered to him has a reasonable time to inscribe a serial number on the firearm. This interpretation is consistent and not contrary to the Seventh Circuit's holding in RANNEY, supra, as Defendants Walsh and Interrand had lawful possession of the two silencers and the sawed-off shotgun was illegally possessed by Ranney. The trial courts construction and application of 26 U.S.C 5861(i) in this case raises major issues of first impression that is not supported by any decision throughout the country involving a duly licensed manufacturer of firearms. This narrow application of 26 U.S.C. 5861(i) can be seen by the trial Court's statement that: "But, I just wonder, frankly, about whether he realized, under these draconian laws, what he has faced all along. There isn't every defendant that -18- is entitled to a defense. " (Trans. P.233, lines 11-14) CONCLUSION Such a narrow and restrictive interpretation by the trial court based on the particular set of facts found in this case clearly is contrary to Congressional intent in enacting the Gun Control Act of 1968, specifically 26 U.S.C. 5861(i) as found on page 12 of this brief. Further, the trial court's application of 26 U.S.C. 5861(i) is much stricter than the application of 26 U.S.C. 5861(d) by BATF even though both-requirements appear within the same code section. Section 5861, in conjunction with other sections contained in 26 U.S.C. 5800 et. seq., must be read in its entirety in order to insure that Congressional intent in adopting the 1968 Gun Control Act is carried out. The purpose of 26 U.S.C. 5861 is to insure that every firearm subject to the act cannot be possessed, transferred, sold or received by any individual until manufacturing has been completed and the firearm properly registered. The intent being that illegally obtained, purchased or possessed firearms are more likely to be used for criminal purposes since these type of firearms cannot be traced, thus, contrary to the findings made in this case. RELIEF SOUGHT ON APPEAL Appellants' request that their convictions be -19- reversed and the matter be remanded to the trial Court. RESPECTFULLY SUBMITTED this 21 day of September, 1984. STEVEN R. BAILET Attorney for Defendant MARTIN V. GRAVIS Attorney for Defendant CERTIFICATE OF MAILING I hereby certify that I mailed two copies of the foregoing to Attorney for the Plaintiff, Mr. Bruce C. Lubeck, 350 So. Main Street, P.O. Box 2750, Salt Lake City, Utah, 84110, postage prepaid this 21 day of September, 1984. Sue Jones - Secretary