Cite as U.S. v. Warin, CR 74-90, transcript of sentencing (N.D.Ohio
March 28, 1975)

          USA vs. FRANCIS J. WARIN (Sentencing) 3/28/75
                            CR 74-90

     JUDGE YOUNG: I have had a presentence report on this matter.
I am very familiar with the facts of the matter and the problems
involved. It is unfortunate that the matter involves constitutional
problems of very great difficulty.  Certainly Mr. Warin, with the
able assistance of his lawyer, has gotten further on those
constitutional problems than anybody I can find in the books
because he crossed the first hurdles but ended up against the
ultimate barrier, which is that of the separation of powers.

     Under the doctrine of separation of powers, the Constitution
has divided those powers into three divisions, the executive, the
legislative and judicial powers.  While there are some overlaps,
the system of checks and balances is designed so that each of the
branches will keep the others in line. Nevertheless, those lines,
in some places at least, are well marked. The line of the taxing
power is one of the barriers over which the courts cannot jump.

     Congress has the absolute power to impose taxes. While that
involves the power to destroy, the Constitution grants the Congress
that power. Congress has chosen to employ its taxing power to
destroy certain activities.  Even though those might otherwise be
justified, as in the carrying out of the provisions of the Second
Amendment, when the Congress has used its absolute power the Court
can't interfere, and that is the situation here.

     The serious problem about the matter is that the only way one
can get around that is to go through the legislative branch. The
legislative branch has its own methods and procedures. Because the
legislature represents the feeling of the public, personally I
doubt if they are very likely to change what they have done in this
area, particularly with respect to Mr. Warin's activities.

     That has the effect of destroying his ability to conduct the
type of business which might have been profitable to him, and also
useful to the public generally in the area of national defense.
That is unfortunate.  But the courts can't interfere in that area.

     The thing that is troublesome to me is that there were ways
and means which even without budging the legislature it might have
been possible for Mr. Warin to achieve his business purposes; but
when he was not satisfied with raising his questions in a civil
action, he then stuck his neck out with a criminal action.

     The result of that he ends with a handicap he need not have
had, which, quite apart from the other aspects of the matter,
preclude him from using the business approach even if he so
desired.  But that is the penalty he has brought upon himself, and
I don't have any power to mitigate it. It is there.

     Obviously, no useful purpose would be served by imprisoning
Mr. Warin. By following that course, he might have had the
satisfaction of martyrdom, but the problem is that Mr. Warin has a
nice family, according to my presentence report.  He has a good
wife and two young sons.  On the basis of the family background,
one would expect them to grow up and be productive citizens in due
time.

     Imprisonment for Mr. Warin, however good it might make him
feel, would be ruinous to his family. I have no desire to impose
punishments upon them because they are totally innocent in this
matter.

     So the sentence of the Court will be that the imposition of
sentence be suspended and the defendant be placed on probation for
a period of three years.

     The government has urged me to make a special condition of
probation. I have given consideration to that, but I can't find any
way in which I could phrase that condition of probation that might
not have the effect of seriously interfering if it did not destroy
Mr. Warin's ability to continue in his present line of work, and it
is a line of work in which he is a very capable and very able man.

     His work has some national importance, and I can't see that
the possible advantages which the special condition might have from
the standpoint of the Justice Department would offset the
disadvantages it might have otherwise.

     Also, special conditions of probation frequently cause a good
deal of complications of administration of probation, and I have no
reason or desire to get into that either. So it will be a straight
order of probation.

     Mr. Warin will have to comply with the firearms laws. He is
now in bad shape, because with a felony conviction his right to own
or use or particularly to carry firearms over the state line is
hampered. But I can't prevent that, but I will not do anything to
amplify it either.  It will stand the way it stands.

     MR. ZEMMELMAN: Mr. Warin, I might say, your Honor, was fully
aware of the consequences of becoming involved. It is my client's
intention to appeal in due course.

     I want to ask that in the event we apply for some form of
appeal bond what the Court's position will be to an O-R bond.

     MR. CHAPMAN: No objection to that bond continuing.

     THE COURT: I am glad your attorney reminded me of it. You have
the right to appeal from this judgment. There is only thing you
have to do....etc, etc.


     CERTIFIED A CORRECT TRANSCRIPT
     [signed]
     Federal Court Reporter