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UNITED STATES v. FREED ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA No. 345.
Argued January 11, 1971
Decided April 5, 1971
In Haynes v. United States, 390 U.S. 85 , the Court held invalid under the Self-Incrimination Clause of the Fifth Amendment provisions of the National Firearms Act, which constituted parts of an interrelated statutory scheme for taxing certain classes of firearms primarily used for unlawful purposes, and made the potentially incriminating information available to state and other officials. To eliminate the defects revealed by Haynes, Congress amended the Act so that only a possessor who lawfully makes, manufactures, or imports firearms can and must register them. The transferor must identify himself, describe the firearm, and give the name and address of the transferee, whose application must be supported by fingerprints and a photograph and a law enforcement official's certificate identifying them as those of the transferee and stating that the weapon is intended for lawful uses. Only after the transferor's receipt of the approved application form may the firearm transfer be legally made. A transferee does not and cannot register, though possession of an unregistered firearm is illegal. No information or evidence furnished under the Act can be used as evidence against a registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence," and no information filed is, as a matter of administration, disclosed to other federal, local, or state agencies. Appellees, who had been indicted under the amended Act for possessing and conspiring to possess unregistered hand grenades, filed motions to dismiss, which the District Court granted on the ground that the amended Act, like its predecessor, compels self-incrimination and that the indictment contravenes due process requirements by failing to allege scienter. Appellees also contend that the provisions relating to fingerprints and photographs will cause future incrimination. Held:
DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACK, HARLAN, BRENNAN (as to Part I), STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 610.
Matthew J. Zinn argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Peter L. Strauss, Beatrice Rosenberg, and Mervyn Hamburg.
Luke McKissack argued the cause and filed a brief for appellees.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
At the time of Haynes "only weapons used principally by persons engaged in unlawful activities would be subjected to taxation." Id., at 87. Under the Act, as amended, all possessors of firearms as defined in the Act 2 [401 U.S. 601, 603] are covered, except the Federal Government. 26 U.S.C. 5841 (1964 ed., Supp. V).
At the time of Haynes any possessor of a weapon included in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Federal Government made available to state, local, and other federal officials. Id., at 95-100. Under the present Act 3 only possessors who lawfully [401 U.S. 601, 604] make, manufacture, or import firearms can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 4
At the time of Haynes, as already noted, there was a provision for sharing the registration and transfer information with other law enforcement officials. Id., at 97-100. The revised statute explicitly states that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence." 5 The scope of the privilege extends, of course, to the hazards of prosecution under state law for the same or similar offenses. See Malloy v. Hogan, 378 U.S. 1 ; Marchetti v. United States, 390 U.S. 39, 54 . And the appellees, apparently fearful that the Act as written does not undertake to bar the use of federal filings in state prosecutions, urge that those risks are real in this case. It is said that California statutes 6 punish the possession of grenades and that federal registration will incriminate appellees under that law.
The Solicitor General, however, represents to us that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of nonregistration may be necessary to an investigation or prosecution under the present Act.
The District Court nonetheless granted the motion to dismiss on two grounds: (1) the amended Act, like the [401 U.S. 601, 605] version in Haynes, violates the Self-Incrimination Clause of the Fifth Amendment; and (2) the conspiracy "to possess destructive devices" and the possession charged do not allege the element of scienter. The case is here on direct appeal. 18 U.S.C. 3731. And see United States v. Spector, 343 U.S. 169 ; United States v. Nardello, 393 U.S. 286 .
We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person "shall be compelled in any criminal case to be a witness against himself." As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor - not the transferee - does the registering. The transferor pays the transfer tax and receives a stamp 7 denoting payment which he affixes to the application submitted to the Internal Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transferee. In addition, the application must be supported by the photograph and fingerprints of the transferee and by a certificate of a local or federal law enforcement official that he is satisfied that the photograph and fingerprints are those of the transferee and that the weapon is intended for lawful uses. 8 Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transferee. At that time he is to give the approved application to the transferee. 9 As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities [401 U.S. 601, 606] and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law. 10
The transferor - not the transferee - makes any incriminating statements. True, the transferee, if he wants the firearm, must cooperate to the extent of supplying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful, possessor of the firearm. Indeed, the only transferees who may lawfully receive a firearm are those who have not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future. But the claimant is not confronted by "substantial and `real'" but merely "trifling or imaginary hazards of incrimination" - first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. Marchetti v. United States, supra, at 53-54. Cf. Minor v. United States, 396 U.S. 87, 94 . Since the state and other federal agencies never see the information, he is left in the same position as if he had not given it, but "had claimed his privilege in the absence of a . . . grant of immunity." Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 . This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination. 11
Appellees' argument assumes the existence of a periphery of the Self-Incrimination Clause which protects [401 U.S. 601, 607] a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.
Another argument goes to the question of entrapment. But that is an issue for the trial, not for a motion to dismiss.
We also conclude that the District Court erred in dismissing the indictment for absence of an allegation of scienter.
The Act requires no specific intent or knowledge that the hand grenades were unregistered. It makes it unlawful for any person "to receive or possess a firearm which is not registered to him." 12 By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 321 F.2d 174, 179, and cases cited.
The presence of a "vicious will" or mens rea (Morissette v. United States, 342 U.S. 246, 251 ) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category. 13 Id., at 260-261.
The present case is in the category neither of Lambert nor Morissette, but is closer to Dotterweich. This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. 14 They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254 , where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case:
[ Footnote 2 ] 26 U.S.C. 5845 (f) (1964 ed., Supp. V) defines "destructive device" to include "grenades" which are involved in the present case.
[ Footnote 3 ] Title 26 U.S.C. 5812 (a) (1964 ed., Supp. V) provides: "A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary or his delegate a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary or his delegate; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; and (6) the application form shows that the Secretary or his delegate has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law." Title 26 U.S.C. 5812 (b) (1964 ed., Supp. V) provides: "The transferee of a firearm shall not take possession of the firearm unless the Secretary or his delegate has approved the transfer and registration of the firearm to the transferee as required by subsection (a) of this section." Title 26 U.S.C. 5841 (b) (1964 ed., Supp. V) provides: "Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes. Each firearm transferred shall be registered to the transferee by the transferor."
[ Footnote 4 ] 26 U.S.C. 5861 (d) (1964 ed., Supp. V).
[ Footnote 5 ] 26 U.S.C. 5848 (1964 ed., Supp. V); and see 26 CFR 179.202.
[ Footnote 6 ] Penal Code 12303 (1970).
[ Footnote 7 ] 26 U.S.C. 5811 (1964 ed., Supp. V).
[ Footnote 8 ] 26 U.S.C. 5812 (a) (1964 ed., Supp. V); 26 CFR 179.98-179.99.
[ Footnote 9 ] 26 CFR 179.100.
[ Footnote 10 ] 26 U.S.C. 5848 (1964 ed., Supp. V); 26 CFR 179.202.
[ Footnote 11 ] We do not reach the question of "use immunity" as opposed to "transactional immunity," cf. Piccirillo v. New York, 400 U.S. 548 , but only hold that, under this statutory scheme, the hazards of self-incrimination are not real.
[ Footnote 12 ] 26 U.S.C. 5861 (d) (1964 ed., Supp. V).
[ Footnote 13 ] As respects the Morissette case, J. Marshall, Intention - In Law and Society 138 (1968), says: "The defendant wished to take government property from a [401 U.S. 601, 608] government bombing range, he had the capacity to take it, he had the opportunity, he tried and succeeded in taking it (his wish was fulfilled, his act accomplished). For recovery in a tort action no more would have to be shown to establish liability, but the court held that to make his action criminal `a felonious intent,' mens rea, had to be established. This could not be presumed from his actions, which were open, without concealment, and in the belief - according to his statement - that the property had been abandoned. In other words, for the happening to be criminal, the wish had to be to accomplish something criminal. So in discussing intent we may have wishes of two different characters: one giving a basis for civil liability (the wish to take property not one's own), and another which would support criminal liability as well as civil (taking property with criminal intent)."
[ Footnote 14 ] We need not decide whether a criminal conspiracy to do an act "innocent in itself" and not known by the alleged conspirators to be prohibited must be actuated by some corrupt motive other than the intention to do the act which is prohibited and which is the object of the conspiracy. An agreement to acquire hand grenades is hardly an agreement innocent in itself. Therefore what we have said of the substantive offense satisfies on these special facts the requirements for a conspiracy. Cf. United States v. Mack, 112 F.2d 290.
MR. JUSTICE BRENNAN, concurring in the judgment of reversal.
I agree that the amendments to the National Firearms Act, 26 U.S.C. 5841-5872 (1964 ed., Supp. V), do not violate the Fifth Amendment's privilege against self-incrimination, and join Part I of the opinion of the Court. However, I do not join Part II of the opinion; although I reach the same result as the Court on the intent the Government must prove to convict, I do so by another route.
I join Part I on my understanding of the Act's new immunity provision. 26 U.S.C. 5848 (1964 ed., Supp. V). The amended registration provisions of the National Firearms Act do not pose any realistic possibility of self-incrimination of the transferee under federal law. An effective registration of a covered firearm will render the transferee's possession of that firearm legal under federal law. It is only appellees' contention that registration or application for registration will incriminate them under California law that raises the Fifth Amendment issue in this case. Specifically, appellees assert that California law outlaws possession of hand grenades and that registration under federal law would, therefore, incriminate them under state law. Assuming that appellees correctly interpret California law, I think that the Act's immunity provision suffices to supplant the [401 U.S. 601, 611] constitutional protection. Section 5848 provides in pertinent part:
I agree with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transferee might possibly commit in the future with the registered firearm. The only disclosure required under the amended Act is that the transferee has received a firearm and is in possession of it. Thus, in connection with the present general registration scheme, "[t]he relevant class of activities `permeated [401 U.S. 601, 612] with criminal statutes,'" Mackey v. United States, post, at 710 (BRENNAN, J., concurring in judgment), is limited to the class of activities relating to possession of firearms. Id., at 707-711. Since I read the statute's immunity provision to provide immunity co-extensive with the privilege in that regard, I find no Fifth Amendment bar to the enforcement of the federal statute.
The Court's discussion of the intent the Government must prove to convict appellees of violation of 26 U.S.C. 5861 (d) (1964 ed., Supp. V) does not dispel the confusion surrounding a difficult, but vitally important, area of the law. This case does not raise questions of "consciousness of wrongdoing" or "blameworthiness." If the ancient maxim that "ignorance of the law is no excuse" has any residual validity, it indicates that the ordinary intent requirement - mens rea - of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy. Nor is it possible to decide this case by a simple process of classifying the statute involved as a "regulatory" or a "public welfare" measure. To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus, while the Court does hold that no intent at all need be proved in regard to one element of the offense - the unregistered status of the grenades - knowledge must still be proved as to the other two elements. Consequently, the National Firearms Act does not create a crime of strict liability as to all its elements. It is no help in deciding what level of intent must be proved as [401 U.S. 601, 613] to the third element to declare that the offense falls within the "regulatory" category.
Following the analysis of the Model Penal Code, 3 I think we must recognize, first, that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500 (1951) (Vinson, C. J., announcing judgment); Smith v. California, 361 U.S. 147, 150 (1959); 4 second, that mens rea is not a unitary concept, but may vary as to each element of a crime; and third, that Anglo-American law has developed several identifiable and analytically distinct levels of intent, e. g., negligence, recklessness, knowledge, and purpose. 5 To determine the mental element required for conviction, each material element of the offense must be examined and the determination made what [401 U.S. 601, 614] level of intent Congress intended the Government to prove, taking into account constitutional considerations, see Screws v. United States, 325 U.S. 91 (1945), as well as the common-law background, if any, of the crime involved. See Morissette v. United States, 342 U.S. 246 (1952).
Although the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense, we are not without some guideposts. I begin with the proposition stated in Morissette v. United States, 342 U.S., at 250 , that the requirement of mens rea "is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." In regard to the first two elements of the offense, (1) possession of items that (2) are hand grenades, the general rule in favor of some intent requirement finds confirmation in the case law under the provisions replaced by the present amendments. The cases held that a conviction of an individual of illegal possession of unregistered firearms had to be supported by proof that his possession was "willing and conscious" and that he knew the items possessed were firearms. E. g., Sipes v. United States, 321 F.2d 174, 179 (CA8 1963); United States v. Decker, 292 F.2d 89 (CA6 1961). Congress did not disapprove these cases, and we may therefore properly infer that Congress meant that the Government must prove knowledge with regard to the first two elements of the offense under the amended statute.
The third element - the unregistered status of the grenades - presents more difficulty. Proof of intent with regard to this element would require the Government to show that the appellees knew that the grenades were [401 U.S. 601, 615] unregistered or negligently or recklessly failed to ascertain whether the weapons were registered. It is true that such a requirement would involve knowledge of law, but it does not involve "consciousness of wrongdoing" in the sense of knowledge that one's actions were prohibited or illegal. 6 Rather, the definition of the crime, as written by Congress, requires proof of circumstances that involve a legal element, namely whether the grenades were registered in accordance with federal law. The knowledge involved is solely knowledge of the circumstances that the law has defined as material to the offense. The Model Penal Code illustrates the distinction:
[ Footnote 1 ] No question of transactional immunity is raised here since the case involves incrimination under the laws of a jurisdiction different from the one compelling the incriminating information. Piccirillo v. New York, 400 U.S. 548, 552 (BRENNAN, J., dissenting).
[ Footnote 2 ] The result would be the same if a transferee moved from a State where possession was legal to a State where possession was illegal. The time when the possession became illegal cannot affect the continuing nature of the act of possession.
[ Footnote 3 ] ALI Model Penal Code 2.02, Comment 123-132 (Tent. Draft No. 4, 1955).
[ Footnote 4 ] "Still, it is doubtless competent for the [government] to create strict criminal liabilities by defining criminal offenses without any element of scienter - though . . . there is precedent in this Court that this power is not without limitations. See Lambert v. California, 355 U.S. 225 ." Smith v. California, 361 U.S. 147, 150 (1959). The situations in which strict liability may be imposed were stated by Judge, now MR. JUSTICE, BLACKMUN: "[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent." Holdridge v. United States, 282 F.2d 302, 310 (CA8 1960).
[ Footnote 5 ] These different levels of intent are defined in the code. ALI Model Penal Code 2.02 (Prop. Official Draft 1962). This Court has relied on the code's definitions. Leary v. United States, 395 U.S. 6, 46 n. 93 (1969); Turner v. United States, 396 U.S. 398, 416 n. 29 (1970).
[ Footnote 6 ] Proof of some crimes may include a requirement of proof of actual knowledge that the act was prohibited by law, or proof of a purpose to bring about the forbidden result. See James v. United States, 366 U.S. 213 (1961); Boyce Motor Lines v. United States, 342 U.S. 337 (1952). United States v. Murdock, 290 U.S. 389 (1933). See generally Note, Counseling Draft Resistance: The Case for a Good Faith Belief Defense, 78 Yale L. J. 1008, 1022-1037 (1969). Cf. Model Penal Code 2.02 (2) (a) (Prop. Official Draft 1962) (definition of "purposely"). [401 U.S. 601, 617]