Alexander Desimone v. United States, 423 F.2d 576

Alexander Desimone v. United States

423 F.2d 576

2d Cir.

1970

Check Treatment

*1 FEINBERG, Cir MOORE Before BONSAL, Judges, District cuit Judge.* Judge: FEINBERG, Circuit many after is one This case trilogy

Marchetti-Grosso-Haynes deci scope those and effect of which the Desi Alexander sions be assessed. must appeals from denial mone * designation. York, sitting by theOf Southern District of New

577 appellant’s for of District Court the District violate fifth amendment States rights. Connecticut, Zampano, J., of Robert C. petition under 28 2255 U.S.C. § Appellant contends the district plea guilty conspiring set aside a of of judge wrong was A both issues. section violate 5821 of the National question third is raised the Govern- Finding infringement Firearms Act. argument appellant ment’s waived appellant’s right not to incriminate the self-incrimination claim his vol- himself, Judge Zampano’s we affirm de- untary guilty plea. find We do not it cision, reported F.Supp. which is at 303 necessary to all of these issues. resolve 406. below, hold, 26 as will seen We аppellant’s does not 5821 violate U.S.C. § Accordingly, rights. we constitutional I. retroactivity consider Appellant was indicted in 1966 on opinions Supreme cited above Court charged three pos- counts: two unlawful guilty plea, appellant’s al- the effect session of a silencer in violation of sec- though questions these we note Act, tion 5851 the National Firearms opinion differences occasioned havе charged conspiracy and one to make a the circuits.1 between quantity paying of silencers without required by 5821, tax thus violat- ing began, 18 After U.S.C. 371. trial II. appellant pleaded guilty to the third appellant pleaded guilty, At the time backing filling, count. After some section 5821 contained five subdivisions.2 including an oral motion to vacate the (b) (a) provided Subsections a for guilty plea, appellant was sentenced upon mаking any tax of fire $200 1967; July the two section 5851 counts * * * by any “engaged arm later, were dismissed. Some six months manufacturing in the business of fire Supreme Court decided Marchetti v. 3 firearm, arms.” Such maker of States, 39, 697, 390 U.S. 88 S.Ct. (c) (d), paid under subsections (1968); Grosso Unit- v. advance; payment represent tax was States, 62, 709, ed 390 U.S. 88 19 by stamps provided by Treasury. ed (1968); Haynes L.Ed.2d 906 v. Finally appellant it is to this that States, —and 85, 722, 390 U.S. 88 S.Ct. particularly points (e) pro 19 —subsection (1968). L.Ed.2d 923 Within few vided : months pe- filed a section 2255 tition, claiming that he was any person convicted It shall be for unlawful violating subject unconstitutional imposed statute. to the tax subsec- Judge Zampano (a) held that unless, tion to make that, any event, retroactive prior making, to such he has declared requirements writing section 5821 did not his intention to make a g., compare States, 1. E. 1968, Meadows v. United 2. The P.L. 90- Gun Control Act of (9th pet. F.2d 795 Cir. substan- 82 Stat. amended and (Feb. 20, tiаlly changed Act, cert. filed 38 U.S.L.W. Firearms the National 1970); Lucia, including United States v. (5th 1969) ; Cir. United States v. special paid A3. in the business Miller, (4th ; 1969) F.2d 1100 Cir. occupational tax, 26 U.S.C. §§ Eby v. United 415 F.2d 319 taxpayers For statistics on the number of (10th Mackey 1969); Cir. Jones, sections, these see Powell & (7th Cir.), 411 F.2d 504 cert. Play Fair Self-Incrimination —Mar- granted, Haynes Examined, chetti, Grosso ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and (1969) ; L.Ed.2d 419 Graham v. United Am.U.L.Rev. 124 n. 45 1969); 407 F.2d 1313 cf. Manfredonia, United States F.2d requirement stamp de- affixed the has origi- principally рer (d) thus directed at those to the in subsection scribed possession of declaration, filed have obtained sons who of such nal complying copy with the original firearm without thereof. and a such requirements, preceding and who Act’s other declaration immediately place, threatened therefore filed at shall be sentence *3 by prosecutions under contain §§ form and in such be and shall They Secretary unmistak information, 5851 and 5861. are as the “inherently suspect pre- ably persons regulations may by delegate his * * * person mak- criminal activities.” Albertson v. S. If scribe. individual, 70, 79, 194, A.C.B., 86 382 U.S. S.Ct. an ing declaration true, 199, as part L.Ed.2d 165. It is as included be shall there regis emphasizes, that fingerprints and a United States declaration invariably is not indicative tration individual. of such photograph requirements; of the Act’s a violation Treasury Reg- applicable thе then Under situations, the United are which ulations, had to declaration of intent “uncommon,” styles itself States “supported lo- a certificate of the be possessor who has violat acceptable police” or other chief cal provisions ed the Act’s other indi- person, and had to the certificate register. Nonetheless, obliged photo- fingerprints and that cate reg obligations to correlation between graph declarant, and were those of the only be re can ister violations the firearm intended “for law- that high, pro exceedingly garded and a Reg. purposes.” ful Treas. 179.78 realistically registrant can ex spective (1955), Fed.Reg. (Sept. 14, registration pect substantial will It is conceded under section prose ly of his likelihood increase the 5848(1) the defi- a silencer falls within reasonably Moreovеr, he can cution. nition of a firearm. possession established fear that constitutionality of section 5821 registration his facilitate will passed has not upon by been the Su- making and prosecution preme States, Court. v. United In these clauses of transfer supra, upon appellant relies, did scarcely circumstances, said it can 5821, not deal with section but with the prosecution risks of criminal relationship between sections 5851 and registrants by prospective confronted 5841 of the National Firearms Act and the or possibilities out of are “remote regis- unconstitutional effect of the Heike v. Unit dinary of law.” course requirement tration thereunder. Section 131, 144, S.Ct. [33 227 U.S. ed obliged any person possessing they 450]; yet are 226, 228, L.Ed. register it; firearm to section 5851 prose pain of criminal compelled, on possess made unregis- it unlawful to Secretary provide cution, to the tered firearm. The Court held that acknowledgment of “elements of the offenses created a formal both * * * identical,” two sections sup firearms, and possession of their 94, 729, U.S. 88 S.Ct. at and that likely plementary information provision requiring registration eventual arrest their facilitate the firearm would in most eases cut of incrimi hazards conviction. right across the not to incriminate one- re by the сreated nation ; accordingly, proper self “a claim of the only termed quirement thus can * * * privilege pro- constitutional Boyes, Reg. appreciable.” v. “real and prosecutions” vides a full defense to un- Walker, 330; 311, v. Brown 1 B. & S. 100, der either section. Id. at 88 S.Ct. 644, S.Ct. [16 599-600 161 U.S. opin- at 732. The heart of the Court’s 647-648, [Footnotes L.Ed. 819]. appears following, ion to be the id. at 96-97, omitted.] 88 S.Ct. 730: trilogy— points way. in the

The other two cases other In United Statеs Benner, 390 U.S. Marchetti v. United 424-425 (1968) disagreed specifically the Ninth Circuit DePugh Stevens, with Grosso cited above. (1968)— holding 19 L.Ed.2d In the declaration of intent occupational the federal dealt with manufacture section 5821 gambling self-incrimination, than require rather excise taxes does not said, Firearms Act. the National court id.: Marchetti, the re- held that the Court so, Even it is not the manufacture of registering present in- quirement the firearms at whiсh the law was gambling activities tent to commence aimed —the manufacture and of it special paying incrimina- tax was self is harmless. The concern is with comprehensive tory state in the face the use of the the commis gambling, prohibitions which made murders, sion of robberies *4 permeated wagering crim- area with “an crimes of violence. The maker of 47, 88 S.Ct. 390 U.S. at inal statutes.” not, by declaring firearm does in grounds, the Court On similar at 702. any tent to make a dec for fail- reversed a conviction in Grosso any laration of an intention to do ille gambling tax. pay excise ure to gal legally act. A firearm could be Appellant claims that under these de- possessed states, spe in most and we puts cisions section 5821 him to an un- cifically legally note that it could be if a fire- constitutional choice he makes possessed Oregon, by in a non-felon. remaining and suf- arm: either silent perceive We a difference between regis- fering penalties of the act or requires law which the declaration tering incriminating thereunder ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍activity and engaged that one is in an results, himself. The incrimination ac- one is in criminal and which itself cording appellant, because requires he thus to declare an which identifies himself engage activity as a member of “a in an intentiоn to highly group inherently selective suspect is not in itself criminal of criminal necessity activities.” v. Unit- lead to does not of ed 390 U.S. at any reason and at act. For this 731. is not area of the firearm because the permeated with to the same extent arguments Similar have met with a wagering criminal statutes as reception mixed in the courts. There marijuana areas, be we are, true, it is supporting ap- authorities governed this case is lieve pellant. DePugh Leary, Marchetti, U. [395 Grosso Eighth 401 F.2d 346 Circuit L.Ed.2d 57]. S. dismissed an alleged, indictment which omitted.] [Footnote alia, conspiracy inter to violate section by making (apparently firearms The court went on to consider Benner’s guns) machine paying argument prior without that his status fel- tax. The court significant weighing noted that the? law of was a factor Mis- souri, committed, possibility where the offense was of self-incrimination. illegal sale, made delivery agreed, posses- pointed or court out gun. felony sion Oregon of a machine A of a similar result one convicted Stevens, against property was reached in an- United States v. F.Supp. (D.Minn. 1968); any not “own” or “control” being “capable court there also looked to state law to concealed upon person.” show the risk self-incrimination.4 Id. 417 F.2d However, authority reсent sawed off rifle involved in bulk of Since the 609.66, 4. The firearm off” rifle. The statutes were Minn.Stat. involved was a “sawed cited 1(1, 5) subd. 609.67. definition, (10th 1963), the court re- 319 F.2d 71 Benner fit that Cir. and Rus- whether at sell United manded determine 306 F.2d 402 had such a Benner time manufacture between the re- so, prior quired If then the indict- section the decla- conviction. 5841 and stand; constitutionally ment could ration of intent called for section Registration compliance 5821 would have section under section 5841 with inten- to “declare his Benner amounted to an admission Oregon,” id. the laws tion to violate registrant possessed a firearm But impermissible result. acquire it in did make or that he claim constitutional otherwise Benner’s regis- Thus, compliance the Act. with would fail. of other disclosed a violation tration laws. section This view of 5821 in Benner approved by Third Circuit 408 F.2d at while under section Thompson, States v. 5821 “no of other violation laws was * * * The district court compelled to Id. be disclosed.” quoted that case had from (D. Casson, F.Supp.

States v. III. Del.1968),5 compliance to the effect legali section “establishes indi This review of the cases ty illegality possession rather than question whether cates that past present in “no firearm” and constitutionally infirm 5821 is criminating implication from could flow *5 it simple. not decided means We have * * * * * compliance Grosso, Haynes, Marchetti.6 and since reasoning, approved this Third Circuit by governed Certainly, is not the case pointing district court had out that the Haynes, holding which of square the open to show that “left to the defendant constitution primarily with dealt * * * * * * gun made the [he] registration called ality of prohibited at the time in a state registration not is 5841. That section weapons provided criminal such рerson ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a required from in most cases * * * The Government sanctions. i.e., legally, acquired firearm a who weapon the de points a as out that such importa or transfer it if obtained he legal in possessed is Delaware fendant compli it and there was or made tion possessed and seized.” it where was provisions Act of the other ance with F.2d at 542. Therefore, covering those situations.7 A similar result persons, was rеached in applied Lewis most to section who, registration only requires from one 408 F.2d 1310 registers, possesses that he if admits he which held that section 5821 acquired it or he a firearm and that require did not self-incrimination. In illegally. true, It as the Gov it is made opinion, re- course of its court argued Haynes, ernment forth in ferred to the distinction set ear- posses- a in which a few situations are opinions, lier Mares v. United usually kept, plаce business or by Judge Zampano is in this Also relied person employment, and, is other if such case. person, name natural than a cases, see United States Before those executive officer address of an home (2d Cir.), Rocca, va- F.2d 525 Della required person to shall be No thereof. curiam, per cated respect register with section under this L.Ed.2d person acquired such firearm which to a importatiоn provides: or which transfer or 7. 26 provisions made, this Every person possessing if a firearm shall such applied transfer, chapter Secretary im- register, to such or his dele- with the making, identify- portation, as the case gate, or number or other mark applied provisions be, together ing such with his if complied address, place name, were with. thereto where has to the Act claim was sor who has violated register, e.g., found made that: if he an abandoned disposed of that Court firearm. But the though acquired a firearm [E]ven is by pointing out "the cor- contention lawfully, suspi- acquisition its focuses register obligations to between relation cion on the transferee because regarded as only be can and violations Thus, legislative purpose of the Act. exceedingly high,” held that: subsequently a en- should transferee gage illegal activity involving fire- a requirement is arm, provide form order would per- principally those directed at thus leading in the link chain conviction. to possession of obtained sons who have rejected argument: complying The court a firearm without requirements, and who Act’s protection of the Fifth Amend- [T]he immediately threatened therefore privilege inapplicable pro- ment * * prosecutions *. involving only spective sрecula- acts tive insubstantial hazard of in- Haynes, at 730. U.S. * * * crimination. sharp ef- contrast to the all in This is portion fact fect of Marehetti that 49 states appellant prohibited very activity attacks. A declaration disclosed statute by payment of intention to of the tax under section constituted a simultaneously admit real hazard firearm does incrimination. But prohibition, the Na- another section of here there is no either a violation federal, against possession Firearms Act. state tional lawfully acquired a firearm under the however, appellant, he To be fair Necessarily, National Firearms Act. Haynes, holding rely does question of incrimination can arise that case from but on emanations only wholly if a different criminal act others, including Mar Grosso and performed point some the fu- Thus, points to the likelihood chetti. he argument accept appellant’s ture. To makes like who saying would be tantamount will transfer them without silencers pharmacist should not be *6 the complying 5814 of with section drugs acknowledge receipt of certain 8 Act; accordingly, un his may secretly he since intend to dis- prose facilitate his der section 5821 will prescription, tribute them without argues si Appellant that also cution. supplying and would be therefore evi- other to be used on are meant lencers receipt which would incrimi- dence and his declaration would firearms nate him. [Footnote omitted.] charges possible prime suspect him registrant involving may It is true weapons. con under section be It may subsequently 5821 transfer a silenc- person does like ceded that a obtaining er the order form re- ordinarily his without for make silencers 5814, quired by violating amusement, thus we think but own section, easily one that or that of his custom- so the issue is that incrimination may committing States, use in ers silencer the In decided. Varitimos agree (1st But First Cir- 1030, crime. we the 404 F.2d 1034 2126, possibility appellant or 976, the cuit that that denied, 89 S.Ct. cert. 395 U.S. identify applicant 5814(a) provides: means of such 8. 26 U.S.C. § may prescribed any as to identification It shall be unlawful regulations chapter: except pursuance Pro- this under in transfer a firearm applicant vided, That, in- if the is an from the of a written order dividual, seeking article, in- such identification shall on an to obtain photograph dup- fingerprints application and a in clude form issued blank purpose by thereof. licate for that Secre- delegate. tary or order shall Such 582 BONSAL, Judge (dissent- to com-

one of decide his customers District ing) mit a different criminal act in the fu- : enough support fifth ture is not respectfully I dissent. amendment claim. In 390 United U.S. quotation Moreover, above 85, 722, (1968), 88 S.Ct. clear, analogy Marchetti is makes Mr. Justice Harlan observed that compelling. case in that Court Act, National Firearms of which 26 U. “in stressed that Connecticut part, 5821 S.C. is “an interrelated § wagering throughout statutory system for taxation of cer permeated is ‘an stat area with criminal firearms,” 87, tain classes of 390 U.S. at ” 47, at utes.’ 390 88 U.S. S.Ct. 725, 88 S.Ct. and that the definitions respect point A was similаr made with meaning of “firearm” within the marijuana Leary to state laws v. Act, limited to such as sawed-off devices 16-18, 6, 89 395 U.S. S. shotguns, carbines, weapons, automatic 1532, 23 L.Ed.2d 57 and to Ct. silencers, “apparently were intended laws risk federal guarantee only weapons that used flowing from an admission of member engaged principally persons in unlaw ship Party. Al in the See Communist subjected ful activities would be to taxa 70, S.A.C.B., 77, 86 bertson v. U.S. 87, tion.” U.S. at S.Ct. at 725. 194, (1965). L.Ed.2d S.Ct. Minor, Seе United States v. contrast, is no other stat federal 511, 1968), aff’d, appellant’s or state of ute law home 23 L.Ed.2d Connecticut makes criminal upon This focus unlawful possession manufacture of silencers. imposes intensified under tax for each firearm so “$200 Finally, recognize we ex made,” payable advance, upon persons emption coverage from the of section not “in who are manu business engaged 5821 of thоse in the business of facturing firearms.” Manufacturers manufacturing firearms raises a serious pay occupational year per tax of $500 problem, supports it since the inference imposed under 26 U.S.C. § Congress aiming at “a relative register pursuant 5802 rather than ly many group, small en whom are confiscatory nature § 5821. gaged in activities made unlawful non-occupational require tax and Grosso, state and federal stаtutes.” paid See it ment in advance render (Bren suspect a conclusion U.S. at statute is nan, J., concurring). primarily measure, particular But a revenue on balance we agree ly Third, with the view when contrasted with nominal an Ninth *7 imposed and Tenth Circuits that the hazard of nual tax on “manufacturers.” incrimination here falls short of that in observes, majority As the this case upon. decisions relies Haynes that differs from in short, on record this we hold that sec registering under would not be in § compel appellant tion 5821 did in to provisions of the other of the violation guilty criminate himself and that his as to himself with re Act so incriminate plea should not be set on the aside Haynes spect to them. See v. ground urged.9 supra, 96, 97, S. 390 U.S. at ingenuous Judgment suppose to affirmed. But it is Ct. 722. amended, amending 9. We note the National § that 1968, Congress problem presented Firearms here less Act rеstricted prosecutorial sub- the future. See use of information to resolve in difficult registration, Haynes, mitted in connection with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍U.S. at S.Ct. 722. HORN, Dempsey 5821 would Petttioner- Edward that § Appellant, incriminating. A silencer is a itself be piece it is to be metal—unless useless gun. una- inference is used BETO, George Director, De Dr. J. Texas partment Corrections, Respondent- is intended to the silencer voidable that Appellee. used, someone transferred to or to be it; use is neces- use who intends to sarily No. necessarily is with a Appeals, United States Court sug- illegal. government does not Fifth Circuit. legitimate gest uses March mind; silencers, uses and none come to mind are assassination come robbery. That Connecticut armed per against se silencers statutes adequately only is that the area shows applicable by criminal statutes covered might a silencer situations where relating used, to fire- such as statutes (The only Connecticut crime.

arms their on silencers use statute hunting, hunting forbids being activity.)

The relation between silencers vi- obvious that notwith- olent crime so standing of a Connecti- the nonexistence thing statute, person declar- cut ing I silencers his intent to manufacture incriminating His declara- himself. necessarily prospective in ef- tion is not fect, were, but if it the court even recognized prospectivity Marchetti privilege not a bar assertion Marchetti under these circumstances. 39, 52-54, v. United S.Ct. 697 persons is directed at Since “ suspect ‘inherently criminal activi- ” ties,’ States, supra timely assertion of against right self-incrimination is failing register prosecution for bar to under 5821. petitioner

I do not think waived by pleading fifth claim amendment *8 guilty prior Haynes, Marchetti, Horn, pro Dempsey se. Edward Lucia, F. Grosso. United States Atty. Parrett, R. Gen. Charles Asst. 1969); 2d 920 States v. Atty. Gen., Pena, Texas, Gilbert J. Asst. Manfredonia, 391 F.2d 229 Tex., Austin, appellee. BELL, Before AINSWORTH ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Judges. GODBOLD, Circuit I would reverse.