*1 UNITED STATES v. FREED et al. Argued January No. 11, April 1971 Decided *2 J., opinion Douglas, delivered the Court, which Burger, J.,C. Black, (as HarlaN, I), to Part BrennaN 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. Douglas
Mr. Justice delivered the opinion of the Court.
Following our decision in Haynes v. United States, 390 U. 85, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes.1
At the time Haynes “only weapons used principally by persons engaged in unlawful activities would be sub- jected to Id., taxation.” at 87. Under the Act, as amended, possessors all of firearms as defined in the Act2 Rep. 1501, 1 See S. No. Cong., 90th Sess., 2d 26, 42, 48, 52; H. R. Conf. Rep. No. 90th Cong., Sess., 2d (f) (1964 C. ed., §5845 Supp. V) defines “destructive device” to “grenades” include which are involved in the present case. S. C. 26 U. Government. Federal except covered, are Supp. V). (1964 ed., § in- weapon of a Haynes any possessor At the time fact disclose the compelled in the Act was cluded acquired any time he had at by registration his pos- meant that we held which provision possession, informa- incriminating potentially must furnish sessor made available Federal Government tion which Id., at 95-100. officials. federal and other state, local, lawfully only possessors who Act3 present Under V) (1964 ed., provides: (a) Supp. C. 5812 Title (1) the transferor unless be transferred firearm shall not “A ap- Secretary delegate a written or his filed the firearm has *3 the fire- registration for the transfer duplicate, in plication, by the prescribed application form on the arm to the transferee (2) any payable the transfer delegate; tax on Secretary his or appli- original by proper stamp affixed to the the paid as evidenced form application in the form; (3) the transferee is identified cation by Secretary delegate may regulations his manner as the or in such individual, that, an the identifica- except person if such prescribe, (4) the fingerprints photograph; and his include his tion must application in such is identified in the form of the firearm transferor Secretary delegate may by regulations prescribe; or his manner as the application in manner (5) identified in the form the firearm is such by Secretary delegate may regulations prescribe; and or his as the Secretary delegate the or his (6) application form shows the registration of the firearm to the approved the transfer and the has transfer, Applications receipt, denied if the or transferee. shall be place in possession of the firearm would the transferee violation of law.” (b) ed., Supp. V) provides:
Title 26 U. S. C. 5812 § possession “The transferee of a firearm shall not take of the fire- Secretary delegate approved arm unless the or his has the transfer required registration by of the firearm to the transferee as sub- (a) of this section.” section (b) (1964 ed., V) Supp. provides: C.
Title manufacturer, importer, register “Each and maker shall each fire- manufactures, imports, arm he or makes. Each firearm transferred registered shall be the transferee the transferor.” manufacture, import or firerams can and must make, register. the does not and cannot register them; transferee It or is, however, person unlawful for “to receive possess him in registered a firearm which is not National Firearms and Transfer Record.” Registration Haynes, already
At the time of noted, there was a provision infor- sharing registration and transfer Id., mation with other law enforcement officials. at 97- explicitly 100. The revised statute no infor- states that mation or provided compliance evidence with the or registration provisions used, transfer of the Act can be directly or indirectly, as evidence registrant applicant or respect “in a criminal with proceeding prior concurrently violation of law to or occurring application or filing registration, the com- piling of the records containing information or evi- scope dence.” of the privilege extends, course, prosecution hazards of under state law for the Malloy Hogan, same or similar offenses. See 378 U. S. Marchetti 1; v. United And the appellees, apparently fearful that the Act as written does not undertake to bar the use of federal filings prosecutions, state urge that those risks are real this It case. is said that punish California statutes6 grenades and that federal registration will *4 appellees incriminate under that law. General, Solicitor however, represents to us that
no is as a matter practice disclosed information filed to law enforcement authority, except as the fact of nonregistration may necessary be to an investigation or prosecution present under the Act.
The District Court nonetheless granted the motion to dismiss on two grounds: (1) the Act, amended like the
4 (d) (1964 26 ed., V). U. S. C. Supp. §5861 5 (1964 26 ed., U. S. C. 5848 Supp. V); and 26 see § CFR 179.202. § 6 (1970). Penal Code 12303 §
605 Clause the Self-Incrimination Haynes, violates version “to conspiracy the (2) Amendment; and Fifth of the do charged the and devices” destructive possess on here The case of scienter. element the allege not States And see 3731. C. § 18 U. S. appeal. direct Nardello, States 169; Spector, U. violate Act does the amended that conclude We Fifth Amendment the Clause the Self-Incrimination compelled “shall be person no provides which As himself.” a witness be case any criminal accomplished may be of a firearm transfer noted, a lawful the The transferor —not already registered. if it is only pays The transferor registering. the transferee —does 7 denoting payment stamp and receives tax the transfer the In- submitted application to the he affixes which identify must The transferor Revenue Service. ternal and the transferred, to be firearm the himself, describe addition, the In the transferee. address name and and photograph the supported be must application of a by a certificate transferee fingerprints he is satis- official that enforcement law or federal local those are fingerprints photograph the fied lawful intended for weapon is the and that transferee application approved receipt of Only after uses.8 the firearm the transferor hand is it lawful form give is to At that time he transferee. over to the noted, transferee.9 As application approved us information advises General Solicitor prac- a matter Service, as Revenue of Internal hands authorities or other federal to state not available tice, ed., V). Supp. C. 5811 § ed., V); (a) (1964 Supp. 26 CFR 179.98- 26 U. S. C. 5812 §§ 179.99. 179.100. 26 CFR §
and, as a of law, matter be used cannot as evidence a criminal proceeding respect prior to a or concurrent violation of law.10 transferor —not in- transferee —makes
criminating
True,
statements.
the transferee,
if he
wants the firearm,
cooperate
must
sup-
extent of
plying fingerprints and
But
photograph.
the information
he supplies
him
makes
the lawful, not the unlawful, pos-
sessor
the firearm.
Indeed,
only
transferees who
may lawfully receive a firearm are those who have not
committed
past.
crimes
The argument, however,
is that
furnishing the photograph and fingerprints will
incriminate the transferee in the future. But the claim-
”
ant
not
confronted
“substantial and heal’
but
merely “trifling or imaginary hazards of incrimination”—
by reason of the statutory barrier against
first
use in a
prosecution
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 States,
supra, at
53-54. Cf. Minor 396 U.
87,
Since the state and other federal agencies never see the
information, he is
left
the same position
ifas
he had
given
it, but “had claimed his privilege in the absence
of a .
grant
. .
of immunity.” Murphy v. Waterfront
Comm’n,
Appellees’ argument assumes the existence of a periphery the Self-Incrimination Clause which pro- 10 U. S. C. ed., V); § Supp. 26 CFR 179.202. 11We do not reach question of “use immunity” opposed “transactional immunity,” cf. Piccirillo v. New York, only but that, hold under this statutory scheme, the hazards self- incrimination are not real.
607 past only against not incrimination person tects a supplies insulation which but transgressions or present cannot We to be launched. crime about of for a career expansive an Clause such the Self-Incrimination give interpretation. entrapment. question to the argument goes
Another not for a motion trial, for the an issue But that dismiss.
II dis- Court erred District that conclude alsoWe allegation of an for absence indictment missing scienter. knowledge or intent specific requires no
The Act un- it It makes unregistered. were grenades the hand a firearm possess “to receive any person lawful 12 court By the lower to him.” registered which is into was written requirement time at the decisions was proved to be required only knowledge the Act a firearm. was possessed the instrument knowledge States, and cases 179, 174, F. 2d v. 321 Sipes See cited. mens rea (Moris will” or “vicious of a presence
The 251) long 246, was 342 U. sette v. But list responsibility. of criminal requirement expanding regulatory in the especially exceptions grew, safety, health, affecting public activities involving area em statutory Id., offense at 254. and welfare. sci- common law where from the borrowed bezzlement, categ in a different historically was required, enter was Id., at 260-261. ory.13 of art terms Congress borrows
“[WJhere mean- tradition and legal are accumulated which ed., V). Supp. (d) C. S.U. Marshall, Law case, Intention —In J. respects the Morissette As says: (1968), Society 138 from government property to take wished “The defendant practice, presumably of centuries of it knows and ing that were attached to adopts the cluster of ideas body borrowed word in the from learning each it was taken and the its use will meaning which convey judicial mind unless otherwise in- Id., structed.” at 263. California, Lambert v.
At the other extreme is municipal which a code made it a crime to remain *7 days in Los more Angeles for than five without register- if ing person a had been felony. convicted a Being per se Angeles blameworthy. Los is not The mere failure to register, held, we was quite “unlike the commission of acts, or the failure to under act circumstances that should alert the doer consequences Id., to the of his deed.” at The fact the ordinance was a convenient law enforcement technique did not save it.
“Where a person did not know of the duty to register and where there proof prob- was no ability of such knowledge, may he not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is print written in too fine to read or in a language foreign community.” Id., at 229-230. government bombing range, capacity he had the it, to take he had opportunity, he tried and taking (his succeeded in it wish was fulfilled, accomplished). his act recovery For in a tort action no more would have to be liability, shown to establish but the court held that to make his action intent,’ criminal 'a rea, felonious mens had to be established. This presumed could not be actions, from his open, which were concealment, without and in the according belief — to his property statement —that had been abandoned. In other words, happening for the criminal, to be the wish had to be to ac- complish something criminal. So in discussing may intent we have wishes two different characters: giving one a basis for liability civil (the property wish to take own), not one’s and another which would support liability criminal as well as (taking civil property with intent).” criminal Dotterweich, States 277, 284, a
In on a cor- imposition penalty of a dealing case with the and mis- shipped officer whose firm adulterated porate we Drug Act, in violation of the Food and drugs branded wrong- consciousness of approved penalty “though totally be doing wanting.” Lambert case neither of present category Morissette, Dotterweich. This is a
nor but is closer to public safety, measure in the interest of the regulatory may theory on the that one premised which well be hardly surprised would be to learn that They highly hand is not an innocent act.14 are grenades than the dangerous weapons, dangerous offensive no less Balint, United States narcotics involved nar- 250, 254, where defendant convicted of sale of was know the drugs cotics his claim that he did not say with Chief were covered a federal act. We Justice Taft in that case: very
“It from of it that reading evident super- emphasis of the section is in a close securing *8 vision of the in these dealing dangerous business of and by the officers of the Government drugs taxing re- merely penalty it uses a criminal to secure disposition drugs corded evidence of the of such as a means of and the traffic. Its taxing restraining purpose require every person dealing manifest is to to that which drugs peril ascertain at his whether he statute, sells comes within the inhibition of the conspiracy We need not decide whether a criminal to do an act by “innocent in alleged conspirators itself” and not to be known prohibited by corrupt must be actuated some motive other than object intention prohibited to do the act which is which is the and hardly conspiracy. agreement acquire of the An grenades hand to agreement an innocent in said of itself. Therefore what we have require the substantive special offense satisfies on these facts the ments conspiracy. Mack, for a 2d 290. Cf. United States v. 112 F. of its drug ignorance if the inhibited he sells weighed penalize Congress him.
character, innocent seller to injustice an subjecting possible pur- innocent penalty exposing the evil from the and concluded that danger drug, chasers preferably the result to be avoided.” the latter was Id., at 253-254.
Reversed. judgment in the concurring Brennan, Mr. Justice reversal.
I agree that amendments to the National Firearms Act, (1964 Supp. V), U. S. C. 5841-5872 do not ed., §§ violate the Fifth self-in- privilege against Amendment's crimination, join opinion Part I of the of the Court. I II However, join do not Part of the opinion; although I reach the same result on the Court intent prove Government must I convict, do so another route. join my Part I on im- understanding Act’s new
munity provision. 26 U. C. 5848 ed., Supp. Y). The amended registration provisions the National Firearms Act do pose any possibility realistic self-incrimination of the transferee under federal law. An effective registration of a covered firearm will possession render the transferee's of that firearm legal under only federal law. It appellees’ contention that registration application will registration incrimi- nate them under California law that raises the Fifth Amendment issue in this case. Specifically, appellees assert that California law outlaws of hand *9 grenades and that registration under federal law would, therefore, incriminate them under state law. Assuming appellees correctly interpret California I think law, that the immunity Act’s provision to supplant suffices in protection. provides per- constitutional Section tinent part: ap-
“No information or evidence from an obtained plication directly . . . shall in- used, ... be or directly, as evidence in person a criminal proceeding respect with to a violation of law oc- curring prior concurrently to or filing with the application . . . .” my In provision this judgment, prevent would a State any from making use of a federal registration applica- or tion, thereof, fruits connection prosecu- with a tion under the possession State’s law.1 This would be true even if the charged possession State a transferee with of the firearm on a date after the application date the filed, possession was because is a continuing violation.2 Therefore, purposes of the possession State’s law, a possession transferee’s continued of a registered firearm would constitute “a violation law occurring . . . con- currently with the filing application.” agree the Court the Self-Incrimination Clause of the Fifth Amendment does require that immunity given be use of such information connection with crimes that might possi- transferee bly commit in the future with the registered firearm. The only disclosure required under the amended Act is that the transferee has received possession a firearm and is in Thus, it. connection with the present general regis- scheme, tration relevant class of ‘perme- activities “[t]he question immunity No of transactional is raised here since the ease involves jurisdiction incrimination under the laws of a different compelling from the one incriminating information. Piccirillo York, (Brennan, New J., dissenting). 2 The result would be the same if a transferee moved from a State possession legal where was to a possession State where illegal. was The time when the illegal became cannot affect the con tinuing possession. nature of the act of *10 ” Mackey statutes,’ criminal ated with post, J., concurring judgment), at (Brennan, relating activities to to the class of limited Id., I read firearms. at Since the statute’s 707-711. immunity provide immunity to provision co-extensive in that I find no Fifth Amend- privilege regard, with the ment the enforcement of the federal statute. bar
The Court’s of the intent the Government discussion must prove appellees convict of violation of 26 U. S. C. 5861 (d) ed., Supp. V) dispel does con- fusion vitally a but surrounding difficult, important, area of the law. This case does not questions raise of “con- sciousness of wrongdoing” or “blameworthiness.” If the ancient maxim that “ignorance of the law is no excuse” has residual it validity, ordinary indicates that intent requirement rea —of the criminal law does —mens not require knowledge that an act is illegal, wrong, or blameworthy. possible Nor is it to decide this case a simple process of classifying the statute involved “regulatory” or “public welfare” measure. To convict appellees of possession of unregistered hand grenades, the Government prove must three material (1) elements: that appellees possessed certain (2) items; that the items possessed were hand grenades; (3) that the hand gre- nades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that possessed items were hand grenades. Thus, while the Court does hold no intent at all need proved be in regard to one element of the offense—the unregis- tered 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 falls offense declare element to the third category. “regulatory” within Code,3 Penal of the Model analysis Following existence first, “[t]he recognize, *11 must think we to, the exception the than rather of, the rule rea is mens jurisprudence.” criminal of Anglo-American principles (1951) 494, 500 States, S. 341 U. v. United Dennis Cali v. Smith judgment); announcing J.,C. (Vinson, rea mens second, (1959);4 150 S. 361 U. fornia, element each vary may as concept, but unitary is not a de has law Anglo-American third, that crime; and aof distinct analytically and identifiable veloped several knowledge, recklessness, g., negligence, e. intent, levels of re element mental the To determine purpose.5 and the offense element material conviction, each quired what made determination and examined must be 3 (Tent. Draft 123-132 2.02, Comment Code Penal § ALI Model 1955). 4,No. 4 to create [government] for the competent doubtless “Still, it is without offenses by defining criminal liabilities criminal strict this Court precedent in though . . . there is element scienter — California, v. Lambert See limitations. without is not power that this (1959). 147, 150 California, 361 S.U. v. Smith 225.” imposed were stated may liability be strict in which situations criminal a federal Justice, BlacKMUN: “[W]here Mr. Judge, now what to involve it where seems and of intent mention omits statute is, under imposed the standard where policy, basically a matter of is ex properly thereto adherence and circumstances, reasonable small, where relatively is penalty where person, of a pected statutory is crime besmirch, where gravely not does conviction congressional law, where common from taken over one not one construed can be statute supporting, purpose 2dF. States, 282 Holdridge United intent.” requiring criminal 1960). (CA8 302, 310 ALI code. in the are defined intent levels different These has Court 1962). This Draft Official (Prop. 2.02 Code Penal Model 6,S. States, U. Leary v. United definitions. the code’s on relied 398, 416 n. States, 396 U. United Turner v. (1969); n. 93 (1970).
level of intent Congress intended the Government
prove, taking into account constitutional considerations,
see Screws v. United States,
Although the legislative
history
the amendments
to the National Firearms Act is silent on the level of
intent
proved
be
in connection with each element of
the offense, we are not without
some guideposts.
begin with the proposition stated in Morissette v. States,
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 appellees that the knew that the grenades were recklessly failed ascer- or unregistered negligently or true It is weapons registered. were the tain whether law, of knowledge would involve requirement a that such wrongdoing” of not involve “consciousness it does but pro- were actions that one’s knowledge sense the of crime, the of the definition Rather, illegal.6 or hibited circumstances of proof requires by Congress, written as the namely whether element, legal that involve law. federal in accordance registered were grenades the knowledge solely knowledge involved material as has defined law the that circumstances the illustrates Penal Code The Model offense. the distinction: that principle general the that be noted
“It should usually no excuse law is mistake ignorance when no application it has overstated; greatly definition made material circumstances for exam- So, element. legal include a the offense right claim of theft, when immaterial it is ple, legal claim involves defense, is adduced de- It is a property. right as judgment belongs property knowledge because fense the crime element ais material else someone as of law matter may involve knowledge such is not law involved . The . . fact. well rule legal other it is some offense; defining law circumstances the attendant *13 characterizes that 6 proof of requirement of a may include crimes some of Proof by law, proof prohibited was act that knowledge actual v. United James See result. forbidden bring about purpose States, v. United Boyce Lines Motor (1961); States, Murdock, 290 U. S. States (1952). 342 U. Case Resistance: Counseling Draft Note, generally (1933). See 1008, 1022-1037 L. J. Defense, 78 Yale Belief Faith Good Draft Official (a) (Prop. (2) Penal Code §2.02 Cf. Model (1969). “purposely”). 1962) (definition are material to the offense.” Model Penal Code 2.02, (Tent. 4, 1955). Comment 131 Draft No. Therefore, as with the elements, question first two solely one intent. And while the congressional question easy persuade is not an factors me one, two rea mens proof unregistered as to the status the grenades notes, is not required. First, as the Court provisions replaced by case law under the the current law dispensed proof of intent in connection with Sipes supra. this element. Second, the firearms covered major weapons the Act are such machineguns deceptive weap- and sawed-off shotguns; pen ons such as and fountain flashlight guns guns; major bombs, mines, destructive devices grenades, such as rockets, large weapons mortars, caliber anti- including tank guns, exception, and bazookas. Without the likeli- hood of governmental regulation distribution of weapons anyone such is so great presumed must be In taxing to be aware of it. the context of a and registra- scheme, tion therefore think it reasonable to conclude Congress dispensed requirement with the of intent in regard unregistered status of the weapon, as necessary to effective administration of the statute.