United States v. Virgilio Patricio Flores

America, Appellee, UNITED STATES FLORES, Appellant.

Virgilio Patricio

No. 82-1445. Appeals, States Court

Ninth Circuit.

Argued Sept. 28, 1984. Dec.

Submitted 21, 1985.

Decided Feb. Justice, Bannon, Jr., Dept. T.

Jоhn D.C., Washington, appellee. for Talcott, Woehrle, M. Vandevelde & Carla Cal., Woehrle, Angeles, appellant. for Los GOQDWIN, SNEED, KENNE- Before TANG, SCHROEDER, DY, ANDERSON, FERGUSON, NELSON, PREGERSON, BEEZER, NORRIS, Judges. Circuit ANDERSON, Judge: BLAINE J. under the Appellant Flores was convicted Act, 18 U.S.C. Federal Gun Control § 922(e)12, failing provide written no- for 922(e): that such written notice to carrier without 1. 18 U.S.C. being transported or firearm or ammunition is te) any person knowing- unlawful for It shall be except any passenger shipped; who owns any ly delivered to deliver or cause legally possesses a or ammunition or transportation or contract carrier common being transported common or con- aboard commerce, foreign or or in interstate passenger carrier for movement tract importers, persons li- other than licensed foreign may deliver interstate or commerce manufacturers, dealers, or li- licensed censed custody into the firearm or ammunition collectors, said any package other contain- or censed operator pilot, captain, of such conductor ammunition er in which there is firearm or shipping to a carrier before tice firearms. trict court then appellant guilty found (1) Appellant contends that the notice re- violating 922(e). quirement his Fifth violated Amendment self-incrimination, (2) II.

privilege against ANALYSIS and holding the court erred in district that the Whether section conflicts with the require proof specific offense does not requires Fifth Amendment and/or proof of reject appellant’s intent. We contentions questions intent are requir- of law and affirm.2 ing de novo review. United States v. McConney, (9th Cir.) (en 728 F.2d 1195 I. BACKGROUND — banc), denied, U.S.—, cert. Beginning early February, appel- 83 L.Ed.2d 46 discussing began purchase lant the twenty-two gun shop revolvers with a A. The Fifth Amendment clerk. to the appellant, Unknown the clerk Appellant deny does not that he attempt- actually agent an undercover of the ship guns toed in the charged, manner nor Alcohol, Bureau of Tobacco & Firearms. give that he failed to required the notice to Appellant appellant told clerk the Rather, the carrier. position he takes the taking guns would be out of the coun- complying requirements with the try to Ecuador to be used “the civilian giving carrier, notice to the he would be guards.” Appellant also told the clerk that compelled to confess to a number of crimi- guns would be concealed in false bot- nal acts violation of his Fifth Amend- luggage toms of some to be checked rights. ment baggage Appellant stowed at an airline. purchased twenty-two revolvers, “Whenever the Court is confronted clerk, discussed several occa- question compelled of a disclosure sions, the construction of false bottoms in incriminating that has an potential, ju Appellant two steamer trunks. told the scrutiny dicial invariably a close one.” pack clerk that he intended to clothing over Byers, 424, 427, California guns and, any inquiries, there were 1535, 1537, 29 L.Ed.2d say he would the trunks contained (plurality opinion). question such as this clothing. must great carе, be considered with for it is our privilege against that the belief self- February appellant On checked incrimination, as well as all other funda the two steamer baggage trunks as protections, mental constitutional may only travel on Quito, Ecuatoriana Airlines to be limited for the Ecuador. At most substantial of rea appellant no time did give sons. Carlson, oral or See written notice to United States v. Ecuatoriana or the (9th Cir.1980), personnel check-in F.2d the steamer cert. trunks 1010,101 contained Appellant firearms. was not a licensed firearms dealer. confronted, Pursuant to a We are in this situa warrant, federal search tion, the trunks were with a conflict between two critical searched, then twenty-two revolvers government’s interests: rеgu need to found, appellant was arrested. safety citizens, late for the of its and the privilege against self-incrimination. This The district court ruled that section which, tension creates a question serious does not include an spe- element of said, Court has “must regarding cific be re knowledge intent of the duty balancing solved terms of report firearms, public hand, reporting requirement need on the one and the does not individual appellant’s violate Fifth privi- protections claim to constitutional on the lege against other; self-incrimination. The dis- neither light- interest can treated

common or contract carrier panel opinion disapprove for the duration of reported trip violating any provisions without at 729 F.2d 593. chаpter seq.]. of this 921 et [18 ly.” Byers, Marchetti, for example, struck down a California 29 L.Ed.2d 17 statute anyone involved in (1971) (plurality opinion). wagering register in detail with the In- ternal wagerer Revenue Service as a balancing appellant’s When assertion of pay an occupational tax. The lists of wa- privilege against the Fifth Amendment gering taxpayers were then readily made disclosures, government’s for need we available to state and federal authorities importance must consider the and charac- prosecution. for however, Wagering, is interests, public ter of the purposes and the widely prohibited under both federal and 922(e). of section While it is true that the grounds, state law. On similar the Court given must be a “liberal construc- in Grosso ovеrturned defendant’s convic- right tion in of favor the it was intended to tion for pay failure to an excise tax on secure,” States, v. United Hoffman wagering. U.S. 95 L.Ed. 1118, (1951), Haynes, believe the Fifth In required the defendant does always register government, demand sub- the with pay and of undercutting occupational tax, stantial valid and essential an transacting when in when, government regulation the means to certain application firearms. The of the regulation effect necessarily include statute was limited to only types the of disclosure of information which weapons could lead used principally by persons en- to self-incrimination. gaged See in unlawful activities. The Court California 424, Byers, 1535, 402 U.S. registration found that the requirements, (1971) (Harlan, J., 29 L.Ed.2d which were finger- ‍‌​​​‌‌‌‌‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌​​‌‌‌​‌​‌​‌​​​​‌‌‌​​‍extensive аnd included concurring). prints and photographs, were almost en- tirely persons gained directed at those who appellant Supreme The relies a line of possession proscribed weapons of the with- Court decisions which struck down various complying out with the Act’s other reporting registration requirements. or He would, registration therefore, ments. A States, cites Marchetti v. United threaten immediate prosecution. (1968), L.Ed.2d 889 States, Finally, Grosso United Leary Marijuana dealt with the (1968), Tax Haynes required Act which defendant to identi- States, fy marijuana himself as a of transferee (1968), Leary registered L.Ed.2d 923 and paid v. United who had not occupa- and an again, 23 tional tax. Once due to nationwide authority prohibitions his drug use, for ar- on the and its such a gument registration that section must compelled be struck was tantamount to a plea, down under Fifth Amendment. guilty subjected These defendant to real cases, however, statutory provi- appreciable and the dangers prosecution, of invalidated, they sions clearly gathered are distin- since the information tówas be guishable given by from the facts bar. at the I.R.S. to state and local au- upon request. thorities cases,

In each of the cited Court in requirement statutory found notice an requirement notice at bar activity of “permeated area Admittedly, with criminal transport different. statutes,” group at a persons activity directed “permeated firearms is an with “inherently suspect of Yet, criminal activities.” criminal statutes.” unlike the stat- аddition, compliance cases, requirements utes the Marchetti line produced of the four an requirement each cases im- notice at bar is not directed at appreciable” or “real group persons “inherently suspect mediate. hazard of self-incrimination due fact that criminal activities.” Section is di- largely designed statutes people. requires dis- rected a universe of It respective simple cover anytime defendant’s involve- written notice to the carrier activity. prohibited being shipped ment firearms are unlicensed although possi- do so. This be said to cannot person. Such fact, many balancing. are illegal. In there included in our per bility must be se shipment to an firearms situations which Nevertheless, significant permissible, fully unlicensed general regula Act purpose is a given must be notice in all such cases tory one. The Act is not directed at catch 922(e). agree under section We the carrier ing illegal exporters airport, that, Fourth “[w]hile helping individual states but rather at marginally are more requirements notice safety for regulate firearm distribution weapons delivering stringent persons by shutting off the flow their citizens hardly specter raises the illegally, :this It is most weapons across their borders. of self-incrimina- hazards the ‘substantial significant primary purpose of that the sec con- the Court has been which tion’ with United, 922(e) aiding carrying tion the carriers Wilson, 721 cerned.” Cir.1983) out their own duties. United States 967, (4th (quoting 974 Mar- F.2d 61, (4th Cir.1983) States, Wilson, 390 U.S. 88 721 974 F.2d chetti v. United (1968)). 697, 709, 19 L.Ed.2d 889 Cong., 2d (citing H.R.Rep. No. 90th Sess., reprinted Cong. 1968 & U.S.Code Control Act of 18 U.S.C. Gun 4410, 4420). Congress Ad.News “While §§ important step seq., taken 921 et was re clearly intended the Act’s disclosure aiding at the several by Congress directed use in quirements to be of some gun legisla- developing effective states in tion, guns non-prosecu way limiting proceedings, regard the travel of these by leg- State state and national borders. over torial interests as substantial.” United up to that had been ineffective islation Dichne, (2d F.2d States point, to the ease with which firearms due Cir.1979), denied, 928, 100 445 U.S. cert. transported or could mail-ordered 1314, 63 L.Ed.2d 760 foreign Cong. or commerce. terstate therefore, the balanc- judgment, In our (state- 17,1968) (daily July Rec. H21783 ed. ing swings away of interests in this case Celler). Rep. ment of hand, ap- appellаnt. from the On the one majority of the Act sets forth While pellant may have in violation of sever- been licensing transport- requirements for laws, may have al under which he risked 922(f)3 any prohibits common ing, section by giving section no- incrimination knowingly shipping any fire- carrier from Furthermore, tice. there is some indication the Act. arm in violation of Section cooperate might that some carriers with respon- added facilitate carrier’s by providing authorities law enforcement sibility providing by the carrier with notice incriminatory information. On the oth- being shipped firearms were of when hand, important regulatory purpose er persons. The carrier then must unlicensed Act, purpose of the neutral shipment determine is allowed under 922(e), and thе fact that the notice the Act. public large, ment is directed to the theory, if the carrier determines that decisively in bring the down favor balance would be violation of the statute. Act, simply ship it could refuse to the fire- today is Our decision consistent the limit the carrier’s arm. Such is held other cases which have vari- results assume, safely statutory duty. We can reporting requirements against valid ous however, and the admitted at challenges. United Fifth argument, any number of carriers oral dins, v. Des Jar 747 F.2d 499 States may cooperate law enforcement offi- (9th Cir.1984)(holding currency re- providing information in this area 508-509 cials 922(f): shipment, transportation, or to believe that the 3. 18 U.S.C. receipt thereof would be violation of (f) any unlawful common or It shall be provisiоns chapter et transport of this [18 deliver in inter- contract carrier to or foreign seq.]. commerce am- state or knowledge or reasonable cause munition with valid porting statute under Fifth Amend- invoking requirement not the notice ment); Grotke, United States v. disclosing likewise collateral viola- Cir.1983) (2d (holding currency reporting tions of law. Amendment); valid under Fifth statute recognize We privilege, as one Carlson, 617 F.2d 518 of principles government, of a free (9th Cir.1980), denied, cert. guilty intended to shield the aswell (deny- 66 L.Ed.2d 468 innocent. Justice Stewart wrote that “the ing attempt advantage defendant’s take purposes basic that lie privilege behind the privilege’s protection filing to avoid ... protecting do not relate to the innocent a tax past return which would disclose tax conviction, but preserving rather to crimes); Dichne, law the integrity judicial system in which (2d Cir.1979), F.2d 632 cert. even the guilty are be convicted 63 L.Ed.2d 760 prosecution unless the ‘shoulder the entire (1980) (holding currency reporting statute ” Shott, load.’ Tehan v. against claim); valid as Fifth Amendment (9th Vaught, United States v. F.2d time, however, At the same there a dif- Cir.1970) (holding requirement report ference using between as a amphetamines going declare when against inquisitorial shield and unfair through customs not a violation Fifth government practices and using it as a Amendment); Wynn v. United path sword to through carve a the laws of (9th Cir.1970)(holding F.2d 1245 tariff law the land. Unfortunately, the line between requiring marijuana being disclosure of the two is often crystal less than clear. smuggled into United States not a violation Amendment). of Fifth study A history privilege, the in attempt clarify scope, to its intended appellant’s We hold that Fifth inconclusive. privilege We know that the privilege Amendment against self-incrimi originally England arose in to combat the by, nation was not violated and cannot be ex by oaths used the ecclesiastical with, in officio reporting claimed connection the called, whereby people courts were under requirement 922(e). of 18 U.S.C. death, penalty of ques- to answer broad Although holding our on the Fifth any charges tions brought.4 before upon Amendment issue rests the balancing privilege The evolved time over and was discussed, just of interests we never- are carried, forms, eventually in various to the by theless struck what we see as an ab- American colonies. At its in inclusion the improper compulsion sence of in this case. Rights, Bill very little discussion took We are convinced this factor is entitled to place. Some opined commentators have consideration ‍‌​​​‌‌‌‌‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌​​‌‌‌​‌​‌​‌​​​​‌‌‌​​‍and support lends further to by that the lack of discussion the founders the Appellant may conclusion reach. we privilege was because the deeply was so may not have of a guilty been multitude of accepted granted and taken for by attempt collateral crimes virtue his to sure, explanation.5 needed no To be firearms; however, ship conceal and no privilege in days the first our nation was appellant attempt one ship- forced to limited, much more today.6 But, than it is ment, shipping appel- so was commensurate longevity of our lant any to make disclosure. It is Constitution, entire a appellant our treatment of the belief that had con- reasonable reasonably living and sensible choices. He could stitutional commands as institutions firearms, ship have chosen not be, to there- has privilege Judge enabled the to (1984); Court, Friendly, Supreme McCormick on Evidence 279 icism 38 U.Cin.L.Rev. 4. (1969) (citing Levy, Origins The Amendment Tomorrow: The Case of the Fifth Fifth Amendment, Change, Right Against Constitutional 37 U.Cin.L.Rev. Self-Incrimina- tion, (1968)). at Thompson, Judge 491; McCormick, 5. Friendly’s Thompson, supra, to the at see also supra, Amendment: Comment on a Recent Crit- at 282-288. Fifth said,

Friendly “responsive particular progeny to the do not find Marchetti and its to be problems of needs and time.”7 binding in this сase. evolution, Throughout privilege’s how- conclusion, then, We are drawn to the ever, idea that one’s consti- runs the basic the appellant used the as a regard to right in this not be

tutional sword, therefore, not, improperly and was improperly compelled to incriminate one’s compelled to incriminate This be himself. privilege granted no time has the self. At reading lief is our of the re bolstered right to violate the law. one Supreme cent decision in Court Selective observations, making are While these Public Inter System Service Minnesota mindful of discussion Marchetti Group, —, est Research case, In that United States. (1984).. In re- question is not said that Court “[t]he challenge jecting Fifth Amendment to a to ‘right’ petitioner whether holds violate rеquirement young college men seek- whether, so, law, having done he state but ing certify compliance financial aid give against may compelled evidence laws, said, registration draft the Court at 704. himself.” 390 U.S. at statement, however, of this “[sjince nonregistrant The context to know bound overruling reasoning of Lewis v. application that his for federal aid would be any ‘compul- no he is in sense under L.Ed. 475 He sion’ seek aid. has no reason to 510, 97 Kahriger, 345 U.S. anyone make statement to as wheth- Kahriger had L.Ed. 754 Lewis and registered.” er or not he has at chronological choice employed a antecedent —, Likewise, this analysis uphold type the same statute case, since the defendant bound know The critical dis- struck down Marchetti. his shipment guns bе denied Lewis, tinction between statutes may discovery and he risk collateral Kahriger, and Marchetti and statute crimes, ship compulsion he is under no is, mentioned, previously pur- bar guns the and has no reason to make pose of the The and direction statutes. disclosure. line statutes struck down the Marchetti precedent carefully drafted to ob- history precedent requires Neither nor persons from in ille- tain evidence involved result; history precedent this but if prosecution. for use in their gal activities thing, flexibility that teach one is Moreover, those at a statutes were directed responsiveness privilege require inherently suspect “highly group selective scrutiny close of the facts and circumstanc- noted, As of criminal aсtivities.” we have particular case. The need and es each the same is not the case with the statute problem today, to which the We do not that the instant believe bar. responsive, attempt is the should be to use type “ingeniously statute is the drawn privilege as an offensive tool situa- legislation” worried about in Marchetti. compul- there no improper tions where privilege against “The self-incrimination Important effectively neutral sion. from estab- does bar Government regulations governmental should not be lishing every program scheme featured to The forced to these tactics. facts bow provisions designed to secure informa- surrounding and circumstances this case leg- accomplish proper tion сitizens to clearly appellant demonstrate that had fair purposes.” islative Marchetti choices, by no and reasonable and was 88 S.Ct. at (Brennan, J., compelled.8 concurring). Accordingly, improperly we means Friendly, supra, n. We U.S. at—n. 104 S.Ct. at 3359 at 678. essentially think the same factual distinction out, pointed applies in this case. As written distinguishes Marchetti and 8. Minnesota Public "necessarily” ad- notice to the airline does not "very filing Grosso the basis that the neces- illegal activity. sarily mit illegal gambling activity.” 468 admitted B. Intent There be question can no concealing that weapons under false bottoms steamer that word Appellant alleges “know- trunks for out of country is a line ingly” in the first of section The very bad act. manner in which it was specific an element of establishes intent attempted attests to nature of the act. requires prove that Appellant recognition evinced a that it was appellant knowledge duty had planned not innocent when he to lie about provide written notice to the carrier. We trunks, the contents of the disagree. asked. Secondly, there can be no question that plain reading of the statute leads the policy behind the Gun Control isAct to the conclusion that “knowingly” modi- regulatory emphasis with an on achieve- fies “to deliver or cause be delivered.” public safety. ment of This reading squarely knowing Such would indicate a required element, finding of our Pruner, act court in specific intent to logi- violate the statute. It F.2d at 874. seems cal “knowingly” inсluded as conclude, therefore, We

it is in prevent the statute order to general is a intent statute. This was conviction of a who has delivered to also the conclusion of the Fourth and the contains, parcel a carrier a which unknown Eighth dealing Circuits when person, On firearm. the other questions presented by appeal. this Unit- hand, nothing there Wilson, (4th ed States v. Congressional purpose require indicate a Cir.1983); United Udofot, appel- an element of intent as the (8th Cir.), F.2d 835-37 cert. alleges. Further, lant the absence of — U.S.—, words “willfully,” such as “intent” and traditionally accompany specific which For the reasons set opinion, forth in this crimes, tent supports our conclusion. the decision the district court “Congress would have lan- included similar guage rеquire proof ... had it intended to AFFIRMED. of willful conduct.” United Launder, (Choy, F.2d GOODWIN, SNEED, KENNEDY, J., dissenting). TANG, NELSON, BEEZER, NORRIS and Judges, concurring. Circuit possible

It re scienter is quired regardless of the ex absence PREGERSON, Judge, dissenting, press requirement in the section. To deter with whom SCHROEDER and FERGU- required, mine if it is so this court used has SON, Judges, join in the dissent: two-question guidance a test under the I dissent from majority’s both Freed, United States v. 401 U.S. 91 holdings. The questions (1) to be resolved are is the na I. The Fifth bad, (2) of the act ture innocent or and is majority correctly The sets out the diffi- policy regula behind the statute one of cult standard that must be met before the emphasis with an tion of a achievement government will be allowed an compel public benefit safety social such or one potentially individual to disclose incrimina- punishment by for acts motivated some ting Although information. the majority corrupt motive. See United States v. acknowledges against Pruner, (9th Cir.1979) 873 may only self-incrimination be limited Freed, (citing 401 U.S. at 91 at reasons, the most substantial it con- 1118). The crux of the is test that if the cludes, nevertheless, compelled by act done the accused itself is a “bad” § disclosure 18 policy act and if the U.S.C. behind statute is (1982) regulatory, prov though then scienter not is not unconstitutional need “[n]ei- en. precedent ther nor re- history require this

1506 California). I in Opinion at 1504. Because drivers involved accidents Majority suit.” I protections disagree. Fifth Amendment believe dismissed, I dissent. lightly not be should 922(e) part of a com- Because section prehensive criminal statute and because privilege, must deter- applying In activity transport of firearms in an is confronted the claimant “whether mine statutes,” ‘real,’ merely “permeated with criminal area and and by substantial Albertson, 382 at 86 S.Ct. at of incrimina- U.S. trifling imaginary, hazards all 445 is reasonable to conclude almost Apfelbaum, tion.” United 948, 956, transport of firearms involves criminal ac- 115,128,100 63 L.Ed.2d U.S. Moreover, 922(e) applies omitted). (1980)(citation The tivities. of firearms is made apply when tests we Court set down States, person. engaged Those an unlicensed U.S. v. United Marchetti suspect. inherently 697,19 in a such activities are L.Ed.2d 889 and 88 S.Ct. fact, fire- shipping an unlicensed following We are cases Marchetti. line of potential- has arms interstate commerce whether claimant required to consider laws, ly myriad including: (1) comprehensive prosсrip- violated subject to (1982) 922(a)(1) (5) (limiting activity, U.S.C. Marchetti tions 697, 702,19 39, 48, States, firearms transactions licensed individu- 88 S.Ct. 390 U.S. § als); (1982) (prohibiting (1968); (2) prohibitions “direct- U.S.C. L.Ed.2d inherently export of on the United States group firearms highly ed selective at § List); (1984) activities,” 122.01 Haynes v. Munitions C.F.R. suspect of criminal exporters to (requiring register firearms §§ 123.01, State); (1968) (quoting Secretary id. (firearms licensing requirements); 127.01 Activities Control Albertson Subversive § 194,199,15 (prohibiting non- Board, 178.30 27 C.F.R. (1965); (3) statutory re- of firearms nonli- disposition L.Ed.2d intrastate § (similar censee); 178.31 to 18 quirements “information id. for disclosure of § § 922(e)); (West sup- might reasonably Cal.Penal Codé which [the accused] (state licensing 1982) prosecuting au- firearms pose be available to would (West ment); thorities, surely prove a Code CaLPenal which 1982) weapon (carrying a concealed in vеhi- in a chain’ of significant ‘link evidence Marchetti, person). guilt,” cle or on tending to establish ... at 88 S.Ct. at 703. Similar Admittedly, pro- the Gun Act Control law prosecution under state “hazards exceptions allowing ship- some ‍‌​​​‌‌‌‌‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌​​‌‌‌​‌​‌​‌​​​​‌‌‌​​‍lawful vides proper privi- claim of might support ... of firearms from or unlicensed ments n. Haynes, as well. 390 U.S. at 99

lege” excep- limited persons.1 even these But 731 n. 13. 88 S.Ct. at threat of tions do remove the self-in- 922(e) poses. Excep- crimination majority acknowledges that section The comprehensive also several statutes the part tions existed of a violating the Fifth the licens- Court struck down statutory scheme controls Marchetti, 390 sale, importation of Amendment. transportation, and See ing, 44-45, (exceptions at 700-702 Majority Opinion 1501-02. firearms. howеver, argues, illegality gambling of in some state stat- section majority 93, utes); 922(e) highly Haynes, 390 88 S.Ct. not at “a selective directed (exceptions registration re- inherently suspect criminal activi- group of § 5841). quirement of 26 U.S.C. Undoubt- in the line of as was true Marchetti ties” cases, majority of firearms cases, population edly, in the vast general at the but rather illegal. persons shipment unlicensed Byers, people of affected California persons their require to reveal 29 L.Ed.2d To those 91 S.Ct. clearly subject (1971) applied illegal all intended action would (stop report statute and See, (B). 922(a)(5)(A) e.g., 1. § U.S.C.

them to a substantial hazard of self-inerimi- of explosives firearms identified nation. through screening procedures); 44 C.F.R. § (1982)(requiring 401.3 subject officials An purpose examination of statute’s safety regulations air reports to submit on 922(e) bolsters the conclusion that section shipping of arms and ammunition to highly suspect group. directed at a Far Secretary the Assistant being general regulatory Domestic and statute § Business); persons all International (requir- directed at as in id. 401.4 Byers, section 922(e) ing no other purpose has than to facili- of maintenance such records for two tate discovery activity.2 years). Davis, See also United legislative history of section (9th 482 F.2d Cir.1973); Unit- purpose dicates that its was to assist carri- Henry, ed 922(f) complying ers in with section which (9th Cir.1980). knowingly transporting forbids them from truly If regulatory, penal, firearms in violation the Gun Control easily statute could designed have been H.R.Rep. Act.3 No. Cong., See 90th nоtify carriers of arms shipments without Sess., reprinted 2d Cong. U.S.Code subjecting persons giving notice to the 922(f) & 4420. Ad.News Section im- risk of Following self-incrimination. liability poses on they carriers when Supreme Court’s Haynes, decision in invali- ship “knowledge or reasonable cause dating registration requirement designed to believe” that be in viola- to facilitate payment of a tax by those tion of If the the statute. carrier does not purchasing firearms, Congress certain en- firearms, it is transporting know that then immunity provision acted a use preventing 922(f). it has not violated section There- proceedings the use in criminal of evidence fore, compliance the carrier’s with section registration. revealed 26 U.S.C. 922(f) dependent is not on the notice that § (1982) (originally enacted as Act of 922(e) requires. section § 90-618, 201, Oct. Pub.L. No. Regardless purpose section 1232); Stat. see also United States v. 922(e), it in fact serves as an aid to law Freed, 601, 605-06, statutory enforcement. Because re- 1116-17, (1971) (upholding them, porting requirements imposed on car- containing immunity revised statute use routinely riers turn over to appropriate au- provision against attack). constitutional illegal thorities information on ship- arms immunity provision use is not inconsistent Andreas, ments.4 Illinois v. goal regulating the flow of 3323 n. weapons over state and national borders. carriers, particular, Air are sub- Therefore, Congress designed if section ject variety reporting to a wide 922(e) solely pur- to further regulatory § See, ments. e.g., 14 C.F.R. poses, it would have inсluded use immuni- (requiring air preserve carriers to certain § ty provision similar to that in 26 security records); and other id. 107.23 record, (requiring airport operators provision 5848. absence such a among things, type other number and because section is not needed to argument At knowledge 2. oral was unable or ammunition with or reason- provide shippers information how often shipment, able cause to believe give 922(e), under notice how often no- transportation, receipt thereof would be legal shipments, tice revealed often how notice provisions chap- in violation of the of this illegal shipments, many peo- revealed and how ter. ple, any, prosecuted illegal ship- when added.) (Emphasis Thus, 922(e)'s ments were revealed. serving “regulatory" purpose usefulness Similarly, reports Grosso v. United States unclear. routinely the I.R.S. turned over re- information garding wagering prosecuting activities to au- 922(f) provides: Section although thorities to do so. It be shall unlawful common or 62, 66, 709, 712, U.S. 88 S.Ct. 19 L.Ed.2d 906 transport contract carrier deliver to or foreign interstate or commerce 1508 statutory responsibil- eriminating if the carriers’ information. Even section

further 922(f), 922(e) specifically designed ities the section can under section was not to elicit information, a criminal statute de- just viewed as its be this effect is as insidi- signed Act to ferret out Gun Control violat- “ingeniously legislation” ous as the drawn to by requiring ors them incriminate them- condemned Marchetti. selves. II. Intent questions majority the “com- Finally, the 922(e)’s Aрart section from constitutional required by pulsion” actually section deficiency, re- the conviction should be 922(e), concluding that invocation of separate ground versed on the that to use the privilege allows the defendant holding court erred in the of- district escape pros- a sword to fifth amendment as require proof specific fense does not against a than as shield un- ecution rather To a prove intent. violation of section Although practices. government fair 922(e), I believe must show protects the recognizing that the knowingly notify that the accused failed to innocent, majori- guilty as well as the regarding shipment. the carrier a firearms essentially to ar- ty’s analysis amounts of, “The existence of a mens rea is the rule (i.e., if gument person a is innocent exception to, than principles rather ship guns to in violation of the decides not Anglo-American jurisprudence.” law) being risk to he will never Gypsum v. United States United States incriminating make disclosures.5 The Su- Co., 2864, 2873, 438 98 S.Ct. U.S. preme rejected reasoning in Court this (1978) (quoting Dennis v. holding

Marchetti that: States, 71 privilege was intended The constitutional (1951)). L.Ed. 1137 Absent imprudent guilty to shield legislative clear intent to eliminate mens foresighted; well innocent requirement, should reluctant rea courts such an inference of antecedent choice interpret criminal statutes do so. Unit- enough abrogate privi- were alone Launder, ed States lege’s protection, it would be excluded (9th Cir.1984); see also Morissette v. Unit- it has the situations which histor- ed ically guaranteed, and withheld been 96 L.Ed. 288 it. require from those who most 922(e), Section unlike statutes construed 390 U.S. at 704. There is no on,6 by cases relies is not majority distinguishing rational basis for this case imposes on its crimi- statute that face strict from Marchetti. Both cases involve stat- liability person fire- nal on a who delivers requiring part utes who notifying to a first highly group inherently suspect of arms carrier without it selective Rather, potentially shipment.7 criminal activities to reveal Act, majority case 5. The relies on recent of Selec- merits the National Firearms 26 U.S.C. Pruner, 5841-5872); System Public §§ tive Service ‍‌​​​‌‌‌‌‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌​​‌‌‌​‌​‌​‌​​​​‌‌‌​​‍v. Minnesota Interest United States (9th Cir.1979) (construing Group, —U.S.—, Research F.2d 18 U.S.C. 922(h)(1)). support its conclusion compel does not incrimina- language majority emphasizes tion. While some of Selective 7. The that the word "will- might reasoning fully” present Service cast doubt on the there the statute. Yet Marchetti, nothing significant magical the Court did about the use of the word will- Marchetti, fact, fully. jury overrule and in found it distin- instruction standard federal guishable “knowingly” Compare & on its facts. Devitt Blackmar defines as vol- untarily intentionally doing omitting 3358 with 104 S.Ct. at 3359 n. Selective distinguishable proscribed points Service is from both this case do a act. The instruction also before, respect and Marchetti. Service involved condi- stated to an "[a]s Selective out case, (financial aid) charged imposed dis- in this tions on benefits offense such as pensed by government. proved beyond the federal intent must be a reasonable doubt there can be a conviction.” E. before Blackmar, Freed, Instructions, Jury Devitt & C. 14.- 03, 14.04, (3d 1977). (1971) (construing ed. L.Ed.2d amend- 14.05

1509 knowing explicitly proscribes delivery Juan, 314, (2d with- States San 545 F.2d 318 Although “knowing- out notice. the word (“Without Cir.1976) proof of knowl ly” immediately precedes the words “to of, edge or notice to [defendant] deliver,” plain reading a statute indi- requirements, [currency] reporting jury a “knowingly” cates that modifies the stat- beyond could not determine a reasonable language, i.e., “knowingly ute’s crucial to requisite doubt that she willful had. any package deliver ... ... which there intent.”). Courts have also a is firearm or ammunition without writ- showing of scienter in cases weap where carrier____”, ten notice simply to not ons are involved. See United States v. delivery.8 the mere This act conclusion Herbert, 981, (9th 698 F.2d 986-87 Cir. strengthеned by the fact the focus § 1983) (construing 5861(d) 26 U.S.C. 922(e) is on notice (e), prohibiting possession and transfer ment, delivery, mere not the act of which is firearms); unregistered United States v. extensively governed by other sections of (9th Lizarraga-Lizarraga, 541 F.2d 826 short, the Gun Control Act.9 In a reason- § Cir.1976)(construing 1934, pro 22 U.S.C. reading 922(e) able of section indicates that hibiting export of ammunition from the “knowingly” refers to the statute’s notice Republic Mexico). United States into the requirement.10 Nothing 922(e) in section directs us to de In punishes other cases where a statute part from our practice usual of requiring person’s report, a to a failure make courts scienter punishes where a statute failure to generally required showing have a of scien report. 225, California, tеr. Lambert v. 355 U.S. 240, (1957) (“Where 78 2 L.Ed.2d 228 reading reasonable of the Gun Control duty a did not know of the regis compel Act does the conclusion that proof ter and where there no was of the Congress intended specific to eliminate a knowledge, probability of such he may not requirement 922(e). intent from section At be consistently pro convicted due least, very ambiguous.11 cess.”); Chen, United States v. 605 F.2d court, therefore, This should not reach out (9th Cir.1979) (“There 435 was suffi require hold that section does not cient evidence to establish defendant specific Rather, intent. we should follow carrying knew she was more the stat [than Court’s admonition: “[A]mbi- utory amount], but the evidence that de guity concerning the ambit of stat- fendant she report knew must file a lenity.” utes should be resolved fаvor of insufficient.”); woefully United States Gypsum United States Granda, (5th Cir.1978) 565 F.2d 926 Co., (quot- (“[T]he report, failure to when one is with ing Rewis v. United knowledge out require of the reporting ment, must classified as nonfeasance L.Ed.2d ”); opposed (1971). Accordingly, ‘misfeasance.’ require I would Marvin, (1983), 8. See United States v. 687 F.2d failed consider that the (8th Cir.1982) (construing "knowingly" 7in focus of section is on notice to the carri- 2024(b) er, modifying phrase, Therefore, U.S.C. § the entire delivery. not on mere we should merely verb “to use” which it immedi- decline follow these out circuit cases. denied, ately precedes), cert. L.Ed.2d & problem 11. LaFave Scott addressed this in the discussing "knowingly” context word punish delivery 9. Some sections mere without sky” "blue law: See, 922(a)(1) knowledge. e.g., 18 U.S.C. grammar As a matter of the statute am- (g). knowledge Others contain re- biguous; it is not at all clear how far down See, 922(i) (k). quirement. e.g., § 18 U.S.C. "knowingly” the sentence the word tended travel —whether it modifies holding require that the section does not “sells,” security,” or "sells a or "sells a intent, secur- Wilson, proof United States v. ity permit.” without a (4th Cir.1983), 721 F.2d and United Scott, Law, & A. W. LaFave Criminal (8th Cir.), Udofot, 835-37 — —, cert. intent, prove I reverse conviction. America, STATES of UNITED

Plaintiff-Appellee, COIN, Raymond Joseph Weidner, Atty., P. Robert Asst. U.S. Defendant-Appellant. Ariz., Phoenix, plaintiff-appellee. for

No. 84-1137. Phoenix, Ariz., Douglas McVay, J. for defendant-appellant. ‍‌​​​‌‌‌‌‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌​​‌‌‌​‌​‌​‌​​​​‌‌‌​​‍Appeals, States Court of Ninth Circuit. 13, 1984 *.

Submitted Dec. Decided Feb. BROWNING, Judge, Before Chief POOLE, Judges.

WALLACE PER CURIAM.

Appellant Raymond Joseph appeals Coin embezzling jury his conviction for funds violation of 18 tribal He the district claims that court refusing give jury instruction erred restitution, stated that while not a which crime, may to the be considered as defense bearing on intent. We affirm. evidence Coin was elected vice-chairman part As Hopi Tribe December 1981. duties, Hopi he run the his was to Civic In November of Coin ob- Center. requisitions, ostensibly some blank tained pay some bills for the Center. Coin’s secretary up subsequently picked checks in requisitions amount of office, including one tribal treasurer’s $20,000made out Arizona The- to Northern deposited day, The next atre. Coin $20,000 opened he check account a bank From for Northern Arizona Theatre. this $12,258.59 he made payment account one purchase equipment, and used the movie personal remainder for his benefit. 3(f). 34(a) App.P. Rule panel unanimously case Ninth Circuit finds this suitable *The argument. oral Fed.R. for decision without

Case Details

Case Name: United States v. Virgilio Patricio Flores

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 21, 1985

Citation: 753 F.2d 1499

Docket Number: 82-1445

Court Abbreviation: 9th Cir.