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Desimone v. United States

decided: May 1, 1970.

ALEXANDER DESIMONE, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE



Moore and Feinberg, Circuit Judges, and Bonsal, District Judge.*fn* Bonsal, District Judge (dissenting).

Author: Feinberg

FEINBERG, Circuit Judge:

This case is one of the many after the Marchetti-Grosso-Haynes trilogy in which the scope and effect of those decisions must be assessed. Alexander Desimone appeals from denial by the United States District Court for the District of Connecticut, Robert C. Zampano, J., of his petition under 28 U.S.C. § 2255 to set aside a plea of guilty of conspiring to violate section 5821 of the National Firearms Act. Finding no infringement of appellant's right not to incriminate himself, we affirm Judge Zampano's decision, which is reported at 303 F. Supp. 406.

I.

Appellant was indicted in 1966 on three counts: two charged unlawful possession of a silencer in violation of section 5851 of the National Firearms Act, and one charged conspiracy to make a quantity of silencers without paying the tax required by section 5821, thus violating 18 U.S.C. § 371. After trial began, appellant pleaded guilty to the third count. After some backing and filling, including an oral motion to vacate the guilty plea, appellant was sentenced in July 1967; the two section 5851 counts were dismissed. Some six months later, the Supreme Court decided Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968). Within a few months appellant filed a section 2255 petition, claiming that he was convicted of violating an unconstitutional statute. Judge Zampano held that Haynes was not retroactive and that, in any event, the requirements of section 5821 did not violate appellant's fifth amendment rights.

Appellant contends that the district judge was wrong on both issues. A third question is raised by the Government's argument that appellant waived the self-incrimination claim by his voluntary guilty plea. We do not find it necessary to resolve all of these issues. We hold, as will be seen below, that 26 U.S.C. § 5821 does not violate appellant's constitutional rights. Accordingly, we do not consider the retroactivity of the Supreme Court opinions cited above or the effect of appellant's guilty plea, although we note that these questions have occasioned differences of opinion between the circuits.*fn1

II.

At the time appellant pleaded guilty, section 5821 contained five subdivisions.*fn2 Subsections (a) and (b) provided for a tax of $200 upon the making of any firearm by any person not "engaged * * * in the business of manufacturing firearms."*fn3 Such a maker of the firearm, under subsections (c) and (d), paid the tax in advance; payment was represented by stamps provided by the Treasury. Finally -- and it is to this that appellant particularly points -- subsection (e) provided:

It shall be unlawful for any person subject to the tax imposed by subsection (a) to make a firearm unless, prior to such making, he has declared in writing his intention to make a firearm, has affixed the stamp described in subsection (d) to the original of such declaration, and has filed such original and a copy thereof. The declaration required by the preceding sentence shall be filed at such place, and shall be in such form and contain such information, as the Secretary or his delegate may by regulations prescribe. * * * If the person making the declaration is an individual, there shall be included as part of the declaration the fingerprints and a photograph of such individual.

Under the then applicable Treasury Regulations, the declaration of intent had to be "supported by a certificate of the local chief of police" or other acceptable person, and the certificate had to indicate that the fingerprints and photograph were those of the declarant, and that the firearm was intended "for lawful purposes." Treas. Reg. § 179.78 (1955), 20 Fed.Reg. 6739 (Sept. 14, 1955). It is conceded that under section 5848(1) a silencer falls within the definition of a firearm.

The constitutionality of section 5821 has not been passed upon by the Supreme Court. Haynes v. United States, supra, upon which appellant relies, did not deal with section 5821, but with the relationship between sections 5851 and 5841 of the National Firearms Act and the unconstitutional effect of the registration requirement thereunder. Section 5841 obliged any person possessing a firearm to register it; section 5851 made it unlawful to possess an unregistered firearm. The Court held that the "elements of the offenses created by the two sections are * * * identical," 390 U.S. at 94, 88 S. Ct. at 729, and that the provision requiring registration of the firearm would in most cases cut across the right not to incriminate oneself; accordingly, "a proper claim of the constitutional privilege * * * provides a full defense to prosecutions" under either section. Id. at 100, 88 S. Ct. at 732. The heart of the Court's opinion appears to be the following, id. at 96-97, 88 S. Ct. at 730:

The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act's other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5851 and 5861. They are unmistakably persons "inherently suspect of criminal activities." Albertson v. S.A.C.B., 382 U.S. 70, 79, 86 S. Ct. 194, 199, 15 L. Ed. 2d 165. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act's requirements; there are situations, which the United States itself styles "uncommon," in which a possessor who has not violated the Act's other provisions is obliged to register. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are "remote possibilities out of the ordinary course of law." Heike v. United States, 227 U.S. 131, 144, [33 S. Ct. 226, 228, 57 L. Ed. 450]; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed "real and appreciable." Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599-600 [16 S. Ct. 644, 647-648, 40 L. Ed. 819]. [Footnotes omitted.]

The other two cases in the trilogy -- Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968) -- dealt with the federal occupational and excise taxes on gambling rather than with the National Firearms Act. In Marchetti, the Court held that the requirement of registering a present intent to commence gambling activities and paying a special tax was incriminatory in the face of comprehensive state prohibitions on gambling, which made wagering "an area permeated with criminal statutes." 390 U.S. at 47, 88 S. Ct. at 702. On similar grounds, the Court in Grosso reversed a conviction for failure to pay the gambling excise tax.

Appellant claims that under these decisions section 5821 puts him to an unconstitutional choice if he makes a firearm: either remaining silent and suffering the penalties of the act or registering thereunder and incriminating himself. The incrimination results, according to appellant, because he thus identifies himself as a member of "a highly selective group ...


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