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UNITED STATES v. FREED ET AL.

decided: April 5, 1971.

UNITED STATES
v.
FREED ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA.

Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan (as to Part I), Stewart, White, Marshall, and Blackmun, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 610.

Author: Douglas

[ 401 U.S. Page 602]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Following our decision in Haynes v. United States, 390 U.S. 85, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes.*fn1

At the time of Haynes "only weapons used principally by persons engaged in unlawful activities would be subjected to taxation." Id., at 87. Under the Act, as amended, all possessors of firearms as defined in the Act*fn2

[ 401 U.S. Page 603]

     are covered, except the Federal Government. 26 U. S. C. § 5841 (1964 ed., Supp. V).

At the time of Haynes any possessor of a weapon included in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Federal Government made available to state, local, and other federal officials. Id., at 95-100. Under the present Act*fn3 only possessors who lawfully

[ 401 U.S. Page 604]

     make, manufacture, or import firearms can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record."*fn4

At the time of Haynes, as already noted, there was a provision for sharing the registration and transfer information with other law enforcement officials. Id., at 97-100. The revised statute explicitly states that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence."*fn5 The scope of the privilege extends, of course, to the hazards of prosecution under state law for the same or similar offenses. See Malloy v. Hogan, 378 U.S. 1; Marchetti v. United States, 390 U.S. 39, 54. And the appellees, apparently fearful that the Act as written does not undertake to bar the use of federal filings in state prosecutions, urge that those risks are real in this case. It is said that California statutes*fn6 punish the possession of grenades and that federal registration will incriminate appellees under that law.

The Solicitor General, however, represents to us that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of nonregistration may be necessary to an investigation or prosecution under the present Act.

The District Court nonetheless granted the motion to dismiss on two grounds: (1) the amended Act, like the

[ 401 U.S. Page 605]

     version in Haynes, violates the Self-Incrimination Clause of the Fifth Amendment; and (2) the conspiracy "to possess destructive devices" and the possession charged do not allege the element of scienter. The case is here on direct appeal. 18 U. S. C. § 3731. And see United States v. Spector, 343 U.S. 169; United States v. Nardello, 393 U.S. 286.

I

We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person "shall be compelled in any criminal case to be a witness against himself." As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor -- not the transferee -- does the registering. The transferor pays the transfer tax and receives a stamp*fn7 denoting payment which he affixes to the application submitted to the Internal Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transferee. In addition, the application must be supported by the photograph and fingerprints of the transferee and by a certificate of a local or federal law enforcement official that he is satisfied that the photograph and fingerprints are those of the transferee and that the weapon is intended for lawful uses.*fn8 Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transferee. At that time he is to give the approved application to the transferee.*fn9 As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities

[ 401 U.S. Page 606]

     and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or ...


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