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UNITED STATES v. FREED ET AL.

SUPREME COURT OF THE UNITED STATES


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 concurrent violation of law.*fn10

The transferor -- not the transferee -- makes any incriminating statements. True, the transferee, if he wants the firearm, must cooperate to the extent of supplying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful, possessor of the firearm. Indeed, the only transferees who may lawfully receive a firearm are those who have not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future. But the claimant is not confronted by "substantial and 'real'" but merely "trifling or imaginary hazards of incrimination" -- first by reason of the statutory barrier against use in a prosecution for 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 v. United States, supra, at 53-54. Cf. Minor v. United States, 396 U.S. 87, 94. Since the state and other federal agencies never see the information, he is left in the same position as if he had not given it, but "had claimed his privilege in the absence of a . . . grant of immunity." Murphy v. Waterfront Comm'n, 378 U.S. 52, 79. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination.*fn11

Appellees' argument assumes the existence of a periphery of the Self-Incrimination Clause which protects

[ 401 U.S. Page 607]

     a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.

Another argument goes to the question of entrapment. But that is an issue for the trial, not for a motion to dismiss.

II

We also conclude that the District Court erred in dismissing the indictment for absence of an allegation of scienter.

The Act requires no specific intent or knowledge that the hand grenades were unregistered. It makes it unlawful for any person "to receive or possess a firearm which is not registered to him."*fn12 By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 321 F.2d 174, 179, and cases cited.

The presence of a "vicious will" or mens rea (Morissette v. United States, 342 U.S. 246, 251) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category.*fn13 Id., at 260-261.

"Where Congress borrows terms of art in which are accumulated the legal tradition and meaning

[ 401 U.S. Page 608]

     of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Id., at 263.

At the other extreme is Lambert v. California, 355 U.S. 225, in which a municipal code made it a crime to remain in Los Angeles for more than five days without registering if a person had been convicted of a felony. Being in Los Angeles is not per se blameworthy. The mere failure to register, we held, was quite "unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Id., at 228. The fact that 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 was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id., at 229-230.

[ 401 U.S. Page 609]

     In United States v. Dotterweich, 320 U.S. 277, 284, a case dealing with the imposition of a penalty on a corporate officer whose firm shipped adulterated and misbranded drugs in violation of the Food and Drug Act, we approved the penalty "though consciousness of wrongdoing be totally wanting."

The present case is in the category neither of Lambert nor Morissette, but is closer to Dotterweich. This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.*fn14 They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case:

"It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute,

[ 401 U.S. Page 610]

     and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided." Id., at 253-254.

Reversed .

Disposition

Reversed.

MR. JUSTICE BRENNAN, concurring in the judgment of reversal.

I agree that the amendments to the National Firearms Act, 26 U. S. C. §§ 5841-5872 (1964 ed., Supp. V), do not violate the Fifth Amendment's privilege against self-incrimination, and join Part I of the opinion of the Court. However, I do not join Part II of the opinion; although I reach the same result as the Court on the intent the Government must prove to convict, I do so by another route.

I join Part I on my understanding of the Act's new immunity provision. 26 U. S. C. § 5848 (1964 ed., Supp. V). The amended registration provisions of the National Firearms Act do not pose any realistic possibility of self-incrimination of the transferee under federal law. An effective registration of a covered firearm will render the transferee's possession of that firearm legal under federal law. It is only appellees' contention that registration or application for registration will incriminate them under California law that raises the Fifth Amendment issue in this case. Specifically, appellees assert that California law outlaws possession of hand grenades and that registration under federal law would, therefore, incriminate them under state law. Assuming that appellees correctly interpret California law, I think that the Act's immunity provision suffices to supplant the

[ 401 U.S. Page 611]

     constitutional protection. Section 5848 provides in pertinent part:

"No information or evidence obtained from an application . . . shall . . . be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application . . . ."

In my judgment, this provision would prevent a State from making any use of a federal registration or application, or any fruits thereof, in connection with a prosecution under the State's possession law.*fn1 This would be true even if the State charged a transferee with possession of the firearm on a date after the date the application was filed, because possession is a continuing violation.*fn2 Therefore, for purposes of the State's possession law, a transferee's continued possession of a registered firearm would constitute "a violation of law occurring . . . concurrently with the filing of the application."

I agree with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transferee might possibly commit in the future with the registered firearm. The only disclosure required under the amended Act is that the transferee has received a firearm and is in possession of it. Thus, in connection with the present general registration scheme, "the relevant class of activities 'permeated

[ 401 U.S. Page 612]

     with criminal statutes,'" Mackey v. United States, post, at 710 (BRENNAN, J., concurring in judgment), is limited to the class of activities relating to possession of firearms. Id., at 707-711. Since I read the statute's immunity provision to provide immunity co-extensive with the privilege in that regard, I find no Fifth Amendment bar to the enforcement of the federal statute.

The Court's discussion of the intent the Government must prove to convict appellees of violation of 26 U. S. C. § 5861 (d) (1964 ed., Supp. V) does not dispel the confusion surrounding a difficult, but vitally important, area of the law. This case does not raise questions of "consciousness of wrongdoing" or "blameworthiness." If the ancient maxim that "ignorance of the law is no excuse" has any residual validity, it indicates that the ordinary intent requirement -- mens rea -- of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy. Nor is it possible to decide this case by a simple process of classifying the statute involved as a "regulatory" or a "public welfare" measure. To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus, while the Court does hold that no intent at all need be proved in regard to one element of the offense -- the unregistered 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

[ 401 U.S. Page 613]

     to the third element to declare that the offense falls within the "regulatory" category.

Following the analysis of the Model Penal Code,*fn3 I think we must recognize, first, that "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500 (1951) (Vinson, C. J., announcing judgment); Smith v. California, 361 U.S. 147, 150 (1959);*fn4 second, that mens rea is not a unitary concept, but may vary as to each element of a crime; and third, that Anglo-American law has developed several identifiable and analytically distinct levels of intent, e. g., negligence, recklessness, knowledge, and purpose.*fn5 To determine the mental element required for conviction, each material element of the offense must be examined and the determination made what

[ 401 U.S. Page 614]

     level of intent Congress intended the Government to prove, taking into account constitutional considerations, see Screws v. United States, 325 U.S. 91 (1945), as well as the common-law background, if any, of the crime involved. See Morissette v. United States, 342 U.S. 246 (1952).

Although the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense, we are not without some guideposts. I begin with the proposition stated in Morissette v. United States, 342 U.S., at 250, that the requirement of mens rea "is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." In regard to the first two elements of the offense, (1) possession of items that (2) are hand grenades, the general rule in favor of some intent requirement finds confirmation in the case law under the provisions replaced by the present amendments. The cases held that a conviction of an individual of illegal possession of unregistered firearms had to be supported by proof that his possession was "willing and conscious" and that he knew the items possessed were firearms. E. g., Sipes v. United States, 321 F.2d 174, 179 (CA8 1963); United States v. Decker, 292 F.2d 89 (CA6 1961). Congress did not disapprove these cases, and we may therefore properly infer that Congress meant that the Government must prove knowledge with regard to the first two elements of the offense under the amended statute.

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 that the appellees knew that the grenades were

[ 401 U.S. Page 615]

     unregistered or negligently or recklessly failed to ascertain whether the weapons were registered. It is true that such a requirement would involve knowledge of law, but it does not involve "consciousness of wrongdoing" in the sense of knowledge that one's actions were prohibited or illegal.*fn6 Rather, the definition of the crime, as written by Congress, requires proof of circumstances that involve a legal element, namely whether the grenades were registered in accordance with federal law. The knowledge involved is solely knowledge of the circumstances that the law has defined as material to the offense. The Model Penal Code illustrates the distinction:

"It should be noted that the general principle that ignorance or mistake of law is no excuse is usually greatly overstated; it has no application when the circumstances made material by the definition of the offense include a legal element. So, for example, it is immaterial in theft, when claim of right is adduced in defense, that the claim involves a legal judgment as to the right of property. It is a defense because knowledge that the property belongs to someone else is a material element of the crime and such knowledge may involve matter of law as well as fact. . . . The law involved is not the law defining the offense; it is some other legal rule that characterizes the attendant circumstances that

[ 401 U.S. Page 616]

     are material to the offense." Model Penal Code § 2.02, Comment 131 (Tent. Draft No. 4, 1955).

Therefore, as with the first two elements, the question is solely one of congressional intent. And while the question is not an easy one, two factors persuade me that proof of mens rea as to the unregistered status of the grenades is not required. First, as the Court notes, the case law under the provisions replaced by the current law dispensed with proof of intent in connection with this element. Sipes v. United States, supra. Second, the firearms covered by the Act are major weapons such as machineguns and sawed-off shotguns; deceptive weapons such as flashlight guns and fountain pen guns; and major destructive devices such as bombs, grenades, mines, rockets, and large caliber weapons including mortars, antitank guns, and bazookas. Without exception, the likelihood of governmental regulation of the distribution of such weapons is so great that anyone must be presumed to be aware of it. In the context of a taxing and registration scheme, I therefore think it reasonable to conclude that Congress dispensed with the requirement of intent in regard to the unregistered status of the weapon, as necessary to effective administration of the statute.


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