United States v. Freed/Opinion of the Court

by William O. Douglas

United States Supreme Court

401 U.S. 601

United States  v.  Freed

 Argued: Jan. 11, 1971. --- Decided: April 5, 1971

Following our decision in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes. ^[1]

At the time of Haynes 'only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.' Id., at 87, 88 S.Ct. at 725. Under the Act, as amended, all possessors of firearms as defined in the Act ^[2] 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, 88 S.Ct., at 729-732. Under the present Act ^[3] only possessors who lawfully make, manufacturere, 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.' ^[4]

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, 88 S.Ct., at 730-732. 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.' ^[5] 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, 84 ,S.Ct. 1489, 12 L.Ed.2d 653; Marchetti v. United States, 390 U.S. 39, 54, 88 S.Ct. 697, 705, 19 L.Ed.2d 889. 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 ^[6] 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 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, 72 S.Ct. 591, 96 L.Ed. 863; United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487.

* 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 ^[7] 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. ^[8] 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. ^[9] 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 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. ^[10]

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, 390 U.S., at 53-54, 88 S.Ct., at 705. Cf. Minor v. United States, 396 U.S. 87, 94, 90 S.Ct. 284, 287, 24 L.Ed.2d 283. Since the states 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, 84 S.Ct. 1594, 1610, 12 L.Ed.2d 678. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination. ^[11]

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

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.' ^[12] By the lower court decisions at the time that requirement was witten into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 8 Cir., 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, 72 S.Ct. 240, 243, 96 L.Ed. 288) 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, 72 S.Ct. at 245. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category. ^[13] Id., at 260 261, 72 S.Ct., at 248-249.

'(W)here Congress borrows terms of art in which are accumulated the legal tradition and meaning 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, 72 S.Ct., at 250.

At the other extreme is Labert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, 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, 78 S.Ct., at 243. 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, 78 S.Ct., at 243-244.

In United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48, 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 wrong-doing 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. ^[14] They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed. 604, 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, 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, 42 S.Ct., at 302 303.

Reversed.

Notes

1. See S.Rep.No.1501, 90th Cong., 2d Sess., 26, 42, 48, 52; H.R.Conf.Rep.No.1956, 90th Cong., 2d Sess., 35.
2. 26 U.S.C. § 5845(f) (1964 ed., Supp. V) defines 'destructive device' to include 'grenades' which are involved in the present case.
3. Title 26 U.S.C. § 5812(a) (1964 ed., Supp. V) provides:
4. 26 U.S.C. § 5861(d) (1964 ed., Supp. V).
5. 26 U.S.C. § 5848 (1964 ed., Supp. V); and see 26 CFR § 179.202.
6. Penal Code § 12303 (1970).
7. 26 U.S.C. § 5811 (1964 ed., Supp V).
8. 26 U.S.C. § 5812(a) (1964 ed., Supp. V); 26 CFR §§ 179.98 179.99.
9. 26 CFR § 179.100.
10. 26 U.S.C. § 5848 (1964 ed., Supp. V); 26 CFR § 179.202.
11. We do not reach the question of 'use immunity' as opposed to 'transactional immunity,' cf. Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596, but only hold that, under this statutory scheme, the hazards of self-incrimination are not real.
12. 26 U.S.C., § 5861(d) (1964 ed., Supp. V).
13. As respects the Morissette case, J. Marshall, Intention In Law and Society 138 (1968), says:
14. We need not decide whether a criminal conspiracy to do an act 'innocent in itself' and not known by the alleged conspirators to be prohibited must be actuated by some corrupt motive other than the intention to do the act which is prohibited and which is the object of the conspiracy. An agreement to acquire hand grenades is hardly an agreement innocent in itself. Therefore what we have said of the substantive offense satisfies on these special facts the requirements for a conspiracy. Cf. United States v. Mack, 2 Cir., 112 F.2d 290.