United States v. Freed

PETITIONER:United States
LOCATION:Edward Coolidge’s Home

DECIDED BY: Burger Court (1970-1971)

CITATION: 401 US 601 (1971)
ARGUED: Jan 11, 1971
DECIDED: Apr 05, 1971

Facts of the case


Audio Transcription for Oral Argument – January 11, 1971 in United States v. Freed

Warren E. Burger:

We’ll hear arguments next in number 345, United States against Freed and Sutherland.

Mr. Zinn, you may proceed.

Matthew J. Zinn:

Mr. Chief Justice and may it please the Court.

This case is here on the Government’s direct appeal from a decision of the District Court for the Central District of California dismissing a two-count indictment against the appellees, the first for conspiracy to possess and the second for the completed substantive act of possession of unregistered hand grenades in violation of 26 U.S.C. Section 5861 (d).

That provision which appears on page 4 of our brief makes it unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”

This involved only hand grenades?

Matthew J. Zinn:

That’s correct Mr. Justice Harlan only hand grenades.

And I guess I ought to point out now although I was going to do so later that the provisions that we are concerned with here do not apply to all firearms, but generally to sawed-off rifles and shotguns, short-barrel rifles and shotguns, silencers, machineguns, other automatic weapons and destructive devices such as bombs, rockets and hand grenades.

The District Court dismissed the indictment on two constitutional grounds.

First, it ruled that Section 5841 (c) which requires that certain information be furnished the Government before a firearm is registered — I beg your pardon, before a firearm is transferred and Section 5861 (d) are unconstitutional because Section 5841 (c) requires appellees to furnish evidence incriminating to themselves under California law making it unlawful to possess hand grenades.

Second, the District Court rule that Section 5861 (b) violates the Due Process Clause because it does not require the Government to allege and prove that a transferee obtained possession of a firearm with specific knowledge and intent that the firearm be unregistered.

Section 5861 (d) and Section 5841 (c) were enacted as part of the Gun Control Act of 1968.

That Act was passed by Congress in response to the violence occurring earlier in 1968 and to the fact that during 1967 more than 130,000 people in the United States were victimized by gunman.

Title II of the Gun Control Act of 1968 would which is concerned here substantially amended the National Firearms Act which this Court had dealt with in Haynes against the United States which was decided in January of 1968 together with Marchetti and Grosso.

In Haynes, this Court concluded that the old registration and possession provisions of the National Firearms Act compelled self-incrimination and that the privilege was a complete defense to a prosecution under either the possession or registration provisions.

In amending the National Firearms Act in October of 1968, Congress set out to cure the constitutional infirmities which were pointed out by Mr. Justice Harlan in his opinion as existing under the prior statutory scheme.

The pertinent legislative history is replete with congressional references to its purpose to overcome the prior infirmities and in this respect the Congress was doing just what Mr. Justice Harlan invited it to do in his opinion in Haynes.

He explained that a valid statute could be enacted which would achieve substantially the same purposes as the statutory scheme dealt with by the court in Haynes and which would not run a foul of constitutional limitations.

Our position here is that Congress has done just this —

Was the deal that you got now, is that a product of the Department of Justice that the grant was dealt?

Matthew J. Zinn:

Yes sir, it is.

I think it would be helpful at the outset for me to describe briefly how the new National Firearms Act works in actual practice.

To illustrate the provisions of the new act, let us assume that a manufacturer who is license to manufacture hand grenades in fact does so.

He is required to register the hand grenades with the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service that’s the ATFD by giving notice of their manufacture and of the serial number of each grenade.

This is required by Section 5841 (d) and (c) which is set out on pages 3 and 4 of our brief.

Upon giving the notice to the ATFD, the hand grenades are then registered to the manufacturer.

If he wishes to transfer them to another, he may do so lawfully and the transferee may receive them lawfully only in accordance with the provisions of Section 5812 of Title 26 which appears on page 2 and 3 of our brief.

Under Section 5812, a grenade may not be transferred unless the transferor has filed the requisite application in duplicate with ATFD and has paid the transfer tax which is $200.00 in the case of grenade.

The transferor, the transferee and the firearm to be transferred must be identified in the application.

In addition, they must be appended to the application — a set of fingerprints of the transferee, his photograph and a statement from the local chief of police or other similar official that receive or possession of the firearm would not place the transferee in violation of state or local law.

I’m curious, what do grenades that (Inaudible)?

Matthew J. Zinn:

Well, law enforce — I am advised that there are collectors Mr. Justice Harlan, people who like to have more trophies and much to my own surprise some people just like to have rockets — live rockets or live bombs in their basements and so long as it’s not prohibited by state law, it’s possible to do that.

Why would anyone like that?

Matthew J. Zinn:

Well, I don’t really know what they do with them but as we pointed out in our brief more than 180,000 firearms described in Title II are registered.

How many grenades?

Matthew J. Zinn:

I beg your pardon?

How many grenades?

Matthew J. Zinn:

I don’t know sir.

And you say —

Matthew J. Zinn:

But bombs and —

Why do they collect as to pay $200.00 of tax and other (Voice Overlaps) —

Matthew J. Zinn:

That’s right.


Matthew J. Zinn:

That’s right plus I assume the cost of acquiring the firearm.

Now, admittedly Mr. Justice most of the firearms registered are registered to law enforcement officials but there are substantial numbers in museums —

But law enforcement officials if they want grenades do they have to pay that tax.

Matthew J. Zinn:

They don’t have to pay the tax, but except in the case of a firearm in the possession or under the control of United States.

The application must be filed and notice must be given that is being transferred to a local official.

The fact remains if there are actually people who enjoy having these things.

As I have said that in addition to the transferor’s application, there is appended the set of the fingerprints of the transferee, his photograph and a statement from the local chief of police that receipt or possession of the firearm would not the transferee in violation of local law.

Now, this package is sent to the ATFD right here in Washington, that body is empowered to approve an application only if and this is critical to our case receipt or possession of the firearm would not place the transferee in violation of state local or federal law.

If ATFD rejects an application, it returns the original application and gives the reasons for its action.

If it approves it so indicates on the original and returns it to the transferor, it places the duplicate in the National Firearms Transfer and Registration Record.

Only after the transferor has received the approved application, is he permitted to transfer the firearm to the transferee.

Only then is the transferee permitted to take possession of the firearm and only then when he takes possession together with the approved application which the transferor delivers to him with the weapon.

Byron R. White:

Well, your position is that this is in effect a — then a prohibition against transfers which violates local law?

Matthew J. Zinn:

Which violate local or federal law Mr. Justice White?

Byron R. White:

And that the transferee is just placed with simply a prohibition against he’s receiving the weapon as long as it’s violative of the law?

Matthew J. Zinn:

That’s right similar to what you suggested in Minor and Buie.

I should like before turning to that aspect of the case if I may to set out in some detail, our understanding of the Old National Firearms Act which this Court found in Haynes.

Matthew J. Zinn:

The old Section 5841 imposed on anyone possessing a firearm, the duty to register that firearm unless it had been made or transferred in accordance with the provisions of the old Act.

But if a person possessing a firearm required to be registered came forward to register under the old Act, he necessarily incriminated himself for possession of a firearm that had been made or transferred in violation of the Act which was proscribed by the old Section 5851.

In short, a person was required to come forward to comply with one provision of the statutory scheme, but if the risk of incriminating himself under another provision as Mr. Justice White pointed out subsequently in the Minor and Buie case last term the vice of the old National Firearms Act was the same vice that this Court found existed with respect to the occupational and excise taxes on gamblers in the Marchetti and Grosso cases.

In those cases, a person was required to come forward and reveal information as to his gambling activities to federal authorities even though disclosure of those activities could be made to other federal authorities and to state authorities and even though such activities were proscribed by both state and federal law.

Moreover, Mr. Justice Harlan found in Haynes that under the old statute, the only persons required to register were those unlawfully in possession of firearms.

The registration requirements thus applied only to those inherently suspect of criminality as did the requirement held impermissible in the Albertson case.

In the new National Firearms Act, Congress has eliminated any possibility of self-incrimination of a transferee of a firearm whereas the old statute required registration only by those unlawfully in possession of firearms.

The new statute requires registration by all possesses of firearms with the single exception of the United States.

Appellees do not dispute this.

Second, under the new statute, the only persons permitted to accept possession of firearms are those whose possession would not place them in violation of law.

In so far as relevant here, this limitation is spelled out in the last sentence of Section 5812 (a) which appears on page 3 of our brief.

Thus, unlike the situation in Haynes not only does a person unlawfully in possession not have a duty to come forward and admit his unlawful possession, but he cannot register firearm.

A person is not compelled as he was in Haynes to come forward under one provision only to be incriminating himself under another.

Completion of the substantive crime under the new Act occurs when a person accepts possession before the ATFD has approved the transfer to him.

After that, there is no duty imposed upon the unlawful transferee as there was in Haynes and if he is convicted of unlawful possession it is not because of any information he furnished but simply because of his unlawful possession.

The appellees’ position here is not that they are whipsawed between one provision of the federal statute and another as was the petitioner in Haynes.

They make no such contention, they allege only that the self-incrimination has it for them arises because California law prohibits them from possessing hand grenades.

But since the statute provides that ATFD may approve a transfer only if it is lawful under California law.

Appellees would not self-incrimination under that law by complying with the federal requirements.

The possession by appellees would be unlawful under California law, the application to transfer would be denied by ATFD.

Harry A. Blackmun:

And what perhaps in California law were doubtful in its reading, would permission be denied then you know?

Matthew J. Zinn:

I think that ATFD would make a judgment as to its opinion Mr. Justice Blackmun.

It has codified or I should say collected all the local laws and I don’t think there is any real dispute however about California law in this case.

Harry A. Blackmun:

I gather there isn’t.

And one last question was the argument you have presented today given to Judge Ferguson, you know?

Matthew J. Zinn:

I would say in substance it was Mr. Justice.

There is a very short record appendix and I think that you will see that the essence of the arguments was made if not in the full detail which we are making them here and it would — we made in our brief.

The position of the United States is that appellees are in the same position as what the seller of narcotics in the Minor case which was decided last term.

If that person would be an unlawful transferee, it is extremely unlikely that he would approach someone who is lawfully in possession in order to obtain a firearm.

It is for more likely that he would approach it would transferor who is unlawfully in possession.

Matthew J. Zinn:

And if the transferor is unlawfully in possession, there is no way that he can transfer the firearm to the transferee under the provisions of the new National Firearms Act.

The Act provides that weapons may be transferred only by those lawfully in possession.

In the unusual case where he does approach a lawful transferee it seems to us unlikely that such a transferee would file an application for transfer knowing that it would be rejected because the possession of the firearm would place the transferee in violation of local law.

Byron R. White:

I think the transfer here was made after the statute?

Matthew J. Zinn:

That’s correct.

The statute was passed or enacted into law on October 22, 1968.

Byron R. White:

What was the Act — what was the Act before, what people had (Inaudible)?

Matthew J. Zinn:

If they were in the records of the ATFD before the new Act —

Byron R. White:

They have never registered?

Matthew J. Zinn:

Never registered.

The act set a 30-day amnesty period, beginning on November 1 —

Byron R. White:


Matthew J. Zinn:

That’s correct.

That’s not this case Mr. Justice White.

Byron R. White:

If that’s the case, then what would be —

Matthew J. Zinn:

Well, I don’t think it — well, it is a different case but our position is that even that situation would not run afoul of constitutional limitations.

Byron R. White:

The used limitation?

Matthew J. Zinn:

They used limitation, that’s correct.

Byron R. White:


Matthew J. Zinn:

I will in just one moment.

Byron R. White:

You need a little time to this scienter point to.

Matthew J. Zinn:

Yes sir.

Even in a case where the would be transferee approaches a lawful transferor and the local transferor agrees to file an application.

Our position is that the — would be transferee is not required to incriminate themselves.

The burden of filing the application is on the transferor under the statute.

Now, while it’s true that the transferee, the proposed transferee must submit his fingerprints and a photograph, these have never been thought to be protected by the Fifth Amendment privilege.

Our position is that before going statutory scheme would be sufficient without more to sustain the indictment against appellees’ self-incrimination challenge.

But any doubt as to the constitutionality of the new federal National Firearms Act is resolve we believe by two other steps that Congress took in 1968.

First, it repealed 26 U.S.C. 6107 which provided for the sharing of firearms registration and transfer information with other law enforcement officials.

Secondly, it enacted Section 5848 which provides that no information provided to the Government in connection with the registration or transfer of firearms can be used directly or indirectly as evidence against the registrant or applicant in a criminal proceeding involving prior or concurrent offenses.

Matthew J. Zinn:

While the immunity from used provision does not apply to future crimes, there is no realistic possibility of self-incrimination with respect to future acts.

This Court did not hold as a general rule in the Marchetti case that the possibility of future incrimination is sufficient to justify present indication of the privilege in all circumstances.

On a contrary, the court pointed out quite clearly that in most instances the problem of future conduct will not give rise to substantial risks of self-incrimination.

The Marchetti case was atypical because anyone who pays the occupational tax imposed on gamblers can be expected to engage in gambling, an activity that is prohibited or limited in 49 States.

Here on the other hand, possession of one type or another of the kind of firearms that are dealt within Title II is permitted by state law as evidence by the fact that more than 180,000 firearms have been registered.

More importantly, unlike the situation in Marchetti and application to transfer will only be approved if the application would not place the transferee in violation of law.

At the similar provision been operative in the gambling tax area only gamblers in Nevada would’ve attempted to register.

The possibility that a person once having lawfully obtained possession of a firearm under these registration provisions would subsequently permit an unrelated unlawful act and that the prior registration will incriminate of that act is in our view too speculative to want protection of the privilege.

I will turn briefly to the due process issue.

This breaks down into two sub-issues.

First, the question of whether Congress intended that violations of the statute can be punished without specific intent on the part of the transferee to obtain an unregistered firearm and secondly, whether if Congress so intended as we submit it did such as statute runs afoul of due process limitations.

On the first aspect of this but we don’t believe there’s any substantial problem.

Nothing in the statute indicates that scienter is required.

Moreover, every Court of Appeals which passed on this question under the old National Firearms Act which in so far as pertinent here was identical to the new.

Ever held anything that scienter — what that scienter was not required nor does anything in the legislative history hint that Congress was going to change the ground rules in this regard.

There is not one word to this effect.

Under these circumstances, we believe it would be wholly improper for this Court to read in a specific intent requirement particularly since another sub-section of the same provision of the Act Section 5861 (l) expressly requires and no in violation for prosecution and particularly since to read in such a requirement would totally frustrate the Congressional purpose in this case.

Finally, as to the due process claim, as we understand the appellees position it is based in large part on this Court’s five to four decision in Lambert against California which found repugnant under the Due Process Clause on Los Angeles ordinance requiring convicted felons who spent more than five days in Los Angeles to register with the chief of police.

We think that accepting Lambert as stating the present possible view of this Court that it is quite clearly distinguishable from the situation we have here.

We’re not concerned with somebody passively remaining in Los Angeles for more than five days.

We’re concerned here with people acquiring highly dangerous weapons, hand grenades and we believe that the authorities of this Court as early as the Balint case in 258 U.S. which dealt with narcotics and in the Banger and Barnett case in 255 U.S. dealing with possession of dyes for the making of Government coins established quite clearly that this kind of conduct can be regulated without regard to a specific intent requirement but no more than congressional reasonableness in this area of involving dangerous weapons as necessary to satisfy the constitutional requirements.

We urge therefore that the indictment be reinstated and that this case be returned to the District Court for further proceedings.

Byron R. White:

May I ask you one question.

Matthew J. Zinn:

Yes, sir.

Byron R. White:

When is the statute — is receiving an unregistered firearm a crime?

Matthew J. Zinn:

Receiving an unregistered firearm, I believe it is.

Byron R. White:

And also possessing one?

Matthew J. Zinn:

Possessing of an unregistered firearms?

Byron R. White:

Both of them —

Matthew J. Zinn:


Byron R. White:

You can be convicted not only for receiving it but for possessing it or for both?

Matthew J. Zinn:

Yes, to receive or possess page 4 of our brief Mr. Justice.

To receive or possess a firearm which is not registered to him in the National Firearms Act.

Byron R. White:

And let’s assume that a person receives an unregistered firearm and has committed a crime, can he keep from further violating the Act by registering himself?

Matthew J. Zinn:

No, there’s no way he can register.

The crime is complete under this Act when he receives the firearm.

Byron R. White:

He cannot go in and —

Matthew J. Zinn:

There’s no — that’s correct except for the amnesty period to which you referred earlier.

There is no way that a recipient of an unregistered firearm can cure his failing.

Potter Stewart:

Mr. Zinn, I just — sorry but I.

With respect to this question scienter as I understand your brief to concede that the possession under the statute has to be knowing and intentional?

Matthew J. Zinn:

We do concede Mr. Justice.

Potter Stewart:

And yet count two the indictment doesn’t allege knowledge or intention?

Matthew J. Zinn:

That’s true, we think that use of the word “possession” in count two is a self-sufficient to mean conscious possession but I would remind this Court that this case is here on direct appeal under 18 U.S.C. 3731 and that if the Court resolves the question of the constitutionality or construction of the statute in our favor the question whether the count two sufficiently states the offense is not one that can be reached by this Court at this time.

Potter Stewart:

That would be subject to —

Matthew J. Zinn:

It goes only to the sufficiency of the indictment Mr. Justice Stewart and quite clearly could not be reached under the Criminal Appeals Act.

Potter Stewart:

I see.

Harry A. Blackmun:

Would it deprive the court of jurisdiction on direct appeal?

Matthew J. Zinn:

I’m not sure I understand the question.

Harry A. Blackmun:

Well, if the decision below rest down on the insufficiency indictment —

Matthew J. Zinn:


Yes if it did.

Harry A. Blackmun:

— if it did?

Matthew J. Zinn:

If it did we agree that we could not be here.

We think that the record is perfectly clear in this regard as the dismissal order itself Mr. Justice which refers only to the constitutional aspects of the case.

Warren E. Burger:

Mr. McKissack.

Luke McKissack:

Thank you Mr. Chief Justice, may it please the Court.

I’d like to begin by referring to just a few moments to an issue that we raised when the appellants sought the jurisdiction of this Court and we suggested at that time that perhaps this Court do not have jurisdiction under the Criminal Appeals Act.

I just like to make couple of comments along that line.

We suggest that an examination of the appendix which contains the colloquy in the trial court between the judge and attorney etcetera will indicate that the judges’ decision was quite highbred and was based upon a number of considerations that it’s replete with notion that the judge felt that in as much as the Bill of Particulars inform the Court that what actually happened in this case is that the Los Angeles Police Department officer apparently and conjunction with the alcohol and tobacco people of the Federal Government had gone to the Long Beach arsenal and picked up a hand grenade and he himself had sought no exemption which is available to him and it deliberately flouted the law and did not obey the law.

Luke McKissack:

And only by his action that he caused the transferees to become criminals of criminal at all, he suggested that this might amount to entrapment as a matter of law.

I merely say that’s not to say that necessarily this was even the correct decision even though it would appear that he was following the line of thinking of the concurring justices in the Sorrel and Sherman thinking.

Basically, that society really has no interest in trying to transform inchoate criminals and actual ones.

But whether or not, this is a correct interpretation to this Court would follow it today, I think it does recognize the fact that the judge was thinking along that line.

Warren E. Burger:

How does the — how would the possession or non-possession of this permit on the part of the police officer have anything to do whatever with the conduct of the purchaser, what’s that got to do with him?

Luke McKissack:

Well, but what we’re talking — well, because the conduct of the police officer creates the crime without which there would be no crime.

Warren E. Burger:

If he had a piece of paper would it be alright?

Luke McKissack:

If he complied with the law the transferee would’ve not committed the crime, that’s correct.

Warren E. Burger:

What I’m – now tell me that —

Luke McKissack:

In other words, the police officer by violating the law and created the criminal that is the transferee.

Had the police officer done what the law required, the transferee would not been a criminal.

Only because of the activities of the police officer did the transferee become a criminal and this was the thinking expressed by the Court.

Warren E. Burger:

Wasn’t that the purpose of Congress to put a burden on the purchasers, the receivers to find that out and did he make any effort to find out whether —

Luke McKissack:

Well, I know of nothing in the statutory history, or one way or the other the appellants concede for example that it’s entirely silent and it doesn’t seem to be much discussion at all other than the fact that if you like, they like to get around the Haynes decision in passing the legislation.

I don’t know — there’s nothing in their suggesting that the transferee should have any affirmative burden.

I know nothing in the legislative hearings to say that and there’s no basis for really assuming that he has any kind of a burden.

As I say the statute is entirely silent, but I’m saying in this case that we’re not talking about prosecution under state charge, we’re not talking about using the Commerce Clause which perhaps the Congress could to make just raw possession a crime.

We’re talking about something that’s a crime only because the transferee takes possession of something which the transferor has failed to do and in this case the transferor is an agent of the Government and acts knowingly.

And the judge did considerable thinking along that lines and I would suggest that an examination of his thinking would show that perhaps it would put this case outside the legitimacy of the appeal and I would merely add to that that we’re not just talking about interpretation of federal statutes here.

But for those dissenters in the Mirsky decision that we have involved the number of integral treasury regulations.

Some of them which preexisted the Haynes decision and haven’t even been altered in a couple of them which don’t even make the change between transferee and transferor and there are some interpretation of the Treasury Regulations.

As a matter of fact, most of the self-incrimination material which I’ll get to that in a minute is found in its Treasury Regulations rather than in the official statutes.

Because the statutes will say that the transferor must do certain things to have the weapon registered and the transferee must do certain things which must be specified by the Secretary of Treasury, his authorized delegate.

And then in certain of this Sections 178.9 (a) etcetera it explains that there has to be — there’s an affirmative obligation of the transferee to get a photograph of himself which is no more than one-year-old and plaster that on the application.

He has to put his fingerprints on there, it has to be an identification in the serial number of the weapon etcetera and all of these things then there has to be an approval by a sheriff or a police official or someone who the Secretary of the Treasury finds it suitable to verify that this is his photograph and this is his identification and it’s going to be use lawfully.

And —

Warren E. Burger:

I think you’re losing me, how is this different from what you have to do with the passports and automobile driver’s license and great many other things?

Luke McKissack:

Well, I don’t think that only goes a great deal of difference in terms of what you actually have to do, but if you take the raw activity of something let’s say we have no Fifth Amendment, nothing testimonial about say a fingerprint or the handwriting is similar.

The majority of the court is disposed to that opinion.

But if you take that material and you require the person to lay that information on top of something which amounts to an attestation that he is seeking to take possession of hand grenades which would then amount to perhaps the conspiracy to violate California law or maybe even an attempt.

Luke McKissack:

And that the very minimum a furnish that link in the chain that this man maybe a person who’s desirous of buying hand grenades and if the authorization doesn’t go through you go ahead and purchase at any house so they can key on his house or on his business.

I suggest this is highly incriminatory, I don’t think it can be simply head noted by just calling it a fingerprint case or a photograph.

I think it’s the totality of the context and when these things appear and in fact there has to be a witness to it which is a witness for the Government who’s standing ready to testify in a state proceeding against the man who does these things.

I think when it’s put in the context of saying I’m going to take possession of hand grenade that certainly has a testimonial character and this would be our position.

But just to sum up this point because I want to move on to the others I think there is a serious question on two grounds as to whether this Court should or can retain jurisdiction.

A probable jurisdiction has been noted but there is the question of to what extent the judge realizing the Treasury Regulations as opposed to the statutes for those justices who think that’s important.

And secondly, there’s the question of whether or not we have more than just a determination of self-incrimination or scienter with an investigation of the facts and rightfully or wrongfully a determination by Judge Ferguson that this was entrapment as a matter of law.

Now, if I may in reversal to go perhaps to the issue of scienter.

Mr. Justice Stewart asked the question about whether or not there was an allegation of any kind of knowledge here and the judge of the trial level found that as we see the indictment neither the statute nor the indictment requires any kind of scienter.

Not even the most minimal kind, not even that Congress says that the transferee knows that he has something and knows what he has, that is its characteristics, because its hand grenade or whatever firearm.

Much less does it allege that he knows that it was unregistered at the time of its receipt and none of these are alleged and if you would —

Potter Stewart:

I was talking only about count two of the indictment?

Luke McKissack:

We’re talking only about count two of the indictment at that point, yes sir.

Potter Stewart:

Because count one does they contain those allegations?

Luke McKissack:

Yes it does just through the — I have a quarrel with count one of the indictment or another for another reason but at that point, no.

Count two we’re talking about, there’s no kind of scienter or whatsoever.

Now, the Government below conceded the Government here conceded that the scienter had to be proved.

So the question is, does the indictment have to obtain and have to spell out some kind of scienter requirement.

And although this would not be perhaps the place to reinvestigate the whole function of the grand jury system etcetera, I assume that the — as the statute was laid out, it was laid out to the grand jurors and even they in passing prima facie on some kind of responsibility that would justify taking the man to trial would not or have knowledge apparently that the transferee was suppose to know what he had and all the character what he had.

So we don’t know anything about the findings here.

Secondly, as I say there is a string of cases saying that the indictment has to allege this and it can’t be cured by Bill of Particulars as the old Caryll case which I referred to where the failure of the indictment to allege the necessary scienter requirement that renders it fatal and I will suggest that on that ground that the indictment in this case is deficient.

Not only that I feel that the statute is deficient because it doesn’t have any allegation of even that general kind of knowledge.

There is in the Government’s brief footnote 9 on page 14, the suggestion that perhaps a statute without any kind of scienter could reach ridiculous results and they point that out.

They suggest the remedy is that if you have a noble prosecutor that he won’t prosecute and the same question was argued again before Judge Ferguson and he seem to feel that there should be a Government of laws and not of men and this was an adequate answer and consequently at page 38 of the appendix, they insist that the Government must allege scienter.

Now, I also make the argument that regarding count one, if we take the reigning law in this country that when we have the conspiracy to violate a particular statute that it requires a more of an intent than in a substantive crime and we definitely involve knowledge of the law in an attempt to run afoul of the law and there are string of cases that are cited state cases and federal cases.

Indicating if that’s the case at least in so far as Mowlem prohibit to more public welfare crimes are concerned.

I don’t think that either one of those terms are too helpful in trying to decide on whether the — there had been many — much dispute and many text writers who have had argument as to what fits in their category.

But some of the cases that are cited for example to refer to the Mann Act, White Slavery, allegations of fraud and things of that sort.

They are generically different and say perhaps the possession of firearms in this case in terms of perhaps the gravity of the action.

And nevertheless the conspiracy must embrace an intent to run afoul of the law and that is not alleged and that was another one of the grounds which the trial court used for dismissing the indictment.

Luke McKissack:

Now, on the issue of the allegation of scienter in so far as the unregistered character of the firearm is concerned that it’s our contention that this is one of the elements of the crime.

Although we cite the Lambert decision, we do not wish to be understood as having totally rely upon that.

There’s no question that simplest term is an example of where the court has decided all things considered that ignorance of the law must be an excuse — the majority of the court so held.

But here, we really not even talking about ignorance of the law, we’re talking if anything about one of the facts of the case.

Let me distinguish two situations where crime involved here.

In other words, the defense is not that the defendants did not know that there was a law saying that you could not possess a firearm unless it was registered.

What we’re saying is that one of the elements which should be pled and proved is that the defendants took possession of firearm knowing that the transferor had not had it registered and there’s a world of difference because as the one case we’re talking about just not knowing what the law is and the person is presumed to know the law.

Here, we’re talking about one of the elements of the crime that brings the legal proposition into play and one of the elements of the crime is the characterization of the weapon being taken and that characterization is that it is of unregistered character.

The question of whether or not the scienter requirements should reach this far and the question of analysis of what kind of scienter this Court should decide the statute intended to contain or it’s a matter of due process.

I’ve gone to the various authorities of analyze the whole notion of mens rea, history etcetera and I’m disposed to think that perhaps the Court should reevaluate the whole area and I have sort of find of Sayers test when he talks about the fact that when we get to a crime that’s sufficiently grave.

That is clear as just not a regulatory measure.

We were trying to single out raw and wrongdoers for criminal treatment which was expressed in the law before Haynes.

It have been re-expressed that they’re trying to do away with people who are engaged in wrongful acts and have even expanded the number of weapons to cover rockets and missiles and things like this which are not normally possessed by people just for hobbies.

And secondly, where the imprisonment is too grave to allow the deletion of mens rea as he puts it.

I think the Court should at that point intercede and require a stronger scienter requirement or in the absence of any legislative finding that is not required, the Court should assume that it should be there based upon the common law history and the gravity of the crime.

Now, this crime is count two for example carries a penalty about to 10 years or $10,000.00.

Formally, it was five years or $5,000.00.

The Court might wish borrow by analogy from its decisions in the area of where they have a right to a jury trial evaluating the potential length of sentence or the actual sentence or its decisions in the question of right to counsel is to whether you may be have a right to counsel for a traffic ticket or as opposed to say a felony or major felony or major misdemeanor and I think perhaps some of the same considerations that go into making a decision is to whether it’s significant enough to attach the right to counsel to insist on the right to jury might also be implemented here in deciding whether or not we can have a strict liability statute or in effect punish somebody for a crime is not meant to be a crime unless we are possessing an unregistered firearm and say that the person doesn’t have to have knowledge of it.

Again, I repeat I know nothing in the statutory history that causes a person to have to seek out, and finally whether or not the weapon has been registered.

It has been suggested by the appellant in his brief that if you’re dealing with firearms or you’re dealing with hand grenades you must know that there some kind of requirement that they be treated this way.

I subject that this is — suggest that this is just a matter of speculation.

If I were taking a possession of a firearm or hand grenade I might think a number of things.

One thing I might think is, this is just totally illegal and I better not get caught with it.

A second thing I might think is that perhaps it’s illegal but it may not be illegal to possess but I’d better be careful what I do with it and if put on the mantelpiece it’s okay.

Thirdly, I might to think that perhaps you have to have some kind of permit in order to get it.

Fourthly, I might think that it’s alright for me to take possession of it but after I do so I better report it to someone and register it.

And if a person was guilty for example of quite reasonable kind of thinking the fourth type that certainly you would have to have a statute which would allow reasonable period of time to register the weapon and as the appellant candidly concedes.

Once the purpose takes possession of it that is the crime and there’s nothing on earth that he can do to make himself law-abiding thereafter.

So, I just think the fact that we’re dealing with hand grenades should not cause the Court to feel like a strong mens rea requirement should not be exacted when we’re talking about a very severe crime with a great deal of gravity.

Hugo L. Black:

Do you mean exacted by the Constitution or by statute?

Luke McKissack:

That’s a tricky question and I suggest I have some thoughts on it but on either basis I think the Court might say as a matter of constitutional law but if it chooses not to put on that basis, I think it would be a reasonable statement to say that when we’re talking about this kind of crime with this kind of penalty that Congress should have the affirmative obligation of making a quite express as to whether they feel they want strict liability or whether they’re going to eliminate the mens rea requirement rather than to rely upon the position of the appellant which is because it’s not spelled out in the statute that Congress never intended to be there.

I don’t see anything inherently unfair or imprudent about asking Congress to do that given the huge common law background and given the gravity of the offense and all of the statements to the effect that mens rea in grave crimes does play a great role in our jurisprudence and I see no great imposition on Congress.

They can hold hearings.

It would be very simple to pass a statute and say, that we find based upon in information that only way we can control these weapons or get them properly taxed is to do such and such and if we put the mens rea requirement in there, it cannot effectively be done because of this or because of that and then the Court would have a legislative basis for the elimination or the failure to put a mens rea requirement in there.

And I see nothing in statutory history along this line.

Hugo L. Black:

Can you not rely on your constitutional —

Luke McKissack:

On the constitutional level?

Well, frankly you know we have a dearth of authority as this Court said in the Powell case.

The Court has not laid out it — a definitive doctrine of mens rea and all we have is the all more old Morissette case to go from.

Hugo L. Black:

What about the Dotterweich case?

Luke McKissack:

Pardon me?

Hugo L. Black:

What about the Dotterweich case written by Mr. Justice Frank?

Luke McKissack:

Yes, well the Dotterweich case of course involves only a misdemeanor really.

We’re talking about there the imposition of a penalty on a corporate officer and I think there the decision is the majority that court felt or the court might feel that, to use, I think he was Mr. Justice Frankfurter’s phrase about “we’re living an age where the consumer is made unwary of certain conditions of modern industrial.”

I can see why and certain regulatory statutes why you might — where a person is in a business let’s say if dealing with certain items that he might have an affirmative duty to seek out the law pertaining to that and know the rule and regulations.

And I think that’s the case there.

And again I think the maximum penalty was one year in that case.

Hugo L. Black:

Well, would that make any difference of constitutionally speaking?

Luke McKissack:

It could, I think it will be for this Court to say one way or the other.

As far as I know it’s never been ruled upon but I think if we do not limit Morissette to its particular facts in saying that the crime there was of common law origin or a composition of certain common law of crimes.

But it strike from it the basic proposition that we’re talking about its potentially serious crime that there should be mens rea requirement.

I think that would limit itself to the conclusion that the gravity of the crime should perhaps way some role.

I think we’re always dealing with the balancing of interest and you might say to the person who parks overtime in his own that perhaps he was even unconscious of the time he did it.

He should have to pay a penalty of the fine, but I think if we’re talking about putting somebody in prison for a period of time it’s got to be some affirmative obligation shown by Congress is to why they should not be some kind of criminal culpability or corrupt mind or some kind of mens rea that is historically been accepted and as a part of this culture because otherwise then we run in to the problem suggested by the text writers that if the laws do not reflect the general more outlook of the society there’s an extent to — some extent they’re going to crumble.

Hugo L. Black:

The implication of that argument would be that Congress is incapable constitutionally of making the possession of anything alone, the mere possession a felony?

Luke McKissack:

No, I would necessarily say that even though that’s I think attainable proposition but what I’m saying is I think they would have to justify it.

I think they would have to say that I think constitutionally they could but if we’re talking about eliminating scienter, I think that Congress would have to make a finding for that scienter would be such a detriment to the enforcement of the statute.

I mean, I think thinking along that lines would be permissible and if they said we got a lot of killings in the streets and weapons are going to do this and that and if we have a scienter requirement they’ll be able to dodge here and there.

Then as I can see there’s an acceptable proposition but without that kind of finding I think this Court should require that mens rea be present —

Hugo L. Black:

(Voice Overlap) constitutionally or construction to the statute?

Luke McKissack:

Well, of course the easiest thing would be make a construction of the statute because then the Congress has the option of making a change and the Court (Voice Overlaps) —

Hugo L. Black:

So what power would the Court have to hold it unconstitutional?

Luke McKissack:

Pardon me?

Hugo L. Black:

What power would the Court have to hold it unconstitutional?

They merely said that the possession is a crime.

Luke McKissack:

Well, the Court would have to in that particular proposition Mr. Justice Black.

I think adopt the kind of thinking that’s been reflected in some of other members of the Court about using the Due Process Clause and the vague contours.

I don’t think he could spring necessarily from the kind of you that you take of the Constitution.

Hugo L. Black:

(Voice Overlap)

Luke McKissack:

I wouldn’t expect that we would get your vote on that kind of an analysis reaching that kind of a result.

Now, if I may return to the self-incrimination argument.

I think here that the appellant ignores the number of things; I think you were talking really about potential self-incrimination.

I don’t think this is been analyzed really in the Buie case or Minor or any of them to the fullest extent.

We’re talking here about the appellant says that there’s no way in the world that the transferee in this case can incriminate himself.

We claim that the transferor is being used as a conduit to do that.

They say he can incriminate himself because after the application is turned in with all of these germane material about name and address and fingerprints, photograph etcetera that the Secretary of the Treasury, I don’t know if he has an illegal background will read California law I presume in all of its decisions and tell him whether or not he is going to run afoul of it and if he does so, he will receive a letter and therefore knowing it’s unlawful he won’t do anything.

And therefore, compliance with the statute will not require him to incriminate himself.

Now, my objection to that is that all of these that he has to do before he reach that stage is highly incriminatory and attempting to comply with the statute and filling out all of these information and lodging as in the registry and making this information available.

He makes it quite clear that he is a person who would very much like to possess a hand grenade.

Perhaps, illegally if not legally and the person who may well be in possession of other hand grenades and I would then borrow from the futuristic analysis of the Marchetti case that there we have an assumption really that we’re not just talking about law-abiding people.

We may have individuals and I see that my time is up.

Thank you.

Warren E. Burger:

No, we are just recessing.

You may have a little time left after lunch.

[Lunch Recess]

Mr. McKissack, you have about eight minutes left.

Just time yourself.

Luke McKissack:

Thank you, Your Honor.

I think I’ve reached the self-incrimination argument and I was saying that I think that more is required of the transferee here and would be the party we’d be concern about let’s say the Minor case or some others.

Now, I mentioned also the question of statutory regulations that were used to embroider the statute.

Luke McKissack:

They were quite exacting in so far as the transferee is concerned.

I’d like to refer to a couple of them.

Referring now to Title 26 of Code of Federal Regulations 179.99 and this is the one where the individual himself as to attach a copy of his photograph made within a year, affix to his fingerprints to this application where he is saying I want to take charge of hand grenades indicating he’s ready, willing and able.

They got to be clear etcetera and then this application has to be authenticated by local chief of police or the sheriff, United States Attorney, United States Marshal or anybody acceptable to the Director of Alcohol, Tobacco and Tax division saying that the fingerprints or the photographs are correct and so forth.

Now, if you take this in conjunction with another Section which is 178.98 which talks about the delivery or sale and it’s prohibited unless the person to receive such device or firearms furnishes the likes and see a sworn statement in triplicate setting forth: (a) The reasons why there is a reasonable necessity for such person to purchase or otherwise inquire the device or weapon and (b) that such person’s receipt or possession of the device or weapon would be consistent with public safety.

Such sworn statement shall be attached to the application to transfer and register the firearm required by Part 179 of this chapter.

The sale or delivery of the device shall not be made until after the application is approved etcetera.

In other words, all these things take place before the Director it makes the ultimate determination as to whether he thinks it’s lawful and whether the transfer is going to be approved.

So, I think then we have the kind of situation envisioned by as much of the language in Marchetti decision or we’re not just talking about confession of past crimes.

I think it was Mr. Justice Harlan who said something about the fact that a person may confess before the Act is evidence to maybe or the act is done.

And then we’re not talking just about totally in the Fifth Amendment area — the protection of necessarily innocent people and we’re talking about society making a judgment by virtue of the Fifth Amendment to place off limits.

As a criminal investigative team, a defendant presumably his lawyer and in some jurisdiction perhaps his wife and I don’t think that’s unreasonable and I think by doing that we not only preserve domestic tranquility, the legal process to the presence of the attorney and also the sanctity individual, that’s all we’re talking about.

He’s using the individual — not using the individual as his own accuser and in Marchetti, the court has mentioned that we’re protecting the imprudent as well as the innocent in the foresighted.

I think therefore if we put all these together and you got the fingerprints, the photographs, the affidavit as to why you should have it etcetera and all of these stuff is transferred then merely it say that subsequently someone makes a decision that is unlawful for him to have it.

It doesn’t mean that there’s no self-incrimination problem.

In fact, as the Government concedes on page 6 of its jurisdictional statement of facts something the effect that it’s true that the regulations involved the potential transferee more deeply in the application process than was the case in Minor.

I think it’s quite deeply involved and of course we are concerned here with the question of future acts.

The appellants suggest that there is an immunity provision that they feel is sufficiently pervasive to justify the legislations so that we have no objections to it.

However, they were only talking about these items that run the registry not being used to prove past crimes or contemporaneous crimes.

Crime contemporaneous for the filing I assume.

Now there are some other problems too but basically I would assert that certainly the information that the immunity provision does not prevent this information from being made available to numerous people.

Let’s say here’s a person who obviously wants to get hand grenades and they get them illegally and tell other things about it etcetera.

This is available and it also raises the problem which Mr. Justice Harlan asserted in a couple of the Grosso and aims decisions or Marchetti about we were being embroiled in a state taint hearing.

If we’re talking about a violation of state law in summiting in witnesses to decide whether or not this information had been passed down by the officials and of course this can lead to — this is a difficult problem to wrestle with.

I think that all of these things together mean nothing more the fact that the transferee is saying, “I do.

I am willing to receive hand grenades and thus, point the finger of suspicion at himself.”

They’re dealing with a highly dangerous object that indeed he would like to possess it and perhaps even illegally if not legally.

This law in summary attempts to make a transfer of weapons lawful but even if it’s determined to be unlawful as I say, the transferee incriminates himself.

The appellants have suggested that when we have a lawful procedure has been the concession that a number of people apparently have registered these items to put on their medals or whatever they do with them, maybe make war films I don’t know.

But still I think it’s quite clear from the fact that we have all these destructive weapons added together that it is basically still a criminal statute is an attempt and try to isolate individuals that they think are violative of law and use a tax statute for that kind of purpose.

Warren E. Burger:

Well, would you make the same argument about people who wanted to possess fissionable material under the Atomic Energy Act?

You can’t possess it lawfully except by license?

You can’t manufacture, you can’t claim for power plant to power by nuclear energy without a license issued by the Atomic Energy Commission. Can you distinguish this from that situation?

Luke McKissack:

Well, if there are other statutes they would make the possession a fissionable material unlawful per se then I would think that we would have a Marchetti, Grosso, Haynes situation.

I think that he can’t have two co-existing statutes whether on the state or federal level for one punishes raw possession and the other demands that the possessor register or make a clear that he wants to possess it.

I think that’s the evil (Voice Overlap).

Warren E. Burger:

Well, on your face, does the Atomic Energy Act has an infirmity on it then?

Luke McKissack:

Well, I’ll be quite honest with you.

I’m not that familiar with the details of the Act but it’s possible that if it’s constructed along those lines, it would have an infirmity.

Perhaps for me evil, perhaps not but I think that’s the guts of the whole case is that I don’t know why Congress can’t simply if he wants to — if we’re talking about preserving the right of Congress.

He could probably pass a statute against possession as far as that’s going to set up certain exemptions like States do, like law enforcement people or people who fight fires and whoever needs these various items can have them or if you’re a collector and you come in and prove it that’s alright.

But I think that to just require that they registered and make every individual who touches the many way lawful or unlawful come forth.

In the form of the written declaration or in person is the kind of evil that those cases are designed to prevent.

I therefore feel that the Haynes problems have not been overcome in this legislation and so the trial court held. If there are no further questions, that’s it.

Warren E. Burger:

Thank you Mr. McKissack.

Mr. Zinn.

Matthew J. Zinn:

Mr. Chief Justice and may it please the Court.

It seems to us that the appellee’s position here is internally inconsistent.

In order to make their self-incrimination argument they explained that the appellees were incriminated because these are dangerous weapons and even if they just register them lawfully it’s going to lead to their exposure for some future crimes.

But in making the due process argument, they say they need scienter.

If the weapons are so dangerous that anybody would be unnoticed that some regulation may be in order, it seems to us that they can’t make the due process argument and the self-incrimination argument at the same time.

With regard to the question of future —

Byron R. White:

Well, what are you suggesting then that either one or the other of these arguments is perfectly good?

Matthew J. Zinn:

I’m suggesting that they’re both incorrect Mr. Justice that the due process —

Byron R. White:

As announced in the —

Matthew J. Zinn:

I think they are internally inconsistent but looking at each one separately —

Byron R. White:

Both are bad?

Matthew J. Zinn:

Yes, I think both are bad.

As far as due process, I think they are sufficiently dangerous to put somebody unnoticed that they are to acquire before they take possession of such weapons as to what regulations may be applicable to them.

As far as the self-incrimination aspect, the only possible self-incrimination is for future incrimination and I think we have to break it down between applications that are accepted on the one hand and those that are rejected on the other.

Matthew J. Zinn:

As for applications that are accepted, I think it’s far-fetched to think that somebody who goes through this registration procedure and is entitled to take possession of a firearm, a hand grenade is later going to commit an unlawful act.

Completely unrelated to the possession of the hand grenades such as blowing up a building and that this registration record will provide a link in the chain, that is far most speculative than the kind of future incrimination the Court was concerned with in the Marchetti case.

Now, turning to applications that are rejected, I think it’s important for me to make clear to the Court just what happens to those applications.

If they’re accepted, they have to become part of the National Firearms Transfer and Registration Record.

If they are rejected they do not become part of that record, they do not go into the permanent file.

We are advised by ATFD that they’re go into a correspondence file under correspondence with the trans — proposed transferor that those files unlike the permanent record of accepted applications are purged periodically as all Government files for general correspondence.

And there’s just no record of a rejected application that could incriminate anybody.

Finally, I’d like to address myself to the jurisdictional questions which appellees continue to press in this Court as far as the entrapment question I refer to Court to pages 26 and 38 of the record appendix.

Where the trial judge indicated unmistakably that he was improving on entrapment grounds and I would of course refer the Court to the dismissal order itself where he made it perfectly clear that he was going lawful beyond the constitutional grounds.

As for appellees’ argument in reliance on the dissenting opinion in the Mersky case, our position is that even under the dissenter’s view this Court properly has jurisdiction.

There’s no question here about the meaning of the regulations as there was in Mersky.

We’re concerned with the statute itself, the regulations merely elaborate the statute.

The requirements imposed upon the proposed transferee are set out in fairly good detail in Section 5812 and there’s no basis even under the dissenting opinion in Mersky for a conclusion that this Court is without jurisdiction under 18 U.S.C. 3731.

Warren E. Burger:

If the judge had undertaken to pass on the entrapment issue as suggested perhaps, could that have reached here?

Could we decide that in any event?

Matthew J. Zinn:

It seems to me if the —

Warren E. Burger:

Wouldn’t it be a case of the Court Of Appeals?

Matthew J. Zinn:

Usually, it would be but it seems to me if the Court adhered to the views expressed by the majority in the Sorrels and Sherman case that the question of entrapment is one of — going to the statutory interpretation — going to statutory interpretation rather than the supervisory power of the Court.

It is conceivable that some entrapment issues could be brought directly to this Court but as this Court well knows the Criminal Appeals Act has now been — is now being faced out unfortunately these kinds of questions won’t be brought here directly in any event.

To answer your question, I think in most cases entrapment would be a question of fact irrespective of which view of entrapment is adopted by this Court even when it’s called upon to pass on it.

It’s not involved in this case at this time.

Warren E. Burger:

Thank you.

The case is submitted.

Thank you gentlemen.