Morris Drew Starks v. United States

Appellant was convicted under the first count of an indictment which charges that he did “knowingly possess a firearm as defined in Section 5848 of Title 26, United States Code * * * which firearm had not been registered as required by Section 5841 of Title 26, United States Code, said possession being in violation of Sections 5851 and 5861, Title 26, United States Code.”

On this appeal he makes four contentions :

(1) That conviction of possession of an unregistered firearm deprives defendant of the privilege against self-incrimination guaranteed by the fifth amendment to the Constitution;

(2) that section 5851 is unconstitutional because it unlawfully shifts the burden of proof to the defendant;

(3) that the evidence was insufficient to support the verdict in that it does not show that defendant had possession of the gun, and

(4) that the court committed prejudicial error in its instructions.

(1) Section 5851 is not unconstitutional.

The parties are agreed that the statute involved is section 5851, not section 5861, which merely defines the penalty. Appellant’s contention is based upon our decision in Russell v. United States, 9 Cir., 1962, 306 F.2d 402 . In that case we…