United States v. Charles Edward Benner

On June 10, 1969, we filed an opinion in this case affirming the judgment. Thereafter, we granted a rehearing. The opinion filed on June 10 is withdrawn.

Defendant was charged with and convicted of illegally possessing under 26 U.S.C. § 5851 , a firearm which had been made in violation of 26 U.S.C. § 5821 , requiring that one who intends to make a firearm declare his intention to so do and pay a tax.

The sole problem on this appeal is whether, as applied to the defendant here who made the firearm, §§ 5851 and 5821 of Title 26 U.S.C. as they operate together are violative of Fifth Amendment rights. The district court held that they were not.

Two aspects of the case must be considered: FIRST, whether, as initially urged by appellant, under the decisions in Haynes v. United States, 390 U.S. 85 , 88 S.Ct. 722 , 19 L.Ed.2d 923 (1968); Grosso v. United States, 390 U.S. 62 , 88 S.Ct. 709 , 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968); and Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969) the sections involved offend the Fifth Amendment in their application to any person. SECOND, as urged for the first…