United States v. Arthur E. Williams

Appellant was convicted, pursuant to 26 U.S.C. § 5851 , 1 for knowingly possessing a firearm which had been transferred in violation of 26 U.S.C. § 5814 . 2 Three questions are presented on appeal:

The Spitfire Manufacturing Company of Phoenix, Arizona, manufactured and sold to Krasne’s, Incorporated, a retail sporting goods store, a Spitfire .45 caliber firearm. On January 25, 1968, Krasne’s sold this firearm to Ralph Williams, appellant’s brother. Neither sale was made in compliance with 26 U.S.C. § 5814 . In late September 1968, appellant acquired possession of the weapon for the purpose of selling it. On September 29, 1968, appellant sold the firearm in question and two clips of ammunition to Dale Corbin, an informer working for the Treasury Department. On October 10, 1968, appellant was arrested *1033 when he met with Corbin pursuant to a second sale of firearms.

The records indicate that the firearm in question was introduced at trial disassembled and with certain parts modified. However, there was testimony to the effect that the firearm, if assembled, was capable of firing automatically in its original as well as its modified condition. Testimony also indicated that…

(specially concurring):

Notwithstanding our disposition of this case in the majority opinion, we feel constrained to express our view, contrary to the holding of the Sher decision, with respect to the merits of appellant’s self-incrimination argument.

We cannot see how an intended transferee, acting under 26 U.S.C. § 5814 , incriminates himself. If the intended transferee complies with the provisions of the National Firearms Act, the transfer will not be made until the transferee’s application has been approved by the Secretary or his delegate. The application will not be approved, however, unless the intended transferee has obtained a certificate from some local law enforcement official, certifying that the firearm is intended by the appellant for lawful purposes. See 26 C.F.R. § 179.99 (1968). Therefore, in a state where possession of a firearm is illegal, compliance with the Act is almost certain to abort the transfer since it is highly unlikely that any local official would issue a certificate. And if the intended transferee neither completes the transfer nor receives possession of the firearm there is no violation. Thus, the hazard of prospective incrimination is…

(dissenting):

I dissent.

In holding Haynes to have retroactive application, this court stated in Meadows v. United States, 420 F.2d 795, 799 (9th Cir. 1969):

Against an assertion of the privilege of self-incrimination the set of facts here presented constituted no offense at all under United States v. Sher, 421 F.2d 784 (9th Cir. 1970).

Failure of counsel to assert his client’s privilege, whether through lack of knowledge or lack of prescience, seems to me to constitute a plain defect in the trial with the result that an otherwise innocent man stands convicted of an offense which otherwise did not exist under the law.

I would reverse under Rule 52(b) Fed. R.Crim.P.

427 F.2d 1031 UNITED STATES of America, Appellee, v. Arthur E. WILLIAMS, Appellant. No. 24054. United States Court of Appeals, Ninth Circuit. June 5, 1970, Rehearing Denied July 2, 1970. Ralph Irby White (argued), San Francisco, Cal., Arthur Eugene Williams, for appellant. J. Byron Holcomb (argued), Asst. U.S. Atty., Eugene G. Cushing, U.S. Atty., John M. Darrah, Asst. U.S. Atty., Seattle, Wash., for appellee. Before MERRILL, CARTER and TRASK, Circuit Judges. JAMES M. CARTER, Circuit Judge: 1 Appellant was convicted, pursuant to 26 U.S.C. 5851, 1 for knowingly possessing a firearm which had been transferred in violation of 26 U.S.C. 5814. 2 Three questions are presented on appeal: 2 1. Did the evidence sufficiently show that prior to appellant's possession the firearm in question was transferred in violation of 5814? 3 2. Did the evidence sufficiently show that the firearm in question was a machine gun within the meaning of 5848? 4 3. Does 5851, as it relates to 5814, violate the Fifth Amendment privilege against self-incrimination? 5 The Spitfire Manufacturing Company of Phoenix, Arizona, manufactured and sold to Krasne's, Incorporated, a retail sporting goods store, a Spitfire…