United States v. Herbert Lee Thomas

Appellant appeals from his conviction on two counts by a jury of the possession and *420 transfer of an unregistered firearm. We affirm each conviction.

On or about August 9, 1974, defendant-appellant pawned a firearm, described as “a short barrel rifle, .22 caliber, serial number 43070” at the A.B.C. Loan Co. on South Central Street, Los Angeles.

The “rifle” was later measured and had a barrel length of 8V2 inches, and an overall length of 16V2 inches. This “rifle” was not registered to appellant, nor was it registered under the “National Firearms Registration and Transfer Record” as kept by the Federal Government, in violation of 26 U.S.C. Sec. 5841 , nor was a tax paid upon such transfer, 26 U.S.C. Sec. 5811 .

The possession of such an unregistered firearm is prohibited under 26 U.S.C. Sec. 5861 (d). The transfer of such a firearm is prohibited under 26 U.S.C. Sec. 5861 (e). A firearm means a rifle having a barrel . of less than 16 inches in length, 26 U.S.C. Sec. 5845 (a)(3), or a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches, or a barrel ... of less than 16 inches in length, 26 U.S.C. Sec. 5845 (a)(4).

The…

(dissenting):

I agree with the majority opinion that the scienter element of 26 U.S.C. §§ 5861 (d) and (e) excludes any knowledge on the part of Thomas that possession or transfer of the weapon was illegal and any knowledge of the registration provisions of the National Firearms Act. (United States v. Freed (1971) 401 U.S. 601 , 91 S.Ct. 1112 , 28 L.Ed.2d 356 .) I disagree with the majority’s limitation of the requisite scienter to knowledge that he possessed a firearm.

Scienter is here composed of two elements: (1) Thomas’s knowledge that he possessed a weapon, and (2) his knowledge that the weapon was a short barrel rifle. Without the knowledge that the gun he possessed was a short barrel rifle, he did not have the necessary consciousness of the nature of the item he possessed to have scienter. (See United States v. Freed, supra, 401 U.S. at 612 , 91 S.Ct. 1112 (Brennan, J., concurring).)

Perhaps the halcyon day may come when Americans accept the idea that all guns are “highly dangerous offensive weapons, no less dangerous than . . . narcotics,” (United States v. Freed, supra, 401 U.S. at 609 , 91 S.Ct. at 1118 ) and when they “would hardly be surprised to learn that…

531 F.2d 419 UNITED STATES of America, Plaintiff-Appellee, v. Herbert Lee THOMAS, Defendant-Appellant. No. 75--2417. United States Court of Appeals, Ninth Circuit. Feb. 9, 1976. Certiorari Denied May 24, 1976. See 96 S.Ct. 2210 . Terry J. Amdur, Federal Public Defender, Los Angeles, Cal., for defendant-appellant. William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. OPINION Before BARNES, HUFSTEDLER and WRIGHT, Circuit Judges. BARNES, Circuit Judge: 1 Appellant appeals from his conviction on two counts by a jury of the possession and transfer of an unregistered firearm. We affirm each conviction. 2 On or about August 9, 1974, defendant-appellant pawned a firearm, described as 'a short barrel rifle, .22 caliber, serial number 43070' at the A.B.C. Loan Co. on South Central Street, Los Angeles. 3 The 'rifle' was later measured and had a barrel length of 8 1/2 inches, and an overall length of 16 1/2 inches. This 'rifle' was not registered to appellant, nor was it registered under the 'National Firearms Registration and Transfer Record' as kept by the Federal Government, in violation of 26 U.S.C. Sec. 5841 , nor was a tax paid upon such transfer, 26 U.S.C. Sec. 5811…