United States v. Virgilio Patricio Flores

PREGERSON, Circuit Judge,

dissenting, with whom SCHROEDER and FERGUSON, Circuit Judges, join in the dissent:

I dissent from both of the majority’s holdings.

I. The Fifth Amendment

The majority correctly sets out the difficult standard that must be met before the government will be allowed to compel an individual to disclose potentially incriminating information. Although the majority acknowledges that the privilege against self-incrimination may be limited only for the most substantial of reasons, it concludes, nevertheless, that the compelled disclosure required by 18 U.S.C. § 922 (e) (1982) is not unconstitutional though “[n]either history nor precedent require this re- *1506 suit.” Majority Opinion at 1504. Because I believe that Fifth Amendment protections should not be lightly dismissed, I dissent.

In applying the privilege, we must determine “whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” United States v. Apfelbaum, 445 U.S. 115,128 , 100 S.Ct. 948, 956 , 63 L.Ed.2d 250 (1980) (citation omitted). The Supreme Court set down the specific tests we apply in Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968), and in a line of cases following Marchetti . We are required to consider whether the claimant is subject to (1) comprehensive proscriptions of activity, Marchetti v. United States, 390 U.S. 39, 48 , 88 S.Ct. 697, 702 , 19 L.Ed.2d 889 (1968); (2) prohibitions “directed at a highly selective group inherently suspect of criminal activities,” Haynes v. United States, 390 U.S. 85, 98 , 88 S.Ct. 722, 731 , 19 L.Ed.2d 923 (1968) (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79 , 86 S.Ct. 194,199 , 15 L.Ed.2d 165 (1965); and (3) statutory requirements for disclosure of “information which [the accused] might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant ‘link in a chain’ of evidence tending to establish ... guilt,” Marchetti, 390 U.S. at 48 , 88 S.Ct. at 703 . Similar “hazards of prosecution under state law ... might support a proper claim of privilege” as well. Haynes, 390 U.S. at 99 n. 13, 88 S.Ct. at 731 n. 13.

The majority acknowledges that section 922(e) is part of a comprehensive criminal statutory scheme that controls the licensing, sale, transportation, and importation of firearms. Majority Opinion at 1501-02. The majority argues, however, that section 922(e) is not directed at “a highly selective group inherently suspect of criminal activities” as was true in the Marchetti line of cases, but rather at the general population of people affected in California v. Byers, 402 U.S. 424 , 91 S.Ct. 1535 , 29 L.Ed.2d 9 (1971) (stop and report statute applied to all drivers involved in accidents in California). I disagree.

Because section 922(e) is part of a comprehensive criminal statute and because transport of firearms is an activity in an area “permeated with criminal statutes,” Albertson, 382 U.S. at 79 , 86 S.Ct. at 199 , it is reasonable to conclude that almost all transport of firearms involves criminal activities. Moreover, section 922(e) applies only when a shipment of firearms is made to an unlicensed person. Those engaged in such activities are inherently suspect. In fact, an unlicensed person shipping firearms in interstate commerce has potentially violated a myriad of laws, including: 18 U.S.C. §§ 922 (a)(1) and (5) (1982) (limiting firearms transactions to licensed individuals); 22 U.S.C. § 2778 (1982) (prohibiting export of firearms on the United States Munitions List); 22 C.F.R. § 122.01 (1984) (requiring firearms exporters to register with Secretary of State); id. §§ 123.01, 127.01 (firearms licensing requirements); 27 C.F.R. § 178.30 (1984) (prohibiting non-intrastate disposition of firearms by nonli-censee); id. § 178.31 (similar to 18 U.S.C. § 922 (e)); Cal.Penal Codé § 12070 (West 1982) (state firearms licensing requirement); and CaLPenal Code § 12025 (West 1982) (carrying a weapon concealed in vehicle or on person).

Admittedly, the Gun Control Act provides exceptions allowing some lawful shipments of firearms from or to unlicensed persons. 1 But even these limited exceptions do not remove the threat of self-incrimination section 922(e) poses. Exceptions also existed in several statutes the Court struck down as violating the Fifth Amendment. See Marchetti, 390 U.S. at 44-45 , 88 S.Ct. at 700-702 (exceptions to illegality of gambling in some state statutes); Haynes, 390 U.S. at 89, 93 , 88 S.Ct. at 726, 728 (exceptions to registration requirement of 26 U.S.C. § 5841 ). Undoubtedly, in the vast majority of cases, firearms shipment by unlicensed persons is illegal. To require those persons to reveal their intended illegal action would clearly subject *1507 them to a substantial hazard of self-inerimi-nation.

An examination of the statute’s purpose bolsters the conclusion that section 922(e) is directed at a highly suspect group. Far from being a general regulatory statute directed at all persons as in Byers , section 922(e) has no other purpose than to facilitate the discovery of criminal activity. 2 The legislative history of section 922(e) indicates that its purpose was to assist carriers in complying with section 922(f) which forbids them from knowingly transporting firearms in violation of the Gun Control Act. 3 See H.R.Rep. No. 1577, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 4410, 4420. Section 922(f) imposes liability on carriers only when they ship with “knowledge or reasonable cause to believe” that shipment would be in violation of the statute. If the carrier does not know that it is transporting firearms, then it has not violated section 922(f). Therefore, the carrier’s compliance with section 922(f) is not dependent on the notice that section 922(e) requires.

Regardless of the purpose of section 922(e), it in fact serves as an aid to law enforcement. Because of the statutory reporting requirements imposed on them, carriers routinely turn over to appropriate authorities information on illegal arms shipments. 4 Illinois v. Andreas, 463 U.S. 765 , 103 S.Ct. 3319 , 3323 n. 2, 77 L.Ed.2d 1003 (1983). Air carriers, in particular, are subject to a wide variety of reporting requirements. See, e.g., 14 C.F.R. § 249 (1984) (requiring air carriers to preserve certain security and other records); id. § 107.23 (requiring airport operators to record, among other things, the number and type of firearms and explosives identified through screening procedures); 44 C.F.R. § 401.3 (1982) (requiring officials subject to air safety regulations to submit reports on the shipping of arms and ammunition to the Assistant Secretary for Domestic and International Business); id. § 401.4 (requiring maintenance of such records for two years). See also United States v. Davis, 482 F.2d 893, 895, 897 (9th Cir.1973); United States v. Henry, 615 F.2d 1223, 1228 (9th Cir.1980).

If truly regulatory, and not penal, the statute could easily have been designed to notify carriers of arms shipments without subjecting the persons giving notice to the risk of self-incrimination. Following the Supreme Court’s decision in Haynes , invalidating a registration requirement designed to facilitate the payment of a tax by those purchasing certain firearms, Congress enacted a use immunity provision preventing the use in criminal proceedings of evidence revealed by firearm registration. 26 U.S.C. § 5848 (1982) (originally enacted as Act of Oct. 22, 1968, Pub.L. No. 90-618, § 201 , 82 Stat. 1232 ); see also United States v. Freed, 401 U.S. 601, 605-06 , 91 S.Ct. 1112, 1116-17 , 28 L.Ed.2d 356 (1971) (upholding revised statute containing use immunity provision against constitutional attack). A use immunity provision is not inconsistent with the goal of regulating the flow of weapons over state and national borders. Therefore, if Congress designed section 922(e) solely to further regulatory purposes, it would have included a use immunity provision similar to that in 26 U.S.C. § 5848 . In the absence of such a provision and because section 922(e) is not needed to *1508 further the carriers’ statutory responsibilities under section 922(f), the section can only be viewed as a criminal statute designed to ferret out Gun Control Act violators by requiring them to incriminate themselves.

Finally, the majority questions the “compulsion” actually required by section 922(e), concluding that invocation of the privilege allows the defendant to use the fifth amendment as a sword to escape prosecution rather than as a shield against unfair government practices. Although recognizing that the privilege protects the guilty as well as the innocent, the majority’s analysis essentially amounts to an argument that if a person is innocent (i.e., decides not to ship guns in violation of the law) he will never risk being required to make incriminating disclosures. 5 The Supreme Court rejected this reasoning in Marchetti holding that:

The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it.

390 U.S. at 51, 88 S.Ct. at 704. There is no rational basis for distinguishing this case from Marchetti . Both cases involve statutes requiring a person who is part of a highly selective group inherently suspect of criminal activities to reveal potentially in-eriminating information. Even if section 922(e) was not specifically designed to elicit this information, its effect is just as insidious as the “ingeniously drawn legislation” condemned in Marchetti .

II. Intent

Apart from section 922(e)’s constitutional deficiency, the conviction should be reversed on the separate ground that the district court erred in holding that the offense does not require proof of specific intent. To prove a violation of section 922(e), I believe the government must show that the accused knowingly failed to notify the carrier regarding a firearms shipment. “The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” United States v. United States Gypsum Co., 438 U.S. 422, 436 , 98 S.Ct. 2864, 2873 , 57 L.Ed.2d 854 (1978) (quoting Dennis v. United States, 341 U.S. 494, 500 , 71 S.Ct. 857, 862 , 95 L.Ed. 1137 (1951)). Absent clear legislative intent to eliminate a mens rea requirement, courts should be reluctant to interpret criminal statutes to do so. United States v. Launder, 743 F.2d 686, 689 (9th Cir.1984); see also Morissette v. United States, 342 U.S. 246, 263 , 72 S.Ct. 240, 249 , 96 L.Ed. 288 (1952).

Section 922(e), unlike statutes construed by cases the majority relies on, 6 is not a statute that on its face imposes strict criminal liability on a person who delivers firearms to a carrier without first notifying it of the shipment. 7 Rather, section 922(e) *1509 explicitly proscribes knowing delivery without notice. Although the word “knowingly” immediately precedes the words “to deliver,” a plain reading of the statute indicates that “knowingly” modifies the statute’s crucial language, i.e., “knowingly to deliver ... any package ... in which there is any firearm or ammunition without written notice to the carrier____”, not simply the mere act of delivery. 8 This conclusion is strengthened by the fact that the focus of section 922(e) is on the notice requirement, not the mere act of delivery, which is extensively governed by other sections of the Gun Control Act. 9 In short, a reasonable reading of section 922(e) indicates that “knowingly” refers to the statute’s notice requirement. 10

In other cases where a statute punishes a person’s failure to make a report, courts have generally required a showing of scienter. Lambert v. California, 355 U.S. 225 , 78 S.Ct. 240 , 2 L.Ed.2d 228 (1957) (“Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.”); United States v. Chen, 605 F.2d 433, 435 (9th Cir.1979) (“There was sufficient evidence to establish that defendant knew she was carrying more [than the statutory amount], but the evidence that defendant knew she must file a report was woefully insufficient.”); United States v. Granda, 565 F.2d 922, 926 (5th Cir.1978) (“[T]he failure to report, when one is without knowledge of the reporting requirement, must be classified as a nonfeasance as opposed to a ‘misfeasance.’ ”); United States v. San Juan, 545 F.2d 314, 318 (2d Cir.1976) (“Without proof of any knowledge of, or notice to [defendant] of the [currency] reporting requirements, a jury could not determine beyond a reasonable doubt that she had. the requisite willful intent.”). Courts have also required a showing of scienter in cases where weapons are involved. See United States v. Herbert, 698 F.2d 981, 986-87 (9th Cir.1983) (construing 26 U.S.C. § 5861 (d) and (e), prohibiting the possession and transfer of unregistered firearms); United States v. Lizarraga-Lizarraga, 541 F.2d 826 (9th Cir.1976) (construing 22 U.S.C. § 1934 , prohibiting export of ammunition from the United States into the Republic of Mexico). Nothing in section 922(e) directs us to depart from our usual practice of requiring scienter where a statute punishes failure to report.

A reasonable reading of the Gun Control Act does not compel the conclusion that Congress intended to eliminate a specific intent requirement from section 922(e). At the very least, the section is ambiguous. 11 This court, therefore, should not reach out to hold that section 922(e) does not require specific intent. Rather, we should follow the Supreme Court’s admonition: “[A]mbi-guity concerning the ambit of criminal statutes should be resolved in favor of lenity.” United States v. United States Gypsum Co., 438 U.S. at 437 , 98 S.Ct. at 2873 (quoting Rewis v. United States, 401 U.S. 808, 812 , 91 S.Ct. 1056, 1059 , 28 L.Ed.2d 493 (1971). Accordingly, I would require the *1510 government to prove specific intent, and I would reverse the conviction.

. See, e.g., 18 U.S.C. § 922 (a)(5)(A) and (B).

. At oral argument the government was unable to provide information on how often shippers give notice under section 922(e), how often notice revealed legal shipments, how often notice revealed illegal shipments, and how many people, if any, were prosecuted when illegal shipments were revealed. Thus, section 922(e)'s usefulness in serving a “regulatory" purpose is unclear.

. Section 922(f) provides:

It shall be unlawful for any common or contract carrier to transport or deliver in interstate or foreign commerce any firearm or ammunition with knowledge or reasonable cause to believe that the shipment, transportation, or receipt thereof would be in violation of the provisions of this chapter.

(Emphasis added.)

. Similarly, Grosso v. United States reports that the I.R.S. routinely turned over information regarding wagering activities to prosecuting authorities although not required to do so. 390 U.S. 62, 66 , 88 S.Ct. 709, 712 , 19 L.Ed.2d 906 (1968).

. The majority relies on the recent case of Selective Service System v. Minnesota Public Interest Research Group, —U.S.—, 104 S.Ct. 3348 , 82 L.Ed.2d 632 (1984), to support its conclusion that section 922(e) does not compel incrimination. While some of the language in Selective Service might cast doubt on the reasoning of Marchetti , it is significant that the Court did not overrule Marchetti , and in fact, found it distinguishable on its facts. Compare 104 S.Ct. at 3358 with 104 S.Ct. at 3359 n. 16. Selective Service is distinguishable from both this case and Marchetti. Selective Service involved conditions imposed on benefits (financial aid) dispensed by the federal government.

. United States v. Freed, 401 U.S. 601 , 91 S.Ct. 1112 , 28 L.Ed.2d 356 (1971) (construing amend-merits to the National Firearms Act, 26 U.S.C. §§ 5841-5872 ); United States v. Pruner, 606 F.2d 871 (9th Cir.1979) (construing 18 U.S.C. § 922 (h)(1)).

. The majority emphasizes that the word "willfully” is not present in the statute. Yet there is nothing magical about the use of the word willfully. The standard federal jury instruction by Devitt & Blackmar defines “knowingly” as voluntarily and intentionally doing or omitting to do a proscribed act. The instruction also points out that "[a]s stated before, with respect to an offense such as charged in this case, specific intent must be proved beyond a reasonable doubt before there can be a conviction.” 1 E. Devitt & C. Blackmar, Jury Instructions, §§ 14.-03, 14.04, 14.05 (3d ed. 1977).

. See United States v. Marvin, 687 F.2d 1221, 1226 (8th Cir.1982) (construing "knowingly" in 7 U.S.C. § 2024 (b) as modifying the entire phrase, not merely the verb “to use” which it immediately precedes), cert. denied, 460 U.S. 1081 , 103 S.Ct. 1768 , 76 L.Ed.2d 342 (1983).

. Some sections punish mere delivery without knowledge. See, e.g., 18 U.S.C. §§ 922 (a)(1) and (4), and (g). Others contain a knowledge requirement. See, e.g., 18 U.S.C. § 922 (i) and (k).

. In holding that the section does not require proof of specific intent, United States v. Wilson, 721 F.2d 967, 973 (4th Cir.1983), and United States v. Udofot, 711 F.2d 831, 835-37 (8th Cir.), cert. denied, — U.S. —, 104 S.Ct. 245 , 78 L.Ed.2d 234 (1983), failed to consider that the focus of section 922(e) is on notice to the carrier, not on mere delivery. Therefore, we should decline to follow these out of circuit cases.

. LaFave & Scott addressed this problem in the context of discussing the word "knowingly” in a "blue sky” law:

As a matter of grammar the statute is ambiguous; it is not at all clear how far down the sentence the word "knowingly” is intended to travel — whether it modifies “sells,” or "sells a security,” or "sells a security without a permit.”

W. LaFave & A. Scott, Criminal Law, § 27 (1972).