United States v. Dalton, 960 F.2d 121 (10th Cir. 1992)
UNITED STATES of America,
John William DALTON,
United States Court of Appeals,
March 26, 1992.
Charles Szekely, Asst. Federal Public Defender
(Michael G. Katz, Federal Public Defender, with him on the brief), Denver,
Colo., for defendant-appellant.
Joseph Mackey, Asst. U.S. Atty. (Michael J. Norton, U.S.
Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.
Before SEYMOUR and TACHA, Circuit Judges, and BRIMMER,
SEYMOUR, Circuit Judge.
John Dalton, an attorney, accepted a firearm as a fee from
a client, who was a licensed firearms dealer and who had converted the weapon
into a machinegun in 1989. Dalton was found guilty of possessing and
transferring an unregistered firearm in violation of the National Firearms Act,
I.R.C. §§ 5861(d), (e) (NFA). A separate criminal statute prohibits
the possession of any machinegun made after that statute's effective
date in 1986. 18 U.S.C. § 922(o) (1988). It is undisputed that the
government will not permit the registration of machineguns covered by section
922(o), and will not accept the tax which would otherwise be required by the
registration requirements of the National Firearms Act. Dalton contends that
due process bars his conviction under a statute which punishes his failure to
register when that registration is precluded by law. We agree and reverse.
Dalton was convicted of violating two provisions of the
NFA: I.R.C. § 5861(d), which prohibits the receipt or possession of an
unregistered firearm; and I.R.C. § 5861(e), which prohibits the transfer
of a firearm in violation of the applicable transfer provision. The transfer
provision requires the transferor to apply for registration of the firearm to
the transferee and to pay a transfer tax. See id. § 5812. Under 18 U.S.C. § 922(o), however, it is
unlawful to transfer or possess the firearm at issue in this case because the
weapon was converted into a machinegun after the statute's effective date of
May 19, 1986. The NFA specifically
provides that all applications to register a firearm will be denied if it is
illegal to possess or transfer the weapon. See I.R.C. § 5812
(registration application denied "if the transfer, receipt, or possession
of the firearm would place the transferee in violation of law"). As a
result, compliance with the registration requirements referred to in sections
5861(d) and (e) is impossible with this weapon. Dalton concedes that the
government could have charged him under section 922(o), which criminalizes
possession. Rec., vol. V, at 51. However, the government instead chose to
proceed under section 5861 and charge him with possessing an unregistered gun.
Dalton contends that the gravamen of a section 5861
violation is the possession and transfer of an unregistered gun, and
that it violates fundamental fairness to convict him for failing to do an act
which everyone agrees he could not perform. He made this argument to the
district court without success. In rejecting Dalton's analysis, the court
stated its position that a violation of section 5861 is grounded on possession
rather than on the failure to register. "[I]t's the act of possession, not
the act of registration which is the gravamen of the offense. It is the act of
possession of a firearm that's not registered. It doesn't matter who or
why." Rec., vol. V, at 62.
We disagree with this analysis, which has been specifically
rejected by the Supreme Court, albeit in a slightly different context. In
Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968),
the defendant was convicted under an earlier version of the NFA which made
possession of an unregistered firearm and failure to register separate
offenses. See id. at 89, 88 S.Ct. at 726. The defendant was charged with
possessing an unregistered firearm rather than with failing to register. He
contended that satisfying the obligation to register imposed by the statute
under which he was charged would have violated his Fifth Amendment privilege
against self-incrimination. In response, the government adopted the same
position taken by the district court here, arguing that the defendant's offense
was the mere possession of an unregistered firearm. See id. at
90-91, 88 S.Ct. at 726-27.
The Supreme Court disagreed, finding it significant that
the possession offense was defined as the possession of a firearm which had not
been registered as required by the statutory provisions. The Court stated that
this reference to registration "suggest[s] strongly that the perimeter of
the offense which it creates is to be marked by the terms of the registration
requirement imposed." Id. at 93, 88 S.Ct. at 728. After discovering
no persuasive evidence to the contrary, the Court rejected the government's
argument that the gravamen of the crime of possessing an unregistered weapon is
the possession and not the failure to register. "We find this supposed
distinction entirely unpersuasive, for, as we have found, the possession of a
firearm and a failure to register are equally fundamental ingredients of both
[the offense of failing to register and the offense of possessing an
unregistered firearm]." Id. at 95, 88 S.Ct. at 729.
Like the statute at issue in Haynes, the statute
under which Dalton was convicted penalizes possession or transfer in violation
of registration requirements elsewhere imposed by the Act. Under the analysis
in Haynes, the failure to register is a fundamental ingredient of these
offenses. Because the crimes of which Dalton was convicted thus have as an
essential element his failure to do an act that he is incapable of performing,
his fundamental fairness argument is persuasive. Cf. United States v.
Spingola, 464 F.2d 909, 911 (7th Cir.1972); 1 W. LaFave & A. Scott,
Jr., Substantive Criminal Law § 3.3(c) at 291 (1986) ("one
cannot be criminally liable for failing to do an act which he is physically
incapable of performing").
Dalton has supplemented his argument on appeal by directing
us to United States v. Rock Island Armory, 773 F.Supp. 117
(C.D.Ill.1991), a case decided while this appeal was pending, in which the
court rejected an analogous prosecution under the NFA employing a different but
related analysis. In Rock Island Armory, the defendants were charged
with manufacturing and delivering machineguns into interstate commerce in
violation of the registration requirements of the National Firearms Act.
Undertaking a thorough review of the relevant legislative history and case law,
the court pointed out that this Act was passed and has been consistently upheld
under the power of Congress to raise revenue. The court reasoned that because
the possession of machineguns made after 1986 is illegal under section 922(o)
and the government will therefore no longer register and tax them, and because
the registration requirements are solely in aid of collecting the tax, the
constitutional base for those requirements — i.e., the power to tax
— has disappeared. Accordingly, the court held the registration
requirements constitutionally invalid as to firearms that the government no
In reaching this conclusion, the court looked to the
legislative history of the Act, which clearly evinces Congress's intent that
the Act regulate machineguns through a proper exercise of the taxing power
rather than by banning manufacture and sale outright. The court quoted
testimony to that effect from then Attorney General Homer S. Cummings, who
"explained in detail how the [Act] would be
based on the tax power. Cummings denied that machineguns could be banned,
because 'we have no inherent police power to go into certain localities and
deal with local crime. It is only when we can reach those things under ... the
power of taxation that we can act.' "
Rock Island Armory, 773 F.Supp. at 119-20 (citations
The court also relied on Sonzinsky v. United States,
300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937). In that case, a firearms
dealer who was prosecuted for failing to pay a dealers' license tax required by
the Act argued that the tax was in actuality an unconstitutional "penalty
imposed for the purpose of suppressing traffic in a certain noxious type of
firearms, the local regulation of which is reserved to the states because not
granted to the national government." Id. at 512, 57 S.Ct. at 555.
The Supreme Court rejected this argument, stating that the section of the Act
at issue "contains no regulation other than the mere registration
provisions, which are obviously supportable as in aid of a revenue purpose. On
its face, it is only a taxing measure...." Id. at 513, 57 S.Ct. at
555. As pointed out in Rock Island Armory, the Court in Sonzinsky
"upheld [the Act's] validity precisely because the National Firearms Act
was a revenue measure only and did not purport to exercise any general criminal
power not delegated to Congress by the Constitution." Rock Island
Armory, 773 F.Supp. at 121.
We agree with the reasoning in Rock Island Armory
that because the registration requirements of the National Firearms Act were
passed pursuant to the taxing power, id. at 119, and because after the
enactment of section 922(o) the government will no longer register or tax
machineguns, id. at 118, section 922(o) has "removed the
constitutional legitimacy of registration as an aid to taxation,"
id. at 125. "Thus, § 922(o) undercut the constitutional basis of
registration which had been the rule since Sonzinsky." Id.
The government in a post-argument letter raises several
objections to the Rock Island Armory construction of the NFA, relying on
Sonzinsky. In so doing, the government misconstrues both Rock Island
Armory and Sonzinsky, and renews specious arguments that the court
in Rock Island properly rejected. Although the thread of the
government's argument is not entirely clear, it appears to be premised on a
misreading of the holding in Rock Island Armory. Thus, the government
characterizes that case as concluding that the Act "loses its
constitutional validity if it has the effect of suppressing a regulated
item." Government supp. letter (Nov. 22, 1991), at 3. As we have set out
above, and as Rock Island Armory plainly holds, the registration
requirements are invalid not because they have a regulatory effect, but
because they were promulgated under the taxing power and have, after the
enactment of section 922(o), lost their constitutional legitimacy as an aid to
tax collection. To put the proposition as plainly as we are able: a provision
which is passed as an exercise of the taxing power no longer has that
constitutional basis when Congress decrees that the subject of that provision
can no longer be taxed.
Sonzinsky is not to the contrary. The Court there
upheld the NFA because it "on its face purports to be an exercise of the
taxing power [even though] the tax is burdensome or tends to restrict or
suppress the thing taxed." 300 U.S. at 513, 57 S.Ct. at 556. Essential to
this holding was the fact that the Act "operate[d] as a tax," that
is, it was "productive of some revenue." Id. at 514, 57 S.Ct.
at 556.Sonzinsky thus holds
that an Act which produces tax revenue is a valid exercise of the taxing power,
even though it also has a regulatory effect. This is not to say, however, as
the government urges, that the measure remains constitutional under the taxing
power when its taxing purpose disappears and only its regulatory effect is
Apparently recognizing that to be upheld as a taxing
measure a statute must generate some tax, the government argues that the Act
still produces revenue because one who unlawfully makes a machinegun is
assessed a tax. Government supp. letter at 4. This argument is not persuasive.
The fact that some revenue may be generated by taxing the illegal making
of a machinegun does not legitimize the registration requirements for
possession and transfer at issue in the instant case. The government does not
assert that it taxes the illegal possession or transfer of a machinegun.
Indeed, here the government did not seek to recover a tax but to impose
criminal sanctions based on the possession and transfer of the
Finally, the government argues that the Gun Control Act, of
which section 922(o) is a part, should not be viewed as repealing the National
Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that
effect. The court in Rock Island Armory rejected the same government
argument, observing that
"the 1968 Congress cannot bind the Congress
of 1986, which decided to ban transfer and possession of machineguns. P.L.
99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in
1968 does not solve a constitutional problem which arose in 1986. The ban
enacted in 1986, and the government's refusal to accept registrations and tax
payments, simply left the registration requirements with no constitutional
773 F.Supp. at 126 (footnote omitted).
The government is correct that a statute is repealed by
implication only when that statute and a later statute are irreconcilable.
See, e.g., Morton v. Mancari, 417 U.S. 535, 549-51, 94 S.Ct. 2474,
2482-83, 41 L.Ed.2d 290 (1974). In our view, however, that is exactly the
situation here. Sections 5861(d) and (e) punish the failure to register a
machinegun at the same time that the government refuses to accept this required
registration due to the ban imposed by section 922(o). As a result of section
922(o), compliance with section 5861 is impossible.
Accordingly, we vacate Dalton's conviction and reverse with
instructions to dismiss the indictment. In so doing, we recognize that the
illegal possession of a machinegun is a most serious matter. However, it is
precisely because this conduct raises such grave concerns that the government
must exercise its prosecuting responsibility with care. The decision to proceed
under an inapplicable statute has resulted in a constitutionally infirm
VACATED AND REMANDED.
* The Honorable Clarence A.
Brimmer, Chief Judge, United States District Court for the District of Wyoming,
sitting by designation.
1. Section 5812(a)
"A firearm shall not be transferred
unless (1) the transferor of the firearm has filed with the Secretary a written
application, in duplicate, for the transfer and registration of the firearm to
the transferee on the application form prescribed by the Secretary; (2) any tax
payable on the transfer is paid as evidenced by the proper stamp affixed to the
original application form; (3) the transferee is identified in the application
form in such manner as the Secretary may by regulations prescribe, except that,
if such person is an individual, the identification must include his
fingerprints and his photograph; (4) the transferor of the firearm is
identified in the application form in such manner as the Secretary may by
regulations prescribe; (5) the firearm is identified in the application form in
such manner as the Secretary may by regulations prescribe; and (6) the
application form shows that the Secretary has approved the transfer and the
registration of the firearm to the transferee. Applications shall be denied
if the transfer, receipt, or possession of the firearm would place the
transferee in violation of the law."
I.R.C. § 5812(a) (emphasis
2. Section 922(o)
"(1) Except as provided in paragraph
(2), it shall be unlawful for any person to transfer or possess a
(2) This subsection does not apply with
respect to —
(B) any lawful transfer or lawful possession
of a machinegun that was lawfully possessed before the date this subsection
The machinegun prohibition became effective
May 19, 1986. See Pub.L. No. 99-308, § 110(c), 100 Stat. 449, 461
3. Based on this
construction of the Act, the Court held that a properly made claim of the
constitutional privilege against self-incrimination provided a complete defense
to prosecutions either for failure to register or for possession of an
unregistered firearm. See 390 U.S. at 100, 88 S.Ct. at 732. In response
to this decision, Congress amended the NFA, which now provides that no
information obtained through compliance with the registration requirements
shall be used in a criminal proceeding against the person whose compliance is
required. See I.R.C. § 5848(a) (1988).
4. The government
initially appealed the decision in Rock Island Armory but then
successfully moved to dismiss the appeal. See United States v. Rock Island
Armory, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991).
5. The government cites
Sonzinsky, 300 U.S. at 512, 513, 57 S.Ct. at 555, 556, for the
proposition that "the cumulative effect of the tax imposed by the NFA on
dealers, manufacturers, and importers of certain weapons and on transactions in
these weapons was 'prohibitive' in effect and unmistakably disclosed the
legislative purpose to regulate rather than to tax." Government supp.
letter (Nov. 22, 1991), at 3. This description of the Act, which the government
attributes to the Court, is actually a recitation of the defendant's argument.
See 300 U.S. at 513, 57 S.Ct. at 555. In fact, the Court held the Act
distinguishable from those statutes it described as "a penalty resorted to
as a means of enforcing the regulations." Id.
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