Opinion
Crim. No. 00-425 (WGB)
April 23, 2002
Christopher J. Christie, United States Attorney, Newark, New Jersey, Attorney for Plaintiff.
Donald J. McCauley, Esq., Assistant Federal Public Defender, Newark, New Jersey, Attorney for Defendant.
O P I N I O N
Defendant James Bryan Dougherty moves to dismiss the indictment. For the following reasons, Defendant's motion to dismiss the indictment is denied.
I. FACTUAL BACKGROUND
On March 22, 2000 Defendant was arrested and found in possession of "a firearm, namely a destructive device in the form of a glass bottle containing a flammable liquid, more commonly known as a "Molotov Cocktail." Indictment. The device was not registered to him in the National Firearms Registration and transfer Record as required by Chapter 53, Title 26 of the United States Code. Id. Based upon these facts, on or about June 23 2000, a grand jury sitting in Newark, New Jersey, returned a one-count indictment, charging Defendant with knowingly possessing an unregistered firearm, namely, a Molotov cocktail, in violation of the National Firearms Act, 26 U.S.C. § 5801, et seq. ("NFA").
II. DISCUSSION
The NFA requires all firearms not possessed or controlled by the United States to be registered in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5841(a). Failing to do so constitutes a criminal violation. 26 U.S.C. § 5861(d).
A firearm includes a destructive device. 26 U.S.C. § 5845(a)(8). The NFA defines the term "destructive device" as
. . . (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having an explosive or incendiary charge of more than one-quarter ounce . . . or, (F) similar device . . .26 U.S.C. § 5845(f)
A Molotov cocktail qualifies as a "similar device." United States v. Ross, 458 F.2d 1144, 1146 (5th Cir. 1972). Thus, the requirement that firearms be registered applies to Molotov cocktails.
A. Due Process
Defendant argues that although the NFA makes it a crime for any person to possess an unregistered firearm, it also prevents certain illegal firearms from being registered. The NFA provides, in relevant part:
. . . Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.26 U.S.C. § 5812(a)
Defendant argues that because New Jersey law prohibits the possession of Molotov cocktails, an application to register it would have been denied. Therefore, the New Jersey law made it impossible for him to comply with the NFA's registration requirement. Defendant claims that he should not be punished for his failure to do an act that was legally impossible. To do so, he argues, would be fundamentally unfair and violate his right to due process guaranteed him by the Fifth Amendment.
N.J.S.A. 2C:39-3 states, in relevant part, that "[a]ny person who knowingly has in his possession any destructive device is guilty of a crime of the third degree." A destructive device is "any device, instrument or object designed to explode or produce uncontrolled combustion, including . . . any Molotov cocktail . . ." N.J.S.A. 2C:39-1(c)(4).
Defendant relies heavily on the Tenth Circuit's decision in United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). The defendant in Dalton was convicted of possessing an unregistered machine gun in violation of 5861(d), the same provision at issue here. Dalton argued that because the enactment of 18 U.S.C. § 922(o) made the possession of machine guns a federal criminal offense, he was unable to register his machine gun. Citing the district court's opinion in United States v. Rock Island Aromory, Inc., 773 F. Supp. 117 (C.D.Ill. 1991), the Court found that "[a]s a result of section 922(o), compliance with section 5861 [was] impossible." Id. at 126. The Court then vacated Dalton's conviction, holding that Dalton's conviction under Section 5861 violated due process and was fundamentally unfair in that it punished him for failing to do an act that he was literally and legally incapable of performing.
The Fourth Circuit squarely rejected Dalton, concluding that the defendant could comply with both 922(o)and 5861 by refusing to deal in newly-made machine guns. United States v. Jones, 976 F.2d 176, 183 (4th Cir. 1992), cert. den'd, 508 U.S. 914 (1993). Most Circuits dealing with this issue have since followed the reasoning in Jones. See, e.g., United States v. Mise, 240 F.3d 527 (6th Cir. 2001); United States v. Shephardson, 167 F.3d 120 (2d Cir. 1999); United States v. Ellio, 128 F.3d 671 (8th Cir. 1997) (per curiam); United States v. Gresham, 118 F.3d 258 (5th Cir. 1997); Hunter v. United States, 73 F.3d 260 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600 (11th Cir. 1995). Indeed, the Seventh Circuit reversed Rock Island Aromory, Inc., the case upon which Dalton was premised, finding "the analysis applied in Jones to be well-reasoned . . ." United States v. Ross, 9 F.3d 1182 (7th Cir. 1993); vacated on other grounds, 511 U.S. 1124 (1994). Id. at 1194.
The Government urges this Court to follow the majority of Circuit Courts and to adopt the reasoning of Jones. The Government contends that it is not fundamentally unfair, nor a violation of due process to prosecute Defendant under Section 5861 in spite of the state law ban on Molotov cocktails, because compliance with both statutes is physically and legally possible by simply not possessing the Molotov cocktail in the first place. In other words, Defendant could have complied with the NFA by not violating the state law.
Arguing that Congress could not have intended this result, Defendant points to Congress' intent in enacting the relevant statute. The NFA is part of the Internal Revenue Code found in Title 26; it is not part of the general criminal code found in Title 18. According to Defendant, this indicates that Congress intended to facilitate the collection of tax revenues by imposing criminal liability for failing to register the item, and not for the mere possession of it. Defendant submits that to permit the prosecution of the indictment in this case to go forward would rewrite the NFA to criminalize the mere possession of Molotov cocktails.
Defendant further contends that this cannot be reconciled with the Supreme Court's decision in Haynes v. United States, 390 U.S. 85 (1968), which found that possession is not the gravamen of a 5861(d) violation. Def. Reply. Br., p. 1. Defendant's argument is unpersuasive. While Section 5861(d) is not a prohibition on the possession of a Molotov cocktail, it bans possession of an unregistered firearm. Indeed, the Court in Haynes recognized that possession of a firearm and a failure to register are "equally fundamental" elements of the offense. Id. at 95.
While it is true that the violation of the state law ban on possession necessarily puts Defendant in violation of both the state law and the NFA, the Jones Court addressed this issue, stating:
What Jones is really complaining about is that the amendment to the Gun Control Act effectively rendered possession of certain guns automatic violations of both the Gun Control Act and the National Firearms Act. Yet there is nothing either inconsistent or unconstitutionally unfair about Congress' decision to do so. And faced with two equally applicable penal statutes, there is nothing wrong with the government's decision to prosecute under one and not the other so long as it does not discriminate against any class of defendants.Jones, 976 F.2d at 183
The factually similar case of United States v. Djelaj, 842 F. Supp. 278 (E.D.Mich. 1994) is instructive. In Djelaj, the defendants were charged with possession of unregistered Molotov cocktails in violation of the NFA. Advancing the same argument Defendant does here, they argued that the state law ban on Molotov cocktails made it impossible for defendants to register them. Relying on Dalton, they asserted that prosecuting them was fundamentally unfair and violated their Fifth Amendment due process rights. The Court rejected their argument, holding that Dalton's impossibility analysis was flawed. The Court further stated that
there is nothing fundamentally unfair with holding Defendants to answer for their breach of federal law regardless of what state law may say. If this were not the case, federal criminal statutes could be enforced only in states which agreed with and accepted them. That is a preposterous contention.Djelaj, 842 F. Supp. at 281.
Under Defendant's approach, a state could pick and choose which firearms it did not want to be registered by simply making possession of those firearms illegal, thereby exempting everyone in that particular state from registering those arms. Obviously, this would undermine the purpose of the NFA, which is to tax and register firearms. Essentially, by adopting Defendant's reasoning, any state could single handedly render the registration requirement meaningless.
This Court finds that Defendant can be found guilty of violating Section 5861(d), regardless of what state law says. Because compliance with both statutes is possible, doing so is not fundamentally unfair and does not violate due process.
B. Mens Rea
Although not raised in his initial brief, Defendant argues in his reply brief that 5861(d) carries with it a mens rea element, requiring the government to prove that defendant "knowingly" failed to register a Molotov cocktail. Def. Reply Br., p. 2, citing, Staples v. United States, 511 U.S. 600, 619 (1994). Defendant contends that because it was not possible for him to register a Molotov cocktail, he could not have knowingly failed to register it.
In Staples, the defendant claimed that the rifle he possessed never fired automatically while in his possession and he was unaware that it had any automatic firing capability. If that were the case, then it did not have to be registered. However, because it turned out that the rifle had automatic firing capability, it qualified as a machine gun, whose registration was required by the NFA.
Noting that the "conventional mens rea element" of criminal statutes requires "that the defendant know the facts that make his conduct illegal," id. at 605, the Supreme Court held that the government should have been required to prove that defendant had knowledge of the characteristics qualifying the rifle as a firearm, thereby bringing it within the realm of the NFA's registration requirements. Id. at 619. The Supreme Court made it clear that their holding was intended to protect gun owners who were wholly ignorant of the offending characteristics of their weapons. Id. at 620.
In reaching its conclusion, the Supreme Court sought "to avoid construing a statute to dispense with mens rea where doing so would criminalize a broad range of apparently innocent conduct." It emphasized the "long tradition of widespread lawful gun ownership by individuals in this country." Id. at 610. It made a point, however, of stating that its holding did not apply to the possession of devices such as hand grenades. Id.
Under this reasoning, the mens rea requirement would not serve to relieve Defendant of liability for possessing an unregistered Molotov cocktail. First, Defendant's reliance on Staples is misplaced. The defendant in Staples was unaware that his rifle could operate as a machine gun; if he knew, then presumably the court would have found that he had the requisite mens rea. Defendant here does not claim that he was unaware that the device he possessed was a Molotov cocktail. To the contrary, Defendant claims that because he knew that possession of Molotov cocktails violated state law, he could not have known that his device was registerable.
The question here is not whether Defendant knew the item was registerable, but whether he knew that its registration was required by the NFA. Molotov cocktails are destructive devices and, as such, are subject to the registration requirement of the NFA. Relying on Staples, the Eleventh Circuit concluded that so long as the defendant was aware that his weapon possessed any of the features detailed in § 5845(a) and the weapon was unregistered (whether defendant knows that or not), Defendant is guilty of violating § 5861(d). United States v. Ruiz, 253 F.3d 634, 638 (11th Cir. 2001).
Finally, unlike the defendant in Staples, Defendant here was not innocent of any wrongdoing. Entirely apart from the registration requirement, one can legally possess a rifle for innocent purposes. On the other hand, "[a] Molotov cocktail has no purpose apart from criminal activities. It is not a device that is commonly created for legitimate purposes . . . [it] has no use other than as a weapon, and a person may be charged with knowledge of its similarity to a grenade." Ross, 458 F.2d at 1145-46.
Therefore, so long as Defendant was aware of the characteristics of the device that made it a Molotov cocktail, and never registered it, Defendant can be found guilty of knowingly violating § 5861(d).
C. Valid Exercise of Congressional Power
Next, Defendant argues that the NFA is no longer a valid exercise of Congress' taxing power and, thus, cannot be upheld on that or any constitutional basis.
The United States Constitution enumerates a number of specific powers to Congress, including the power to lay and collect taxes. U.S. Const. Art. I Sec. 8. An "Act which produces a tax revenue is a valid exercise of the taxing power, even though it also has a regulatory effect."Dalton, 960 F.2d at 125, citing, Sonzinsky, 300 U.S. at 513. Defendant recognizes that although the NFA has a regulatory effect, it was initially enacted as a valid exercise of Congress' enumerated power to tax. See Sozinsky v. United States, 300 U.S. 506, 513 (1937); United States v. Bournes, 105 F. Supp.2d 736, 738 (E.D.Mich. 2000). Nevertheless, Defendant argues that since the government no longer collects taxes for certain illegal devices, such as Molotov cocktails, Section 5861(d) is no longer a valid exercise of the power to tax.
Defendant is correct that to be upheld as a taxing measure, a statute must generate some tax. Additionally, "a provision which is passed as an exercise of the taxing power no longer has that constitutional basis whenCongress decrees that the subject of that provision can no longer be taxed." Dalton, 960 F.2d at 125 (emphasis added). Accordingly, the Court in Dalton concluded that because the subsequent federal ban on machine guns precluded them from being registered and taxed, the registration provision was no longer a valid taxing measure.
That is distinguishable from the present circumstances, in which the State, and not Congress, has banned possession of Molotov cocktails. Nowhere does the NFA or any other federal statute deny or give Defendant, or anyone else, the right to possess items such as Molotov cocktails; rather, "if one can possess such items legally under state law, then the NFA requires they be registered and taxed." Djelaj, 842 F. Supp. at 279. Therefore, because the NFA continues to tax the possession of Molotov cocktails, the registration provision can continue to be upheld as a valid tax measure.
The vast majority of courts agree that "the NFA's registration provisions may still be upheld as a valid exercise of congressional taxing power, despite the fact that the Government no longer accepts applications to register certain types of weapons." Bournes, 105 F. Supp.2d at 740;see also Jones, 976 F.2d at 183-84; United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994).
For example, the Court in Ardoin held that although Congress chose not to exercise its power to tax certain illegal devices, it still had the authority to do so. Ardoin, 19 F.3d at 180. Therefore, the statute could be upheld on the "preserved, but unused, power to tax." Id. The fact that certain items would not be taxed does not change the overall purpose of the NFA, which is to raise revenue. Sonzinsky, 300 U.S. at 513-14. Therefore, this Court finds that Section 5861(d) is a valid exercise of Congress' power to tax.
In addition, several Circuits have also found Congress to have derived its power to enact Section 5861(d) from the Commerce Clause of the Constitution. See, e.g., Jones, 976 F.2d at 184; Ardoin, 19 F.3d at 180. Recognizing that Congress could have enacted the NFA pursuant to its power to regulate interstate commerce, Defendant argues that because Congress did not expressly exercise its power under the commerce clause, the NFA cannot now be upheld under that power. Def. Br. In Supp., p. 15.
In reviewing the constitutionality of a statute, courts accord great deference to Congress. See United States v. Rybar, 103 F.3d 273, 282 (3d Cir. 1996). Defendant acknowledges that "it is the duty of a court to construe a statute as constitutional if such a construction is at all possible." Def. Br. In Supp., p. 18, citing, United States v. Santa Marin, 15 F.3d 879 (9th Cir. 1994). Defendant suggests, however, that where Congress enacts legislation pursuant to one of its enumerated powers, Courts are precluded from upholding the legislation on the basis of another enumerated power. Defendant cites no authority for this position.
This Court's own review of the law suggests that Courts commonly uphold legislation on alternative constitutional bases. See Ardoin, 19 F.3d at 180 (stating that although the NFA was originally upheld under the taxing power, it could also be upheld under the power to regulate interstate commerce); Bournes, 105 F. Supp.2d at 740 (stating that even if the court concluded that NFA's registration requirements bore no reasonable relationship to the taxing power . . . could be upheld as within Congress' power to regulate interstate commerce). As one California court explained,
[i]n most situations, courts `will not ascribe to Congress an intent to exercise its power under the commerce clause when it has invoked the taxing power in enacting the legislation.' Yet, where the explicit constitutional basis for a statute is doubtful, a court may invoke another constitutional basis.United States v. O'Mara, 827 F. Supp. 1468, 1472 (C.D.Cal. 1993) citing,Minor v. United States, 396 U.S. 87, 98n.13 (1969) (holding that even if registration requirements are not sustainable as a revenue measure, they are "sustainable under the powers granted Congress in Art. I, §§ 8").
Therefore, although a provision which is passed as an exercise of the taxing power that ceases to generate any tax revenue no longer has that constitutional basis, nothing says that it cannot be upheld under another constitutional basis, such as the Commerce Clause. In any event, this Court need not find that the NFA was enacted under the Commerce Clause since it has already concluded that Congress enacted the NFA pursuant to its enumerated power to tax and remains a valid exercise of that power.
III. CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss the indictment is denied.