UNITED STATES of America, Plaintiff and Appellee, v. Richard J. OBA, Defendant and Appellant, 448 F.2d 892

WILLIAM M. BYRNE, District Judge: This is an appeal by appellant Oba from his conviction upon a plea of guilty to Counts One and Two of an indictment charging him with possessing an unlawfully made firearm and with unlawfully transferring the same firearm in violations of 26 U.S.C. § 5861(

c) and (e), respectively. At the time of pleading guilty, Oba retained, with permission of the Court, two legal questions for appeal, viz.,

(1) Did the indictment fail to state facts sufficient to constitute an offense, and

(2) Would the National Firearms Act, as applied to him, force him to incriminate himself as to future acts. On appeal, appellant contends that the object described in the indictment (“seven sticks of dynamite wrapped with copper wire and equipped with a length of black dynamite fuse, together with dynamite caps * * * ”) does not come within the definition of “destructive device” found in 26 U.S.C. § 5845 (f).

The thrust of appellant’s argument is that the object is, intrinsically, not a weapon and that it can only be labelled a “destructive device” if that is the ultimate subjective intent of the possessor or transferor. On June 19, 1968, the Omnibus Crime Control and Safe Streets Act (Pub.L. 90-351, 82 Stat. 197 (1968)) was signed by the President.

Title IV of the Act, 18 U.S.C. §§ 921-928, which related to the control of firearms in commerce, defined “destructive device” as follows: “The term ‘destructive device’ means any explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device; and includes any type of weapon which will or is designed to or may readily be converted to expel a projectile by the action of any explosive and having any barrel with a bore of one-half inch or more in diameter.” Specifically excluded from this definition were devices “not designed or redesigned or used or intended for use as * * * weapon (s).” Later that year, the Congress, in order “to provide for better control of the interstate traffic in firearms” enacted the Gun Control Act of 1968.

The bill which was approved by the Conference Committee and later the Congress, included amendments to the National Firearms Act, 26 U.S.C. §§ 5801-5862, as well as to the Omnibus Act. This bill’s formulation as to what constitutes a “destructive device” is set forth in Footnote 1. The same definition of “destructive device” was applied to the amended Omnibus Act as well as the revised National Firearms Act. A clear reading of the Statute coupled with an examination of the indictment to which appellant entered a guilty plea, demonstrates that the object was a destructive device. Subparagraph (3) of § 5845(

f) provides that a “destructive device” includes “any combination of parts either designed or intended for use in converting any device into a destructive device as defined in sub-paragraphs (1) and (2) and from which a destructive device may be readily assembled.” (Emphasis added.) Simply stated, a device may be “converted” into a destructive device as defined in Subparagraphs (1) and (2) by way of “design or intent.” See S.Rep.No.1501, 90th Congress, 2d Sess., P. 47 (1968).

Here in his guilty plea appellant admitted that the device consisted of seven sticks of dynamite wrapped in copper wire and equipped with fuse and blasting caps. He stated that his intent was to dynamite the City of Eugene, Oregon and admitted that the purpose of the device was to bomb and destroy the property of others. He also stated that in Eugene, Oregon, in May of 1969, he transferred the device to one Robert Caufield with instructions to detonate it on certain premises in Eugene, Oregon. In sum, that the said object was a “destructive device” as defined in 26 U.S.C. § 5845(

f) is beyond controversy. In light of the nature of this device and its admitted purpose, it seems absurd to even question its inclusion within the definition of “destructive device” approved by Congress, or to assert that it is not a weapon. The definition excluded “any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device.” (Emphasis added). Here, appellant’s own admission establishes that the weapon in issue had not been redesigned for any such use.

As an adjunct to this discussion, we point out that the exception created by Congress, i. e., “The term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon,” in substance constitutes an affirmative defense, which, if asserted, must be negated beyond a reasonable doubt by the prosecution. Here, the appellant’s guilty plea resulted in the waiving of such defense, thus relieving the government of this prosecutorial burden. Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); United States v. Ptomey, 366 F.2d 759 (3rd Cir. 1966) ; Davis v.

United States, 347 F.2d 374 (9th Cir. 1965). Turning to appellant’s claim that the National Firearms Act, as amended, violated his privilege against self-incrimination, our analysis need go no further than pointing out that the Supreme Court has ruled to the contrary. In United States v. Freed, 401 U.S. 601, 606, 91 S.Ct. 1112, 1116, 28 L.Ed.2d 356 (1971), the Court held “that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment.” In so holding, the court specifically rejected the contention set forth before us that compliance with the transfer provision of 26 U.S.C. § 5812(

a) and the tax payment provision of 26 U.S.C. § 5811(

a) is an open invitation to the prosecutorial agencies of government to one day use this information to secure a conviction for a later act of criminality. Because of the prophylactic language of 26 U.S.C. § 5848(

a) and the “practice” of the Internal Revenue Service of not making available to such agencies, state as well as federal, information resulting from such compliance, the court was of the view that such a contention was wholly without viability: “The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future.

But the claimant is not confronted by ‘substantial and “real” ’ but merely ‘trifling or imaginary hazards of incrimination’ — first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. Marchetti v. United States, supra, [390 U.S. (39)] 53-54, 88 S.Ct. [697] 705 [19 L.Ed.2d 889]. Cf. Minor v. United States, 396 U.S. 87, 94 [90 S.Ct. 284, 287, 24 L.Ed.2d 283].

Since the state and other federal agencies never see the information, he is left in the same position as if he had not given it, but ‘had claimed his privilege in the absence of a * * * grant of immunity.’ Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, [84 S.Ct. 1594, 1610, 12 L.Ed.2d 678], This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination.” 401 U.S. at 606, 91 S.Ct. at 1116. See, United States v. Jones, 446 F.2d 12 (9th Cir. 1971); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); United States v.

Ramsey, 429 F.2d 565 (5th Cir. 1970). We affirm the judgment of conviction. . § 5845.

Definitions “ * * * “(

f) Destructive device.- — The term ‘destructive device’ means (1) any explosive, incendiary, or poison gas (

A) bomb, (

B) grenade, (

C) rocket having a propellant charge of more than four ounces, (

D) missile having an explosive or incendiary charge of more than one-quarter ounce, (

E) mine, or (

F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-lialf inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in sub-paragraphs (1) and (2) and from which a destructive device may be readily assembled.

The term ‘destructive device’ shall not include any device which is neither designed or redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary of the Treasury or his delegate finds is not likely to be used as a weapon; or is an antique or is a rifle which the owner intends to use solely for sporting purposes.” .

By contrast, in T'nited States v. Schofer, 310 F.Supp. 1202, (E.D.N.Y.1970) relied upon by appellant, the sticks of dynamite, fuse and blasting caps had not been converted into a bomb, but were instead, each located in a separate container. In short, the acts of conversion present in the instant ease, were absent in Schofer. . 26 U.S.C. § 5848(

a) provides, in pertinent part, as follows: “No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this

chapter or regulations issued thereunder, sliall * * * be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.”