26 U.S.C. s. 5861(d) requires mens rea as to the physical characteristics of the weapon.

• Author: Lefevour, Martin T.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Staples v. United States,(1) the United States Supreme Court held that 26 U.S.C. [sections] 5861(d)(2) requires mens rea.(3) Specifically, the Court, reversing the Tenth Circuit Court of Appeals, ruled that the Government was required to prove that the petitioner, Harold E. Staples, III, knew the features of his weapon that brought it within the scope of [sections] 5861(d).(4)

   This Note argues that the Court reached the wrong conclusion. The petitioner should have been found guilty for violating [sections] 5861(d) because he was "reckless" as to the fact that his weapon was a statutory "firearm." This Note asserts that because the Court did not properly analyze [sections] 5861(d), it failed to decide the proper mens rea that [sections]5861 (d) requires. The Court concluded that [sections] 5861(d) requires only a single mens rea. This Note, however, argues that [sections] 5861(d) actually requires three separate and distinct mens rea; one for each objective element of [sections] 5861(d). This Note also argues that the required mens rea as to the physical characteristics of a weapon that make it a statutory "firearm" is actually lower than the mens rea the Court established. Unlike the "knowing" level of intent the Court required, this Note argues that "reckless" is a sufficient levvl of intent.

   Additionally, this Note agrees with the Court's definition of what items should alert a possessor of a weapon to the possibility of strict regulation. However, this Note disagrees with how the Court applied its definition to the facts of this case. The Court reasoned that guns have enjoyed a tradition of legality in this country, and therefore would not alert a possessor to the probability of strict regulation. The gun involved in this case, however, had been visibly altered, and this Note argues that visibly or knowingly altered weapons have not enjoyed a tradition of legality in this country. Finally, this Note agrees with the Court's conclusion that [sections] 5861(d) is not a public welfare offense because it carries too harsh a penalty.

2. BACKGROUND

   Congress enacted the National Firearms Act (NFA), 26 U.S.C. [sections][sections] 5801-5872, in 1934 in response to an increase in criminal gang activity.(5) With the NFA, Congress sought to curtail this rise in criminal gang activity by depriving gangsters of their most dangerous weapons.(6) However, Congress did not want the NFA to restrict legitimate gun use by hunters, sportsmen, and people who kept a weapon for home protection.(7) Therefore, Congress limited the NFA to only those weapons that gangsters typically used.(8) This category of weapons was defined in the statute as "firearms," and included machine guns and sawed-off shotguns.(9) Congress felt that "there [was] no reason why anyone except a law officer should have a machine gun or a sawed-off shotgun."(10)

   The NFA, however, was not an outright ban on statutory "firearms."(11) Rather, the NFA required owners of "firearms" merely to register their weapons with the government.(12) Congress took this narrow approach because it was afraid that the Supreme Court would strike down an outright ban on "firearms" as an unconstitutional, federal invasion into reserved state powers.(13) Consequently, Congress, at the express advice of Attorney General Cummings, modeled the NFA after the Narcotic Drug Act of 1914.(14) The Narcotic Drug Act derived its power from the taxing clause.(15) The Supreme Court had already held that the Narcotic Drug Act was constitutional and did not invade the states' reserved powers.(16) Therefore, by modeling the NFA after the Narcotic Drug Act, Congress hoped that the Court would construe the NFA in a similar manner.(17) In addition to this benefit, Congress hoped that the courts would comparably construe NFA provisions that were similar to Narcotic Drug Act provisions.(18) In particular, the Supreme Court had already held that certain Narcotic Drug Act provisions did not require proof that the defendant knew all of the facts that made his conduct illegal.(19)

   United States v. Balint(20) was one of the cases Congress hoped the courts would use as a guide for interpreting the NFA.(21) In Balint, the defendants were charged with unlawfully selling restricted drugs without a written order from the Commissioner of the Internal Revenue.(22) The defendants argued that the charges should be dismissed because they did not know that the drugs they were selling were restricted.(23) The Supreme Court did not accept this argument.(24) The Court acknowledged that the common law required intent as a necessary element of every crime.(25) The Court further acknowledged that this was true even when the statute was silent as to intent.(26) However, when the statute is promoting the public welfare, and proving intent would hinder prosecution, the Court decided that the Government need not prove that defendants knew their activities were illegal.(27) These types of statutes have become known as public welfare statutes.(28)

   As Congress hoped, consistent with Balint, the courts uniformly construed the NFA as not requiring proof that defendants knew their acts were illegal.(29) In other words, the courts did not require any mens rea. For the first thirty years of its enforcement, the courts, across the board, did not require proof of mens rea for an NFA conviction.(30)

   In 1971, the Supreme Court interpreted [sections] 5861(d) of the NFA in United States v. Freed.(31) In Freed, the Government indicted the defendants for possessing and conspiring to possess unregistered hand grenades in violation of [sections] 5861(d).(32) The District Court dismissed the indictment,(33) partly because it failed to allege that the defendants knowingly did not register their hand grenades.(34) The Supreme Court, however, on direct appeal, reversed.(35) The Court held that [sections] 5861(d) protected the public welfare, and as a result, similar to Balint, did not require proof that the defendants knew of the registration requirement for hand grenades.(36) The Court, however, never directly addressed the issue of whether the defendants had to know they were possessing a statutory "firearm." The Court glazed over this issue because it felt the defendants knew they possessed an item which should have alerted them to strict regulation; "one would hardly be surprised to learn that possession of hand grenades is not an innocent act."(37) The Court did note, though, that "the only knowledge required to be proved was knowledge that the instrument possessed was a firearm."(38) Unfortunately, the Court never clearly defined whether it was referring to a firearm in the statutory or general sense.(39) The Court was probably referring to firearms in the general sense because the subsequent sentence of the opinion cited Sipes v. United States,(40) a case which referred to firearms in the general sense. The Court's failure to explicitly define the term "firearm," and its flippant analysis of the issue set the stage for the confusion which has developed around [sections] 5861(d).

   For the twelve years after Freed, every federal court interpreting [sections] 5861(d) held that the mens rea required was only that defendants knew they possessed a firearm in the general sense.(41) In 1983, in United States v. Herbert,(42) the Ninth Circuit broke away from this trend, and held that the Government must prove that defendants knew the internal characteristics of their weapon which made it a statutory "firearm" when nothing external would have "alert[ed] one to the likelihood of regulation."(43) After this decision, the circuit courts began to split.(44) Most circuits continued to follow the established line of precedent, and did not require proof of any mens rea for conviction under [sections] 5861(d).(45) For instance, in United States v. Ross,(46) the Seventh Circuit, following the established precedent, held that [sections] 5861(d) did not require mens rea.(47) The court reasoned that since the Supreme Court in Freed held that [sections] 5861(d) dispensed with mens rea for the registration of the weapon, it implied that mens rea was also unnecessary as to a defendant knowing the characteristics of his "firearm."(48) The Tenth Circuit adopted this same logic. In United States v. Mittleider,(49) the Tenth Circuit, questioning the validity of the Herbert opinion, upheld a jury instruction which did not require proof that the defendant knew the weapon he possessed was a statutory "firearm."(50)

   Other circuits, however, have disagreed with this reasoning, and have concluded that [sections] 5861(d) requires mens rea.(51) In United States v. Anderson,(52) for example, the defendant was arrested and convicted for violating [sections]5861 (d).(53) He possessed two automatic weapons and silencer parts.(54) The Fifth Circuit reversed the conviction because the only proof that the jury instruction required was that the defendant knew the guns were firearms in the general sense.(55) The court was concerned that juries would convict innocent defendants.(56) Under the jury instruction, defendants who had no knowledge of the internal characteristics of their weapon could have been convicted for possessing a gun which had no external indications that it was a statutory "firearm."(57) The court reasoned that Congress plainly did not intend to imprison pistol owners, who innocently and reasonably believed that their weapon was legal, because, unknown to them, it was modified to be fully automatic.(58) Consequently, the court held that for a [sections] 5861(d) conviction, the government must prove that the defendant knew the weapons were statutory "firearms."(59)

   The District of Columbia Circuit, in United States v. Harris,(60) agreed with the Fifth Circuit's reasoning in Anderson. It also held that a [sections] 5861(d) conviction requires proof that the defendant knew he possessed a statutory "firearm."(61) To further support this...