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Gillespie v. United States

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


April 2, 1969

GEODICE GILLESPIE, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

Castle, Chief Judge, Fairchild, Circuit Judge, and Hoffman, District Judge.

Author: Castle

CASTLE, Chief Judge.

This appeal arises from the denial by the District Court of petitioner's motion to vacate his sentence, under 28 U.S.C. § 2255. Petitioner, upon his plea of guilty, was convicted of violating 26 U.S.C. § 5851*fn1 by possessing a firearm which had not been registered pursuant to 26 U.S.C. § 5841.*fn2 Petitioner contends that the combination of Dugan v. United States, 341 F.2d 85 (7th Cir. 1965), which held § 5841 unconstitutional on the ground that it required disclosure of incriminating evidence in violation of the Fifth Amendment,*fn3 and Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968), which held that § 5841 and § 5851 must be read together, results in the conclusion that both sections are unconstitutional.

We are of the opinion, however, that a full reading of both of the above cases discloses that Haynes, in effect, overruled Dugan and the other cases cited by petitioner insofar as they declared § 5841 unconstitutional on its face. The court in Haynes reversed, a conviction for violating § 5851, and in so doing overruled a line of cases which had distinguished § 5841 from § 5851. The Court stated:

"We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical.

"* * * We hold that petitioner's conviction under the registration clause of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register." 390 U.S. at 94-95, 88 S. Ct. at 729.

The Court then went on to hold that since "there are a number of apparently uncommon circumstances in which registration is required of one who has not violated the Firearms Act"*fn4 (and therefore such registration would not be incriminating) it would be

"* * * inappropriate, in the absence of evidence that the exercise of protected rights would otherwise be hampered, to declare these sections impermissible on face. Instead, it appears, from the evidence now before us, that the rights of those subject to the Act will be fully protected if a proper claim of privilege is understood to provide a full defense to any prosecution either for failure to register under § 5841 or, under § 5851, for possession of a firearm which has not been registered.

"We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851." 390 U.S. at 99, 100, 88 S. Ct. at 732.

From the foregoing, it is clear that the Supreme Court decided that neither § 5841 nor § 5851 is unconstitutional on its face,*fn5 and that a proper claim of the privilege against self-incrimination must be seasonably asserted to constitute a defense to a prosecution under § 5851 or § 5841. Therefore, since the petitioner in the instant case failed to assert the privilege at trial, and instead voluntarily pleaded guilty, the judgment below, denying his motion to vacate, was correct. The fact that petitioner did not know of the defense at the time he pleaded guilty is neither asserted by petitioner as a ground for reversal, nor is it legally significant, since a guilty plea is "an honest confession of guilt and a waiver of all defenses known and unknown." Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709 (D.C. Cir. 1958). See also United States v. Hetherington, 279 F.2d 792, 796 (7th Cir. 1960), cert. den. 364 U.S. 908, 81 S. Ct. 271, 5 L. Ed. 2d 224.

For the foregoing reasons, the judgment below is affirmed.

The Court expresses its appreciation to Attorneys Edmond J. Leeney and Patrick J. Galvin, members of the Hammond, Indiana bar, for their excellent services on appeal as court-appointed counsel for petitioner.

Affirmed.

Disposition

Affirmed


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