Knoch, Senior Circuit Judge, and Cummings, and Pell, Circuit Judges.
Defendant was charged in an 11-count indictment with various violations of the Gun Control Act of 1968 (82 Stat. 1213), amending the National Firearms Act. Count IX of the indictment was dismissed at the request of the Government. A jury found defendant guilty on the ten remaining counts, and he was sentenced to a total of ten years' imprisonment.*fn1
The first two counts alleged that defendant sold a Gradoga pistol to Larry Radford, knowing that he was a convicted felon and did not reside in Illinois, thus violating 18 U.S.C. Sections 922(d) and 922(b) (3).
Counts III and VI charged that on two different occasions defendant sold ten grenades without keeping the records required by 18 U.S.C. Section 922(b) 5).
The remaining counts charged that defendant transferred certain grenades without filing the required application with the Secretary of the Treasury, in violation of 26 U.S.C. Section 5861(e), and that he possessed unregistered grenades in violation of 26 U.S.C. Section 5861(d).
The principal thrust of this appeal was that the provisions of the Gun Control Act of 1968 involved in all counts of the indictment, except Counts I and II, unconstitutionally required defendant to incriminate himself. However prior to the oral argument of the appeal, United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 was decided and held that this statute does not violate the self-incrimination clause of the Fifth Amendment. See also United States v. McCutcheon, 446 F.2d 133 (7th Cir.1971); United States v. Lauchli, 444 F.2d 1037 (7th Cir.1971). Under these authorities we must reject defendant's contentions with respect to statutory unconstitutionality.*fn2
Defendant complains that the Government wrongfully disposed of certain evidence before trial, depriving him of his right to view the evidence against him. The initial destruction was on February 5, 1969, before the original indictment of September 25, 1969. The other destruction was on October 27, 1969, before the superseding indictment of November 12, 1969. On these respective occasions the Government destroyed the fuses and the greater portion of powder obtained from defendant in December 1968 and April 1969. The second destruction occurred after the court had granted the defendant's motion to inspect the evidence relating to the prior indictment, but apparently the Treasury agents were unaware of that order. The Government urges that each pre-indictment destruction was necessary in order to protect public buildings.
It is indeed unfortunate that government agents destroyed tangible evidence material to a pending criminal prosecution. This Court sees no reason why the Government did not find safe storage facilities for preservation of such evidence. It is all the more deplorable that the agents accomplished their mission apparently without previously notifying either the prosecutor or the district court of their impending action. Such a lack of communication is without justification. Cf. United States v. Perlman, 430 F.2d 22 (7th Cir. 1970), certiorari denied, 400 U.S. 832, 91 S. Ct. 64, 27 L. Ed. 2d 63.
Nevertheless, we do not believe the destruction of the fuses and powder calls for reversal of this conviction. There was no hint of bad faith or deliberate suppression of evidence which might reasonably have exculpatory value to defendant. Moreover, the live fuses and cans of powder were photographed. The residue of the detonated fuses, samples from each container of powder, and the photographs were all made available to defense counsel. Defendant has pointed to no concrete area of prejudice due to the disposition of these articles. We cannot infer such prejudice from this record. Cf. United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537.
Defendant next submits that four items not received into evidence were given to the jury for use in its deliberations, thus calling for reversal and ...