Northwestern University Law Review
Winter, 1987
Comment
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

[Page 263]

MANDATORY SELF-REPORTING UNDER SECTION 922(e) OF THE GUN CONTROL ACT OF 1968: ITS INFRINGEMENT ON THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION
Daryl J. Lapp

I. INTRODUCTION

Section 922(e) of the Gun Control Act of 1968 [1] makes it unlawful for any person to use the services of a common or contract carrier to transport or ship firearms or ammunition in interstate or foreign commerce to any person other than a licensed importer, manufacturer, dealer, or collector of firearms without providing written notice to the carrier of the items being transported or shipped. [2] The legislative purpose behind the section 922(e) reporting requirement was to assist carriers in fulfilling their obligations under section 922(f) of the Gun Control Act, which makes it unlawful for a carrier to make any delivery or shipment of firearms or ammunition that it knows, or has reasonable cause to know, is illegal. [3]

Three recent cases in the United States courts of appeals involved challenges to the constitutionality of the section 922(e) reporting requirement. [4] The appellants in each case argued that, for individuals attempting illegal shipments of firearms or ammunition, section 922(e)'s [Page 264] reporting requirement violates the fifth amendment privilege against self-incrimination. [5] In all three cases, however, the courts held that the section 922(e) notice requirement is constitutional. [6]

The three circuit court decisions presented similar analyses of the fifth amendment challenge to section 922(e). The courts attempted to balance the two fundamental interests at stake: The state's interest in monitoring and controlling the interstate and foreign movement of firearms and ammunition, and the individual's constitutional privilege against self-incrimination. [7] In their examination of the balance struck by section 922(e) between these two competing interests, the circuit courts looked to Supreme Court decisions discussing the constitutionality of statutory notice requirements in other contexts. [8]

The Supreme Court has discussed three factors that determine whether a self- reporting requirement violates the fifth amendment privilege against self- incrimination: Whether the notice requirement (1) applies to an area of activity that is 'permeated with criminal statutes,' (2) is directed at a 'highly selective' group of persons 'inherently suspect of criminal activities,' and (3) poses a 'substantial hazard' or 'direct likelihood' of self-incrimination. [9]

The three circuit courts found that the section 922(e) reporting requirement [Page 265] does involve an area 'permeated with criminal statutes'-- the interstate and foreign shipment of firearms and ammunition. [10] Nevertheless, each court found that the statute is not aimed at a 'highly selective' or 'inherently suspect' group of individuals, since everyone who ships or transports firearms in interstate or foreign commerce to an unlicensed recipient is required to report, not just those who do so illegally. [11] Furthermore, the courts all found that compliance does not pose a 'substantial hazard' or 'direct likelihood' of self-incrimination, because the individual transporting the firearms or ammunition is required to report only to the carrier, and neither the individual nor the carrier is obligated to report this information to any government agency. [12] The circuit courts also emphasized what they perceived to be the essentially regulatory, rather than criminal, nature of the Gun Control Act, [13] as well as the original legislative purpose of section 922(e)--to enable carriers to satisfy their obligations under section 922(f). [14] Thus, the courts concluded that the balancing of interests favored the statute. [15]

These three cases were wrong in holding section 922(e) constitutional under the fifth amendment when the notice requirement is applied to persons shipping firearms illegally. The circuit courts committed two fundamental errors in their application of the standards articulated by the Supreme Court for fifth amendment review of self-reporting requirements. First, the courts concluded that section 922(e) is directed at a 'universe' of people and not a 'highly selective' or 'inherently suspect' group. [16] This finding is problematic, given that section 922(e) applies [Page 266]

only to those individuals shipping firearms or ammunition in interstate or foreign commerce to unlicensed recipients, an area of activity that the courts readily admit is 'permeated with criminal statutes.' [17] Second, the circuit courts found that compliance with section 922(e) does not pose a 'substantial hazard' of self-incrimination. [18] This finding is problematic as well, given the courts' recognition that the carriers, although not required to do so, can and do provide law enforcement agencies with incriminating information they obtain through the notice requirement. [19]

These errors are revealed in the circuit courts' misinterpretation and misapplication of Supreme Court cases involving fifth amendment challenges to statutory reporting requirements in other contexts. The parallels drawn by these courts between section 922(e) and reporting requirements that have been upheld by the Supreme Court [20] can only be described as tenuous at best. In addition, the courts incorrectly distinguished a number of analogous cases in which the Supreme Court struck down statutory notice requirements. [21]

As it now reads, section 922(e) clearly is unconstitutional in its infringement on the fifth amendment rights of individuals shipping firearms or ammunition illegally in interstate or foreign commerce. The notice requirement applies to a highly criminalized area of activity, is aimed at an inherently suspect class of individuals, and poses for that class a substantial hazard of self-incrimination.

One constitutional way to accommodate the state's compelling interest in this area of firearms regulation would be to amend section 922(e) to include some form of use restriction or use immunity.

[22] Through such an amendment, all persons making shipments covered by the statute would be required to provide the same written notice to the carrier as they are now, but with the assurance that neither the notice nor any information derived from it could be used in any criminal proceeding against them. The revised statute thus would achieve the appropriate balance between the state's need to require disclosure of the information to the carriers and the individual's constitutional rights. If, as the courts concluded, the legislative purpose of section 922(e) is regulatory rather than criminal--intended to assist the carriers in fulfilling their statutory [Page 267] obligations and not to 'catch[ ] illegal firearms exporters at the airport' [23]--then some form of use restriction is entirely appropriate.

This Comment will begin with a discussion of the three circuit court cases involving fifth amendment challenges to section 922(e), briefly sketching the facts and procedural history of each. [24] The Comment then will explore the circuit courts' common treatment of the fifth amendment claim, first examining the line of Supreme Court cases that defines the framework for fifth amendment review of mandatory notice requirements [25] and then critically evaluating the circuit courts' interpretation and application of that framework. [26] The Comment then will conclude that section 922(e) should be amended to include some form of use restriction to cure its present constitutional deficiencies under the fifth amendment. [27]

II. THE WILSON, FLORES, AND ALKHAFAJI DECISIONS

Three cases involving fifth amendment challenges to section 922(e) have reached the United States courts of appeals: United States v. Wilson [28] in the Fourth Circuit, United States v. Flores [29] in the Ninth Circuit, and United States v. Alkhafaji [30] in the Sixth Circuit.

In Wilson, the appellant was a former employee of the Central Intelligence Agency and United States Naval Intelligence. [31] Following his resignation from government service, Wilson founded a consulting firm and began negotiations for weapons sales to Libya. [32] Wilson's employees and associates purchased four handguns and a single M-16 rifle as sample weapons. [33] The four handguns were concealed in a toolbox that was checked on a flight from Dulles International Airport to Rotterdam. [34] [Page 268]

Wilson's employees ultimately delivered the handguns to a Libyan contact in West Germany. [35]

The rifle was concealed in a footlocker and checked on a flight from New York to Amsterdam. [36]

Wilson took possession of the rifle there and flew with it on a chartered jet to Libya. [37] On neither of the commercial flights did Wilson or his employees notify the carrier that firearms were being transported. [38]

At trial, Wilson was convicted of seven federal criminal offenses, including exporting firearms without a license, [39] conspiring to export firearms illegally, [40] transporting firearms in foreign commerce with the intent to commit a felony (exporting firearms without a license), [41] and failing to provide the carrier with written notice of the firearms shipment under section 922(e). [42]

In addition to his unsuccessful argument that section 922(e) is unconstitutional under the fifth amendment, Wilson raised several other issues on appeal, principally that his convictions under both title 18, section 924(b) (exporting firearms with the intent to commit a felony) and title 22, section 2778 (exporting firearms without a license) were duplicative and placed him in double jeopardy. [43] The Court of Appeals for the Fourth Circuit held that Wilson could not be punished for both his section 924(b) and section 2778 offenses, [44] but declined to order a new trial and merely remanded for sentencing on either the 924(b) or 2778 conviction. [45]

In Flores, the appellant purchased twenty-two revolvers from an undercover agent of the Bureau of Alcohol, Tobacco and Firearms posing as a gun shop clerk. [46] Flores told the agent that he planned to conceal the guns in two steamer trunks and ship them to Ecuador to be used by [Page 269]'the civilian guards.' [47] When Flores checked the trunks on a flight to Quito, he did not notify the airline that they contained firearms. [48] The trunks later were searched pursuant to a federal search warrant. [49] Flores was arrested and eventually convicted in federal district court for violating section 922(e). [50]

The Ninth Circuit affirmed the district court's rulings 'that section 922(e) does not include an element of specific intent regarding knowledge of the duty to report a shipment of firearms, and that the reporting requirement does not violate appellant's Fifth Amendment privilege against self-incrimination.' [51]

Finally, in Alkhafaji, the appellant was a citizen of Iraq living in the United States as a resident alien.

[52] Alkhafaji checked approximately fifteen pieces of luggage on a flight from Detroit to Baghdad via New York and London. [53] A customs inspector found three shotguns and eight handguns in the bags. [54] Alkhafaji testified at trial that the shotguns and two of the handguns belonged to a friend who recently had been transferred from the Iraqi embassy in Washington to Turkey, and that Alkhafaji had purchased the other handguns as gifts for his relatives. [55]

At trial, Alkafaji was acquitted on charges of attempting to export firearms illegally, [56] but convicted for his delivery of firearms to a common carrier without written notice under section 922(e). [57] The district court granted Alkhafaji's motion for 'judgment notwithstanding the verdict,' [58] setting aside the section 922(e) conviction on the ground that the notice requirement constitutes self-incrimination for persons shipping firearms illegally. [59] On appeal, however, the Sixth Circuit reversed, remanding the case for reinstatement of the jury verdict. [60]

III. ANALYSIS AND CRITICISM OF THE CIRCUIT COURT DECISIONS

The three circuit courts began their analyses of section 922(e)'s fifth amendment implications with the proper focus. The courts correctly [Page 270] identified the tension between the state's regulatory interest and the constitutional privilege against self-incrimination, and then looked to the Supreme Court's analytical framework for evaluating and resolving that tension. The circuit courts erred, however, in applying that framework.

As the Supreme Court has observed, statutes imposing a self-reporting requirement present the courts with an especially difficult task: Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is a close one. Tension between the State's demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly. [61]

And, as the court in Flores pointed out, '[a] question such as this must be considered with great care, for . . . the privilege against self- incrimination, as well as all other fundamental constitutional protections, may only be limited for the most substantial of reasons.' [62]

The justification advanced to support the section 922(e) reporting requirement is the state's interest in regulating the movement of firearms in interstate and foreign commerce. [63] The self-reporting requirement at issue is part of the larger regulatory scheme of the Gun Control Act of 1968. The Act was enacted by Congress to aid the states in developing effective ways to limit the travel of firearms over state and national borders. State legislation had been largely ineffective because of the ease with which guns could be mail- ordered or transported across state lines. [64] The court in Flores noted that 'the purpose of the Act is a general regulatory one. The Act is not directed at catching illegal firearm exporters at the airport, but rather at helping the individual states regulate firearm distribution for the safety of their citizens by shutting off the flow of weapons across their borders.' [65]

The legitimacy of the underlying rationale for a particular self-reporting requirement, however, is not conclusive of the statute's constitutionality. The benefits derived from the state's ability to collect information concerning the mischief at hand, enabling more effective exercise of its police power, must be weighed against the costs of infringement upon individual liberties. [66] And when the right at issue is of 'fundamental' constitutional importance, the standard of review is a strict one. [67] The fifth amendment privilege against self-incrimination is [Page 271] fundamental to the accusatorial nature of our criminal justice system, a system that goes to great lengths to protect the integrity of the factfinding process and the right of the accused to a fair trial. [68] Both of these interests necessarily demand that individuals suspected of criminal activity remain free from any compulsion by the state to provide incriminating information. [69]

In an effort to resolve this tension between the state's need for information and the individual's constitutional guarantees, the Supreme Court has articulated a framework for evaluating the constitutionality of statutory reporting requirements. Much of that framework rests on the Court's unanimous decision in Albertson v. Subversive Activities Control Board. [70] In Albertson, the Court struck down those portions of the Subversive Activities Control Act [71] that required members of the Communist [Page 272] Party to register with the Attorney General of the United States. [72] In Albertson, the Court distinguished its holding in United States v. Sullivan, [73] which upheld an income tax self-reporting requirement in the case of an individual whose income was derived from illegal liquor trafficking: [74] In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities.

Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime. [75]

This language has endured as embodying the fundamental criteria for evaluating the constitutionality of self-reporting statutes under the fifth amendment. [76]

The Supreme Court further explored the Albertson analysis in 1968. The Court decided, on the same day, three cases involving registration and self- reporting requirements under the tax laws. [77] In all three cases, the Court held that the relevant statute violated the appellant's fifth amendment privilege against self-incrimination. [78]

In Marchetti v. United States, [79] the petitioner had been convicted for violating a statute that required persons involved in wagering to register [Page 273] with the Internal Revenue Service and pay an occupational tax. [80] To facilitate collection of the tax, the Internal Revenue Service required registrants to submit IRS form 11-C to the director of their local internal revenue district. This form required registrants to 'provide their residence and business address, . . . indicate whether they are engaged in the business of accepting wagers, and . . . list the names and addresses of their agents and employees.' [81] The Court in Marchetti observed that the information demanded by form 11-C could form the basis for criminal penalties in every state as well as the District of Columbia. [82] The Court recognized that 'the obligations to register and to pay the occupational tax created for petitioner 'real and appreciable,' and not merely 'imaginary and unsubstantial,' hazards of self-incrimination.' [83] The petitioner, who was 'confronted by a comprehensive system of federal and state prohibitions against wagering activities,' was also 'required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant 'link in a chain' of evidence tending to establish his guilt.' [84] Thus, the Court found that the self-reporting requirement violated Marchetti's constitutional privilege against self-incrimination.

The petitioner in Grosso v. United States [85] had been convicted of violating the federal wagering tax statutes at issue in Marchetti. [86] Grosso, however, asserted his fifth amendment privilege to challenge his conviction for failing to pay the ten percent excise tax. [87] Following the analysis of Albertson and Marchetti, the Court considered 'whether payment of the excise tax would have provided information incriminating to petitioner' [88] and concluded that compliance with the act entailed sufficient 'hazards of incrimination' to defeat his conviction. [89]

In Haynes v. United States, [90] the petitioner had been convicted for failing to comply with a statute requiring registration and payment of an [Page 274] occupational tax for persons transacting in certain classes of firearms. [91] The taxation scheme's requirements were applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, 'if such weapon is capable of being concealed on the person . . ..' These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation. [92]

The statute's registration requirement did not apply to everyone who possessed such firearms, but only to those who had not manufactured the firearms or who had not acquired them in compliance with the other provisions of the National Firearms Act. [93] Citing Albertson, the Court found that '[t]he registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act's other requirements, and who therefore are immediately threatened by criminal prosecutions . . .. They are unmistakeably [sic] persons 'inherently suspect of criminal activities." [94] The Court concluded that 'the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution.' [95]

Albertson and the Marchetti trilogy thus reveal three interrelated criteria that render a statutory self-reporting requirement violative of the fifth amendment. The Supreme Court has held such notice requirements to be unconstitutional when (1) the requirement applies not to 'an essentially non- criminal and regulatory area of inquiry,' but rather to an area of activity that is 'permeated with criminal statutes'; (2) the requirement, instead of being neutral on its face and directed at the public at large, is directed at a 'highly selective group inherently suspect of criminal activities'; and (3) compliance with the requirement poses 'substantial hazards of self- incrimination.' [96] It seems clear, contrary to the findings of the Fourth, Sixth, and Ninth Circuits, that section 922(e) of the Gun Control Act of 1968 embodies each of these three characteristics to an extent that renders the notice requirement unconstitutional under the fifth amendment.[Page 275]

A. An Area of Activity 'Permeated with Criminal Statutes'

The circuit courts readily agree that the subject of the section 922(e) notice requirement--the shipment of firearms and ammunition in interstate or foreign commerce--does involve an area of activity that is 'permeated with criminal statutes.' [97]

For example, one Ninth Circuit judge noted that the appellant in Flores, in his attempt to ship twenty-two revolvers to Ecuador, potentially had violated 'a myriad' of state and federal laws, [98]

including those that limit firearms transactions to licensed individuals, [99] that prohibit export of firearms on the United States Munitions List, [100] and that require firearms exporters to register with the Secretary of State. [101] Similarly, the appellant in Wilson was convicted at trial of seven distinct federal offenses for his involvement in the export of an M-16 rifle and four handguns, [102] including unlicensed transport of firearms in interstate commerce [103] and export of firearms without a license. [104]

B. An Inherently Suspect Class

Given that the interstate and foreign shipment of firearms is such a highly criminalized area of activity, [105] it is difficult to accept the conclusion of the three circuit courts that section 922(e) is not directed at an 'inherently suspect' class of persons. [106] The circuit courts emphasized that section 922(e) applies to all persons who ship firearms or ammunition in interstate or foreign commerce to unlicensed recipients, not only to those who do so illegally. The courts pointed out that there are instances [Page 276] in which such shipments are not illegal. [107] The courts concluded that section 922(e) is thus 'directed at a universe of people,' [108] rather than at an inherently suspect group, thereby diffusing fifth amendment concerns that might otherwise be implicated by a statute involving a highly criminalized area of activity.

The problem with this analysis is that the activity subject to the notice requirement need not be unlawful per se for the statute to address an inherently suspect class. That some lawful shipments of firearms or ammunition can be made under section 922(e) does not conclude fifth amendment review of the statute. 'Admittedly, the Gun Control Act provides exceptions allowing some lawful shipments of firearms from or to unlicensed persons. But . . . these limited exceptions do not remove the threat of self-incrimination that section 922(e) poses.' [109] The circuit courts applied the wrong test. The relevant inquiry is whether the statute applies to a class of persons that is inherently suspect of criminal activity, not whether the statute applies to a class of persons that is inherently in violation of the law.

The 'inherently suspect' criterion was first articulated in Albertson v. Subversive Activities Control Board, [110] which involved a statute that required members of Communist organizations to register with the Attorney General. [111] The Supreme Court found the reporting requirement objectionable because it applied to an 'inherently suspect' class; [112] although membership in a Communist organization was not unlawful per se, [113] there was a high correlation between the obligation to register and [Page 277] a violation of federal subversive statutes. [114] It is this high correlation between the obligation to register under a self-reporting requirement and the violation of one or more criminal statutes that is at the core of the 'inherently suspect' criterion. [115]

The movement of firearms in interstate and foreign commerce, regardless of destination, is a suspect activity in many ways. For example, the Gun Control Act of 1968 makes it unlawful for any person other than a licensed importer, manufacturer, collector, or dealer to transact in firearms or ammunition or to 'ship, transport, or receive any firearm or ammunition in interstate or foreign commerce.' [116] Strict licensing requirements also govern all exports of firearms. [117] Judge Pregerson, in his dissent in Flores, went so far as to write that 'it is reasonable to conclude that almost all transport of firearms involves criminal activities.' [118]

Even so, one might be inclined to concede that section 922(e) is directed at a 'universe' of people, rather than a selective and inherently suspect class, if it applied to all interstate and foreign shipments of firearms and ammunition. But such is not the case. Instead, the statute applies 'only when a shipment of firearms is made to an unlicensed person.' [119] And those engaged in this activity are inherently suspect. This is an area of activity that the circuit courts recognized as being 'permeated' by a 'myriad' of state and federal criminal statutes. [120] To find that the class of individuals obligated to report under section 922(e) is not a selective and inherently suspect group is indeed far-fetched.

In their struggle with the statute's applicability to an inherently suspect group, [121] the circuit courts erred in their reading of Albertson and [Page 278] subsequent Supreme Court decisions evaluating the fifth amendment implications of statutory notice requirements. The courts too quickly distinguished the classifications defined by section 922(e) from those involved in a series of Supreme Court decisions that struck down self-reporting statutes. [122]

For example, the court in Flores pointed out that the reporting requirements in Marchetti and Grosso undoubtedly were directed at an inherently suspect group--those involved in wagering--because wagering is an activity that 'is widely prohibited under both federal and state law.' [123] But the interstate and foreign shipment of firearms and ammunition to unlicensed recipients is also an activity that is widely prohibited by both state and federal law, as is indicated by the 'myriad' of criminal statutes governing the activities of appellants Wilson and Flores. [124] It is no answer, as the circuit courts insist, that certain activities encompassed by section 922(e) are not prohibited by law. [125] Just as there are exceptions to the illegality of transporting firearms to unlicensed recipients, there existed at the time of the decisions in Marchetti and Grosso exceptions to the illegality of wagering under state law. [126]

Similarly, the court in Flores noted that the registration requirement in Haynes applied to an inherently suspect group--individuals transacting in certain proscribed firearms--since the requirement 'was limited to only the types of weapons used principally by persons engaged in unlawful activities.' [127] But section 922(e) is similarly limited. The statute focuses on a class of transactions that often involves criminal activity: it applies only to persons shipping firearms or ammunition in interstate or foreign commerce to unlicensed recipients. [128] That section 922(e) applies to some transactions that do not involve criminal activity is not a tenable distinction, since exceptions also existed to the illegality of possessing those firearms subject to the registration requirement in Haynes. [129] Similarly, [Page 279] neither were the individuals subject to the registration requirements in Albertson inherently in violation of the law. [130]

Just as, for example, the taxation system in Haynes might have been upheld if it applied to all firearms, so too might the notice requirement in section 922(e) be constitutional if it applied to all interstate and foreign shipments of firearms, including transfers to and from licensed individuals. As it stands, however, section 922(e) focuses on an inherently suspect group. In this respect, section 922(e) is distinguishable from the statutory reporting requirements that have been upheld by the Supreme Court--and that the circuit courts mistakenly found analogous to section 922(e)--in United States v. Sullivan [131] and California v. Byers. [132]

In Sullivan, the Supreme Court held that a taxpayer whose income was derived from illegal liquor trafficking could be convicted for refusing to file an income tax return. [133] This filing requirement, unlike section 922(e), was aimed at a 'universe of people'; every person subject to any tax imposed by the Internal Revenue Service is subject to reporting requirements. [134] To the contrary, self-reporting under section 922(e) is not required of all individuals who utilize the services of a common or contract carrier for the interstate or foreign shipment of goods, or even all individuals who are involved in the interstate or foreign shipment of firearms or ammunition. Rather, self-reporting is required only for a narrowly defined class of persons who, by their very involvement in transporting firearms or ammunition to unlicensed recipients, often stand to violate one of the 'myriad' state and federal laws that govern this area of activity. [135]

In Byers, the Supreme Court upheld California's 'stop and report' statute, [136] 'which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address.' [137] The purpose of the statute is essentially regulatory; it 'was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents.' [138]

As in Sullivan, the reporting requirement in Byers truly is aimed at a 'universe of people'-- here, 'all persons who drive automobiles in California.' [139] As the Court in [Page 280] Beyers pointed out: It is difficult to consider this group as either 'highly selective' or 'inherently suspect of criminal activities.' Driving an automobile, unlike gambling [referring to Marchetti and Grosso], is a lawful activity. Moreover, it is not a criminal offense under California law to be a driver 'involved in an accident.' An accident may be the fault of others; it may occur without any driver having been at fault. . . . So far as any available information instructs us, most accidents occur without creating criminal liability even if one or both of the drivers are guilty of negligence as a matter of tort law. [140]

While it may seldom be a criminal offense to be involved in a motor vehicle accident, it often is a criminal offense to be involved in the interstate or foreign shipment of firearms or ammunition to an unlicensed recipient. [141] The California 'stop and report' provision applies to a 'universe' of people since there is a very real possibility that any California driver might at some time be involved in an accident and thus be required to stop and report under the statute. To the contrary, section 922(e) applies to a highly selective group of individuals engaged in a willful, rigorously defined, and highly criminalized area of activity. It is clear from this selective application of the statute that section 922(e) focuses on an inherently suspect class of individuals.

C. A Substantial Hazard of Self-Incrimination

The second fundamental error of the courts in Wilson, Flores, and Alkhafaji was their conclusion that compliance with the section 922(e) reporting requirement does not produce a 'real and appreciable' [142] or 'substantial' [143] hazard of self-incrimination.

These three courts emphasized that the Gun Control Act as a whole is primarily regulatory, rather than criminal, in nature. [144] The court in Flores stated, for example, that the Act 'is not directed at catching illegal firearm exporters at the airport, but rather at helping the individual states regulate firearm distribution for the safety of their citizens by shutting off the flow of weapons across their borders.' [145] The three circuit courts all found that the legislative purpose of section 922(e) was merely to aid common and contract carriers in fulfilling their obligation under section 922(f) 'not to transport weapons and ammunition under conditions [Page 281] which violate other laws.' [146]

Moreover, the courts found it significant that the statute requires individuals shipping firearms or ammunition to provide notice only to the carrier and not to the government. [147] In this respect, section 922(e) differs from the statutory notice requirements struck down in Albertson [148] and the Marchetti trilogy. [149] In addition, the carriers are under no obligation to report the information they receive through section 922(e) to the government. [150] As the court in Alkhafaji concluded, '[T]he carriers fulfill their responsibility by refusing to accept the firearms or ammunition for transportation if inquiry reveals that such transportation would be unlawful. Under these circumstances, the likelihood that required disclosures will be incriminating is much less substantial.' [151] p.282]

The courts' discussions may accurately reflect the original legislative intent of the Gun Control Act and section 922(e), as well as the formal scope of the various duties imposed by the Act. Examination of the actual effect of the reporting requirement, however, is required in order to evaluate properly its impact on the fifth amendment privilege against self- incrimination. [152] In seeking to determine whether section 922(e) poses a 'substantial hazard' of self-incrimination, a finding that section 922(e) is not intended to present such a hazard is not dispositive; the ultimate question is whether it actually does.

In this respect, the circuit courts too quickly disregarded the actual conduct of the carriers in their day-to-day operations under the provisions of the Gun Control Act. The courts acknowledged that, although not required to do so, the carriers can and do provide incriminating information that they receive through the section 922(e) notice requirement to government agencies. [153] The court in Flores frankly conceded that [i]n theory, if the carrier determines that the shipment would be in violation of the Act, it could simply refuse to ship the firearm. Such is the limit of the carrier's statutory duty. We can safely assume, however, and the government admitted at oral argument, that any number of carriers may cooperate with law enforcement officials by providing information in this area although not required to do so. This possibility must be included in our balancing. [154]

Moreover, the court in Flores recognized that although the purpose of the Gun Control Act is largely regulatory, "Congress clearly intended the Act's disclosure requirements to be of some use in criminal proceedings . . .." [155]

The circuit courts erred in their conclusory findings that section [Page 283] 22(e) does not present a 'substantial hazard' of self-incrimination. By narrowly confining their analyses to the original legislative purpose of the statute, the circuit courts ignored the statute's practical function as a mechanism through which carriers collect and forward to government agencies information that can be incriminating to the reporting individual. [156]

In short, the circuit courts in these three cases erroneously perceived the nature of the section 922(e) reporting requirement. The courts viewed the scope of the requirement too broadly--portraying it as applicable to a 'universe' of people, rather than a narrowly defined and inherently suspect group--and viewed the impact of the requirement too narrowly--looking only to the legislative intent and specific statutory duties imposed, rather than to the actual effect of the requirement. Thus, the courts incorrectly construed section 922(e) as merely regulatory and 'neutral' in character, and thus not violative of the fifth amendment privilege against self-incrimination.

IV. USE IMMUNITY: A PROPOSED SOLUTION

The question thus becomes how to accommodate the state's compelling interest in this area of gun control in a manner that is constitutional under the fifth amendment. One way to achieve this balance would be to amend section 922(e) to include some form of use restriction or use immunity and leave the statute otherwise intact. [157] In effect, all persons making shipments covered by the revised statute would be required to provide the same notice to the carrier, but with the assurance that neither [Page 284] this information nor any derivative information could be used in any criminal proceeding against the reporting persons. [158] In this way, both of the interests at stake could be protected. The state's interest in regulating the flow of weapons across state and national borders would be served, since carriers would have access to the same body of self-reported information as before; use of this information, however, would be limited to the carrier's determination whether the planned shipment was a lawful one for the carrier to undertake. With this limitation, self-reporting under section 922(e) no longer would pose a substantial hazard of self-incrimination for individuals shipping firearms or ammunition to unlicensed recipients.

An example of how use immunity can be employed to salvage legislation otherwise invalid under the fifth amendment is provided in the amended version of the registration requirements struck down in Haynes v. United States. [159] After Haynes, Congress revised the National Firearms Act to eliminate its constitutional defects. [160] Specifically, 'Congress enacted a use immunity provision preventing the use in criminal proceedings of evidence revealed by firearm registration.' [161] The Supreme Court upheld the revised statute against another fifth amendment challenge in United States v. Freed. [162]

At the time of Haynes, the National Firearms Act called for the Internal Revenue Service to share firearm registration and transfer information with law enforcement officials. [163] The revised statute, however, provided that no information or evidence received in compliance with its registration or transfer provisions could be used against the reporting 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 [Page 285] evidence.' [164]

The appellees in Freed had been indicted under the amended National Firearms Act for possessing and conspiring to possess unregistered hand grenades. [165] They argued that the revised Act presented a substantial hazard of self-incrimination because 'the Act as written does not undertake to bar the use of federal filings in state prosecutions . . .. [The] California statutes punish the possession of grenades and [the] federal registration will incriminate appellees under that law.' [166] On direct appeal, [167] the Supreme Court rejected this argument, concluding that the appellees were '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.' [168] The Court found that the amended statute satisfied the fifth amendment 'requirements respecting self- incrimination' because '[s]ince the state and other federal agencies never see the information, [the claimant] 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.'' [169]

It is precisely this type of use immunity that should be attached to section 922(e). That section of the Gun Control Act suffers from largely the same defects as did the registration requirement in Haynes. [170] Making information reported to the carriers under section 922(e) unavailable to state and federal law enforcement authorities, and barring its use, directly or indirectly, for the purpose of any criminal proceeding against the reporting individual, would remedy the present fifth amendment shortcoming of section 922(e). [171] [Page 286]

Arguably, use immunity would make it more difficult to prosecute those who attempt to ship firearms illegally; but if the stated purpose of section 922(e) is indeed a regulatory one--aimed at helping the carriers fulfill their own obligations under the statute--then it would seem that some form of use restriction or immunity is appropriate. [172] If the Gun Control Act is 'not directed at catching illegal firearm exporters at the airport,' [173] then nothing is lost in prohibiting the use of reported information by law enforcement officials. If, on the other hand, section 922(e) is 'designed to ferret out Gun Control Act violators,' [174] its basic premise is in conflict with the fifth amendment.

V. CONCLUSION

Mandatory self-reporting under section 922(e) of the Gun Control Act of 1968 is part of a larger congressional effort to assist the states and the federal government in regulating the flow of firearms and ammunition across state borders. Although section 922(e), like the Gun Control Act itself, is primarily regulatory rather than criminal in purpose--aiding the carriers in fulfilling their own obligations under the statute--the notice requirement in practice violates the fifth amendment privilege against self-incrimination. Self-reporting under section 922(e) applies to a highly criminalized area of activity, governs an inherently suspect class, and poses for members of that class substantial hazards of self-incrimination. To cure its present constitutional defects, section 922(e) should be amended to include a use immunity provision providing that neither information reported under the statute, nor any derivative information, can be used for the purpose of any criminal proceeding against the reporting [Page 287] party. Assuring that section 922(e) is confined to its neutral regulatory purpose through use immunity would maintain more faithfully the accusatorial nature of our criminal justice system, as well as the integrity of the fifth amendment privilege against self- incrimination.

1. 18 U.S.C. §§ 921-928 (1982 & Supp. III 1985).

2. 18 U.S.C. § 922(e) reads in full: It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter.

3. See H.R. REP. NO. 1577, 90th Cong., 2d Sess., reprinted in 1968 U.S. CODE CONG.& ADMIN. NEWS 4410, 4420-21 (referring to section 922(e) as 922(d)). 18 U.S.C. § 922(f) reads in full: 'It shall be unlawful for any common or contract carrier to transport or deliver in interstate or foreign commerce any firearm or ammunition with knowledge or reasonable cause to believe that the shipment, transportation, or receipt thereof would be in violation of the provisions of this chapter.'

4. United States v. Alkhafaji, 754 F.2d 641 (6th Cir. 1985); United States v. Flores, 753 F.2d 1499 (9th Cir. 1985); United States v. Wilson, 721 F.2d 967 (4th Cir. 1983).

5. Alkhafaji, 754 F.2d at 643-48; Flores, 753 F.2d at 1500-04; Wilson, 721 F.2d at 973-74; see U.S. CONST. amend. V.

6. Alkhafaji, 754 F.2d at 648; Flores, 753 F.2d at 1503; Wilson, 721 F.2d at 974.

7. See, e.g., Flores, 753 F.2d at 1500 (quoting California v. Byers, 402 U.S. 424, 427 (1971) (plurality opinion)): We are confronted, in this situation, with a conflict between two critical interests: the government's need to regulate for the safety of its citizens, and the privilege against self-incrimination. This tension creates a serious question which, as the Supreme Court has said, 'must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; . . ..'

8. See, e.g., California v. Byers, 402 U.S. 424 (1971) (plurality opinion) (upholding California statute requiring all drivers involved in motor vehicle accidents to stop and provide name and address to other parties involved); Leary v. United States, 395 U.S. 6 (1969) (striking down requirement for persons involved in marijuana transactions to pay occupational tax); Haynes v. United States, 390 U.S. 85 (1968) (striking down requirement of registration with Internal Revenue Service and payment of occupational tax for persons transacting in certain illegal firearms); Grosso v. United States, 390 U.S. 62 (1968) (striking down requirement imposed on wagerers to pay excise tax); Marchetti v. United States, 390 U.S. 39 (1968) (striking down requirement for persons involved in wagering to register with Internal Revenue Service and pay occupational tax); Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965) (striking down requirement that members of communist organizations register with Attorney General); United States v. Sullivan, 274 U.S. 259 (1927) (taxpayer whose income was derived from illegal liquor trafficking nevertheless was required to submit income tax return, although he could refuse to answer specific constitutionally objectionable questions).

9. See Byers, 402 U.S. at 430 (citing Albertson, 382 U.S. at 79; Marchetti, 390 U.S. at 47): In each of these cases [Albertson, Marchetti, Grosso, and Haynes] the Court found that compliance with the statutory disclosure requirements would confront the petitioner with 'substantial hazards of self-incrimination.' . . . In all of these cases the disclosures condemned were only those extracted from a 'highly selective group inherently suspect of criminal activities' and the privilege was applied only in 'an area permeated with criminal statutes'--not in 'an essentially noncriminal and regulatory area of inquiry.' See also Alkhafaji, 754 F.2d at 647-48; Flores, 753 F.2d at 1501-02; Wilson, 721 F.2d at 973-74.

10. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973.

11. Situations do exist in which it is lawful to ship firearms or ammunition to an unlicensed recipient. The court in Alkhafaji noted: As we read § 922, some shipments to unlicensed persons are allowed so long as the notice requirement is complied with. Unless the shipment is by one engaged in the business of importing, manufacturing or dealing in firearms who has not been licensed, the shipment may legally be made even to an unlicensed recipient so long as the required notice is given and the shipment does not otherwise violate a specific provision of § 922 (e.g., § 922(a)(4), transportation of a destructive device, machine gun or sawed-off shotgun or rifle; § 922(g), transportation by a felon, fugitive, drug addict or mentally incompetent person). Alkhafaji, 754 F.2d at 648 n.2. As Judge Pregerson noted in his dissent in Flores, however, 'the Gun Control Act provides exceptions allowing some lawful shipments of firearms from or to unlicensed persons. But even these limited exceptions do not remove the threat of self-incrimination section 922(e) poses.' Flores, 753 F.2d at 1506 (Pregerson, J., dissenting); see infra notes 105-41 and accompanying text.

12. Alkhafaji, 754 F.2d at 647-48; Flores, 753 F.2d at 1502; Wilson, 721 F.2d at 974.

13. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1502; Wilson, 721 F.2d at 974.

14. See supra note 3 and accompanying text.

15. See, e.g., Flores, 753 F.2d at 1502 ('[T]he important regulatory purpose of the Act, the neutral purpose of section 922(e), and the fact that the notice requirement is directed to the public at large, bring the balance down decisively in favor of the statute.').

16. Alkhafaji, 754 F.2d at 647-48; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973-74.

17. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973; see also infra notes 97-104 and accompanying text.

18. Alkhafaji, 754 F.2d at 647-48; Flores, 753 F.2d at 1502; Wilson, 721 F.2d at 974.

19. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1502; see infra notes 142-56 and accompanying text.

20. See California v. Byers, 402 U.S. 424 (1971); United States v. Sullivan, 274 U.S. 259 (1927).

These cases are discussed infra notes 131-40 and accompanying text.

21. See Leary v. United States, 395 U.S. 6 (1969); Haynes v. United States, 390 U.S. 85 (1968); Grosso v. United States, 390 U.S. 62 (1968); Marchetti v. United States, 390 U.S. 39 (1968); Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965). These cases are discussed infra notes 70-96 and accompanying text.

22. See infra notes 157-74 and accompanying text.

23. Flores, 753 F.2d at 1502 (citing 114 CONG. REC. H21,783 (daily ed. July 17, 1968) (statement of Rep. Celler)).

24. See supra notes 28-60 and accompanying text.

25. See infra notes 61-96 and accompanying text.

26. See infra notes 97-156 and accompanying text.

27. See infra notes 157-74 and accompanying text.

28. 721 F.2d 967 (4th Cir. 1983).

29. 753 F.2d 1499 (9th Cir. 1985).

30. 754 F.2d 641 (6th Cir. 1985).

31. Wilson, 721 F.2d at 969.

32. Id. In his appeal to the Fourth Circuit, Wilson argued that his firm, Consultants International, actually was an undercover operation that 'supplied important intelligence data to the United States Government.' Brief of Appellant at 3. At trial, Wilson claimed 'that he turned over to the CIA the plans for the construction of an atomic bomb that had been secretly acquired by Libya[,] . . . that while he was working undercover in Libya he received from a high ranking official in the CIA a list of Soviet weapons this country was interested in receiving information about,' and that he had attempted 'to smuggle out of Libya a piece of Russian military equipment.' Id. at 5.

33. Wilson argued on appeal that he attempted to furnish the Libyans with several pistols and the M-16 rifle in order '[t]o preserve and maintain his contacts among high ranking Libyan intelligence officers.' Brief of Appellant at 1.

34. Wilson, 721 F.2d at 969.

35. Id.

36. Id. at 970. The M-16 was apparently a 'model' or 'demonstrator' that belonged to a friend of Wilson, Paul Cyr, and that previously had been exhibited on a general's office wall. Cyr removed a nameplate bearing the general's name before the rifle was shipped. Cyr testified at trial that 'he believed the gun was inoperable because he had handled other guns like it and sensed it would not fire' and that 'he expected to have the weapon returned to him.' Brief of Appellant at 4-5.

37. Wilson, 721 F.2d at 970.

38. Id. at 969-70.

39. Exporting firearms without a license is prohibited by 22 U.S.C. § 2778(b)(2), (c) (1982 & Supp. III 1985).

40. Wilson was convicted under 18 U.S.C. § 371 (1982) of conspiring to ship firearms illegally in violation of 18 U.S.C. §§ 922(a)(3), 924(b) (1982) and 22 U.S.C. § 2778(b)(2) (1982). Wilson, 721 F.2d at 969.

41. Transporting firearms in foreign commerce with the intent to commit a felony is prohibited by 18 U.S.C. § 924(b) (1982 & Supp. III 1985).

42. Wilson, 721 F.2d at 969. The trial court sentenced Wilson to a total of 15 years imprisonment and imposed a fine of $200,000. Brief of Appellant at 1.

43. Wilson, 721 F.2d at 970.

44. Id. at 969.

45. Id. at 971.

46. Flores, 753 F.2d at 1500.

47. Id.

48. Id.

49. Id.

50. Id.

51. Id.

52. Alkhafaji, 754 F.2d at 642.

53. Id.

54. Id.

55. Id.

56. These charges were brought under 22 U.S.C. § 2778 (1982). Alkhafaji, 754 F.2d at 642.

57. See Alkhafaji, 754 F.2d at 642.

58. Judge Lively's opinion for the Sixth Circuit noted that this 'was actually a motion for acquittal since the Criminal Rules do not provide for a motion for judgment notwithstanding the verdict.' Id. at 642 n.1 (citing FED R. CRIM. P. 29(c)).

59. Id. at 643.

60. Id. at 648.

61. California v. Byers, 402 U.S. 424, 427 (1971).

62. Flores, 753 F.2d at 1500 (citing United States v. Carlson, 617 F.2d 518, 521 (9th Cir.), cert. denied, 449 U.S. 1010 (1980)).

63. See, e.g., id. at 1502.

64. Id. (citing 114 CONG. REC. H21,783 (daily ed. July 17, 1968) (statement of Rep. Celler)).

65. Id.

66. See supra text accompanying note 61.

67. See supra text accompanying note 62.

68. The privilege against self-incrimination . . . reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; . . . our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load' . . .. Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1963) (quoting 8 J. WIGMORE, EVIDENCE § 2251 (J. McNaughton rev. ed. 1961)). For extensive treatment of the historical origins of the privilege against self-incrimination, see L. LEVY, ORIGINS OF THE FIFTH AMENDMENT (1968); J. WIGMORE, supra, § 2250; see also De Luna v. United States, 308 F.2d 140 (5th Cir. 1962): The first major constitutional document in which [the privilege against self- incrimination] appeared was the Virginia Bill of Rights in 1776. Yet, from obscure beginnings and subject to eroding currents it has developed into what Dean Griswold has described as 'one of the great landmarks in man's struggle to make himself civilized.' Id. at 144 (quoting E. GRISWOLD, THE FIFTH AMENDMENT TODAY (1955)). McCormick writes: Apart from its value to individuals, whether innocent or guilty, the privilege also serves broader functions. It encourages respect for and protects the dignity of the judicial system. . . . By tending to equalize the position of the lone suspect who is confronted with the huge investigatory and prosecutorial apparatus of the state, the privilege helps to make the criminal trial more nearly a contest between equals, thereby maximizing the opportunity for full development of the facts and an accurate resolution of the cases within the framework of the adversary system. . . . [T]he privilege maintains public respect for the entire judicial process. McCORMICK ON EVIDENCE 287-88 (E. Cleary ed. 1984).

69. The Framers of the Fifth Amendment chose language susceptible of a narrow reading . . .limited to witnesses testifying in criminal proceedings only . . .. Our courts, however, have not stood for a narrow constitutional construction of the Fifth Amendment based on a literal reading of the language in the light of its historical origins. The privilege is not limited to witnesses. It is not limited to criminal proceedings. It is not limited to cases involving direct compulsion to testify. The scope of its application includes a wide variety of situations that would have astounded the founding fathers. The Supreme Court stands firmly for a broad view of the right. 'To apply the privilege narrowly or begrudgingly--to treat it as an historical relic, at most to be tolerated--is to ignore its development and purpose.' [Quinn v. United States, 349 U.S. 155, 162 (1950).] 'This constitutional protection must not be interpreted in a hostile or niggardly spirit.' [Ullman v. United States, 350 U.S. 422, 426 (1955).] The Fifth Amendment 'must have a broad construction in favor of the right which it was intended to secure.' [Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).] De Luna v. United States, 308 F.2d 140, 149-50 (5th Cir. 1962).

70. 382 U.S. 70 (1965).

71. 50 U.S.C. § 786 (1964), repealed by Pub. L. No. 90-237, § 5, 81 Stat. 766 (1968).

72. The statutory reporting procedure in Albertson required the completion of two forms, IS-52a and IS-52. The former compelled the registrant to disclose that he or she was a Communist Party member. The Court concluded that the fifth amendment voided this registration requirement because the fact admitted 'may be used to prosecute the registrant.' Albertson, 382 U.S. at 77.

73. 274 U.S. 259 (1927).

74. In Sullivan, the defendant had been convicted 'of willfully refusing to make a return of his net income as required by the Revenue Act of 1921.' Id. at 262. The Supreme Court affirmed the holding of the court of appeals that Sullivan's income was subject to taxation, despite the fact that most or all of it 'was derived from business in violation of the National Prohibition Act.' Id. at 263.

The Supreme Court, however, reversed the court of appeals' holding that the fifth amendment protected the defendant from the requirement of filing a return. Id.

Justice Holmes wrote for the Court: As the defendant's income was taxed, the statute of course required a return. . . . In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far . . .. It would be an extreme if not extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law. Id. at 263-64.

75. Albertson, 382 U.S. at 79.

76. See, e.g., California v. Byers, 402 U.S. 424, 430 (1971).

77. Haynes v. United States, 390 U.S. 85 (1968); Grosso v. United States, 390 U.S. 62 (1968); Marchetti v. United States, 390 U.S. 39 (1968).

78. Haynes, 390 U.S. at 101; Grosso, 390 U.S. at 72; Marchetti, 390 U.S. at 60.

79. 390 U.S. 39 (1968).

80. Section 4401 of Title 26 imposes upon those engaged in the business of accepting wagers an excise tax of 10% on the gross amount of all wagers they accept . . .. Section 4411 imposes in addition an occupational tax of $50 annually, both upon those subject to taxation under § 4401 and upon those who receive wagers on their behalf. Marchetti, 390 U.S. at 42.

81. Id. (citing 26 U.S.C. § 4412 (1964)).

82. Id. at 47.

83. Id. at 48.

84. Id. The Court also noted 'that a former Commissioner of Internal Revenue has acknowledged that the Service 'makes available' to law enforcement agencies the names and addresses of those who have paid the wagering taxes, and that it is in 'full cooperation' with the efforts of the Attorney General of the United States to suppress organized gambling.' Id. (citing Caplin, The Gambling Business and Federal Taxes, in 8 CRIME & DELINQ. 371, 372, 377 (1962)).

85. 390 U.S. 62 (1968).

86. See supra note 80.

87. Grosso, 390 U.S. at 63.

88. Id. at 65.

89. Id. at 66-67.

90. 390 U.S. 85 (1968).

91. Id. at 86, 89 (citing 26 U.S.C. § 5851).

92. Id. at 87 (quoting 26 U.S.C. § 5848(1); Treas. Reg. § 179.20, 26 C.F.R. § 179.20).

93. Id. at 96.

94. Id. at 96 (quoting Albertson, 382 U.S. at 79).

95. Id. at 97.

96. California v. Byers, 402 U.S. 424, 429-30 (1971).

97. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973.

98. Flores, 753 F.2d at 1506 (Pregerson, J., dissenting). Judge Pregerson listed those laws as including 18 U.S.C. §§ 922(a)(1) and (5) (1982) (limiting firearms transactions to licensed individuals); 22 U.S.C. § 2778 (1982) (prohibiting export of firearms on the United States Munitions List); 22 C.F.R. § 122.01 (1984) (requiring firearms exporters to register with Secretary of State); id. §§ 123.01, 127.01 (firearms licensing requirements); 27 C.F.R. § 178.30 (1984) (prohibiting non-intrastate disposition of firearms by nonlicensee); id. § 178.31 (similar to 18 U.S.C. § 922(e)); CAL. PENAL CODE § 12070 (West 1982) (state firearms licensing requirement); and CAL.

PENAL CODE § 12025 (West 1982) (carrying a weapon concealed in vehicle or on person). Id.

99. 18 U.S.C. § 922(a)(1), (5) (1982).

100. 22 U.S.C. § 2778 (1982).

101. 22 C.F.R. § 122.01 (1984).

102. Wilson's convictions included conspiracy, under 18 U.S.C. § 371, to export firearms illegally in violation of 18 U.S.C. §§ 922(a)(3), 922(e), 924(b) and 22 U.S.C. § 2778 . . .[;] export of firearms without a license, 22 U.S.C. § 2778(b)(2), (c) . . .; [and] transport of firearms in foreign commerce with intent to commit a felony, i.e., the export of firearms without a license, 18 U.S.C. § 924(b) . . .. Wilson, 721 F.2d at 969.

103. 18 U.S.C. § 922(a)(3) (1982).

104. 22 U.S.C. § 2778(b)(2), (c) (1982).

105. See supra notes 97-104 and accompanying text.

106. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1501-02; Wilson, 721 F.2d at 973-74.

107. The shipment of firearms to an unlicensed recipient 'cannot be said to be per se illegal. In fact, there are many situations in which firearms shipments to an unlicensed person is fully permissible, and in all such cases notice must be given to the carrier under section 922(e).' Flores, 753 F.2d at 1502. The court in Alkhafaji also noted that there may be lawful shipments within the context of § 922(e). Alkhafaji, 754 F.2d at 648 n.2; see supra note 11.

108. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973-74.

109. Flores, 753 F.2d at 1506 (Pregerson, J., dissenting). As noted below, the circuit courts over-looked the fact that such exceptions also existed in self-reporting statutes that have been struck down by the Supreme Court as addressing an 'inherently suspect' class. Haynes v. United States, 390 U.S. 85, 96-97 (1968); Grosso v. United States, 390 U.S. 62, 64, 67 (1968); Marchetti v.

United States, 390 U.S. 39, 44-45, 48 (1968); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 80-81 (1965); see infra notes 125-30 and accompanying text.

110. 382 U.S. 70, 79 (1965).

111. Id. at 72-73.

112. The risks of incrimination which the petitioners take in registering are obvious. Form IS-52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act . . ., or under § 4(a) of the Subversive Activities Control Act, . . . to mention only two federal criminal statutes. . . . Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege. Id. at 77 (citing Scales v. United States, 367 U.S. 203, 211 (1961); Quinn v. United States, 349 U.S. 155 (1955); Brunner v. United States, 343 U.S. 918 (1952); Blau v. United States, 340 U.S.

332 (1951) (involving Irving Blau); Blau v. United States, 340 U.S. 159 (1950) (involving Patricia Blau)).

113. "Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute." Albertson, 382 U.S. at 79-80 n.10 (quoting 50 U.S.C. § 783(f)).

114. 'To sustain a conviction under the subversives and Smith acts, in addition to the registration, the government would be required to also introduce evidence that the Party advocated the violent overthrow of the United States government, which the Albertson court considered (and history confirms) was a largely pro forma proof.' Alkhafaji, 754 F.2d at 650 n.2 (Krupansky, J., concurring).

115. See, e.g., Haynes v. United States, 390 U.S. 85 (1968), in which the Supreme Court held that registration requirements involved in a taxation scheme of possessors of certain classes of firearms applied to an 'inherently suspect' class. The Court in Haynes concluded: It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the [National Firearms] Act's requirements . . .. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Id. at 96-97.

116. 18 U.S.C. § 922(a)(1) (1982); see also id. § 922(a)(5) (unlawful for unlicensed individual to transfer firearm to unlicensed person that transferor knows or has reasonable cause to know resides in state other than that of transferor); 27 C.F.R. § 178.30 (1986), discussed supra note 98.

117. See 18 U.S.C. § 924(b) (1982); 22 U.S.C. § 2778(b)(2), (c) (1982).

118. Flores, 753 F.2d at 1506 (Pregerson, J., dissenting) (emphasis supplied).

119. Id. (emphasis supplied).

120. See supra notes 97-104 and accompanying text.

121. See Alkhafaji, 754 F.2d at 647-48; Flores, 753 F.2d at 1501; Wilson, 721 F.2d at 973-74.

122. See, e.g., Leary v. United States, 395 U.S. 6, 12 (1969) (persons involved in marijuana transactions required to pay occupational tax); Haynes v. United States, 390 U.S. 85, 86-87 (1968); Grosso v. United States, 390 U.S. 62, 63-64 (1968); Marchetti v. United States, 390 U.S.

39, 40-42 (1968); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 72-73 (1965).

123. Flores, 753 F.2d at 1501.

124. See supra notes 97-104 and accompanying text.

125. See supra notes 107-09 and accompanying text; infra notes 127-30 and accompanying text.

126. Marchetti, 390 U.S. at 44-45. For example, the Court found that Nevada 'permits many forms of gambling,' and that other states' wagering statutes provide exceptions for certain forms of lotteries. Id.

127. Flores, 753 F.2d at 1501; see supra note 92 and accompanying text.

128. See supra notes 97-104 and accompanying text.

129. Haynes, 390 U.S. at 89, 93. Registration primarily was required under the statute for individuals who had not complied with other provisions of the National Firearms Act. See supra note 93 and accompanying text. But '[i]t is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act's requirements; there are situations, which the United States itself styles 'uncommon,' in which a possessor who has not violated the Act's other provisions is obliged to register.' Haynes, 390 U.S. at 96-97.

130. In Albertson, registration was required for all persons who were members of Communist organizations; this membership was not unlawful per se, but unlawful only if the organization advocated the forceful overthrow of the United States government. Albertson, 382 U.S. at 77-78; see supra notes 110-15 and accompanying text.

131. 274 U.S. 259, 263-64 (1927).

132. 402 U.S. 424, 427 (1971).

133. Sullivan, 274 U.S. at 263-64; see supra note 74.

134. 26 U.S.C. §§ 6001, 6004 (1982 & Supp. III 1985).

135. See supra notes 97-104 and accompanying text.

136. CAL. VEH. CODE § 20002(a)(1) (West Supp. 1971).

137. Byers, 402 U.S. at 425.

138. Id. at 430.

139. Id.

140. Id. at 431.

141. See supra notes 97-104 and accompanying text.

142. Flores, 753 F.2d at 1501.

143. Wilson, 721 F.2d at 974; see also Alkhafaji, 754 F.2d at 643 ('substantial likelihood of prosecution').

144. Alkhafaji, 754 F.2d at 647; Flores, 753 F.2d at 1502; Wilson, 721 F.2d at 974.

145. Flores, 753 F.2d at 1502.

146. Alkhafaji, 754 F.2d at 647; see supra note 3 and accompanying text. The court in Flores explained: While the majority of the [Gun Control] Act sets forth requirements for licensing and transporting, section 922(f) prohibits any common carrier from knowingly shipping any firearm in violation of the Act. Section 922(e) was added to facilitate the carrier's responsibility by providing the carrier with notice of when firearms were being shipped to unlicensed persons. The carrier then must determine if the shipment is allowed under the Act. Flores, 753 F.2d at 1502; see also United States v. One Heckler-Koch Rifle, 629 F.2d 1250, 1254 (7th Cir. 1980) ('Section 922(e) was enacted in order to inform the carrier of the character of the items it was shipping, thus placing on it the duty to inquire into the legality of the shipment.').

147. E.g., Alkhafaji, 754 F.2d at 647 ('We think it is significant that all of the statutes considered in Albertson and like cases required a report to a government agency. In contrast, § 922(e) requires a report only to the carrier.'); see also Wilson, 721 F.2d at 974 ('Thus [Haynes] is distinguishable, for there the self-incrimination issue arose from the defendant's obligation to register an illegally possessed firearm with the government.'). But see infra note 151.

148. Members of Communist organizations were required to register with the Attorney General.

Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 71 (1965).

149. Individuals involved in wagering were required to register with the Internal Revenue Service.

Grosso v. United States, 390 U.S. 62, 65 (1968); Marchetti v. United States, 390 U.S. 39, 42 (1968). Individuals possessing certain firearms were required to register the weapons with the Secretary of the Treasury. Haynes v. United States, 390 U.S. 85, 86 (1968).

150. Flores, 753 F.2d at 1502; Wilson, 721 F.2d at 974; see supra notes 2-3 and accompanying text.

151. Alkhafaji, 754 F.2d at 647-48. In Wilson, the Fourth Circuit concluded: 'Likewise, we think that a private party's [the carrier's] receipt of incriminating information does not pose Fifth Amendment problems unless that party has been transformed, by legal obligations to inform authorities, into an agent of the government.' Wilson, 721 F.2d at 974 n.9. But see Alkhafaji, 754 F.2d at 659 (Krupansky, J., concurring): In [Wilson], the Fourth Circuit apparently assumed § 922(e) required incriminating reporting (the opinion itself is unstructured and obscure on this issue) but concluded that it was not an unconstitutional requirement because the statute directed the incriminating evidence be tendered to the carrier. 721 F.2d at 974. That opinion turned on an entirely irrelevant distinction, namely the depository for the compelled admission. The fifth amendment protects against coerced self-incrimination by the government. The ultimate fifth amendment inquiry is whether the defendant has been 'compelled in any criminal case to be a witness against himself'; the Fourth Circuit unjustifiably amended this inquiry to permit a government to coerce incriminating testimony so long as the depository for the statement was not the government itself. Under all the [Supreme Court's] articulations of the self- incrimination issue, the only concern was with the nature of the testimony: 'is it incriminating?', and 'does the government compel it?'. No court has to this date suggested that the Congress may insulate a compelled disclosure statute from the fifth amendment attack by the tactic of creating a non- governmental repository for the disclosures.

152. The circuit courts' opinions in Alkhafaji, Flores, and Wilson implicitly support this statement. If legislative intent were dispositive on this issue, the courts would have had no reason to examine the actual obligations imposed by the statute on reporting individuals and the carriers, because the legislative purpose of § 922(e) is clear and well-documented. See supra notes 3 & 144-46 and accompanying text. The circuit courts went on, however, as they must within the framework set out by the Supreme Court in Albertson and subsequent cases, to determine whether the reporting requirement actually poses a 'real and appreciable' or 'substantial' hazard of self-incrimination. See California v. Byers, 402 U.S. 424, 429 (1971); Haynes v. United States, 390 U.S. 85, 97 (1968); Grosso v. United States, 390 U.S. 62, 67 (1968); Marchetti v. United States, 390 U.S. 39, 48 (1968); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79 (1965).

153. Flores, 753 F.2d at 1502; see Alkhafaji, 754 F.2d at 647.

154. Flores, 753 F.2d at 1502 (emphasis supplied). Flores should be contrasted with United States v. Freed, 401 U.S. 601 (1971); see infra notes 157-69 and accompanying text. In Freed, the Supreme Court upheld an amended version of the firearms taxing scheme that was at issue in Haynes. In the course of sustaining the revised statute, the Court placed heavy emphasis on the assurances of the Solicitor General that, under the new law, registration information in the hands of the Internal Revenue Service, as a matter of policy, was not made available to state or other federal authorities. Freed, 401 U.S. at 604-05.

155. Flores, 753 F.2d at 1502 (quoting United States v. Dichne, 612 F.2d 632, 640 (2d Cir.

1979), cert. denied, 445 U.S. 928 (1980)).

156. Obviously, in seeking to evaluate the actual impact of § 922(e), a foundation of empirical data would be particularly helpful. Unfortunately, data concerning the number of persons required to report under the statute, the number of reports that are subsequently referred by the carriers to law enforcement authorities, the number of those referrals that ultimately lead to arrests, and the number of convictions under various gun control statutes are simply unavailable. The author's efforts to obtain such data from counsel in the circuit court cases at issue here, as well as from the Bureau of Alcohol, Tobacco and Firearms and the Federal Bureau of Investigation, unfortunately confirm the import of Judge Pregerson's footnote in Flores: 'At oral argument the government was unable to provide information on how often shippers give notice under section 922(e), how often notice revealed legal shipments, how often notice revealed illegal shipments, and how many people, if any, were prosecuted when illegal shipments were revealed.' Flores, 753 F.2d at 1507 n.2 (Pregerson, J., dissenting).

157. For general discussions of statutory grants of immunity from compelled disclosure, see Palazzolo, The Fifth Amendment's Proxy--Transactional or Use Immunity, 3 SETON HALL L. REV.

199 (1971); Note, Witness Immunity Statutes: The Constitutional and Functional Sufficiency of 'Use Immunity,' 51 B.U.L. REV. 616 (1971); Note, The Scope of Testimonial Immunity Under the Fifth Amendment, 67 NW. U.L. REV. 106 (1972). Testimonial immunity statutes are generally of two types. The most common is a grant of full 'transactional immunity'--complete immunity from any subsequent prosecution of the witness relating to the transaction or matter about which the witness testifies. Another statutory approach is to grant 'use and derivative use immunity'--immunity from the use of the compelled disclosure or the 'fruits' derived there from in any subsequent criminal case against the one who testified. Id. at 107 (citing 8 J. WIGMORE, supra note 68, § 2281, at 495 n.11).

158. The Supreme Court has stated that in order for a grant of immunity to be adequate, its scope must be 'coextensive' with the scope of the fifth amendment privilege. Heike v.

United States, 227 U.S. 131, 142 (1913); Counselman v. Hitchcock, 142 U.S. 547, 565, 585 (1892), disapproved on other grounds, Kastigar v. United States, 406 U.S. 441, 453-55 (1972). The Supreme Court has held that this 'coextensiveness' is achieved when a person compelled to disclose incriminating information is granted use and derivative use immunity, because such immunity is adequate to assure that compelled testimony cannot lead to criminal sanctions.

Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 475 (1972) (upheld state statute permitting investigation commission to compel witness to testify under grant of use and derivative use immunity, but without grant of full transactional immunity); Kastigar, 406 U.S. at 458-59 (affirming lower court decision holding petitioners in contempt for refusing to answer questions before federal grand jury and holding that federal statute permitting government to compel witness to testify under grant of use and derivative use immunity did not violate fifth amendment).

159. See supra notes 90-95 and accompanying text.

160. See S. REP. NO. 1501, 90th Cong., 2d Sess. 26, 42, 48, 52 (1968); H.R. CONF. REP. NO. 1956, 90th Cong., 2d Sess. 35 (1968); see also 1968 U.S. CODE CONG. & ADMIN. NEWS 4410, 4426, 4435.

161. Flores, 753 F.2d at 1507 (Pregerson, J., dissenting) (citing 26 U.S.C. § 5848 (1982)).

162. 401 U.S. 601, 602-07 (1971).

163. See Haynes, 390 U.S. at 97-100.

164. 26 U.S.C. § 5848 (1964 & Supp. V. 1969).

165. Freed, 401 U.S. at 601. The district court granted the appellees' motion to dismiss on two grounds: First, that the amended Act violated the constitutional privilege against self-incrimination; and second, that the appellees' indictment for possession and conspiracy to possess the hand grenades violated due process by failing to allege scienter. Id. at 604-05.

166. Id. at 604 (citing CAL. PENAL CODE § 12303 (West 1970)).

167. Id. at 605 (citing 18 U.S.C. § 3731).

168. Id. at 606.

169. Id. (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1963)). The Court emphasized the representations of the Solicitor General 'that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of no registration may be necessary to an investigation or prosecution under the present Act.' Id. at 604. 'As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities . . ..' Id. at 605. But cf. Marchetti, 390 U.S. at 48 ('[W]e are obliged to notice that a former Commissioner of Internal Revenue has acknowledged that the Service 'makes available' to law enforcement agencies the names and addresses of those who have paid the wagering taxes, and that it is in 'full cooperation' with the efforts of the Attorney General of the United States to suppress organized gambling.').

170. See supra notes 90-95 and accompanying text.

171. It is worth noting that whereas statutes granting use and derivative use immunity have been upheld under the fifth amendment, statutes granting only use immunity consistently have been struck down. Arnstein v. McCarthy, 254 U.S. 71, 73 (1920); Counselman v. Hitchcock, 142 U.S. 547, 564-65 (1892). In Albertson, for example, in which the petitioners had been ordered to register as members of the Communist Party, section 4(f) of the Subversive Activities Control Act provided that the fact of registration could not be received in evidence against the registrant in any prosecution for the alleged violation of any criminal statute. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79-80 n.10 (1965).

The Supreme Court held that because this grant of immunity did not preclude the use of the registrants' admission of Communist Party membership as an investigatory lead to a criminal prosecution, the immunity provision was insufficient to save the registration requirement from fifth amendment challenge. Id. at 79-81.

172. As Judge Pregerson pointed out in his dissent in Flores: If truly regulatory, and not penal, the statute could easily have been designed to notify carriers of arms shipments without subjecting the persons giving notice to the risk of self-incrimination. . . . A use immunity provision is not inconsistent with the goal of regulating the flow of weapons over state and national borders. Therefore, if Congress designed section 922(e) solely to further regulatory purposes, it would have included a use immunity provision similar to that [upheld in Freed]. Flores, 753 F.2d at 1507 (Pregerson, J., dissenting).

173. Id. at 1502.

174. Id. at 1507-08 (Pregerson, J., dissenting) ('In the absence of such a [use immunity] provision and because section 922(e) is not needed to further the carriers' statutory responsibilities under section 922(f), the section can only be viewed as a criminal statute designed to ferret out Gun Control Act violators . . ..').