COFFIN, Circuit Judge.
This is an appeal from a conviction on five counts of an indictment charging violation of the National Firearms Act, 26 U.S.C. § 5814, § 5851 (1964).
The issue presented is whether or not the order form requirements of 26 U.S.C. § 5814 (1964) and the tax required by 26 U.S.C. § 5811 (1964) abridge appellant’s privilege against self-incrimination under the Fifth Amendment of the Constitution.
We consider first the counts alleging violation of 26 U.S.C. § 5851 (1964) for receipt or possession as a transferee of a firearm as defined in 26 U.S.C. § 5848 (1964) which has been transferred in violation of 26 U.S.C. § 5814 (1964). Section 5814 of the National Firearms Act provides that it shall be unlawful to acquire a firearm as defined by the Act except pursuant to a written order form issued by the Secretary of the Treasury.
Appellant, relying on Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), contends that the order form requirement of section 5814 is violative of the privilege against self-incrimination as guaranteed by the Fifth Amendment. As the discussion which follows will show, appellant’s reliance is misplaced.
Haynes,
supra, involved a violation of section 5851 for possession of a firearm which had not been registered under section 5841. There the Supreme Court held that the violation was essentially
for failure to register and that registration would have required a direct incrimination by petitioner. Following the reasoning of
Haynes,
supra, we must ask two questions: first, is conviction under section 5851 meaningfully distinguishable from a conviction under section 5814 ?; and, if it is not, does the order form requirement of section 5814 violate the privilege against self-incrimination ?
With regard to the first question, the Supreme Court indicated in
Haynes,
supra, that section 5851 as it relates to section 5814 punishes receipt or possession of a firearm which has not been transferred in compliance with section 5814 rather than failure to comply with section 5814.
Haynes,
supra, at 92, 88 S.Ct. 722. In
Haynes
the Supreme Court did not pass on the constitutional status of this construction of the statute and it could be argued that the statute as written purports to punish receipt or possession of a firearm which had been transferred unlawfully at some remote point in time as well as an immediate unlawful transfer.
This interpretation would pose no constitutional problem up to the point where a prospective transferee complies with section 5814, since, prior to so complying, he is not required to do anything except to decline acquisition of a firearm which was “at any time” illegally transferred.
But there might well be a constitutional infirmity were section 5851 construed to permit punishing a transferee where the immediate acquisition was made in compliance with the act but where, unknown to him, at some prior point in time the firearm had been transferred unlawfully. Indeed, if the statute were so construed, the very act of compliance with the statute through use of the order forms would provide incriminating evidence.
We do not believe that such an intent can be attributed to Congress and we construe the statute so as to avoid the constitutional issue. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion). We think that Congress employed the “at any time” language of section 5851 to indicate that a possessor of a firearm which has “at any time” been unlawfully transferred may not exculpate himself merely
by
showing that he was not involved in the original unlawful transfer. Russell v. United States, 306 F.2d 402, 411 (9th Cir. 1962). That is not to say, however, that one who acquired a firearm in conformity with the act may be punished for prior illegal transfers by other persons of the same firearm.
Section 5814 clearly contemplates that a firearm may be lawfully acquired by following procedures set forth therein. A contrary interpretation would be inconsistent with the clear implication of the first sentence of section 5814: “It shall be unlawful * * * to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article * * We can only equate “it shall be unlawful * * * except” with “it shall be lawful * * * if” transfer pursuant to section 5814 takes place. We therefore hold that compliance with section 5814 means that a transferee may not be punished, - federally, because the same firearm was illegally transferred in the past by others.
Thus, when section
5851 states that possession is prima facie proof of violation, it refers, not to possession acquired under section 5814, but to possession unsupported by compliance with the Act.
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COFFIN, Circuit Judge.
This is an appeal from a conviction on five counts of an indictment charging violation of the National Firearms Act, 26 U.S.C. § 5814, § 5851 (1964).
The issue presented is whether or not the order form requirements of 26 U.S.C. § 5814 (1964) and the tax required by 26 U.S.C. § 5811 (1964) abridge appellant’s privilege against self-incrimination under the Fifth Amendment of the Constitution.
We consider first the counts alleging violation of 26 U.S.C. § 5851 (1964) for receipt or possession as a transferee of a firearm as defined in 26 U.S.C. § 5848 (1964) which has been transferred in violation of 26 U.S.C. § 5814 (1964). Section 5814 of the National Firearms Act provides that it shall be unlawful to acquire a firearm as defined by the Act except pursuant to a written order form issued by the Secretary of the Treasury.
Appellant, relying on Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), contends that the order form requirement of section 5814 is violative of the privilege against self-incrimination as guaranteed by the Fifth Amendment. As the discussion which follows will show, appellant’s reliance is misplaced.
Haynes,
supra, involved a violation of section 5851 for possession of a firearm which had not been registered under section 5841. There the Supreme Court held that the violation was essentially
for failure to register and that registration would have required a direct incrimination by petitioner. Following the reasoning of
Haynes,
supra, we must ask two questions: first, is conviction under section 5851 meaningfully distinguishable from a conviction under section 5814 ?; and, if it is not, does the order form requirement of section 5814 violate the privilege against self-incrimination ?
With regard to the first question, the Supreme Court indicated in
Haynes,
supra, that section 5851 as it relates to section 5814 punishes receipt or possession of a firearm which has not been transferred in compliance with section 5814 rather than failure to comply with section 5814.
Haynes,
supra, at 92, 88 S.Ct. 722. In
Haynes
the Supreme Court did not pass on the constitutional status of this construction of the statute and it could be argued that the statute as written purports to punish receipt or possession of a firearm which had been transferred unlawfully at some remote point in time as well as an immediate unlawful transfer.
This interpretation would pose no constitutional problem up to the point where a prospective transferee complies with section 5814, since, prior to so complying, he is not required to do anything except to decline acquisition of a firearm which was “at any time” illegally transferred.
But there might well be a constitutional infirmity were section 5851 construed to permit punishing a transferee where the immediate acquisition was made in compliance with the act but where, unknown to him, at some prior point in time the firearm had been transferred unlawfully. Indeed, if the statute were so construed, the very act of compliance with the statute through use of the order forms would provide incriminating evidence.
We do not believe that such an intent can be attributed to Congress and we construe the statute so as to avoid the constitutional issue. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion). We think that Congress employed the “at any time” language of section 5851 to indicate that a possessor of a firearm which has “at any time” been unlawfully transferred may not exculpate himself merely
by
showing that he was not involved in the original unlawful transfer. Russell v. United States, 306 F.2d 402, 411 (9th Cir. 1962). That is not to say, however, that one who acquired a firearm in conformity with the act may be punished for prior illegal transfers by other persons of the same firearm.
Section 5814 clearly contemplates that a firearm may be lawfully acquired by following procedures set forth therein. A contrary interpretation would be inconsistent with the clear implication of the first sentence of section 5814: “It shall be unlawful * * * to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article * * We can only equate “it shall be unlawful * * * except” with “it shall be lawful * * * if” transfer pursuant to section 5814 takes place. We therefore hold that compliance with section 5814 means that a transferee may not be punished, - federally, because the same firearm was illegally transferred in the past by others.
Thus, when section
5851 states that possession is prima facie proof of violation, it refers, not to possession acquired under section 5814, but to possession unsupported by compliance with the Act.
Assuming that section 5851 is in fact directed at failure to use the order forms required by section 5814,
there would still be no violation of the privilege against self-incrimination. Appellant’s argument is that he is in the same position as the petitioners in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), who by the very act of filing the wagering tax forms and paying the tax were admitting that they were presently engaged in unlawful conduct or that they planned to do so in the future.
Similarly, appellant compares himself to the petitioner in
Haynes,
supra, where the act of registering the firearm would have constituted a direct admission that an unregistered firearm was acquired in violation of the National Firearms Act. But as to appellant there is no substantial hazard that the information required by the order form will furnish a “link in the chain” leading to a conviction for illegal activity. That one has properly started the legal process of qualifying to receive a firearm is no indication that he will subsequently depart from that process. Unlike the defendant’s compelled announcement in
Marchetti
of his engaging in conduct which was necessarily illegal in his state, the- averment here of an intention to receive firearms foretold an action which could be executed in a lawful manner by an unrestricted category of individuals. The existence of such a substantial, realistic, and lawful alternative affords Congress adequate ground within which to carry out a good faith, non-incriminatory purpose. The comparison of appellant to the petitioner in
Haynes,
supra, is even more untenable. In
Haynes
the registration of the firearm would not only have supplied a link in the chain but the entire chain.
Appellant’s argument is essentially this — that a person bent on circumventing the law as to the transfer of firearms who chooses to fill out part of the form while secretly intending not to have the remainder completed (by securing the proper authorizations) is incriminating himself. This argument seems to us to be unpardonably hypothetical. A person who initiates the execution of the form can only intend to have it completed. If this happens, there can be no incrimination. A person intending to violate the law would not initiate a form
Which can be completed only by obeying the law. Here, too, there is no incrimination.
We cannot believe that the Fifth Amendment can be so tortured as to proscribe the use of an application form which initiates a transaction which can be lawfully completed.
Appellant presses a rather interesting argument based on the Supreme Court’s indication in
Haynes,
supra, that the National Firearms Act is directed at persons engaged in unlawful activity. 390 U.S. 85, 87 n. 4, 88 S.Ct. 722. Apparently, appellant’s position is that even though a firearm is acquired lawfully, its acquisition focuses suspicion on the transferee because of the legislative purpose of the Act. Thus, should a transferee subsequently engage in illegal activity involving a firearm, the order form would provide a link in the chain leading to conviction. The answer to this argument is that the protection of the Fifth Amendment privilege is inapplicable to prospective acts involving only a speculative and insubstantial hazard of incrimination.
Marchetti,
supra, 390 U.S. at 54, 88 S.Ct. 697.
In
Marchetti
the fact that 49 states prohibited the very activity disclosed by payment of the tax constituted a real hazard of incrimination. But here there is no prohibition, either state or federal, against possession of a firearm lawfully acquired under the National Firearms Act.
Necessarily, a question of incrimination can arise only if a wholly different criminal act is performed at some point in the future. To accept appellant’s argument would be tantamount to saying that a pharmacist should not be required to acknowledge receipt of certain drugs since he may secretly intend to distribute them without a prescription, and would therefore be supplying evidence of receipt which would incriminate him.
We
affirm appellant's conviction on the counts four and eleven discussed above. We need not pass on the remaining three counts.
The concurrent sen
tences imposed by the trial court are well within that which could be imposed under a single count.
United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). In addition, there is no suggestion that appellant received a greater sentence due to the presence of multiple counts. Saville v. United States, 400 F.2d 397 (1st Cir. 1968).