MEMORANDUM DECISION AND ORDER
ANDERSON, District Judge.
This action involves a three count information filed against the defendant, James Duane Rosen. The first two counts concern an alleged violation of 18 U.S.C.A. § 924(a). In summary, that section forbids knowingly making a false statement with respect to information required to be kept by licensed dealers pursuant to Title 18, Chapter 44. Count I charges that the defendant pawned a certain .22 caliber pistol with Sam's Loan and Jewelry, Inc., a licensed dealer. That on or about November 22, 1971, the defendant returned to redeem his pistol and at that time filled out Treasury Form 4473 with a false statement, to wit: he answered "no" to a question asking him if he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year, when he knew he had been convicted of Assault with a Deadly Weapon in the Fifth Judicial District for the State of Idaho in December of 1969, a crime carrying a possible imprisonment penalty in excess of one year. Likewise, Count II of the information charges the same action with respect to the pawning and redemption of a 7.35 mm rifle at Sam's and supplying the same false information on or about February 2, 1972. Count III charges the defendant with
Defendant's basic contention is that the redemption of a weapon out of pawn is not within the purview of 18 U.S.C.A. § 924(a). More specifically, that the provisions of §§ 921-928 (of the Gun Control Act of 1968) pertain only to the outright purchase of weapons and not to a redemption of the defendant's own weapons after pawn. The defendant suggests a designed intent by Congress for a bifurcation of functions by a pawnbroker. When a pawnbroker sells weapons (either those left unredeemed or new or used in a capacity of wholesaler or retailer), then he has the responsibility of issuing Form 4473 and a subsequent false statement would render the purchaser criminally liable. However, when the pawnbroker acts in his capacity of accepting weapons as pledges and later returning them after payment of the loan, he is not required to issue Form 4473 and a subsequent false statement thereon produces no criminal liability. As authority for such a proposition, defendant cites United States v. Laisure, 460 F.2d 709 (5th Cir. 1972). Laisure is factually on all fours with the case at bar. However, Laisure was charged with making a false statement in violation of § 922(a)(6), not under § 924(a) as is Rosen. Careful note must be made of the specific language in § 922(a)(6):
The Court in Laisure held that § 922(a)(6) did not extend coverage to the redemption of a firearm by its owner from a licensed dealer (pawnbroker). The basis for the Court's holding was an ambiguity in the language within Section 922. 922(a)(6) speaks against "acquisition or attempted acquisition" while 922(d)(1) forbids the licensed dealer to "sell or otherwise dispose of" firearms to felons. While admitting that it was possible that Congress intended the pawnbroking situation as an "other disposition", the Court felt compelled to resolve the ambiguity in favor of the defendant.
However, the Government in this action has chosen to proceed against the defendant under Section 924(a):
Nothing is said in Section 924(a) pertaining to the method by which a defendant secures a weapon, whether it be by "acquisition", gift, pledge redemption, theft or "other disposition". The holding in Laisure is, therefore, inapplicable since no ambiguity exists under the Section defendant has been charged with violating. The elements of a violation of § 924(a) are threefold: First, there must be a false statement or representation; secondly, it must be made knowingly; and finally, it must be made with respect to information required to be kept (under Title 18 U.S.C.A. Chapter 44) by a person licensed. Since the first two elements are admittedly true for purposes of this motion, it is only the third element which is troublesome.
Section 923(g), in summary, states: "Each * * * licensed dealer * * * shall maintain such records * * * as the Secretary may by regulations prescribe." That Congress intended a pawnbroker to be a licensed dealer is not subject to dispute. Section 921(a)(11) defines dealer as:
However, as the defendant points out, this doesn't answer the question of whether or not the pawnbroker must require and keep Form 4473 when acting solely in his pledge-redeeming capacity. The Secretary has promulgated certain regulations pursuant to his vested authority which are found in 26 CFR § 178.124.
A broad reading of the above regulation would be that a licensed dealer must require completion of Form 4473 for any disposition except that by a licensee who does repair or customizing of weapons. However, that does not satisfactorily answer the defendant's argument, because regulation 26 CFR § 178.124, subsections (b) and (c) interchange various definitive terms such as "purchaser", "transferee" and "his", referring to the dealer. But the Congressional definition of pawnbroker under § 921(a)(12) further sheds light on the issue:
That definition shows that Congress clearly knew in what capacity a pawnbroker could obtain firearms. But the real reason why the defendant's argument must fail comes from an analytical look at the definition of a "dealer" under Section 921 (a) (11), supra. If Congress had been concerned only with licensing the pawnbroker when he acted in a possible selling capacity, and not in a pledge and redemption capacity, it would have been unnecessary and repetitive to specifically include him in the definition in part (C) since he would automatically be included in part (A) of the definition as "any person engaged in the business of selling firearms or ammunition at wholesale or retail". While an exhaustive search for authority reveals no case law precisely on point, at least one District Court decision deserves some attention. McLemore v. United States Treasury Department, 317 F.Supp. 1077 (1970), involved the revocation of a pawnbroker's license for failure to maintain proper records of dispositions of weapons in his possession in violation of 18 U.S.C. § 924(a) and 26 CFR § 178.124. In upholding the revocation of McLemore's license, the Court specifically made as one of its findings of fact that the pawnbroker had failed to issue Form 4473 on the date a certain weapon was redeemed out of pawn. This was held to be a violation of the
While the Congressional comments on this precise point are lacking, it may be assumed rather safely that while pawnbrokering is a lawful business and does serve a useful function in our society, nevertheless, they are frequented by those persons interdicted by the Gun Control Act and are centers of gun traffic in our communities, and that, therefore, Congress did intend to shoot directly at the pawn-redemption situation.
Defendant has also raised two constitutional questions with respect to the application of § 924(a) to him which merit some discussion. The first of these is that he is denied his Fifth Amendment right against self-incrimination. The argument runs that if he answers "yes" to the question on Form 4473 asking him whether he has ever been convicted of a felony, then he is subject to charges under 18 U.S.C.A. App. § 1202(a) which, in short, makes it unlawful for a convicted felon to possess a weapon having some connection with interstate commerce. If he answers "no", as he did, then he is subject to charges under § 924(a). Had the defendant answered "yes" to the question and raised the defense he now attempts to raise to a § 1202(a) charge, the issue would be squarely in view. However, this Court is precluded from further consideration of the defense because of the well-established holding "that one who furnishes false information to the Government in feigned compliance with a statutory requirement cannot defend against prosecution for his fraud by challenging the validity of the requirement itself." United States v. Knox, 396 U.S. 77, 79, 90 S.Ct. 363, 365, 24 L. Ed.2d 275, 279 (1969). Also Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969) and Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).
The second constitutional argument raised by the defendant is that the statute as applied to him deprives him of his property without due process of law in violation of his Fourth and Fourteenth Amendment rights. The gist of this argument is that if the defendant had answered "yes" to the question on Form 4473 or had failed to answer at all, then the pawnbroker would not have returned his weapons to him. For purposes of this decision, it will be assumed that title and ownership rights remain in the pawnholder and the pawnbroker merely has a security interest in the pawned guns.
It is ordered that defendant's motion to dismiss Counts I and II of the information be, and the same is hereby, denied.