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State ex rel. Okl. Bar Ass'n v. Badger4/6/1993
nistration of justice would facially show unfitness, while crimes such as adultery or driving while intoxicated do not facially show unfitness to practice law. 791 P.2d at 818.
Section 5861(b) is a part of the federal taxing statutes. Violation of the provision does not require any specific intent or knowledge on the part of the transferee the firearm(s) were somehow transferred in violation of the law. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971); United States v. Sedigh, 658 F.2d 1010, 1012 (5th Cir. 1981) (for conviction, no requirement the transferee had specific intent or knowledge the firearms were unregistered). Although there is at a minimum a requirement an individual charged with a crime like that involved here did have knowledge he possessed a firearm or weapon, either as the term firearm is understood in its general sense or as the term firearm is defined by pertinent federal law such that one would be alerted to the likelihood of regulation we do not believe such a knowledge requirement transforms the instant crime into one which facially shows unfitness to practice law. Clearly, the instant crime, possession of a firearm where no transfer tax has been paid, cannot be facially equated with those recognized in Armstrong as facially showing unfitness, such as crimes involving violence, dishonesty, breach of trust or serious interference with the administration of justice. We, thus, do not believe immediate suspension from the practice of law is warranted.
However, we cannot say as a matter of law this crime, involving the possession of a machinegun and silencer is one involving only innocent behavior. A recent case from the United States Court of Appeals for the Tenth Circuit tends to show the machinegun possessed by respondent may have been a prohibited item that could not itself be lawfully possessed notwithstanding any failure to pay a transfer tax. United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). Dalton, in part, concerned the interplay of 18 U.S.C. § 922(o), a federal provision outlawing the possession, with certain exceptions, of machineguns and a provision under § 5861 (possession of an unregistered machinegun). Further, in that respondent now stands convicted of a federal crime we believe it is appropriate to inquire into the purpose for which he took possession of the weapon(s). The purpose may have been innocent, it may not have been; that is something which may be inquired into by the PRT.
Accordingly, for the reasons set forth we DENY RESPONDENT'S REQUEST FOR DISMISSAL WITHOUT PREJUDICE and we REFER TO A TRIAL PANEL OF THE PROFESSIONAL RESPONSIBILITY TRIBUNAL FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. The report and recommendation(s) of the PRT shall conform to and be filed in accordance with 5 O.S. 1991, Ch. 1, App. 1-A, Rule 6.13.
All Justices concur.
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