Roy D. Garner v. United States

228 count, on under

implicit the victim. The current sentences each threat” to doctrine” we prosecution in did not sentence the case before us “concurrent unnecessary to examine attempt find further the threat to Mrs. show that argument. Hirabayashi v. United was made with victim’s this Stallard testimony 81, 105, 1375, knowledge. States, Thus, the was not 320 also Lawn Act. L.Ed. 1774 See See United 87 authorized 339, 362, 1291, Marchesani, 78 v. 457 F.2d United v. States (1958); 1972).12 (6th 311, Thom- Cir. 1296 940, F.2d 941 as v. United However, conclusion that our (5th 1970); v. Abi- United States Cir. testimony inadmissible does this was (5th gando, 827, F.2d Cir. declares, appellant mean, "in as that it Johnson, 1971); v. States United proceedings preju fected the entire 1974). (5th F.2d 1131 Cir. beyond any hope diced recovery.” defendant proved had VI. CONCLUSION completely Mrs. its case without Stal have the other conten- We examined testimony incident. We lard’s conclude, on this appellant, but find tions made thorough independ after Accordingly, them without merit. to be record, of the that the ent examination judgment trial court must testimony harm admission affirmed. beyond error a reasonable doubt and less appellant’s convictions must be thus Chapman California,

affirmed. v. 24, 824,

U. S. (1967); Resnick, v. United States (5th

F.2d Cir. cert. de

nied, L. 246.13 For a case in which it was

Ed.2d that erroneous admission of

held such did

evidence similar circumstances Roy reversal, GARNER, Plaintiff-Appellant, require see D. United States (2d Kennedy, 291 F.2d Cir. 1961). America, UNITED STATES of Defendant-Appellee. No. 71-1219. OF REPUTATION EVI- V. USE DENCE IN SECTION Appeals. States CONVICTIONS Ninth Circuit. June 1972. challenges Appellant convic Rehearing Sept. Denied 1972. violations of sec tions substantive Rehearing April En On Banc ground that he tion 894 the same challenges his convictions under section III, supra. section Because

892. See respect to the admissibil

the issues ity essentially reputation evidence are they here under section

the same are appellant con- and because received [emphasis admitting 457 F.2d at added].” the victim similar extortion- 12. In evidence alleged indictment, ate acts not said, “. court Marchesani testimony Bowdach’s as to 13. Mrs. of similar acts Stallard’s well established that evidence admissible, ugly ~by persons, to Bell was threat were known other challenged ap- course, occurred, even are admissible the victim peal. generation element of fear to show Marks, (argued), Burton Marks Hills, Schwartz, Beverly & Sherman Cal., plaintiff-appellant. Hornbeck, Glynn, taxpayer Gregory supplied C. John W. Attys. (argued), F. an income tax return be used Gerald Asst. U. S. taxpayer Nissen, Uelman, R. Asst. S. in a criminal David U. Atty., Attys., Meyer, ? unrelated to income tax laws Robert L. U. S. defendant-appel- Angeles, Cal., for Los First, pointed it must be out lee. Supreme recent deal Court decisions right persons re with the of Before and HUFSTED KOELSCH reports fuse to file with the Govern WALLACE,* LER, Judges, and Circuit ment, reports when such would have Judge. District consequence “direct and unmistakable incriminating person reporting] [the Judge. KOELSCH, Circuit States, .” United [Marchetti v. appeals Appellant from the 39, 49, 697, 390 88 19 L.Ed.2d U.S. S.Ct. judgment convicting conspiring him of (1968); States, 889 Grosso v. United gambling federal statutes. violate 62, 709, 390 U.S. 88 19 L.Ed.2d 906 S.Ct. engaged prove appellant To (1968); Haynes United 390 v. betting wager- 85, “business 722, U.S. 88 S.Ct. 923 ing,” and of the con- essential element (1968) ; Leary U. United 395 spiracy charged, as of- the Government 6, 1532, S. 89 S.Ct. appellant’s fered evidence federal (1969) ; into Albertson Activi Subversive years income tax returns for the 1965 70, Board, ties Control 382 U.S. through 1967, appellant had 194, (1965)], ap not L.Ed.2d 165 do ported gambling as the of most source' ply requirement filing income of his The returns were admit- income. Those cases dealt with returns. objection. appellant’s ted over designed which were to elicit statutes specific information about activities 1927, Supreme Court held in specific group from a who Sullivan, individuals 259, States v. “inherently suspect were of criminal ac 71 L.Ed. S.Ct. tivities,” Albertson, supra, 382 U.S. at person could not to file a feder- refuse possessors such as ground al income tax return on firearms, engaged persons unlawful certain in the return would disclosures wagering activities, unlawful nists, commu per Court, tend to incriminate him. persons dealing in certain un Holmes, Mr. “It would Justice said: drugs. case, activity lawful In each extravagant applica- extreme required reported to be was “an area say tion of Fifth Amendment to permeated statutes,” with criminal Mar it authorized a man to refuse to state chetti, supra, S.Ct. the amount of his income because had distinguished, Each case and as been made in crime.” at 263- continuing vitality of, serted the sug- Sulli 47 S.Ct. at 607. The did Court ques van, supra, ground gest might taxpayer that a to an- refuse tions on an in income tax return are swer certain on the return herently directed at the detection of might him, incriminate but that activity, but are direct instead he could not refuse to file return at general public ed at the and are “neutral all, because, of the items “[m]ost [on Albertson, supra, on their face.” complaint.” warranted no return] 194; Grosso, S.Ct. 274 U.S. at at 607. (Brennan, 390 U.S. at J. open, What Sullivcm left and what concurring). See California v. Supreme yet decided, case 424, 431, 29 L. question: this to what extent and under incriminating what circumstances Ed.2d 9

* Wallace, sitting Diego, Judge, Honorable J. Clifford United States District San California designation. compli- They not made oath. However, end the does not order, subpoena or depar- court point ance merely quiry. It they threat under the nor were made ture, appellant in this case did by any form induced tax return. income refuse to file an compulsion required reflected save that Rather, returns as he filed his report duty every person all and, Code Internal Revenue in the man- shows, income forms taxable accu- disclosed far as the record prescribed by Reve- our Internal ner rately of all and source the amount both years in- nue Laws. income for his taxable principal source volved. He revealed the appellants certain If believed that gambling. disclo- This of such income — tax returns declarations their insists, may sure, the Government they could incriminate them of vi- prove element used to an essential making vol- have refrained gambling laws. of the federal olation untary here evi- tax declarations report However, they chose to dence. upon relies this The Government pos- than risk the illicit income rather v. United court’s decision Stillman making prosecution for false or sible (9th 1949) States, F.2d 607 Cir. 177 incomplete covering such in- returns proposition returns income tax that upon the tax come. The disclosures may evidence in non-tax-re be used as to returns must therefore be deemed proceedings. In case lated criminal that voluntarily upon a have been entered objec rejected Fifth Amendment we public record.” 177 F.2d at 617-618.2 charged defendant, tions of the who was Emergen with violations the wartime passage quoted makes it above cy Act, income Price and whose Control applied a clear that we Stillman prove the tax returns were omitted to concept “implied to the de- waiver” unlawfully amounts of income defendant fendant’s disclosure of self-incrimina- earned; relying solely1 reason on the tory information on his income ing in Shushan v. of the Fifth Circuit But, turn. in view of recent constitu- (5th States, United F.2d 110 Cir. 117 developments, concept tional this has no 1941), denied, 574, 313 61 S.Ct. cert. U.S. place where the issue involves the asser- 1085, denied, 1531, reh. 314 L.Ed. right and, tion conse- 706, 564, 53, said: 62 S.Ct. L.Ed. we quently, Supreme we believe key- Court has eliminated the doctrinal “The were volun income tax returns stone of the Marchet- tarily by appellants Stillman decision. under executed opinions Zizzo, 1. We noted a number of in which F.2d at 796. Cf. States denied, appellate (7th approved courts had the admis- 338 F.2d 577 Cir. cert. evidence, acknowledged 14 L.Ed.2d sion of such 381 U.S. 435, 85 S.Ct. “any denied, in none there reh. 384 U.S. was discussion by upon regarding 693, relied the courts the constitutional 16 L.Ed.2d privilege.” Zizzo on the F.2d at Grimes court. relied Su preme in Lewis v. Unit Court’s statement States, 419, 422, In F.2d ed Grimes v. United petitioner (1955) (5th 1967) denied, that: “If 99 L.Ed. 475 Cir. cert. engage to in an unlawful busi Fifth desires ness, approach. he on his own volition. does so continued to follow this Circuit pay “Assuming, to The fact that he elect with The court there ..said: [wagering] deciding, required tax and make the disclosures Grimes out the law required by truthfully occupation matter of his Act is a state compulsory nothing choice. There that a false statement would [tax] it, consequently, subject penalty, there is noth about him and that to criminal report did, Fifth violative of the Amendment.” he was thus forced to as he Marchetti, supra, right overruled the Court to claim self- nevertheless had the leaving point, claiming Grimes Lewis on this incrimination time. Not authority then, the waiver Zizzo as dubious amounted to a vol statement question. untary which we hold could be admission prosecution.” [gambling] in this used filing question of whether 39, 51, the basic ti v. United report self-incrimi- of nating. such L.Ed.2d held that court The California involving ques- theAll decisions incriminating filing under alone gov- compelled disclosures tion cases; Supreme line Marchetti consistently ernment since Sullivan not, that it Court held exist a constitu- does noted that there report requiring primary purpose of object disclo- tional about information was not collect which is self-incrim- of information sure inatory. However, herently criminal behavior. In California question analysis, the under carefully distin- Harlan Justice Mr. guished unrelated use of disclosures person requiring between proceedings was at issue. criminal fulfilling report crucial to information question Neither was the of whether purpose governmental the “noncriminal upon could be based securing .” the information refusal, unaccompanied by a claim of (Har- 458, 91 at 1553 give inculpatory informa- lan, J., concurring), tion.3 could behavior from which criminal opinion, then, It is our proved: “I do not minimize would be admissibility appellant’s disclosures given the aid of California State ex- here must be determined requirement stop and virtue of the they amination the context in which identify acci- oneself an automobile [at question First is the requirement made. But this minimal dent]. compelled. whether disclosures were nonprosecutorial essential to the State’s yes. We and, having are clear that the goal, stop 26 once been U.S.C. 7203 it a virtually makes crime to fail to coerced, § all information secured any return, any pay supply file tax, stop likely for after to be tainted any purposes like- U.S.C. 7206 information. § of exclusion under person any wise makes for subsequent a crime a to Fifth prosecution.” Amendment any 458, make and 10, subscribe return “which U.S. at n. he does concurring). believe to true and J., not be (Harlan, every correct Byers material matter. report a the issue was whether ”4. For the all, Internal Revenue of an accident must be made at not correctly taxpay- responses report, Service to evaluate a whether individual in a particular filed, expenses, of er’s claim tions, deduc- could be used as evi- criminal losses, dence. Service must of While it is that the true Califor- provided Byers course be with information nia court in re- had held that such showing taxpayer ports required whether or not only could if a use re- qualifies. put especially This is true striction where taxpayer’s brings therein, occupation Supreme into contained Court’s special provisions play of reversal the tax laws of the California court wagering required point, form was con- 3. this Mr. tax On Justice Brennan re- marked, right “[Olertainly expect stituted a waiver of his to assert I would this affirming 51-52, 390 U.S. 88 S.Ct. Court to hesitate before justice fugitive conviction aof from for 697. filing a tax return his ad- which omitted 77, Knox, supra, v. dress.” In United States 396 U.S. California 363, (1969) (Brennan, 90 S.Ct. S.Ct. at 1560 recognized filing J., dissenting). that and truth- In Marchetti v. United requirements filing States, supra, the Internal ful Court overruled United compul- Kahriger, laws constitute States v. Revenue 73 S.Ct. compulsion sion, (1953) that this 97 L.Ed. 754 and Lewis v. prosecution a to a constitute defense falsification the information 99 L.Ed. held which had quired reported. gambler’s a failure to raise his Fifth objection filing at the time Amendment ’ regulations. person disingenuous, Byers, example, a if not For wagering (Harlan, J., income is from U.S. at derived whose distinguish wagering concurring), principle may his this deduct losses assuming wager winnings appellant’s the extent waiver of Gambling rights 165(d). case ing, 26 loss Fifth Amendment in this U.S.C. § merely carried he not be carried back or disclosed source es truthfully Mertens, In Federal his income under the statu- over Law of [See gambler tory compulsion truthfully 28.85], Taxation all come and a state winnings must material information on losses offset his return. whose thing report winnings gross say It one nevertheless all compel person Mc can to make income losses as deductions. disclosures govern- necessary Clanahan United 292 F.2d are deemed (5th denied, adequately pro- Cir. 368 U. ment administer cert. gram S. such as revenue collection gam system.5 matter, entirely Disclosure the tax return It is another disregard however, source of income essential. to then bler’s is thus the fact gambler say provide If a fails to infor the disclosure was forced and to mation, subjects that, original purpose himself to a since the com- perjury; pelling inherently for tax evasion or disclosure rights, his “choice” to a Hob- disclose is thus hazardous to individual’s subsequent choice. son’s use infor- mation is the “volunteered” infor- use automatically Nor can we conclude constitutionally mation and therefore statutory submitting com- inoffensive.6 Such formulation makes pulsion right waiver constitutes government’s need for the informa- object to the use of incrimi- tion, than relin- rather the individual’s “ natory indulge ‘courts disclosure. quishment right, aof known the control- every presumption reasonable ling determination, factor in waiver waiver’ of fundamental comprehensive and would allow schemes rights, pre- ... we ‘do self-reporting in non-criminal areas acquiescence sume loss funda- containing to become data banks numer- rights’.” Zerbst, mental Johnson v. 304 activity, ous “admissions” of criminal 458, 464, 1019, U.S. 58 S.Ct. 82 L.Ed. prosecut- available without limitation to (1938); Carnley Cochran, v. ing authorities. To informa- 506, 516, consider 884, 8 L.Ed.2d 70 (1962). “artificial, at 1023 supplied It tion would be under imposition It was on this basis the Court tions that led us to decline the Byers, supra, California v. held of use restrictions the future Mar person compelled compelling could be his ohetti Gh'osso are not disclose presence incriminating at the scene of an automobile where the infor situations already accident. mation been disclosed.” Mac key 667, v. United 401 U.S. 712- apply 1160, 1170, 6. “[Different considerations 91 S.Ct. question (1971) (Brennan, J., concurring). is not whether information may compelled be but rather to what uses Mr. Justice Brennan’s discussion of the compelled may compelled put. information Once “taint” disclosures would filed, prosecution appear the return has been un- to be restricted to those dis- federal, reporting require- der state [or under a follow] closures made gambling place solely illegal laws can take if the ment directed at activities. supra, can State demonstrate v. its evidence And Mr. California tainted information made the derived Justice Harlan same observation incriminatory aspects of the return. about the taint on disclosures disclosure once Since made never be which the under scheme Court held was completely undone, solely must be burden not directed at criminal behavior. regardless borne what ad- n. State at 402 U.S. upon (Harlan imposed J., concurring). ditional restrictions are use Accordingly, of the return. the considera- voluntarily sup I circumstances as such ultimately li . plied would . reaches widespread erosion cense necessary proper for a issue which is not legislation’.” through ‘ingeniously drawn disposition appeal. of this Ashwander supra, Marchetti, 88 S. A, TV at 704. Ct. J., (1936) (Brandéis, 466, 80 L.Ed. 688 concurring). Assuming, arguendo, that Although reporting of incrim appellant’s returns admission of inatory income tax re information violated against Fifth Amendment perhaps the di would not turns self-incrimination, any error of incriminat rect and immediate effect Fed. for two reasons. harmless See reporting taxpayer, ing a did as California, 52; Chapman R.Crim.P. required information on returns such 18, 22, 824, 17 L.Ed.2d engaged only of in criminal activi those persuaded ties, we that such in are ample First, there was evidence other first “link in the formation be the ap- than the tax returns demonstrate incriminatory evidence chain” pellant’s gambling proclivities provided persuaded objectionable. Nor are we by co-conspirators William Lawler right appellant’s object to mak Emery Clarence Swank and witness ing this in the first instance disclosure Long. —recognized supra Sullivan, since ever submitting appellant’s lost —was Second, jury important, more requirement reporting. statutory appellant charged guilty found cannot of constitu We sanction waivers Count One of the indictment. Count rights tional the most deliber “without charge One did not Garner with a sub- examination of the circumstances ate gambling betting stantive or violation ” surrounding Marchetti, them . contrary law, to federal rather 704.7 conspiracy violate one or more tending This record no fact contains following statutes: 18 U.S.C. § appellant establish that right aware (interstate or wa- transmission bets object and thus the conclusion gers by betting one in the business of impermissible declarations wagering), (use 18 U.S.C. anof “voluntarily upon public entered facility proceeds interstate to distribute supra. Stillman, record.” The admis activity), of unlawful and 18 U.S.C. § and, sion thus returns was error (bribery sporting contests). obviously, the them was gist government’s evidence and highly prejudicial. argument co-conspirators Law- was that betting elaborately ler and Swank were remaining appellant’s None of conten- selected horses of infor- the basis tions merit or is of sufficient sub- by supplied appellant. mation words, In other stance warrant discussion. gambling appellant’s tendencies judgment is reversed. part par- to his irrelevant and, conspiracy; appellant’s ticular as attorney correctly argued, there was WALLACE, Judge (dissent- District testimony proving placed that Garner had ing) : any any of bets on as the races selected respectfully I conspiracy. Consequent- dissent. evidence of the g., See, Cerone, proceeding e. v. States advised in the earlier of (7th 1971). case, F.2d that Cir. Fifth and had none- Amendment agreed testify, the Seventh Circuit held admissible in a theless he had waived proceeding respect the defendant’s tes- Fifth Amendment with timony testimony. subsequent in an earlier lawsuit. The court use of his found that since defendant had been 452 F.2d at 291. (9th Cir. F.2d 607 assuming v. United majority ly, the errs contrary, betting con- held to the appellant’s proof of business of upon a con- tending relied wagering Stillman element essential and waiver,” “implied cept the theoretical charged. Two of conspiracy Count repudiated charged in Mar- which was basis of had indictment chetti v. United violation a substantive (1968). proof It required “business of a would have wagering” betting an essential so held. unclear to me that Marchetti as element; appellant’s interrelated Motion dealt with an That case Acquittal taxing wagers Judgment Two statutory system as Count govern- granted distinguished the end of the at itself Sullivan. 50-51, case. 697. Marchetti ment’s theory only jected implied waiver Consequently, tax the admission present- extent of the circumstances worst, was, be- harmless returns Therefore, doc- ed that case.2 alleged role in the con- cause Garner’s Sullivan-type sit- trine is still viable spiracy of an information was that Sullivan, claim uation. Pursuant source, filled a role that need not be of Fifth Amendment one “business.” asserted when the income tax return is subsequent filed, not the time II prosecution.3 the claim of honor “[T]o the time the re- not asserted at fact that than the More fundamental taxpayer turn was due would make alleged harmless is error was rather than a tribunal the final arbiter er- there was no fact Albertson of the merits of the claim.” ror at all. SACB, agree, majority holds, I 199, 15 L.Ed.2d 765 Sullivan, 274 the rule of United States (reporting That the of this case facts L.Ed. 1037 response to a neu- source income (1927), requires to file in- all citizens question) tral are to those of similar despite returns the obvious come tax (reporting Sullivan amount income The ma- hazards of self-incrimination. response question) and not to a neutral proper application jority of this makes statutory (an to Marchetti interrelated require rule to disclosure the sources abundantly system wagers) to tax seems taxpayer’s income.1 The of a Further, clear. did not leave Sullivan holds, ap- disagree, I then majority, open, as contendéd pellant’s Fifth Amendment through gained whether prevents the use of volunteered to the facts secured similar prosecution. non-tax as evidence in this here, may be blocked from evidence subsequent If, prosecution. Without an en banc determination non-tax Upton Sullivan, Internal stated in v. Commissioner of must be [see (9th filed, Revenue, asserted return is 283 F.2d Cir. at the time the filing.4 1960)], there overrules is a waiver after Stillman squarely tested the return so that it could The ease within before us falls passed 264, by SACB, upon.” at 47 S.Ct. Sullivan as defined Albertson v. 274 U.S. supplied). 70, 194, (emphasis 79, 15 L.Ed.2d at 607 382 U.S. 86 (1965). Clearly request for 165 States, Heligman F.2d 4. v. United 407 See is neutral on face sources of income its denied, 448, (8th Cir.), 395 450-451 cert. public large. and directed to the at 977, 2129, L.Ed.2d 765 89 S.Ct. 23 48-49, 50-51, 2. See 390 U.S. at 88 S.Ct. States, (1969) ; 379 v. United Grimes 697. (5th denied, Cir.), 389 F.2d cert. 791 104, 846, 113 desired test 88 S.Ct. 3. if the defendant “But States, ; point (1967) v. 177 other United should Stillman 286 request support utes information a neutral Further, for I do not find manner, furnishing may, pro of which opinion recent most incriminating case, specific provide Supreme by area this nouncement matter, present answers.9 Gar- 402 U.S. v. California Court. indicating 1535, furnished ner 424, 29 L.Ed.2d 9 91 S.Ct. (,1971). Fifth source of much of his income 1965 Byers of his a violation asserted Having charged gambling. rights to 1967 was failed to when he was Amendment time, proper at the leaving assert of an automobile the scene with applicable, furnishing he has indeed accident, his name without Sullivan, required it. a waived United States information as and other 259, 607, 263-264, Su California California statute.5 (1927); L.Ed. 1037 v. United Stillman preme did the statute found 1949). (9th only F.2d Cir. if the Amendment Fifth violate the fruits required disclosures I feel I am bound the cases re- subse in a could not used thereof If, ferred above dissent. and must arising quent proceeding out of however, retried, sug- I case to be majority in the case the accident.6 gest give the trial court more considera- type re adopts of use this before us same requirement tion to the foundational although Supreme Court striction Daily Racing the introduction of The rejected Byers. impliedly Form.

four-judge plurality opinion, authored clearly Justice, found the Chief restriction,7 necessity such a ON REHEARING EN BANC indicated Justice Harlan’s concurrence MERRILL, CHAMBERS, Before as a restriction unwarranted that a KOELSCH, BROWNING, DUNIWAY, condition to the statute’s enforcement.8 ELY, HUFSTEDLER, WRIGHT, Therefore, conclude, I as does cannot Byers majority, CHOY, TRASK, dealt GOODWIN WAL report must be whether the accident LACE, Judges.* Circuit whether filed and not report may in a be used evidence Judge: WALLACE, Circuit prosecution. subsequent jury guilty conspir- A found Garner reading Byers it to A close shows gambling quite to violate various federal Both stat- similar this case. say (9th purposes 1949) (which 607, 8. “I cannot F.2d Cir. imposition overrules) ; Fifth Amendment warrant Shushan Cir.), (5th a use restriction as a condition on the 117 F.2d 110 denied, enforcement Id. statute.” at cert. (Harlan, J., (1941). 91 S.Ct. at 1553 con- 85 L.Ed. 1531 curring) . (1) 20002(a) 5. Vehicle § California Code subsequently (1960). statute paraphrase Burger: 9. To Justice Chief See A'ehicle been amended. California Disclosure of the source of income is an 1971). (West § Code essentially neutral act. AVliatever consequences disclosing Byers Court, collateral 6. v. Justice Cal.2d See statutory income, purpose Cal.Rptr. source of P.2d implement power is to to tax. the federal See 402 U.S. 91 S.Ct. 1535. See granted 7. val certiorari to assess the “We 430, 433-434, also id. at 91 S.Ct. 1535. idity Supreme Court’s California premise without restriction a use * Joseph Honorable T. Sneed was inducted 20002(a) priv (1) would violate § subsequent to the submission of this case ilege compulsory self-incrimina and, therefore, participate did no con tion. AVe conclude that there is decision. priv between the statute and the flict ilege.” See U.S.C. (emphasis supplied).

237 against He self-incrimination.4 claims appeals the conviction He statutes.2 the decision in United Marchetti v. alleging verdict, error upon that based 39, States, 697, L.Ed. 390 U.S. 88 19 S.Ct. af- proportions. We (1968), vitality 2d 889 eroded the of this firm. rule that income tax circuit’s returns government’s gist evidence of the prosecu evidence in be used as a non-tax co-conspirators Lawler States, tion. See Stillman v. United 177 making elaborate bets Swank were 1949).5 607, (9th F.2d 617-618 Cir. of informa- horses on basis selected supplied by con- Near tion Garner. At issue is the nature against case, guar clusion of self-incrimination objection, evidence, over troduced into Fifth anteed Amendment.6 The language tax returns per federal income Garner’s amendment years 1965, 1966 1040) (Forms for the mit a limited construction which its availability indicated that 1967. Those returns to a defendant’s oral testi mony all income proceeding.7 derived almost of his in a criminal Garner How Although wagering.3 gambling ever, 1892, Supreme rejected or in any prosecutor question wit- interpretation.8 privi did so narrow concerning lege returns, he did potential nesses now available to a crim closing argument during proceedings to them his fer inal defendant well before 9 begin jury. actually as to a in well witness as civil,11 criminal,10 grand legisl jury,12 or argues the introduction However, proceedings. scope ative13 in non- tax into evidence this returns greater of a defendant’s than violates 6. The Fifth Amendment of States United sporting (bribery 2. See 18 224 U.S.C. § provides part: Constitution “nor shall (interstate contests); § 18 U.S.C. 1084 [any person] any criminal wagers by transmission of bets or one case to be a witness himself . .” betting wagering); business or (use 18 U.S.C. 1952 of an fa- § interstate 7. “I am convinced Fifth Amend- cility proceeds to distribute of unlawful ac- privilege against compulsory ment’s self-in- tivity). originally crimination meant to do no upon more than confer testimonial Although 3. he listed income from those judicial proceeding.” witness Grosso sources, offsetting lie took none of de- States, 62, 76, v. United 709, 718, 390 U.S. 88 S.Ct. See, g., ductions allowed e. law. Int.Rev. (1968) (Stewart, 19 L.Ed.2d 906 1954, 165(d). Code § J., concurring). original opinion panel 4. The case 547, Hitchcock, 8. Counselman v. 142 12 U.S. (June 5, 1972), agreed contention, with this 195, (1892). 35 L.Ed. S.Ct. 1110 The case’s dismissing his claims other merit without holding opinion narrow, was rather lacking opin sufficient substance. That language indicating broad contained ty availabili- already provoked ion aca considerable 562, Id. at 12 matter. See, g., comment, demic e. comment. Thirty years later, S.Ct. 195. the Court (1973) ; Harv.L.Rev. How.L.J. privilege applied held that “alike to civil (1973) ; (1973) ; 26 Vand.L.Rev. 350 34 U. proceedings, and criminal wherever the an- (1973) ; Pitt.L.Rev. 510 30 Wash. L. & Lee subject swer sponsibility tend to to criminal re- (1973) ; Rev. 182 7 U.Rich.L.Rev. gives McCarthy him who it.” (1972) ; Mary (1972) ; 14 Wm. & L.Rev. 203 Arndstein, 34, 40, 16, v. Hastings (1973) ; L.J. v. Gannen 17, (1924). 69 L.Ed. 158 Regulatory Taxing United States: See, g., Arizona, 9. e. Miranda v. Schemes, Compelled Disclosures, and the (1966). Privilege Against Self-Incrimination, 8 Ga. (1973). Hitchcock, supra 10. L.Rev. 160 Counselman v. note 8. McCarthy supra Arndstein, 11. note 8. Although 5. part Stillman relied in Monia, 424, 427, public United States v. language records Int.Rev.Code relying 87 L.Ed. 376 Shapiro and on upon Hitchcock, supra, Counselman v. note 92 L.Ed. 1787 (1948), we choose neither as a basis for 13. Quinn v. United this decision. 99 L.Ed. 964 say a man it authorized ment to that enjoy he were if he would that in- his the amount of only may to refuse to state a defendant Not witness. made also come it had been he is but fuse to answer But if the defendant desired witness called as a crime. to be entitled not any point hand, witness, he should that or other the other test his trial. inquiries return so that right from have tested it immune to be has no though passed upon. respond to them could be decline to he mov differing privilege. claiming This his 263-264, Sullivan Id. at at 607. from the nature results treatment must clearly that all citizens establishes McCormick, Evidence privilege. See C. despite hazards returns obvious file tax 1972). (2d ed. stating By §§ of self-incrimination. or the defendant desired test “if any in his tax returns stated Garner point have tested other he should gambling income from derived that he ,” the Court it in the return . wagering. time, At that he was disclosure of intimates full a witness. The a defendant but therefore, must be of income amounts and sources at some time. must be asserted taxpayer an ob- makes made unless simple question whether he should asserting privi- jection in his return, his privilege at the time he his have claimed lege himself. not to incriminate he could wait filed his return whether subsequent conspiracy trial.14 until his provided of his the source and failed to invoke come on his return necessarily inquiry be Our date of he, at the late his Can gin Sullivan, 274 States trial, had it? Assume Garner assert S.Ct. 71 L.Ed. 1037 in the automobile accident witnessed an bootlegger (1927).15 Sullivan was who Fairgrounds parking lot of Pomona did not tax returns. He was file income September 25, he had been sub- 1968. If appealed. convicted for failure and poenaed trial con- a civil a witness upheld A the convic unanimous Court cerning testified the accident and had holding tion, that a tax return re everything, he and saw was there quired. Justice Holmes wrote: have those admissions could been used prove conspiracy that he was provided trial to form of return If called day race track on for answers that privileged defendant was allegedly privi- making first race fixed. from he could His lege objection he had would be unavailable because raised during the trial. failed to assert it civil could on that account refuse subpoenaed trial, At the civil he was return at all. make We are court; testify power what, he anything, called if on to decide might could have been awed the direction he have withheld. Most of the But, judge questions. complaint. items warranted It privilege and failed to assert his extreme would be an if not an extrava- proceeded testify, gant application could his answers of the Fifth Amend- ¡nation Opinions, Hit-and-Run and the We believe the Fifth Amendment Sup.Ct.Rev. 16-25. is at issue in this case. This not be a universal conclusion. Justice Harlan would case, 15. An earlier Johnson United regula not have extended the to a L.Ed. tory scheme such as involved Cali starting point. as a also serve fornia v. Johnson transferred his books to the trustee 29 L.Ed .2d 9 He contended that bankruptcy compulsion of law. under the was not founded on absolute Bankruptcy Act cli. 30 Stat. 544 § conflicting values and that interests must 110). (1898) (codified These at 11 U.S.C. against priv be balanced to determine whether books him in a crim- were introduced ilege 449-450, 454, 458, exists. Id. at concealing money inal (Harlan, J., concurring). See the trustee. The held that Johnson Meltzer, production. privileged Privileges Against also was not from their Self-Incrim- against goal. They used him. His failure invoke designed produce to to were not produces incriminating in his tax return his answers and thus should a similar differently. result. be treated Fifth Amendment have Recent cases Although vigorous the dissent compelled indicated that in disclosures ly contends that Garner was governmental response inquiries to to incriminate and that an himself his privilege against violate the self-incrimi voluntary, question swers were not Leary States, nation. See v. United 395 “volutariness” relates more to 6, 1532, U.C. 89 23 L.Ed.2d S.Ct. 57 Miranda situation than it does to Gar (1969); Haynes States, 390 v. United Here, ner’s ease. it tends to divert 85, 722, U.S. 88 19 S.Ct. L.Ed.2d 923 from vast issue. There critical is a (1968); Grosso United 390 in-custody difference an between interro 62, 709, U.S. 88 906 S.Ct. 19 L.Ed.2d gation filling return out a tax (1968); Marchetti v. 390 quiet of home. have no one’s We doubt 39, 697, 88 U.S. S.Ct. every taxpayer is under form (1968); SACB, Albertson v. 382 U.S. “compulsion” complete to and file re his S.Ct. L.Ed.2d 165 compulsion turn not in dissimilar to the However, compulsion in those cases volved in other activities incriminating was intended to elicit re government legitimate regula has also sponses and was at directed individuals tory compulsion, interest. This form of suspect “inherently of criminal activi however, is not the kind involuntari permeated in “an ties” area with criminal ness that was condemned Miranda. ” 16 statutes . . . . questions on the tax return asked case, This and California v. completely neutral; only Sullivan were Garner response might incriminating. 402 U.S. 91 S.Ct. 29 knew a be L.Ed.2d 9 taxpayers are different. The general, As to there was all questions in only “compulsion” govern Sullivan and here were neu- provide the to pub- on their face and to tral directed ment with the information it was entitled large implement lic at in an effort specifically, to fact, to demand. As to Garner power. many federal tax “compulsion” In cases there was incriminate. distinguished exactly Sullivan for But because Garner knew his answers Byers might those incriminating, reasons.17 involved a non- he had a choice claiming state at statute “directed all either of his declin persons answering questions. . . who drive automo- do so California.” biles 402 U.S. at 91 Had Garner to claim his chosen at S.Ct. 1539. The noted self- on the tax would reporting “indispensable ultimately its ful- have had to decide whether it words, willing grant fillment.” at Id. 431. other immunity him asked in cases each these order to obtain the answer.18 But designed government granting immunity asssist must be accomplishment legitimate government, its of a hands of in .the Albertson, supra, that, by continuously at 86 S.Ct. looks the fact distin guishing referring Sullivan, at 199. tire Court vitality. maintained has its Grosso, supra, 17. See U.S. at 709; Marchetti, applicable only at Since 48-49, 697; Albertson, 50-51, specific response su come would within the pra, 78-79, protection scope 194. See 382 U.S. at the witness Byers, supra, 433-434, at also the ultimate arbiter of whether (plurality), (Brennan, X, situation, propriety 471-472 decision on ; dissenting) Grosso, supra, invoking ques- cannot made unless the .1., concurring). (Brennan, put It 88 S.Ct. 709 tion has been and the witness as- easy say comes too Sullivan serted basis for refusal answer. forty-five years ago McCormick, (2d was decided C. Evidence precedent. longer 1972) (footnote omitted). an This over effective ed. travagant application taxpayers provide incrimi- Fifth hands who ” nating Sullivan, their Amendment su- rather than assert pra, 264-264, privilege.19 at 607. We have stated that failed- to Accepting appellant’s conten assert his Others con- unpalata provide an tion us with implied strue this waiver of its taxpayer have held ble result. We protection. That characterization over- self- assert looks the fact that the Fifth Amendment response in in his return incrimination every automatically does not cloak our specific he question. a right Just utterance in the of its fabric rubric. We questioning, from immune to be must invoke and its “It assert benefits. him to immunize likewise ishe free important to reiterate that Fifth the volunteering in prosecution self from personal privi- Amendment lege ais government. To hold to the formation basically person, : it adheres any any witness in allow otherwise would may not to information that incriminate protection proceeding the later of the him.” Couch v. United to frustrate use Fifth Amendment 322, 328, earlier testi derived from (1973). Essentially, question 548 mony to invoke failed that witness when whether in this situation the Fifth law, privilege. im his munity If this right Amendment is a incriminating which can in- be infor from use might retrospectively voked it is a whether without mation well be achieved privilege which claimed merely must be when government approval includ incriminating requested. information is a it in tax return. decision a Such Here, hold it we abe unchartered and us on would “embark Garner should have in tax asserted supra, 402 seas.” treacherous Having so, return. to do failed (Harlan, J., at at 1553 during not claim its benefit his trial. concurring) .20 Affirmed. disquieting ac- equally An result an ceptance appellant’s contention would Judges CHAMBERS, Circuit MER- defining difficulty in the outer be the RILL, A. DUNIWAY, EUGENE perimeters. be If a can assert- WRIGHT, TRASK and CHOY concur in at information con- ed a later date opinion. this every return, tained subpoenaed a tax could KOELSCH, Judge, Circuit with whom make witness court Judges ELY, BROWNING, Circuit HUF- every response same claim? Would not STEDLER and T. ALFRED GOODWIN originating any inquiry, to an at level join, dissenting: prop- from census taken right presented erty repose question questioner, is whether tax Gar- ner, respondent ? to later shield those answers this criminal unrelat- laws, may ed to if not ex- the federal income an tax This “would be extreme taxpayer upheld rather than a final tribunal Sullivan a conviction for failure theory tax on the. arbiter the merits of the claim. file an income return SACB, provided called Albertson of return that the form “[i]f priv- (1965). S.C. L.Ed.2d 65 that defendant answers ileged making have raised the from he could Congress might If this feels that decision objection return, but could not jeopardize collection, pro- revenue any at make return that refuse to account immunity vide for information use contained U.S., at S.Ct. at 607. all.” However, feel tax returns. we do not view, That based on the declaration was judicial appropriate is the decision first, against a self-incrimination claim altering complex and inter- method for every return, question or based on the tax systems country. related tax See mere submission Byers, supra, 442-443, U.S. at second, virtually frivolous, Marchetti, J., (Harlan, concurring) ; 697; honor claim of not asserted 59-60, would make n. 25 the time the return was due Harv.L.Rev. properly protection Fifth Amend- invocation of at trial is voke compelled majority privilege. privilege not concludes to “be ment a witness since the Fifth Amendment any criminal case creates ” right, “retrospective” incrimi- . to exclude and not himself nating provides protection his tax the Amendment answers requires resolu- The answer is unavailable exclude return. first, whether introduced issues. The tion of two Garner law, requirement in trial. To the extent disclosure solely basis, statutory penalties for non- on this its decision relies completely backed compliance, governmental compulsion untenable, theory both proscribed by Supreme type the Fifth under decisions Court Amendment; second, by an- whether the determination in this case. bind swering, voluntarily relinquished important conse- draws factu- require Both careful quences from the distinction technical purposes analysis scrutiny al right and a rather between a by Supreme decisions. served analyzing the than Fifth Amendment by analysis majority opinion avoids the dangers light particular in of the circum- issue, purporting al- to reach neither under which answered. stances However, Garner conclusory my opinion, though, the accepting assumption the even unexplained offered rationale conceals protection Fifth Amend- that the perhaps two, and on one of the decision by to a ment is limited that afforded grounds. both, privilege, majority technical the is still agrees privilege majority the wrong in the assertion that the nature of regulatory applies in- in the context of privilege precludes a testimonial Garner’s rejecting (n. quiries expressly but, objection the the tax to introduction of argument the that Garner reliance on Many privileges op- return. testimonial by privilege an- waived his person to hold- erate ing excuse the swering (p. 233), na- the holds answering, the from privilege precludes the considera- ture of testimony to allow him to the also exclude claim tion of Garner’s constitutional may instance, For client others. the trial rather asserted at his criminal when lawyer-client privilege pre- invoke the to majority the return. states: than on lawyer testifying vent about the the Essentially, question is whether communications, client’s volving even those right which Fifth Amendment is crime. The admissions of a retrospectively or can be invoked reliable is available to exclude whether which testimony public to order advance incriminating in- claimed when be surrounding relationship policies requested. Here, hold formation is we By was made. communication it to should be which Garner against policy governmental analogy, the return, (p. have asserted 233). tax compulsion by is served the exclusion pol- obtained violation of ability holding premise proceeds to command icy, Garner’s from the privi- provision of a their exclusion is lege exercise Fifth Amendment the client’s same sense that privilege which a testimonial creates ability lawyer’s to exclude the recital development come to historical its prior (p. If the position admission is a applied to one in Garner’s ground majority privi- its 230). rests decision that a reasons concept “privilege” too of a lege operates justify an- that the a refusal objection, encompass they narrow to asked Garner’s are first swer analysis privileges law exclusionary common to an as an mechanism —not suggests majority is in er- that the they alone have been answers once exclude given objection ror. therefore Garner’s —and Hitchcock, Counselman fundamentally, the fact More L.Ed.2d 1110 and the histori- provision has been may permit the use Government “privilege” does not regarded cally aas self-incriminating assumes, in criminal trial that the mean, by compulsion. elicited statements a constitutional not create does clause Washington, See, g., Haynes v. e. In a cognizable trial. right at Garner’s 1336, 10 L.Ed.2d freedom sense1 Hohfeldian strict govern- . Now that both compulsion created from testimonial fully right against are bound ments is a the Amendment difficulty pinpointing conceptual on his has a court. If Garner alleged not; violation of the the “compulsion” he longer right compel no or “use” need has no (378 6, n. govern- answers, concern us. at 57 he If the answer. 1598.) privileged an- S.Ct. at introduce his ment is right the court swer he has Turley, Lefkowitz court, recognize prevent it. The will Jus- power however, judicial exercises writing White, unanimous tice on the basis of case decide Garner’s Court, states: sovereignty, delegation of Constitution’s protected witness [A] express of which is conditions one may rightfully unless refuse to answer un- The court is Fifth Amendment. protected least until duty not allow der a constitutional against compelled an- of his use compelled to be a witness derived therefrom swers evidence the Constitution himself because in subsequent case criminal for the benefit commands forebearance Kastigar v. which he is' a defendant. against position; those States, [92 S.Ct. right, duty he has court’s a correlative (1972). 1653, Absent 32 L.Ed.2d 212] right privilege. scope The of his protection, he nevertheless such if duty depends extent court’s answer, compelled to are his answers ordinarily evidence, en- to tailing exclude against later inadmissible him analysis policy prosecution. v. United Bram light provision in constitutional States, supra; Boyd States, v. United particular point is facts involved. The supra. not that Garner is entitled to reversal cases, The confession from Bram coerced right, because he has a constitutional but 532, v. United 168 U.S. majority opinion neatly, rather that through 183, (1897), Miran- L.Ed. 568 inaccurately, sidesteps the constitu- consistently da progeny, and its indicate analysis required tional to decide the re- that the failure of the defendant to case. analysis, main silent does not end the position majority’s The been against protection that the self-incrimi- peatedly rejected, explicitly im- both by nation afforded the constitutional plicitly, Supreme For in- Court. prior extends exclusion Murphy stance, in v. Waterfront Com- involuntarily they when are answers 1594, mission, 52, 378 U.S. 84 S.Ct. given. Denno, Cf. Jackson v. Goldberg (1964), L.Ed.2d 678 Justice (1964). 368, 84 L.Ed.2d 908 states: majority’s reliance on the assertion against that Garner’s cannot be “retro- spectively” primary self-incrimination invoked failed has two because of his terrelated facets: Government “invoke and assert benefits may 232-233) compulsion privilege” (p. when first asked to elicit self- use g., incriminating misplaced incriminating statements,' see, question e. Corbin, Analysis generally, Legal Terminology, 29 Yale 1. See L.J. 167-8 Knox, not re- —the coerced confession cases do United States explicit quire (1969), a ritualistic invocation of request Court, upholding or a to remain si- fil- a conviction for lawyer, subsequent lent see a before a false return which under Marchetti self-incriminating distinguished filed, answer be exclud- did not have to be Rather, at trial. make clear ed cases Lookretis: applicable that the at trial Appeals The Court of ruled that truth- prior was coerced. Instead of ful disclosures made under the com- addressing inquiry the relevant of wheth- pulsion of could not intro- coerced, er in fact Garner’s in a crim- duced their maker majority ostensibly avoids the issue proceeding. However, inal the Fifth restricting the Fifth Amendment Lookretis Amendment was offended Goldberg’s the first of Justice facets. precisely the defendant had reasoning, majority’s Under incrimi- statutory compulsion to the succumbed nating govern- answers extracted by furnishing requested incrimina- mental coercion do not fall within the tory information. 396 U.S. at Fifth Amendment if the defendant fails S.Ct. at 366.

to invoke and assert his Adhering Mackey view, to that v. Unit- Clearly first asked. is not the law. ed States, 401 (1971), again indicated provide does more than of com- views the use guns defense to one who sticks pelled equivalent of the answers as the prosecuted for his silence than rather compulsion purposes of of answers for succumbing governmental compul to the analysis. Fifth Amendment The Court analogous sion. In a situation to the Mackey in Mar- held that its decision present case, Court, re decisions applica- chetti did retroactive not have lating wagering tax law2 found Marchetti, Mackey, had tion, but unlike unconstitutional in Marchetti v. United incriminating filed an without as- return serting The Seventh Cir- L.Ed.2d889 has indicated the thought Mackey’s objection cuit incriminating is available to exclude an waived, Supreme have been but the Court though swers on tax returns at trial even plurality opinion, in comment on which a the defendant had failed to invoke his eight agreed,3 of the nine stated: Justices privilege instance, on the return. For register statutory requirement Lookretis United where the The de to given incriminating gambling fendant had held and file tax returns was wagering on the compel tax return found viola and the to self-incrimination privilege privilege complete tive of the in Marchetti and his defense to became a prosecution answers had been used him in a failure to a for subsequent prosecution (see register pay F.2d taxes. It and the related (7th 1968)), registration apparently Court, Cir. followed that the ex- considering response the use of the returns an filed in to tax returns cise equivalent compelled statutory violation of va command were meaning cated his conviction and remanded. statements within accordingly Lookretis v. United Fifth Amendment part 88 S.Ct. were evidence as inadmissible immunity 2. 26 4411-4412. if had been intro- §§ U.S.C. use his answers prosecution in a unrelated duced compelled, Douglas thought Mackey 3. Justices disclosure Black statute under which was relief, assuming 710-711, entitled to a constitu- as our case. at U.S. retroactivity theory tional violation. 401 U.S. at 91 S.Ct. 1160. On 1160. Justices Brennan reach the issue. Marshall did Justice Harlan did not controlling, not think Marchetti but Mackey dicated would have been entitled to supposed qualitative flow from differ- prosecution’s case chief. 401 acknowledged vio- ences U.S. at lations. court, the the circuit Su- In contrast to majority’s dilemma is root of the privilege preme that the indicated privilege that it mistaken a for the at a to exclude answers is sufficient opportunity to assert one. Garner is privilege subsequent a if trial privileged ignore statutorily im- prosecution for a criminal “defense to posed questions only duty to if answer register,” (401 failure impose the court not the sanctions will analysis of wheth- without S.Ct. at provided by incomplete laws for answering privilege. er waived returns. court will refrain from approach majority’s is irreconcil- doing only so to the extent dictated particularly Mackey, if one able with statute, prior interpreting the decision Sullivan, United States v. reads 259, constitutional command—in those cases L.Ed. recognize the court purports to, for the as the excusing completely as breach of recognized proposition Sullivan duty normal answer. to a a defense as availability possible of constitu- filing incomplete return if claimed prosecuted, tional defense rather respect particular questions recognition the actual is free was, ma- as the return. If Garner fact, had, what answer. jority asserts, privileged not to filling return, out his tax was at particular questions knowledge most the that the constitution- only respect questions to those provision might al lead a court to vali- self-reporting tax re- scheme the turn, defense, date the as a and not a statutory compulsion to backed unconstitutionally answer, compelledhim recognized No himself. court has ever Fifth incriminate It follows complete defense the source of a de- became Amendment as valid particular question fense for to answer those failure to answer a failure questions, Mackey, a tax and under fol- return. Sullivan does not. It holds —“It ques- lowed .” that answers to does not excuse privileged many tions failure to he was to answer file tax return. Since innocuous, response statutory “filed in com- Sulli- refusing remedy van’s mand were statements within to answer all meaning of them Amendment and It of the Fifth was overbroad. was con- extravagant accordingly ap- sidered an were inadmissible evidence extreme and plication part prosecution’s case allow to purpose obtaining defeat the chief.” at 1163. 401 U.S. at social correctly points (p. majority tax As the 231), return from out Sullivan. The oft-re- statutory peated dicta, majority in the differences the on the which relies Mackey proposition and in- for the schemes make Marchetti apposite that Garner must as- determining privilege return, sert the whether there on the told might compulsion privilege is Sullivan unconstitutional Gar- the that have provided However, majority ner’s once case. the a defense for refusal to answer particular acknowledges privilege questions of the existence that the and depending on the on whether have decided the merit of his claim privilege requested respect the of is incriminat- to them. The ing, irrelevant, never, recently recog- Court has the distinction becomes it as majority making nized,4 privilege the is unex- held the unless the excuses a argu- probably inexplicable, particular questions plained, and failure consequences the ment that different return. should California n. Sullivan, duty privi- way imposes the one reads no Either to answer. holding lege wrong. prosecution majority’s It is is either to a for re- is a defense Mackey, major- fusing the or to answer because the refusal does inconsistent telling duty ity ordinary court will the the breach witness’s privi- privilege development not decide claim of answer. The of the only point lege, situations, case, in time at criminal the or extension to novel its provision applies begins initially recognition, the which as a face, prosecution, he the on its did of .run context punished an uncertain of the for risk of invocation the defendant should not be privilege on tax return. failure to answer does because the law duty. impose Thereafter, the once position criticizes the recognized prosecution, as a defense to a Garner, original panel opinion, and the recognized privilege the will the making take the Fifth Amendment answering court to excuse a witness “right into a which can be invoked retro- long so the which as are ones spectively.” (p. 233) The comment duty no is under answer. sleight-of-hand a verbal veals history development many pointed verts the entire and As commentators have privilege. majority’s radically of the failure out, the courts which have ex- significance panded scope of either understand the of the constitutional agreed the method of or reasons for exten- never values “witnesses,” duty promoted by eliminating of the sion to be (p. 230), Among particularly recites to answer those cases.5 understanding frequently unfortunate because an of values most advanced are develop- preservation rationale of the historical of an accusatorial rather necessary inquisatorial of ment in de- than method of criminal ciding presented by prosecution, prevention govern- both issues this case of proper immorality, application first, —the manner of ment akin to and preservation regulatory privacy context individu- and inquiries, dignity. part, and the “voluntariness” al over confusion purposes interrelationship. Garner’s answers on the return. reflects their Analysis development system Concern historical for the accusatorial is a completely issues, preservation concern indicates different of individual requiring privacy reflecting well, reconciliation of different val- Lockean ues, adjudicating essentially notion are involved in a claim depending liberty ought nature restraint on and to leave governmental compulsion Wigmore, alone. the tim- individual lover privilege, thought necessary and form which the claim is raised. degeneration prevent unjust If what is “at into issue is the nature modes prosecution: of criminal self-incrimination (p. .” then the objection any system The real is that opinion poli- is neither in accord with the permits administration which cies, development nature, habitually to trust com- pulsory self-disclosure as a source proof development morally The historical exten- itself suffer there- by. rely develops sion of the what reflects inclination upon recognition mainly precisely, evidence, such to be is— investiga- law, incomplete satisfied with an a court that the ulterior to effectuate tion other policies, of sources. values The exercise circumstances (1968) ; supra, 448-451, McKay, 5. v. 91 L.Rev. California Self-Incrimina concurring). Privacy, (Harlan, J., Friend tion and the New 1967 S.Ct.Rev. S.Ct. (1967). 193, 193-98 ly, The The Fifth Amendment Tomorrow: Change, for Case Constitutional 37 U.Cin. compulsion begets the answers is that monial sought power to extract of the capable ultimately of use just limitations forgetfulness case; Evidence, 19th until the late Wigmore, in a criminal century, power. of that applied to the privilege 1961). (McNaughten rev. in- proceeding for which criminal system an “accusatorial” concern The sought. criminating Jus- answers were integrity necessity reflects the “Fifth comment that tice Stewart’s high in process judicial remain against compul- Amendment’s subject it, in order eyes those originally sory self-incrimination The operation. preserve its effective a testi- no more than confer meant to do preservation is essential ju- upon in a a witness monial system of adversary, accusatorial anof ”8 proceeding. accu- . dicial cor- it is the procedure because criminal orig- rate, qualification procedural rest of of the nerstone century, inally and until the late 19th defend- safeguards criminal afforded proceeding” “judicial the criminal can the defendant if are hollow ant—all defend- trial the witness was in an- himself compelled to condemn be ticipation ant. trial. original concept thus The development has of the trial limited to the defendant’s criminal recognition through historically been in- Court has has been abandoned. The terpreted im- the law should situations that novel pose provision the constitutional duty defendant to answer. prosecution to a create a valid defense provision origin the constitutional in a for refusal to answer or men like More dilemma of lies Lilburne, pro- variety judicial quasi-judicial imprisoned who circumstances, and, ceedings, under some required to the oaths fusal subscribe regula- for a refusal to file answers Knowing they took of them. tory expansion inquiries. landmark honestly they would and answered oath Hitchcock, occurred in v. Counselman holding views considered have to admit L.Ed. 1110 they applicable statutes, under criminal (1892), where the held Court imprisoned. The con- refused and were provision a de- afforded being “against com- stitutional pelled contempt predicated fense to a conviction a wit- case to be criminal ques- on a to answer witness’s refusal originally against” thus one’s self ness grand McCarthy jury. tions before recognition defense of a evolved from the Arndstein, v. 266 U.S. punishment for re- or to a 69 L.Ed. held that refusing fusing oath, or to answer provided valid defense for By adop- of the under oath.6 the time bankruptcy testify civil, in a refusal privi- Amendment, the tion of the Fifth lege proceeding. together, two Taken pre-trial application to had some cases allow a to refuse to answer witness stages proceedings, and there criminal any quasi-judicial proceeding, civil excluding coerced law rule was common criminal, if his answers confessions.7 criminating subsequent in a trial. not term The Fifth Amendment does “privilege,” In each at the time of instance which the Court itself a expanded scope applicability adoption On its its was so conceived. ap- prevent only thing face, has done so to clear about purposes by

plicability proscription circumvention of its coercion testi- 436, 459, Friendly, supra, Arizona, 7. at 678. See Miranda (1966) ; L.Ed.2d generally, Friendly, Grosso See 677-79. (1968). 709, 718, Origins Amendment, Levy, L.Ed.2d 906 the Fifth Against Right Self-Incrimination thereby compelled when proceedings, exclude his sought answers prior to criminal subsequent making the in his protection to be introduced the afforded trial, placing the ex- the As criminal government burden effective. trial context criminal pressed prove beyond to a reasonable in Counselman: compelled it has doubt that the evidence meaning impossible of the It is provided of has not a link chain provision can constitutional the presented in court. The second evidence approach closely compelled person that a be be shall the Court’s resembles against in- a a himself to be witness cases, approach to coerced confession against prosecution himself. criminal in our sought which is because as instructive eases; cover such It would doubtless the initial is not case disclosure The it to ob- is not limited them. judicial proceeding in a or administrative person ject that a should insure to privilege where of evidence the rules acting compelled, aas be when impact. have an immediate give investigation, to witness testimony might tend to show which Analysis de- of reasons for the the had committed a crime. that he himself velopment and of the the limited criminal is to approaches alternative a to available matters, the mis- but it is as broad as majority’s court reveals the extent of the guard. against to chief seeks misconception nature of the con- 142 U.S. at 12 S.Ct. at privilege. The immuni- stitutional ty” “use simply requests the witness Court’s fear is if the approach second decision that faced —a protected to an- refusal imperative, with the the gov- prior trial, the swer to the criminal compelled trial court must exclude testi- effectively ernment could short-circuit mony approach in criminal This a trial. privilege by compelling the trial original the is closer view anticipation in introducing and thereafter of a trial protection Amendment’s as a By compelling an- them. the restricted to the criminal trial than swers, could abandon majority’s position. The fact that dependent investigation in of forc- favor history seen Fifth Amendment has identify individual to himself expansion of the may situa- suspect, providing a the first criminal claimed tions where in antici- be By prosecution. “link in the chain” danger pation of use validating a witness’s refusal answer way court no relieves the context, the outside criminal trial deciding responsibility whether em- Court for removes incentive during applicable it is claimed ploying compulsion him, effec- accepting trial. Even course tively relegating prosecuting officials majority’s assumption that Sullivan rec- thereby independent investigation, and ognized as a defense securing privilege’s purpose. partic- prosecution for failure to answer logic priv- extending Court’s ular a tax there ilege beyond not unas- context is trial logical assuming for basis sailable, assumes, perhaps un- because it thereby meant to eliminate warrantedly, that the answers privilege. Precisely opposite trial would trial. admissible at later allowing logical conclusion— fact, ways always there are almost two operate both before a court to remove incentive purpose in at trial best serves the Court’s prosecutorial circumvention a defend- extending preventing trial to re- ant’s first sys- circumvention of an “accusatorial cognize privilege prior to a criminal tem.” trial to refuse answer. The second initially, require ap- importantly, witness to More the alternative upon and, proaches provide invocation of his available to the court sarily apply. problem I of rec indicate when should solution to the reasonable onciling certainty, majority’s government’s in need in do not the for share the dictum, the purposes priv the reliance on the Sullivan privilege of formation with the ilege presented by “neutral,” applicable self-in- a when informa is criminating question Be- regulatory inquiries, is first asked. tion-gathering, en privilege compulsion. at by statutory asserted his cause Garner forced majority, earlier, trial a refus- indicates that rather than as defense as noted necessary to de- privilege applicable answer, in is it considers ap- (n.14)— privilege regulatory inquiries becomes cide when the first context of case; agree plicable complete in event respect in either in this we are trial of incrim to exclude the answers Ordinarily, coercion entitled ment. they Nevertheless, gives involuntary. inating claim if rise a answers considerable not be rationale selected is of of result should —the reconciling consequence, by the coercion is both altered the fact government’s regulatory need for created a neutral statute. protec- potential overwhelmingly a tion, need for non-crim defendant’s No matter how substantially pur different apparently innocuous inal pose sys for, depending on inquiry, are called of decisions self-disclosure applies. when and substan tems contain a too obvious potential prose in criminal for use tial privi- proper I think it sustain ignore Fifth Amendment cution dangers lege in exclude com- the courtroom to point created. of view From pelled where the situations individual, of the witnessed Gar privilege might a not be a defense situation, most innocuous ner’s even the failure answer those incriminating may call for questionnaire. questions in Par- same excluded from answers. Were these context, ticularly regulatory a dif- opportunity scope privilege, complex involved in ferent of values is comprehensive schemes would arise for deciding applicability self-reporting in non-criminal areas nonpros- in each instance. Substantial containing data numerous become banks purposes ecutorial social served are activity, avail “admissions” light compelled Analyzed in disclosure. prosecuting without limitation to able possibility prosecu- of the attenuated computers poten authorities. use of analyzing govern- answers, torial use of the capable tially re data and pre- reasonably ment’s interest porting makes both criminal violations recognizing privilege clude a court from danger real, substantial, inquiries. to refuse to answer the When governmental unfettered exercise trial, how- answer is introduced at power degenerate may pattern of into a justifying purpose ever, the non-criminal extracting use forms for confessions on compelled responses served has been application prosecutions. later weighing involved, different decision pur the pose fulfills the traditional complex a analyzing and re- different of values removing to fall into the incentive governmental threat oppressive prosecutorial con modes misconduct. duct; “. to do other-wise of the Fifth There be no violation ultimately widespread erosion license initially compelling an- Amendment in through ‘ingeniously drawn incriminating, swers because even if ” legislation.’ Marchetti, they required in a “criminal are not case”; “privilege” the violation of the approaches seeks arises when the Because of the alternative compelled crim- applying introduce evidence available compelled self- apply inal The fact that trial. fact that the should per constitu- se a regulatory incrimination is not neces- context does point one limits that the Fifth indicates tional violation introduced, there language primarily con- evidence Amendment longer socially purpose a neutral is to the courts stitutional directive being served, the threat of admissibility types and a break- testi- of certain system a down of the accusatorial and mony trial. in a criminal and evidence reality. whipsawing of defendants a purpose prevent exercise of is The is to governmental power remove relatively Supreme Court’s few gov- prosecutorial burden from pronouncements application defendants, place but it on and ernment privilege regulatory in the area of self- accomplished by the method which it is inquiries open ques- disclosure leave simply the of evidence—an- is exclusion approach appropriate. tion of which compelled or been swers which are (p. As the indicates against person out of the mouth of the distinquished Court has two between they sought whom to be used. are types different of disclosure statutes: clarify important whether Thus it is designed those elicit information about (a) possible exclusion for the basis specific specific group activities from a statutorily com- of the tax return is that inherently suspect of individuals of crim- pelling self-incriminating answers his activities,10 asking ques- inal and those purposes Fifth violated the face, public tions neutral on their tainted answers Amendment and at large, purposes, for valid neutral social they return, when filed the tax so require self-reporting. and which De- by privilege when were excludable spite Sullivan, the dictum in the Court proceeding, introduced in a criminal later recognized privilege never a (b) priv- while Garner was fuse to answer of the second ileged questions, to refuse to answer the variety, privilege whether the is assert- statutorily privileged prevent he is ed a total failure to file a return or compelled from introduction specific questions. claimed as A give they trial then a criminal priori, the Court has never validated cognizable rise to a Fifth Amendment majority’s notion that danger. approach, by recogniz- The first by a be asserted available must ing answer, a not to which the questions, refusal to answer neutral only prefers apparently answering seeking rather than required thinks nature they to exclude the later answers if are prospective threat a balances fact, offered at a criminal trial. the answer in the future majority completely misconstrues the judicial proceeding criminate a point of the distriction between the two against government’s need for non- types which, anything, inquiries, pro- information. It creates a suggests the course Garner took phylactic rule which states that the non- invoking prefera- was the compel- purpose criminal social not as ble, only, if not the method. ling danger governmental as the cir- privilege’s purposes, cumvention of the Sullivan held did gov- justify but does so a context where the failure to total file danger extravagant ernment’s need certain and the since less claim method of speculative. is not necessari- choice was available. In the ly serving between one If or the other. Marchetti-Albertson11 line of cases government may compel activities, communists, persons dealing self-incrim- inating long drugs. admissions from a witness so unlawful given immunity as he is from their use States, Mm. 11. Marchetti v. United (1968) ; 88 S.Ct. 19 L.Ed.2d 889 Grosso possessors instance, For fire- of unlawful v. United arms, persons engaged wagering (1968) ; Haynes in unlawful v. Burr, recognized States standard of United itself,12 reversing Court, (1807), 14,692e p. No. 25 F.Cas. defense to aas and Hoffman v. United register returns failing file 95 L.Ed. variety statutes non-criminal under be honored a claim of of activities requiring disclosures appears “real and substan- that a stat “permeated with criminal areas honest possibility tial” exists that distinguished Sulli utes.” chain provide a link in the answer would fil requirement the return van’s incriminating While evidence. by pointing differences out the ed prove (390 witness cannot inquiries U. types involved two claim, of since to do so would basis his 697); the dis thus at 88 S.Ct. 48-49, S. subject is review upon abandon the claim to it, majority relies the tinction which prevent obviously to frivolous claims. distinguish the in which cases serves to impossibility adminis- Because of the of in may and those refuse to file defendant tratively reviewing return a claim no ir not, and is somewhat which he filed, privilege Nevertheless, is the extension of the in case. relevant Garner’s subjected would tax Sullivan the of are the on the Marchetti line cases as system bogus priv- to of the ly invocations the Court ex instance which has ilege. of the in the regulatory Because difference answer a cused a failure to inquiry, questions, danger the of fraudulent underlying dis reasons compelling claims was far determining less in the tinction are instructive cases, Marchetti line the relevance of privilege applies the issue of when the being the distinction to determine when regulatory in the context. a defendant could fail to file a return. original distinction reason The rationale of the distinction —the trying a court a “failure-to- was that making Sullivan Court’s fear the tax- prosecution, questions file” case of payer judge of the merits of groups per- his case— suspect in areas at directed clearly cuts favor of the course Gar- statutes, could meated with criminal By answering asserting ner took. far more certain that the reason for the privilege trial, subjects at Garner refusal to file that the call- was privilege claim of incriminating. Albertson, to the acid not test: ed for were whether the answer substantial at 79. See California v. possibility being incriminating, 424, 1535, majority’s whether it is so in (1971), fact. The J., at (Brennan, dissent- suggestion ing). objection failure claim Garner’s to the Sullivan extending the return him makes court to allow “the final complete arbiter of the of the merits failure to file a tax return (p. 5, 24-30, claim. p. 5a, .” taxpayer it made the sole illogical. judge completely 1-11 and n. the merits of his claim. Under defendant, States, by entering 85, 722, choice of the not vol- 390 U.S. 88 S.Ct. L.Ed. untarily (1968) ; Leary 2d conduct made failure to v. United rejected concept file criminal. Marchetti 89 S.Ct. 23 L.Ed.2d 57 implied (strictly speaking, (1969) ; “waiver” it Albertson v. Subversive Activities all) filing require- Board, not waiver at Control because the 382 U.S. past (1965). ment focused on acts and because the apply prospective held to rejection acts. While the Court’s 12. Marchetti overruled v. Kah- United States controlling, riger, “waiver” in Marchetti is not L.Ed. opinion neither reflects and Lewis v. hostility implied Court’s nor “waivers” L.Ed. 475 give required scrutiny regis- the cir- does The Court had reasoned that since the present imply- requirement cumstances ing case before tration and return dealt with acts, prospective such “waiver.” See there was no valid claim of privilege involved, statutory 88 S.Ct. 697. com- pulsion entirely to file could be avoided some, all, questions if not of the interjection at where of the Garner’s purposes, only even neutral when situa- served answering, after trial, result, income. As a not, ex- criminal to some directed at tion does gave the non- less deference to his claim.13 tent, judge merits of recognized in possibly which it goals, im- Hence, not allowing Marchetti, defeated them be “vol- munize himself prevent governmental unteering” return. circumvention information on a system. pres- accusatorial that a criminal includes To the extent Byers Sullivan, case, reasonably ent formation not called attempt overt do reveal an questions, statu- answers are not whipsaw subject torily The relevance compelled, defendants. and hence regula- difference either introduced a claim of when tory pre- compelled which are statutes neutral at trial. As to those answers statistically hearing possibilities judge sent statutory penalty, small do come self-incrimination determine claim will all, within the ambit of the whether fact incrimi- the answers are in goes privilege may nating, than, majori- rather as under agree ty’s claimed. preferred approach, Since the I there whether privilege applies case, that possibility the is a that substantial refused presumably the the dis- answers incriminate. offers Again, tinction the latter for reason. A second reason for distinction the is oppo- the precisely draws the permeat- inquiry that when area is the of by site from conclusion that warranted anyone filing statutes, ed with criminal By the rationale the distinction. al- claiming return, a one a even lowing suspect variety the Marchetti thereby a himself as identifies criminal — challenged by statute to be a total fail- system undermining the accusatorial file, relegating challenges ure to and investigatory stage. Again, the the non-suspect type neutral Sullivan stat- thrust of the distinction aimed at de- either be utes made on the termining complete when a failure to by asserting answering a suggests justified, file is that when subsequent (the at a trial point has never the intrusion on Fifth Amendment values been decided), the Court indicated that immediate, less the defendant should government legiti- when pursuing the relegated be priv- to an invocation of the mate goals, application non-criminal the ilege gives greater in a manner which should be a manner scope government’s interest, to the such that allows as narrow an interference as as Garner’s method. possible preservation consistent with the purpose protection. third of path of the distinction is that a inquiries statute which used is directs more consistent with the permeated an area majority’s ap- Court’s rationale than criminal stat- the proach. utes predomi- alerts answering the Court fact that fulfills prosecutorial entirely nance of goals over the neutral neutral the aims of suggests and the approach concealment of may Fifth Amend- Garner’s dangers. ment ultimately emphasized by The Court determined the Court as every question proper the requirement reconciling gov- method of identify Marchetti regis- tended to ernment’s neutral priv- aims with the criminal, trant ilege.14 as a Sullivan, unlike See predominance Harv.L.Rev. 915 n. 9 impermissible of purposes served. He felt that Sullivan and 14. In Marchetti inquiries Chief Justice Warren would Marchetti should not be treated adopted immunity by the use differently desired both situations offense to —in preserve purposes order to neu- of results taxing purpose statute, tral despite prosecu- transmittal information thereafter,16 whether required nor plurality anything in the there Nor is stop after the derived opinion15 in California criminal trial. a introduced at (p. n. majority relies Byers plurality way, majority’s Read this de- support the n. by standards Sullivan—it clarifies are admissi- cision that Garner’s file is to be answer or which failure to claim a did not ble trial judged light Marchetti. anything, return; if suggests plurality opinion opinion reasoning plurality type non-suspect case of a Sullivan asserting supports Garner's method probability of quiry poses a low slight privilege; extension the en- over assessed incrimination when require it. plurality’s approach questions are di- whom the tire class at plurality The rationale of rected, is such of interests the balance in ob- non-criminal interests since the taining facing high person risk that even a identity outweigh a driver’s initially, and must answer incrimination danger face of incrimination drivers privilege at trial. The Cali- assert his cannot be asserted class, Supreme held that absent fornia failing as a defense for Byers privileged immunity, use particular driver, even he faces a sub- if identify stop himself refuse Again, stantial risk incrimination. in an accident to do would involved so solicitude for non-criminal Court’s noting plurality, incriminate him. The supports interests served disclosure purpose, neutral need for statute’s claiming priv- Garner’s method ilege. general self-reporting, direction at the disregard Were both the one danger public, and low self-incrimina- plurality fact considered thought tion, the ease controlled Sul- identity non-testimonial opinion, plurality’s I livan. As read the subject hence not to a claim of they question answering the were was having explicit and of de- its disclaimer Byers’ stop whether failure to and identi- privilege cided whether was available fy failing equivalent the himself, to of identity disclosed,17 after to was and Sullivan, constitutionally in file plurality’s opinion read the to hold that privileged. Supreme The California the whenever neutral interest receiv- was; plurality Court said it the said ing dangers outweighs the the answers that, Sullivan, immunity inas no use posed of incrimination the class, required. Particularly plu- because the answer,18 individual must then Garner’s rality thought Byers' identity non-tes- asserting privilege method of the his is California, timonial under Schmerber v. opera- one available. To assess the 16 L.Ed.2d tion the of statute from a over- societal 908 (1966), its rationale indicates that view, in the terms of interests served and the precise decision is limited to the is- the of posed, risks incrimination would sue of a stop priv- whether failure to determine quirement whether the disclosure re- ileged, attempt and was an overt decides neither to what con- be use, reading effectively Byers 18. a tonal Such would both situations restriction suggestion adequately protects “overrule” use of the Sullivan required by par- dictum. defendant. at 88 S.Ct. 697. majority questions poses rejected The proach ap ticular on tax Marchetti returns danger thought low because it incrimination when as viewed the neutral goals probably statistical lower that than statute unseverable. matter — by persons stopping give faced their iden- justices dissented, thinking Four Marchetti tity after car accidents —and otherwise con- controlling. Justice Harlan concurred neutrality forms to all of the indicia of plurality, result reached for sub- important by Byers plurality. found stantially different reasons. given answer would therefore be have to 16. 402 U.S. at n. the tax return. 17. Id. 232). majority (p. system If the reporting crimination intended struct imply claim at circumvent that Garner’s

whipsaw means defendants standard, judged'by policies. trial be If should Amendment might Fifth majority appropriate defeat of its not, not to then the flies face recognition per regulatory disclos- own interest served Hoffman, particular sonal and the fact that under case revealed ure even if the Burr, cases, high and a potential prosecutorial use welter other privilege is available when the individual the answers. possibility faces a substantial self-in mean, This showing illicitly crimination—-not on a privilege is apparently thinks, governmental ap intended action.20 An to exclude thereafter unavailable recognizes proach on answers;19 compelled fact, it must be ly question manifestly when a intends requirement available reconcile open path incriminate would disingenuous a broad regulatory inquiries answered pur circumvention protec- with the for constitutional need poses approach appropriate, both tion. ultimately Whether the Court holds judging complete to file and failure taxpayer that a has a to refuse preclude particular questions to answer on his re- only if witness is allowed logic or, suggested by turn, under when the social assert Byers plurality opinion, holds that a tax- purposes intended balance is payer must first answer the govern- accommodate and the are served and assert the trial, Garner using solely to ment the information is entitled to have his tax return exclud- extend convict him. A decision not to ed. protection anticipates to a who “witness” approach, Under the latter answering in a will incriminate him complete return, priv file a and the subsequent criminal trial balances com- ilege setting— is returned to its historic pletely than those different interests that of the criminal trial. To have his volved when are introduced the answers claim of re sustained trial, trial. At aas excluded, turn Garner must Byers (402 show that Justices indicates pursuant statutory answered to a direc 437-442, the risk of tive which contained weighed sanctions for not incrimination must be that fac- answering, and that in particular his answers were ed the individual criminating. precisely That seeking is what he majority, to answer. The in has shown in distinguish governmental this case. compulsion the U.S.C. 7203 § any makes it a crime to fail to file re this case from that declared constitu- pay turn, any tax, any tionally supply or impermissible informa in Marchetti and optional tion. Miranda, Answers are emphasizes not or vol the fact that the untary group prescribes up queried by $10,- statute income tax returns, —the year jail 000 fines and whole, one the for ñoñ a low risk faces of self-in- identity Byers is untenable. It is difficult for me determine would how regulatory majority Byers plurality opin- be admissible because neutral the reads the quiries majority, do not raise a valid ion. The claim the same it cites time despite Byers high proposition individual risks of the incrimination that the returns precisely reason, (p. 232), (cid:127) —for the same should be Garner not excluded advances privileged (see incompatible argument to refuse to the that Garner was 18, supra), privileged respond; n. point and his answers would be the whole Byers plurality opinion admissible at trial. that Byers privileged. If, was not so as did the original “group assessing (p. 236), majority 20. A the risk of dissent focus” reads posed by inquiry Byers compelled identity incrimination advocated to mean that majority rejected by subsequent trial, is fact admissible Byers. majority implied position then the “waiver” the ma- jority ground advances as the for its decision subsequent intro and it a forced extraction makes compliance. 26 U.S.C. § of the evidence.21 and subscribe duction person to make crime for a any he not believe return “which does privilege ul other if the hand, On the every material as to be true and correct filling timately out a is when available .”26 § . U.S.C. matter. . have been still should subject tax an that those commands privileged excluded to have his returns posed return. in the swer all trial; Mackey at his under Form, imme 1972 1040 On the standard The ma time. asserted at either signature line, diately one above jority’s opposite can conclusion be cor penalties perjury I reads: “Under only if no constitutional there were rect true, correct, return] declare is [this answering violation involved in Garner’s complete.” form At line 44 Despite majority’s questions. as taxpayer question to state asks priv about the nature sertions “(state income, telling him to “Other” majority’s ilege, the decision basis source)”. In nature The “1972 appears to be that Garner’s were answers page (Point 1040”, Form struction for given voluntarily:21a provided “Garner “Line states 44—Other-—Use on his return source of his income report line to and tell the source of privilege.” (p. and failed to invoke his you place income find for on cannot 231) Since the source Gamer’s ” your return other . schedules. income is information he is re page taxpayer At 3, column the cau is give quired under threat of forget occupa tioned: “Don’t to show providing objectively is involun space[s] right upper tions in corner tary. Nevertheless, relies just blocks,” security social below premise that since Garner page “you report then at 6: have to all by responding have refused to answer, income in whatever form received.” evidenced answers were not sub Among examples “Embez is included jectively compelledby the statute —hence illegal Thus, zled or other income.” voluntary purposes. for constitutional there no doubt that answers Garner’s produced by Because answers are statutorily compelled were within the proscribed compulsion, meaning Amendment; they of the Fifth him, reasons that as the statute does incriminating were have been should purpose not violate the of the Fifth approach. excluded under the second Amendment, and no there government’s interest coer assumption vi olation.22 Note cion, introducing subjectively answers volun trial, solely prosecutorial; as to that tary totally majori makes irrelevant the purpose, the Fifth Amendment embodies ty’s argument govern the nature of the constitutional decision that privilege precludes mental objection interests in criminal enforce Garner’s law standing ment justify alone do not trial —if there constitutional viola- See (1971). by 85 Harv.L.Rev. compulsion priv- coerced violates the ilege if it incriminates. majority, 21a. seeking to avoid the inquiry critical factual of whether Garner’s I have discussed the voluntariness incriminating “provided” answers Garner’s answers of whether there of his terms privilege, is a violation of his compulsion rather than own free or will because of to Logically, the under rubric of waiver. answer, question contends that of volun- opera- his answers are not extracted tariness here “diverts from the critical is- statute, tion of the is never a there consti- (p. 232). fact, sue.” In in all Fifth as Nevertheless, tutional claim to be waived. cases, Amendment is the critical issue. only. the difference is one form Under Although governmental the character of con- waiver, argument rubric is that a may vary, statutory penalty duct a for not by statutory claim is raised answering compulsion (com- is to answer by answering is coercion which not waived pare p. 232), involuntary voluntary. and an unless answers are of a waiver obviously Zerbst’s standard tion, there is right, known is the court directed trial. dulge presumption that he the reasonable assumption majority’s that Gar- presumption not. is reasonable did subjectively volun- answers were ner’s absolutely only there noth- is because entirely analogy, de- tary on rests ing on to make him the return itself States, 117 v. United rived from Shushan privilege, and aware of the is (5th 1941), and Stillman F.2d 110 Cir. knowledge that one not common re- (9th F.2d 607 Cir. return, questions on a tax fuse to answer opin- majority by the recited uncertain, also still because it is (p. 231-232), consequences of ion lawyer layman alike, that such failing privilege in a civil to invoke privilege indeed exists. trial. as the failure invoke Just giv- that the answers evidences analogy further unsound be- voluntary en in and are the civil trial are case cause even in the civil to which the exclusion, subject subsequent analogizes majority return, tax if the analogy runs, evidenced here Garner so prevented exercising witness were answer, that he was not coerced rejection privilege by his an erroneous may not be exclud- therefore his answers contempt, claim, his a threat or some analogy totally ed. The unsound for placed being other sanction on free his variety First, Mackey of reasons. privilege, exercise of the then when the logic. jects Mackey privileged introduced, evidence is later he has not wagering file tax return —the his voluntarily objection waived his and the doing did not treat so as indi- his precisely court must hear it. That is cating voluntary. his answers were majori- issue case Garner’s ty calling has assumed majority’s analogy away, his answers Second, the un- “voluntary.” applicability sound because the judicial proceedings is his- Garner’s failure to invoke the torically than in more certain other con- product is the coercion same thereby making an texts, answer on a tax produced incriminating his answers —the persuasive return far less evidence that threat of a criminal conviction under § given voluntarily, the answer is rather ignores 7203. The the fact that penalties than as a result of the for not when Garner answered the answering. indulge every “Courts rea- way for him to presumption sonable waiver” and get ap- determination of merits presume acquiescence “do not in the loss plicability privilege, claim if re- rights.” fundamental Johnson v. jected Service, the Tax assert- Zerbst, 464, 58 ing as a defense in a subse- (1938); Carnley 82 L.Ed. 1461 quent prosecution for failure to file a Cochran, complete judicial proceed- return. aIn In order to find judge if a disallowed claim by answering relinquish- Garner go could on and testi- ed protection the constitutional he would fy, Here without sanction. he must enjoy, otherwise should logically presumption choose rebut between alternative involuntary prosecutions his answer was under either 7203 or the —the majority presumes precisely opposite. gambling laws. The factual inference that his answers pre- this situation the voluntary are presumption rests treating cluded from Gamer’s availability Garner knew of the and “voluntary” by Garrity Jersey, v. New scope privilege. of his There is no evi- 385 dence in 87 L.Ed.2d this record 17 to indicate that Gar- ner privilege, knew of logic and under of a line of gambler 28.85], recently by losses cases,23 unani- tion whose reaffirmed § winnings re Turley, su- Lefkowitz v. offset his nevertheless mous Court winnings port gross all income and

pra, when a sanction indicate that as losses as McClanahan v. free exercise deductions. placed on the (5th resulting are not United 292 F.2d answers denied, subsequent 1961), vio- Cir. use cert. voluntary, and their Garrity Thus, 82 practical matter, 7 L.Ed.2d 130. as Fifth Amendment. lates in order for to a situation the Court confronted privilege claim a he to be return would police who were officers which questioned investigative privilege during enter hear- to a claim at calling for income, removal from lines his source of his were threatened profession, throughout they the return to answer refused office if answered; step step calculations are called questions. where The officers only for. He their claim would have disclosed his over admitted answers were figure. subsequent name and taxable income This at a of trial, subject him “The to reversed. the Court all, failure to file a return context held that . . . Klee, Cir., (9th v. F.2d from office States 1974), of removal threats interrogation Porth, responding was United States v. 426 F.2d act of to (10th voluntary Cir. and the substantial not an effective and was risk that a court would determine that self-in- waiver of the privileged he to do so under .” Lefkowitz Sul crimination. only livan. If he claimed a on at 323. Turley, Garrity profession where his line or source defined a waiver as “the free requested, admit, income was deny, to he would re choice to refuse veal Garrity the method of threat a civ- his answer.” In calculations gambler. that he (which arguably il was a Thus the sanction served valid “free required by choice” to purposes) refuse answer non-criminal sufficient to missing Garrity constitutionally make the answers invol- this case the —in being untary. choice is to run the risk Here the threat of a criminal convict judicial ed under 7203 because of a sanction—a conviction under de § § rejects termination that claim of he answered court too few questions, —should that his likewise make the in- did ex voluntary subjects, tend to certain a matter of law. or that his claim was invalid because under analysis particular facts standard he did not face a Hoffman’s foregoes of this case which the possibility real of incrimination. emphasizes Garner’s dilemma. He has strongest procedure priv- effective to invoke the indication that his an- ilege involuntary, however, swers are pro- return even if were aware provisions simply vided he had one.24 of the In- fact that no court gam- applicable ternal has ever Revenue Code held there is a provide blers different excuses failure to rules calculat- ing taxable the return. lawyer income than those I venture available that no non-gamblers. person whom filling A Garner consulted whose out wagering may come the tainty is derived from return de- could have told him with cer- wagering recognized duct his losses ex- law such a winnings privilege only tent wagering, might. of his He had — 165(d). Gambling U.S.C. to run the risk losses of a criminal conviction not be carried back or carried establish the over existence [See of his Mertens, Because Law Federal of that threat, Income Taxa- failure See, g., Spevack Klein, Harv.L.Rev., e. 916 n. 13. assumes, (1954). majority If, not the return does a on claim privileged was not answer not co- Garner to that his answers were indicate 7203; questions, by penalties on the then the constitutional viola- under erced contrary, § coercing evidentiary it tion involved in tarily involun- matter him as an requires strongly to appears invol- the an- the answers are govern- majority Garrity, is be excluded trial. The untary. swers Under may ment not precluded from con- use the information matter of law be- as a initially sidering voluntary, compel cause it or from it. the answers appli- holding that the is Moreover, regardless of when the exclude them. at trial to cable privilege first applicable, becomes this support ju- in the deci- case involves which a in situation majority, recognition25 suggests immunity” dicial “use sion not to exclude entirely Congress appropriate is for a “rational should decide whether 20). immunity” (n. imperatives appropriate accommodation between the is “use legitimate consti- and the de- It to me a fundamental of seems government adjudication compel confronted mands tutional citizens testify.” Kastigar legislative prosecutorial or action with a 446, 441, arguably in the Fifth conflict with regardless (1972). Amendment, mix L.Ed.2d 212 of what The Court among cently Congress might prose- principle reaffirmed the choose that the price taxing pay purposes, pur- it cutorial and is duty important goals sue decide whether the neutral court to is sufficient immunity privi- prosecutorial evidence violates lege. from the use of any required not need stat-

“A witness does information. v. Tur- Lefkowitz protect ley, 79, 81, 84, ute to incriminating him from the use of self- compelled rejection testimony immunity he S.Ct. 316. of use give objection. Marchetti, over The Fifth and Harlan Justice by majority Amendment takes care of that without a cited was rea- for Maryland, inapplicable present statute.” Adams v. sons situa- Here, imposition 98 L.Ed. 608 tion.26 of a use re- Commission, Murphy g., purposes depend Waterfront forcement E. which did not on compelled immunity information. Use would place what considered difficult burden proving independently evidence was ob- rejected tained, defeating prosecutions use In Marchetti which there Byers immunity prosecutorial purposes However, police was no taint. because the data-gatliering prosecutorial wagering indicated served both and tax statute were difficulty proving unsever- functions —hence face of the statute taxing pur- had been incidental neutral information used. able from the unwilling present pose. In the to substi- case different branches judgment Congress’ functions, and as to the the executive conduct own for two tute its taxing possible keep appropriate tax returns mix between inapplicable clearly (a)-1(f) purposes. sulated. Under C.F.R. 301.6103 § That reason (h), general income tax returns can transmitted under statutes — inspection prosecutorial informa- on a demand use of the use incidental Department, appropriately from the not at the Service’s can be severed Justice tion prosecutions. initiative, except raising paramount purpose in tax taxes. immunity prevent regulations rejected could be amended use Harlan Justice ap- procedures implemented Byers indicates transmittal reason difficulty proving propriate Har- freedom from ease the case. Justice Under balancing, approach relative ease the factor taint. Because of lan’s own present ultimately tipped in favor of “confiden- the scale which the holes system tiality” plugged, inapplicable finding can immunity prosecutorial imposition on so- I will be doubt valid efforts of a use immunity necessary cially informa- have the undermined use defeating en- law in tax returns. valid criminal tion effect given. involuntarily That paramount answer was Con- effectuates striction basis for raising by- inadequate constitutional revenue purpose gressional majority’s decision.29 dangers lead most which removing the reported to be either ought income judgment criminal reversed. misleading labels.27 reported under apply immunity would Becadse laws, to the tax prosecutions unrelated proportion only a small affect using tax prosecutions criminal of the Here, Marchetti, unlike returns. purpose severable cidental raising purpose in ob- revenue from the taining necessary for deter- al., et Donn L. BERIAULT making mining liability, a use Plaintiffs-Appellants, prevent the un- appropriate to striction prosecutorial of an- use & CHECK LOCAL SUPER CARGOES overriding advancing while swers OF the LONG ERS INTERNATIONAL Congressional passing the purpose in SHOREMEN’S & WAREHOUSEMEN’S .28 al., Defendants-Appellees. statute —taxation UNION et accepting No. 72-2118. declares Appeals, would create claim of States Court Garner’s n (p. “disquieting” “unpalatable” the 232) Ninth Circuit. every public response result July 25, 1974. subject would be to a claim in a criminal trial. when introduced

fact, response subject every would not be gov- many

to a claim accompanied inquiries

ernmental are not refusing

by statutory penalties are,

answer. As to those that the ma- recognize

jority purports total of an- to answer. Thus sum over is dis- swers

mayed given are those are when a claimed, but been those, not. Of if the fact, voluntary in then it not be

shielded a claim of This majority’s

leaves as anxiety real source prosecutorial windfall case

where no was claimed Bittker, Income, majority’s 27. See Federal Estate 29. The concern (3d 1964). appears Gift Taxation 117 ed. mean that “. current technological enabling progress the Govern- easily 28. The idea aof use restriction on infor- ment more to use an individual’s required by regulatory inquiries against mation statement him in a crim- uniformly approved been almost com- inal should matched See, g., Friendly, judicial mentators. e. frank contraction 720; Mansfield, The Albertson Case: Con- self-incrimination lest the Govern- Privilege Against using flict Between Self-In- ment be hindered modern tech- pri- nology crimination and the Government’s Need for to reduce individual further Information, 103, 159-66; vacy.” 1966 S.Ct.Rev. at 1556 McKay, supra, 232; Harv.L.Rev., (Brennan, dissenting). J., su- pra, at 922.

Case Details

Case Name: Roy D. Garner v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 11, 1972

Citation: 501 F.2d 228

Docket Number: 71-1219

Court Abbreviation: 9th Cir.