United States v. Roy Whitehead

in fact for same the two counts (8th (Harris v. States offense course, and, 274), 1956) F.2d guilty equivalent plea of a a nolo is the Hence, purposes. plea for waiver plea nolo waives hold that Hazan’s pun he was indicted his claim that same of capacities for the

ished in two (See Haddad v. United also fense. Cir.) de cert. 349 F.2d States Combs, Judges, McCree and Circuit (1965) nied O’Sullivan, Judge, Senior Circuit Berg 153; United States part. dissented in (9th Cir.) de cert. 176 F.2d 876, 70 nied (1949) 338 U.S. Hudspeth 537; Caballero 94 L.Ed. 545.) 1940) More 114 F.2d personal de over, jeopardy ais double

fense, raise it on Western cannot

Hazan’s behalf. Judge (concurring):

ELY, Circuit Judge principal Madden’s I concur Judge agree opinion, and I also concerning Hazan’s views Hufstedler’s urge, any right part his

waiver of doubly court, he has been our

jeopardized. America,

UNITED STATES Plaintiff-Appellee, Defendant-Appellant. WHITEHEAD,

Roy

No. 18607. Appeals,

United States Court

Sixth Circuit.

March Detroit, Shere, Mich., M. on brief

Joel defendant-appellant. Ralph Guy, Jr., Chief Asst. U. S. B. Atty., Mich., Detroit, plaintiff-appel- lee; Atty., Brickley, De- James U. H. S. Mich., troit, on the brief. PHILLIPS, Judge,

Before Chief CELEBREZZE, WEICK, EDWARDS, McCREE, PECK, COMBS BROOKS, Judges, Circuit Judge. O’SULLIVAN, Senior Circuit Judge. EDWARDS, Circuit presents appeal constitutional is- This panels court sues of this divided. selected have was been sponte for consid- the court sua en banc reargued the en- eration. It was before 1969 term of tire bench December question the court. The fundamental presented Fifth is whether the Amend- appellant’s on an ment conviction bars charging violations indictment hold tax laws. We federal alcohol it not. does Appellant was convicted seven eight-count counts of an indictment totaling concurrent terms sentenced to charged appel- years. The counts four custody control possession, lant with mash, making still, the trans- portation materials to unlaw- raw possession distillery, and the dis- ful the fed- spirits, all in violation tilled laws.1 eral tax discloses extensive surveil- The record Detroit, Michigan, house lance of the gal- ultimately the still and 800 where Appellant found. was of mash were lons (1) (B), (7), 5178(a) 5173(a), 5601(a) (1), (4), 1. 26 U.S.C. §§ 5681(c) 5180(a), (a) (2), 5179(a), 5601(a) (a) (6), (1), 5222(a) going carrying all, seen the house All into 60- there was both direct and sugar pound coming sacks of out circumstantial evidence from which the bags containing something paper jury could appellant’s have inferred heavy loading guilt in cars. beyond same Two on all counts a reasonable stopped by Ramsey Internal Rev- doubt. ears 248 F. agents. Appellant, enue 1957); who was driv- 2d 740 Chadwell v. them, one of Both arrested. 260 F.2d 257 1958). were found to be cars loaded with non- tax-paid whiskey. Thereupon a search Turning to the constitutional is procured house, warrant was for the the sue, we note that herein did found, still was was not seek to raise the Fifth Amendment dicted. privilege at Nonetheless, trial. we do Appellant contends that the evidence not consider the to have been was insufficient to sustain conviction on waived in this case and we elect to de including counts, several Count 6 cide this issue on its merits. See Grosso taining making to the of mash. He also States, v. 62, 63, 70, 71, 390 U.S. contends that various 709, 88 S.Ct. 19 (1968); L.Ed.2d 906 federal tax laws violated his Fifth States, Drennon v. United 393 F.2d 342 rights Amendment under Court (8th 1968); Cir. Greenwood v. United Marchetti,2 Grosso,3 decisions in States, (4th 1968); 392 F.2d 558 Cir. 4 Haynes cases. Manfredonia, United States v. 391 F.2d (2d 229 1968); Cir. Harris v. United appel- We believe that the evidence of States, 390 1968); F.2d 616 activity premises lant’s inland about but States, see Howard v. United 397 F. represented were acts which much more 2d 1968). 72 presence (see than at the site of a still urged We Romano, to hold these tax United States mea- sures they (1965)) unconstitutional 15 re- S.Ct. L.Ed.2d 210 or quire performance illegal only phase of certain assistance one affirm- of an acts; here, posting ative sign liquor (see of business Bozza v. at the site distillery, of a lawful States, the fur- U.S. 67 S.Ct. nishing bond, purchase of (1947)). Appellant affix- L.Ed. 818 seen was ing stamps filing of engaged reg- tax and the of in activities from which the istration jury Appellant information. could asserts have inferred that was he might carrying supplies illegal affirmative acts create for manufac- prospective some taxpayers liquor carrying ture some into a house and possible illegal situations liquor “hazards incrimi- out. He arrested was * * * nation driving are not [which] tri- while an con- automobile which fling imaginary.” whiskey jury tained illicit Unit- which the had States, ed every right U.S. product to infer S.Ct. was 706, 19 L.Ed.2d 889 operated (1968). by appellant. still alleged illegal As to the count emphasize which At the outset we mash, that we do not read these words as hav carrying heavy bags sugar seen into paper been written as a litmus test subsequently constitutionality. “compelled” house where the still liquor and some distilled were found. sugar bags empty Fifth were found in a Amendment has been held to offer Eight gal- protection. Every act, closet the house. hundred no mat voluntary, lons of mash were also found there. ter how creates some real Haynes 2. 4. Marchetti v. United (1968). L.Ed.2d 889 S.Ct. 3. Grosso v. United quiry permeated And

hazard incrimination. where an area with crim- legislation regulatory provides penalties statutes, response inal where perform questions might acts nor- the form’s failure to certain context mally ap- petitioners not the Fifth Amendment does involve in the admis- ply sion of because the omission is deemed a crucial of a element crime.” “compelled.” supra SACB, Albertson (cid:127)

We do not think Su yet preme provided Court has as a whol THE PUBLIC PURPOSE ly distinguishing clear rationale for con “essentially alcohol laws are taxing regula stitutional exercise noncriminal” revenue measures. tory powers Until from those situations the Sixteenth Amendment to the United wherein fatal Fifth con Amendment (income tax), States Constitution flicts are to be found. situa beverages provided on alcoholic the fun- proceed tion we with some caution financing damental United States and with strict construction case government. holdings appeared if the issue involved case, to be in doubt. In our instant Even after enactment of the federal however, we believe there is no reason tax, income the alcohol tax laws consti- for doubt. producing tute substantial mea- sures. important There are clear and distinc currently disputed tions between the As the noted: Fourth Circuit has provisions of alcohol tax and statutes 1966, spir- “In the distilled provisions those which were produced internal its billion in $3.7 held vulnerable to attack Fifth wagering scruti- revenue. tax grounds Marchetti, Amendment in the produced ‘in the in Marchetti nized Haynes also Grosso and cases. See years’ past only million. several $115 6, 82, at 721. 390 U.S. at 88 S.Ct. (1969). S.Ct. de- think the failure of these “We Underlying the of series cases designate place of manu- fendants Supreme which we have referred is the distillery post bond facture SACB, holding Court’s in Albertson v. the federal their wish to avoid due to gallon per on distilled $10.50 (1965). Supreme Court there dis- pro- spirits. alone The evasion of tax tinguished between the Sullivan case margin profit enormous the vides (United Sullivan, States v. whiskey business in the white (1927) ) 47 S.Ct. 71 L.Ed. 1037 delinquency here. for the accounts upheld

which constitutional re- as the Congress power of the lies well within quirement filing an income tax re- regulatory en- function to to exercise turn, requiring and an order a Commu- lawfully of such force the collection register nist furnish and thus Walden, taxes.” States due evidence of his violation of two federal 1969). 411 F.2d criminal statutes. omitted.) (Footnote case, Albertson the Court said: preprohibition the United In a provided de- this Supreme Court States questions “In Sullivan the in the in- of that scription tax laws of the alcohol come tax return were neutral on their description feel entire- day we which —a public face and directed at the statute ly appropriate to describe large, they but here are directed at a currently attack: under highly group inherently selective sus- cursory clear, upon pect even criminal activities. Petition- “It reading, ers’ claims well-considered are not asserted in an es- Revised Stat- sentially regulatory noncriminal minute ‘Dis- chapter entitled against inquiry, area found but utes XXXV., spirits.” Spirits,’ distilled Brown v. entitled tilled of Title adopted Revenue,’ 401 F.2d were ‘Internal denied, 1968), only, namely, purpose to secure cert. one payment of the tax spirits. law THE ON THE INDIVIDUAL EFFECT regulations manu- “All for the marking, storage Regardless, however, facture what we branding, numbering, stamping pertaining have written thus far spirits, stamps, purpose laws, with tax of the alcohol tax forfeitures, penalties, argue and all that the Fifth Amendment fines, prescribed imprisonments privilege depends upon no such balanc mentioned, chapter rights have to him. and is absolute as only however, view. the tax on dis- end If perceive, We cannot how the repealed, the in- objected tilled all affirmative acts here to can be genious complicated provisions compelling ap represent held chapter and pellant would become useless abe “in case to Ulrici, insensible.” United States witness himself.” U.S.Const. Contrary V. to the facts Amend. case, statutory provi L.Ed. 344 Albertson exposing high sions are not aimed at ly “a Returning language Al inherently suspect group selective bertson, statutory provisions at here prosecution criminal activities” to under tacked are “neutral on their face and di other criminal statutes. Nor find do we public large.” rected at the The man might compelled response here a beverages ufacture of alcoholic is lawful “the involve admission of a crucial ele under some in circumstances all ment of a crime.” states and the of District Columbia and generally taxes are collected from thousands apply These statutes do to engaged persons of including in liquor, lawful sale all who manufacture products. many persons organizations of distribution these who do entirely lawfully so of within the State expressed The Fifth Circuit has this Michigan. purpose find no to We here case'upon view in a which the suppressing aid state officialdom in ac- already Court has denied certiorari: generally illegal by tivities rendered “Perhaps prosecution if this had oc- state law. Marchetti v. United Cf. appropriate curred under an statute States, supra; Grosso v. United during that existed the short life of supra. Eighteenth Amendment to the Constitution, appellants certainly United States do find that We not here properly equate “Congress could their situation information intended ob- appellants consequence in it require- Marchetti. As tained as a of [the is, however, by are provided we informed of ments these to be statutes] government’s brief, prosecuting and it dis- is interested authorities.” puted, (a matter States, supra, of which we can take Marchetti v. U. judicial notice) possession that of dis- atS. S.Ct. at legal tilled is some extent in Nor do we find these statutes every fifty one of the states of the * * * purpose have “an obvious Therefore, union. find we ourselves engaged persons coerce evidence from in agreement in with those district illegal prosecu in use their activities courts addition to the trial court States, supra tion.” Grosso v. United here, which have held that there no (concur S.Ct. at 717 danger resulting of incrimination self ring opinion). requirement from the of- Sections 5205(a) (2) Indeed, 5604(a) (1) relating the alcohol tax statutes were placing taxing stamps purpose keeping per- drafted to the of of not, if ill-repute law. could he had This out the alcohol bev sons of tried, gotten any manufacturing Seaway list erage have his name on business. registrants U.S.App. of federal list Dillon, 115 because Beverages, Inc. v. denied, was a list of lawful distillers under both F.2d cert. D.C. state and federal laws not as gamblers Marchetti and Grosso a list of statutes —in And federal seeking whose under place expose a limited activities state class Judge suggests prosecution law. McCree’s dissent violators to state law might “attempted” Haynes)— that (Cf. Marchetti, have Grosso and permit told the feder- prohibit effect basic issuance a al finding operations his intention to make pro authorities “that the a whiskey premises. person white posed residential such to be conducted Since there would have been no conceiv- are in violation of the the State law able they federal from benefit to be conducted.” disclosure, perceive a cannot it (2) (C) (1964). we how U.S.C. § any “compelled” could be deemed prior securing Absent basic Amendment sense. Fifth permit showing appellant’s We find no abuse of Fifth law, greatly it state be doubted rights. Amendment any other of the affirmative acts required legal prerequisite impres manu- While is a case of first beverages court, alcoholic facture of under sion fed- in this we are no means (i.e., posting bond, securing plowing ground eral law new federal law. distillery posting sign, securing many Three circuits District Courts affixing stamps) already could ac- have reached the conclu same tually performed. Fricano, be sion. F. United States v. (2d 1969); 2d 434 States example, For Title 27 203 makes it 1969); Walden, 411 F.2d 1109 manufacture, ship unlawful or sell Wilson v. United 409 F.2d 604 spirits, pursuant except (5th Cir.), denied, cert. permit the basic referred to above. And (1969); (if hypothesize in this case we Thornburg States, United 406 F.2d v. ability compliance his to show with state 1969); (5th 1060 v. Cir. Grant United law) could not have received such a ba- (5th States, 1969); 407 F.2d 56 Cir. permit sic spir- distilled States, Hall v. 1320 United 407 F.2d premises its on the in this ease involved 1969); (5th v. El Cir. United States flatly prohibits because 26 U.S.C. 5178 lington, (5th 1969); 406 F.2d 348 Cir. plant any dwelling such “in house.” States, F.2d Shoffeitt United 991 v. 403 possibility appellant’s self-in 1968), (5th denied, cert. 393 Cir. by compliance crimination dint of actual 1084, 868, 89 S.Ct. statutory provisions with the (1969); States, attacked Anderson v. United 403 considerably herein “purely is less than 1968); F.2d 206 Brown v. hypothetical.” Minor v. States, United United 401 F.2d 769 Cf. States, 396 U.S. 1968), 90 S.Ct. denied, 24 L. 394 89 cert. S. (1969). Ed.2d 283 (1969) ; Ct. United Young, (E. F.Supp. States 284 1008 summary, statutory provi- 1968); D. Tenn. Rich States v. sions attacked in appeal are a far F.Supp. (M.D. ardson, 284 Ala. cry 419 statutory from the provisions invali- 1968); McGee, F. United States v. Marchetti, dated in Haynes Grosso and (M.D. Supp. 1968). Contra, Tenn. which the Court held deliber- Fine, F.Supp. United States v. ately sought expose regis- federal 1968). (E.D. Tenn. prosecution. trants to state Here feder- al prohibited is judgment unless the of the District Court is registrant with state affirmed. Judge McCREE, (dissenting involving relationship sions Circuit between part). this right and the' Government’s require person, upon threat of appellant’s conviction I would affirm prosecution, poten provide fermenting making on and count for tially incriminating information, the Su lawfully qualified premises on not mash preme Court has decided that “The cen spirits production for distilled tral privilege’s applica standard for the (1) 5222(a) of 26 violation U.S.C. §§ tion whether the claimant is [is] con 5601(a) (7) aid- and and count for on ‘real,’ fronted substantial and not ing assisting use for of a still and merely trifling imaginary, hazards of spirits production in a incrimination.” Marchetti v. United dwelling in violation of 26 house U.S.C. States, supra at 88 S.Ct. (em at 705 5178(a) (B) (1) 5601(a) and §§ phasis added). Accord, Unit Grosso v. Appellant’s only objection to his convic- ed these counts is directed to tions (1968); Haynes L.Ed.2d 906 sufficiency uphold of the evidence 88 S.Ct. 19 L. convictions, agree and I (1968); Leary Ed.2d 923 uphold evidence sufficient to them. 23 L. however, would, appellant’s con- reverse obligation Ed.2d 57 If the carrying on the victions on count “ provide information creates ‘real and giving business a distiller without appreciable,’ merely ‘imaginary and not bond 5173(a) violation of 26 U.S.C. §§ unsubstantial,’ and crimination,” hazards self-in 5601(a) (4); and on counts 3 person cannot be crimi possessing transporting and 4 for nally punished refusing comply. having not containers States, supra Marchetti United required affixed thereto stamps in violation U.S.C. §§ 5205(a) 5604(a) (2) (1); on count outset, At the it should be observed possessing unregistered 5 for still inapposite this standard renders violation of 26 U.S.C. §§ one of the factors relied on the ma 5601(a) (1); carry- count 8 for jority distinguish Marchetti, Grosso, delivering raw materials to an Haynes present from the distillery sign unlawful at which no majority points case. The out that the posted in violation of 26 U.S.C. §§ alcohol “essentially tax laws non are 5681(c). 5180(a) and I would reach criminal revenue purpose measures” that the appellant’s this result because refusal to of the disclosure is to requirements with the securing payment facilitate upon which these convictions based en aid law proper was a exercise of his fifth forcement officials in their efforts privilege against amendment self-incrim- against illegal manufacturers dis may ination and therefore he not be spirits. However, regardless tilled criminally punished for his failure to Congressional purpose for inclusion comply. See Marchetti v. United provisions of the disclosure in the alco 61, 697, 39, U.S. L.Ed.2d laws, hol tax refusal with provisions these punished criminally cannot be provides, fifth The compliance amendment if would create sub ** * part, person tinent that “No stantial and real hazards of self-incrimi compelled any generally shall be criminal case nation. See Counselman against 547, be a Hitchcock, 585, witness himself 142 U.S. 12 S.Ct. jn serjes (1892)1 a deci- question 0f recent 35 L.Ed. 1110 The interesting speculate legitimate Congressional purpose, It is on the effect a privilege against suppression activity, on the self-inerimination since the of criminal jjermit areas, legitimate of a doctrine which would in in certain would be a fringement Congressional purpose. of the if occasioned us, appellant Indeed, then, before “* is whether manufacturers * give may compelled spirits prime example evi- are of this. Al though may dence himself.” Marchetti v. “group distillers not be a States, supra inherently suspect at United of criminal activi ties,” they at 704. are involved in a business subject which is extensive state and Considering substantiality of the Michigan, liq federal controls. risk self-incrimination if industry permeated uor is an area provisions complied with the disclosure statutory requirements, violation majority laws, of the alcohol tax criminally punished. See, can be degree concludes that risk in- 436.2, g., Mich.Comp.Laws 436.1, e. §§ “considerably ‘purely volved is less than ” 436.17, 436.32, 436.19, 436.22, 436.50. (1) hypothetical’ the disclo- because Moreover, at the time was en pub- sure “directed at the gaged illegal dis large” highly lic “at a at selec- spirits, tilled there was a re inherently suspect group of criminal tive quirement that certain internal SACB, activities”, Albertson v. persons offices maintain a list of who 86 S.Ct. paid special had taxes assessed doubtful, (1965), (2) it is because spirits the manufacture of distilled event, any whether any prose this list be furnished to opportunity perform ever have the cuting state, county, officer of or the affirmative acts of disclosure. municipality upon request. 26 U.S.C. § compliance Admittedly, a statuto 6107.2 There is therefore sufficient at ry provision requiring the disclosure tention focused manufacturers greater activity creates risk of to indicate that the haz the disclosure when ards of self-incrimination attendant on “group in requirement is directed at a compliance provi with the disclosure activities,” herently suspect of criminal sions of the alcohol tax laws would be since it identifies discloser as a trifling “merely imag than more suspect group. Leary member of the inary.” States, supra, 18, 89 United important inquiry then is wheth- S.Ct. at 1539. See also Marchetti v. er, reality, hazards ever would supra 88 S. U.S. materialize. 697; States, supra, Cf. Ct. Grosso v. United L.Ed.2d 57 89 S.Ct. However, 390 U.S. at 88 S.Ct. 709. (Buie (1969); Minor v. United States group subject the character of the to a States), requirement certainly disclosure is not by itself determinative the substan “great- majority concludes is tiality of the risk of self-incrimination ly prerequisite to be because a doubted” compliance attendant on with such a re pro- disclosure with the quirement. requirement Even if the is visions of the alcohol laws inherently suspect not directed at an securing permit, a basic 27 U.S.C. group, the risk encountered as a conse (1), Secretary 203(b) and the quence compliance may still be “real issuing Treasury prohibited from appreciable”. though provision repealed, Internal Revenue is no 2. the Service This was effective compile longer required 1968, by 203(a), to a list of December Section pay special 196S, sons who the alcohol II Title Act of Gun Control prosecuting 90-618, of- Cong. and to furnish this list to Pub.L.No. 1968 U.S.Code ficials, Congress Adm.News, p. “neither has ex- & but this does not plicit infor- restrictions the use of affect the relevance section of 6107 to the consequence pay- substantiality mation obtained as a of of the risk of self-incrimi confronting appellant the tax.” ment of Grosso nation at the time illegal activity. at 88 S.Ct. at 712. 390 U.S. of his See Albertson v. SACB, See v. United Furthermore, n. S.Ct. 697. at al- pro- States, supra, 91-93, permit operations “the 396 U.S. at when basic * * * posed to are in conducted 284. be State violation of the law of the practical compliance The barriers to they are to 27 U. be conducted.” by appellant confronted instant 204(a) (2) (C). S.C. § case are not as artificial as those Leary, they on the neither effect but are The substan- as Although practical tial self-incrimination barriers as those Buie. of a basic permit compliance prerequisite provisions re- is a to the to actual with lawful illegal activity quiring de- spirits, disclosure of the ab- pends permit might pre- on the nature of the barriers. sence such a not States, supra, Leary appellant complying the v. United clude from Gov- the with provision requiring sign post no ernment contended that was there him at the substantial risk of self-incrimination be- the site of still. 26 U.S.C. § unlawfully 5180(a). one cause who intended Under the terms of stat- the regulation purchase adopted pursuant would know he marihuana ute and the thereto, not form which apparently could obtain the order could have incriminating questions complied requirement merely the contained with this by consequently apply fabricating sign containing never for would re- the quired installing it. The Government that also contended information it. buyer sign apply even if the did for an order See 26 C.F.R. 201.235. Since “a § form, placed conspicuously it the was doubtful that unsuc- the front outside application exhibiting cessful would revealed the [of be entrance still] and Id'., legible readily law enforcement officials. and durable characters 18-20, (a) proprietor, real name of (b) the the rejected number, plant (c) designa- the Court both of contentions appreciable” business”, and concluded that “real tion of the kind of 26 C.F.R. 201.235, did con- operation hazards self-incrimination would disclose the § still, Leary Congressional front I think because the hazards of intent, by as revealed crimination attendant adopted, unlawful with 26 scheme was that an U.S.C. “real and § purchaser appreciable”. Accordingly, be able marihuana should hold would criminally pun- an order form. that cannot obtain be ished for comply his failure to hand, the other On v. United Buie statutory provision. States, supra, Court decided practical by necessity permit one barriers encountered basic unlawfully prohibition who were suf- sold marihuana on its if the issuance ficiently proposed operation preclude insurmountable violates the laws actually probably possibility real would state “liter- that he would foreclose require- compliance” comply with al the order and full form with the statu- thereby tory provisions requiring ments and himself. incriminate Indeed, register qualifica- it was the Court’s deci- the still and to earlier file a 5179(a), sion reduced the hazards tion bond. 26 U.S.C. §§ (a). However, point permit require- to the where basic they “imaginary prevent appellant from ment unsubstan- attempting comply registra- tial” far as the as seller concerned with the pur- qualification because its decision relieved tion and bond obligation submitting application. chaser marihuana his no an There is obtaining provid- statutory requirement order form and ob- a distiller opportunity permit prior filing ap- the seller with an tain a basic requirements plication qualifi- its there- and a Also, pursuant incriminate himself. Buie cation bond.3 to 26 U.S. qualification registration. application 3. The bond is filed the same time 26 U.S.C. 5173(a). Leary shall, 5171(a), “Every person be- Court’s decision in is the notion C. § regardless whether, reality, continuing commencing that in the or busi- fore * * * purchases illegally appli- one marihuana who of a distiller make ness form, attempt registration would to obtain an order of his still. cation” for the Court, analyzing added). Accordingly, under the in the substantiali- (Emphasis self-incrimination, ty adopted by the statutory risks Con- the scheme gress, would assume that this was realistic can the a distiller file purchaser.4 alternative for the qualification form bond simultane- ously request for a with his basic Therefore, regard even to the with Moreover, likelihood a dis- the that mit. bond, qualification registration, and rev- by the do is increased tiller would this requirements, stamp enue the hazards lawfully distill- fact that he can obtain confronting securing ing apparatus prior to basic greater confronting than those permit. Buie, In the that Buie. Court concluded opportu- the seller never have an would Similarly, would not be also nity complete to order and dis- the form precluded attempting procure from to illegal activity.5 Appellant, on close his stamps the must af- be hand, by attempting comply the other spirits. fixed to containers requirements with the of 26 U.S.C. §§ 5205(a) (2). Again, the U.S.C. § 5173(a) (2), 5205(a) 5170(a), compli- full likelihood of “literal engage would in reveal his intention small, purpose of since the the ance” spirits.6 the manufacture of distilled stamps is to evidence laws. the alcohol the course, potentially Of the in- whether However, determining appel- whether criminating provided by inforcnation the attempt comply lant would with this attempt comply would, reality, ever requirement, with those be used law enforcement officials to “ 5173(a), sections doubt forge a ‘link in the of evidence chain’ that, permitted speculate that we are tending guilt,” to establish his reality, attempt obey he would not supra, v. United 390 U.S. at Implicit thus, law. 88 S.Ct. at whether assump- problem “self-incrimination”, 4. not made this If the Court had nate the substantiality tion, ordinarily of in- risks In as that term is understood. confronting Leary present crimination would ease it is the distiller himself greater obligated have been no than those confront- who is to disclose his activities. words, if Buie. In other the Court 6. fact re- that would be judicial took notice of fact vealing an intention to violate the law at not, purchasers of marihuana do may some future time reduce the sub- reality, attempt the re- stantiality of the risks of self-incrimina- obtaining form, quirement order tion, but not make risks it would confronting the risks of self-incrimination trifling imaginary. “We see no reason Leary have been minimal. Ac- suppose the force of the constitu- cordingly, significant be- distinction prohibition merely tional is diminished Leary tween and Buie would seem to be guilty purpose because confession of a attempted could have to ob- precedes subsequently the act which it is form and him- tain an order incriminate * * * employed to evidence. [A]l- not, self where Buie could since the though prospective will doubtless acts obligation procure order form is ordinarily only speculative involve purchaser. on the See 26 §§-4705 U.S.C. incrimination, insubstantial risks this (a), 4742(a). present ease, In the always scarcely prove will true.” Mar- obligations imposed by various the statu- 39, 54, chetti v. United tory provisions question are on the dis- (1968), tiller. overruling Kahriger, 345 United States v. Buie, the Court also observed that L.Ed. 754 obligation (1953), to furnish Lewis requested formation order form 99 L.Ed. 475 buyer may was on the and that elimi- 456 “prevent regulation in hazards of incrimination involved the effective or Congress” attempt spir- apprecia- and such an are “real taxation Haynes conjecture. States,

ble”, supra, some United 390 involves its. v. indi- has it at court before no factual data U.S. 88 S.Ct. at 731. cating the likelihood that informa- Accordingly, I would hold that sec- applica- tion contained in unsuccessful 5173(a) 5179(a), 5205(a) tions and register, post qualifica- tions to (2),7 5180(a), as well as section com- stamps bond, tion obtain revenue pelled appellant, upon threat criminal passed is on to other law enforcement punishment, to disclose his activi- However, in officials. the absence ties that the hazards of self-incrimi- data, in I such would resolve doubts nation which would have resulted from applicability favor the Consti- appreciable”. disclosure “real privilege. tutional I would therefore reverse his convictions four, three, one, counts five exchange recently, an infor- Until eight. treasury mation between officials states, counties, prosecuting officers of COMBS, Judge (dissenting Circuit regard municipalities part). paying special sons assessed Judge I concur in McCree’s I dissent. spirits distilled was am unable to find within the rule Thus, the mandated 26 U.S.C. 6107. § distinction between channels of es- communication have been “moonshiners” and members of “the although Moreover, tablished. 26 U.S.C. syndicate.” 2, supra, repealed, 6107 has been see n. § no there still restrictions potentially O’SULLIVAN, the use Judge incrimi- Senior Circuit

nating ap- (dissenting information contained in an part). plication qualifica- or a Judge I concur in McCree’s dissent. I tion form. See bond Grosso v. United do so opinion because I believe his States, 390 at 88 S.Ct. 709. U.S. is more consistent with Marchetti v. is also relevant “other 88 meth S.Ct. ods, entirely (1968) consistent than with constitu the careful- ly limitations,” prepared Judge Haynes opinion tional Edwards. that, operating believe U.S. 88 S.Ct. at whether Michigan, Tennessee, employed elsewhere, could be informa obtain the provided by compliance tion up “group make “moonshiners” inher- statutory provisions ently suspect question. just See of criminal activities” generally “big gamblers as Hitchcock, 142 much Counselman time” who enjoy protection U.S. S.Ct. Em- L.Ed. of Marchetti. phasis Mary placed upon is See also Adams v. the fact land, alcohol “essentially L. laws are non- (1954); Murphy so, argued, Ed. criminal”. Waterfront This is it is be- Commission, cause primarily laws exist raise (1964). Thus, permit 12 L.Ed.2d do, pro- revenue. however, Such laws ting appellant to invoke the vide criminal sanction for their viola- tion states, order and most while the manu- prevent prosecution failing spirits totally criminal facture distilled is not forbidden, activity with these for which this stamps 7. The fact that counts 3 and 4 are directed tiller to obtain revenue in order appellant’s possession transporta- lawfully possess transport n unstamped containers, Haynes tion of and not at in containers. See stamps per 85, 90-95, his failure to obtain revenue 88 S. se, irrelevant, is since the effect of 26 Ct. (2) require U.S.C. dis- convicted —-“moonshin- defendant ing” activity wherever it —is on. carried to exist be-

Distinction is asserted in cause the statute involved Congress passed purposely “big terrupt time” conduct — least, by on, gambling part carried organized syndicate”, part “the Congress argued can-

crime. rights impair Amendment the Fifth may engaged, forbid use but of those so Amendment those who

of the Fifth relat- laws

choose violate spirits. “moonshin- effectively deprived of

er” has been as protection Fifth Amendment to an- for failure

when he is convicted engage in crimi- his intention to

nounce gambler, activity

nal is the interstate register dis- for failure convicted engage crime.

close his intention legitimacy in am to discern unable employed to find be- distinction

nuances

tween the “moonshiner” and members long as Mar- syndicate”.

“the So law, it

chetti followed is the should be

without discrimination. ex

UNITED of America rel. STATES BROWN, Roy C. Petitioner- Appellee, LaVALLEE,

Hon. J. Edwin Warden Prison, Dannemora, Clinton New York, Respondent-Appellant.

No. Docket 33127. Appeals,

United States Court of

Second Circuit.

Argued Nov. 1969. April

Decided

Case Details

Case Name: United States v. Roy Whitehead

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 3, 1970

Citation: 424 F.2d 446

Docket Number: 18607_1

Court Abbreviation: 6th Cir.