401 U.S. 667 (1971), 36, Mackey v. United States

Docket Nº:No. 36
Citation:401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404
Party Name:Mackey v. United States
Case Date:April 05, 1971
Court:United States Supreme Court

Page 667

401 U.S. 667 (1971)

91 S.Ct. 1160, 28 L.Ed.2d 404



United States

No. 36

United States Supreme Court

April 5, 1971

Argued October 21, 1970




At petitioner's trial for income tax evasion, the Government used monthly wagering tax forms petitioner had filed, as required by statute, to show that the gross amount of wagers he reported, less business expenses, exceeded the gambling profits reported on his income tax returns. Petitioner objected on the ground that the forms were prejudicial and irrelevant, but he was convicted in 1964, and the Court of Appeals affirmed. After this Court's 1968 decisions in Marchetti v. United States, 390 U.S. 39, and Grosso v. United States, 390 U.S. 62, petitioner applied for post-conviction relief on the ground that the Fifth Amendment barred the prosecution's use of the wagering tax forms. The District Court denied the application. The Court of Appeals affirmed, holding that Marchetti and Grosso would not be applied retroactively to overturn the earlier income tax evasion conviction based on the then-applicable constitutional principles.

Held: The judgment is affirmed. Pp. 671-675, 700-701, 703-713.

411 F.2d 504, affirmed.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that Marchetti and Grosso are not to be applied retroactively, since no threat to the reliability of the factfinding process was involved in the use of the wagering tax forms at petitioner's trial. Tehan v. Shott, 382 U.S. 406; Johnson v. New Jersey, 384 U.S. 719; Williams v. United States, ante, p. 646. Pp. 671-675.

MR. JUSTICE HARLAN concluded that, in this case, here on collateral review, the judgment should be affirmed, since he cannot say that the pre-Marchetti rule that prevailed at the time of petitioner's conviction, viz., that the registration requirement and obligation to pay the gambling tax did not violate the Fifth Amendment, was so grossly erroneous as to work an inexcusable inequity against petitioner, and that the then-existing justification for that result (that persons could avoid self-incrimination by ceasing to engage in illegal activities) is not without some force. Pp. 700-701.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the Fifth Amendment does not bar the use of information

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that, in furtherance of the general scheme of collecting taxes and enforcing the tax laws, required those in the business of accepting wagers to report their income, a situation readily distinguishable from that in Marchetti and Grosso, where the Amendment was held to bar forced disclosure of information that would have subjected the individual concerned to the "real and appreciable" hazard of self-incrimination for violating pervasive state or federal laws proscribing gambling. Pp. 703-713.

WHITE, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. HARLAN, J., filed an opinion concurring in the judgment, post, p. 675. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 702. DOUGLAS, J., filed a dissenting opinion, in which BLACK, J., joined, post, p. 713.

WHITE, J., lead opinion

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.

An indictment was returned in March, 1963, charging petitioner Fred T. Mackey in five counts of evading payment of income taxes by willfully preparing and causing to be prepared false and fraudulent tax returns for the years 1956 through 1960, in violation of 26 U.S.C. § 7201. On January 21, 1964, a jury in the District Court for the Northern District of Indiana found Mackey guilty on all five counts.1 The conviction was affirmed on appeal by the Court of Appeals for the

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Seventh Circuit in the spring of 1965. 345 F.2d 499 (CA7), cert. denied, 382 U.S. 824 (1965).

At petitioner's trial, the Government used the net worth method to prove evasion of income taxes.2 As part of its case, it introduced 60 wagering excise tax returns -- one for every month of each of the five years covered by the indictment -- filed by petitioner pursuant to 26 U.S.C. § 4401. A summary exhibit prepared from these returns and petitioner's income tax returns were also introduced, and an Internal Revenue Service technical advisor testified that, for the years in question, the totals of the gross amount of wagers reported on the wagering tax returns, less the expenses of running petitioner's "policy wheel" operation as reported on his annual income tax returns, exceeded the net profits from gambling reported on the petitioner's income tax returns. Defense counsel objected to the introduction of these exhibits, arguing that they were prejudicial, inflammatory, and irrelevant; the Government responded that the wagering tax returns and the summary exhibit were relevant because they showed a likely source of unreported income. The exhibits were admitted, and the Court of Appeals found, without specific discussion, no error in the ruling.3

On January 29, 1968, this Court held that the Fifth Amendment privilege against compulsory self-incrimination was a valid defense to a prosecution for failure to register as a gambler and to pay the related occupational and gambling excise taxes under 26 U.S.C.

Page 670

§§ 4401, 4411, 4412. Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 (1968). Petitioner, who had begun serving his sentence in December, 1965, filed on February 12, 1968, a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence and set aside the judgment of conviction on authority of Marchetti and Grosso. The motion was denied by the District Court for the Northern District of Indiana,4 and the Court of Appeals affirmed. 411 F.2d 504 (CA7 1969).

Although the Court of Appeals suggested that petitioner's argument that he had not waived the Fifth Amendment claim by his failure to raise it at trial was open to question, 411 F.2d at 506-507, it specifically held that Marchetti and Grosso would not be applied retroactively to upset a pre-Marchetti conviction for

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evading payment of income tax simply because the wagering excise tax returns filed pursuant to 26 U.S.C. § 4401 were introduced in evidence at trial. Employing the threefold analysis set forth in our retroactivity decisions, see, e.g., Stovall v. Denno, 388 U.S. 293, 297 (1967), the Court of Appeals found that law enforcement officials had relied on the old rule, that retroactive application of Marchetti and Grosso in cases such as petitioner's would have a substantial impact on the administration of justice, and that

[t]he unreliability of the factfinding process which is the touchstone of retroactivity is simply not threatened by the impersonal command of the wagering tax laws.

411 F.2d at 509. We granted certiorari. 396 U.S. 954.


In United States v. Kahriger, 345 U.S. 22 (1953), a prosecution for failure to register and pay the gambling tax, this Court held that the registration requirement and the obligation to pay the gambling tax did not violate the Fifth Amendment. The Court construed the privilege as relating

only to past acts, not to future acts that may or may not be committed. . . . Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that, in order to engage in the business of wagering in the future, he must fulfill certain conditions.

345 U.S. at 32-33. Lewis v. United States, 348 U.S. 419 (1955), reaffirmed this construction of the Fifth Amendment. Thirteen years later, we could not agree with what was deemed an "excessively narrow" view of the scope of the privilege. 390 U.S. at 52. The

force of the constitutional prohibition is [not] diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to

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evidence." 390 U.S. at 54. The gambling registration and tax requirements were held to present substantial risks of self-incrimination, and therefore to be unenforceable; imposition of criminal penalties for noncompliance was an impermissible burden on the exercise of the privilege.

Until Marchetti and Grosso, then, the registration and gambling tax provisions had the express approval of this Court; the Fifth Amendment provided no defense to a criminal prosecution for failure to comply. But as of January 29, 1968, the privilege was expanded to excuse noncompliance. The statutory requirement to register and file gambling tax returns was held to compel self-incrimination and the privilege became a complete defense to a criminal prosecution for failure to register and pay the related taxes. It followed that the registration and excise tax returns filed in response to the statutory command were compelled statements within the meaning of the Fifth Amendment, and accordingly were inadmissible in evidence as part of the prosecution's case in chief. The question before us is whether the Marchetti

Grosso rule applies retroactively and invalidates Mackey's conviction because his gambling excise tax returns were introduced against him at his trial for income tax evasion.

We have today reaffirmed the nonretroactivity of decisions overruling prior constructions of the Fourth Amendment. Williams v. United States and Elkanich v. United States, ante, p. 646. The decision in those cases represents the approach to the question of when to accord retroactive sweep to a new constitutional rule taken by this Court in the line of...

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