424 U.S. 648 (1976), 74-100, Garner v. United States

Docket Nº:No. 74-100
Citation:424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370
Party Name:Garner v. United States
Case Date:March 23, 1976
Court:United States Supreme Court

Page 648

424 U.S. 648 (1976)

96 S.Ct. 1178, 47 L.Ed.2d 370



United States

No. 74-100

United States Supreme Court

March 23, 1976

Argued November 4, 1975




Petitioner's income tax returns, in which he revealed himself to be a gambler, were introduced in evidence, over his Fifth Amendment objection, as proof of the federal gambling conspiracy offense with which he was charged.

Held: Petitioner's privilege against compulsory self-incrimination was not violated. Since petitioner made incriminating disclosures on his tax returns instead of claiming the privilege, as he had the right to do, his disclosures were not compelled incriminations. Here, where there is no factor depriving petitioner of the free choice to refuse to answer, the general rule applies that, if a witness does not claim the privilege, his disclosures will not be considered as having been "compelled" within the meaning of the Fifth Amendment. United States v. Sullivan, 274 U.S. 259. Miranda v. Arizona, 384 U.S. 436; Mackey v. United States, 401 U.S. 667; Garrity v. New Jersey, 385 U.S. 493, distinguished. Pp. 650-655.

501 F.2d 228, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 666. STEVENS, J., took no part in the consideration or decision of the case.

Page 649

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

This case involves a nontax criminal prosecution in which the Government introduced petitioner's income tax returns to prove the offense against him. The question is whether the introduction of this evidence, over petitioner's Fifth Amendment objection, violated the privilege against compulsory self-incrimination when petitioner made the incriminating disclosures on his returns instead of then claiming the privilege.


Petitioner, Roy Garner, was indicated for a conspiracy involving the use of interstate [96 S.Ct. 1180] transportation and communication facilities to "fix" sporting contests, to transmit bets and information assisting in the placing of bets, and to distribute the resultant illegal proceeds. 18 U.S.C. §§ 371, 224, 1084, 1952.1 The Government's case was that conspirators bet on horse races either having fixed them or while in possession of other information unavailable to the general public. Garner's role in this scheme was the furnishing of inside information. The case against him included the testimony of other conspirators and telephone toll records that showed calls from Garner to other conspirators before various bets were placed.

The Government also introduced, over Garner's Fifth Amendment objection, the Form 1040 income tax returns that Garner had filed for 1965, 1966, and 1967. In the 1965 return, Garner had reported his occupation as "professional

Page 650

gambler," and in each return he reported substantial income from "gambling" or "wagering." The prosecution relied on Garner's familiarity with "the business of wagering and gambling," as reflected in his returns, to help rebut his claim that his relationships with other conspirators were innocent ones.

The jury returned a guilty verdict. Garner appealed to the Court of Appeals for the Ninth Circuit, contending that the privilege against compulsory self-incrimination entitled him to exclude the tax returns despite his failure to claim the privilege on the returns instead of making disclosures. Sitting en banc the Court of Appeals held that Garner's failure to assert the privilege on his returns defeated his Fifth Amendment claim. 501 F.2d 236.2 We agree.


In United States v. Sullivan, 274 U.S. 259 (1927), the Court held that the privilege against compulsory self-incrimination is not a defense to prosecution for failing to file a return at all. But the Court indicated that the privilege could be claimed against specific disclosures sought on a return, saying:

If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.

Id. at 263.3

Page 651

Had Garner invoked the privilege against compulsory self-incrimination on his tax returns in lieu of supplying the information used against him, the Internal Revenue Service could have proceeded in either or both of two ways. First, the Service could have sought to have Garner criminally prosecuted under § 7203 of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 7203, which proscribes, among other things, the willful [96 S.Ct. 1181] failure to make a return.4 Second, the Service could have sought to complete Garner's returns administratively "from [its] own knowledge and from such information as [it could] obtain through testimony or otherwise." 26 U.S.C. § 6020(b)(1). Section 7602(2) of the Code authorizes the Service in such circumstances to summon the taxpayer to appear and to produce records or give testimony. 26

Page 652

U.S.C. § 7602(2).5 If Garner had persisted in his claim when summoned, the Service could have sued for enforcement in district court, subjecting Garner to the threat of the court's contempt power. 26 U.S.C. § 7604.6

Given Sullivan, it cannot fairly be said that taxpayers are "volunteers" when they file their tax returns. The Government compels the filing of a return much as it compels, for example, the appearance of a "witness"7 before a grand jury. The availability to the Service of § 7203 prosecutions and the summons procedure also induces taxpayers to disclose unprivileged information on their

Page 653

returns. The question, however, is whether the Government can be said to have compelled Garner to incriminate himself with regard to specific disclosures made on his return when he could have claimed the Fifth Amendment privilege instead.


We start from the fundamental proposition:

[A] witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U.S. 441 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U.S. 532 (1897)]; Boyd v. United States, [116 U.S. 616 (1886)].

Lefkowitz v. Turley, 414 U.S. 70, 78 (1973). See Murphy v. Waterfront Comm'n, 378 U.S. 52, 57 n. 6 (1964).

Because the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity, the inquiry in a Fifth Amendment case is not ended when an incriminating statement is made in lieu of a claim of privilege. Nor, however, is failure to claim the privilege irrelevant.

The Court has held that an individual under compulsion to make disclosures as a witness who revealed information instead of claiming the privilege lost the benefit of the privilege. United States v. Kordel, 397 U.S. 1, 7-10 (1970). Although Kordel appears to be the only square holding to this effect, the Court frequently has recognized the principle in dictum. Maness v. Meyers, 419 U.S. 449, 466 (1975); Rogers v. United States, 340

Page 654

U.S. 367, 370-371 (1951); Smith v. United States, 337 U.S. 137, 150 (1949); United States v. Monia, 317 U.S. 424, 427 (1943); Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 112-113 (1927).8 These decisions stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not "compelled" him to incriminate himself.9

The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he

Page 655

must claim it or he will not be considered to have been "compelled" within the meaning of the Amendment.

United States v. Monia, supra at 427 (footnote omitted).

In their insistence upon a claim of privilege, Kordel and the older witness cases reflect an appropriate accommodation of the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone's testimony. Mason v. United States, 244 U.S. 362, 364-365 (1917); see, e.g., Branzburg v. Hayes, 408 U.S. 665, 688 (1972); Kastigar v. United States, 406 U.S. 441, 443-445 (1972). Despite its cherished position, the Fifth Amendment addresses only a relatively narrow scope of inquiries. Unless the government seeks testimony that will subject its giver to criminal liability, the constitutional right to remain silent absent immunity does not arise. An individual therefore properly may be compelled to give testimony, for example, in a noncriminal investigation of himself. See, e.g., Gardner v. Broderick, 392 U.S. 273, 278 (1968). Unless a witness objects, a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled.

In addition, the rule that a witness must claim the privilege is consistent with the fundamental purpose of the Fifth Amendment -- the preservation of an adversary system of criminal justice. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966). That system is undermined when a government deliberately seeks to

Page 656


To continue reading