United States v. Covington, Crim. No. 9041.
Decision Date | 27 March 1968 |
Docket Number | Crim. No. 9041. |
Citation | 282 F. Supp. 886 |
Parties | UNITED STATES of America, Plaintiff, v. Henry Preston COVINGTON, Defendant. |
Court | U.S. District Court — Southern District of Ohio |
Robert M. Draper, U. S. Atty., Charles R. Dersom, Asst. U. S. Atty., Columbus, Ohio, for the United States.
William J. Davis, Columbus, Ohio, for Henry Preston Covington.
Defendant is charged by indictment with being a transferee of and acquiring a quantity of marihuana without having paid the tax imposed by law, in violation of Title 26, United States Code, Section 4744(a) (1).
Following his plea of not guilty upon arraignment, defendant filed a motion to dismiss the indictment. In its consideration of this motion, the Court has had the assistance of the supporting and contra memoranda.
Title 26, United States Code, Section 4741(a) provides:
Section 4742, which forms the basis for determining taxable transfers, provides:
Failure to pay the tax imposed is a violation of Title 26, United States Code, Section 4744(a) (1):
The basis of defendant's motion is the allegation that the foregoing statutory scheme is, at least as to him, violative of the Fifth Amendment to the United States Constitution in that it requires a person to incriminate himself.
What has evidently prompted this motion is a group of decisions recently entered by the United States Supreme Court. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (Jan. 29, 1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (Jan. 29, 1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923 (Jan. 29, 1968). In those cases it was determined that criminal prosecutions under the statutes imposing the annual occupational tax on gamblers,1 the requirement to register before engaging in the business of accepting wagers,2 the excise tax on wagering,3 and a criminal penalty on possessors of "unregistered firearms"4 were each subject to an absolute defense in the form of an assertion that the statute was unconstitutional inasmuch as each one had the effect of compelling the respective defendants, and others similarly situated, to incriminate themselves. The questioned statutes required disclosure of past, present or prospective activities in areas "permeated with criminal statutes." Marchetti, supra. Compliance with any of the statutory requirements was directed at persons inherently suspect of criminal activities and created real, appreciable and substantial hazards of self-incrimination. Ibid. The hazards were particularly emphasized by the further statutory requirement that a list of all such taxpayers be made available for public inspection. Title 26, United States Code, Section 6107.5
A reading of the statutory tax scheme presently in question discloses that it, like those previously declared "unconstitutional," raises more than merely imaginary hazards of self-incrimination. The hazards here are likewise real, appreciable and substantial, and the statutory requirements, with the many exclusions, are primarily directed at those who are inherently suspect of criminal activities.6 Again, as was the case of persons who complied with the statutes challenged in Marchetti, Grosso, and Haynes, those who pay the tax imposed by § 4741(a) are subject to having their names published in a list made available to interested prosecuting authorities by virtue of § 6107.7
As in the recent Supreme Court trilogy, this Court must also consider the relevance of the "required records" doctrine of Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). The same elements which served to distinguish the situations of those cases from that of Shapiro are present in the instant matter. Stated otherwise, defendant was "required simply to provide information, unrelated to any records which he may have maintained," there were no "public aspects" to the information sought, and the requirements here are directed to a "selective group inherently suspect of criminal activities." Marchetti; Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965); Shapiro. Similarly distinguishable is United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927).
Finally, as in Marchetti, Grosso, and Haynes, this Court does not feel it within its province to engraft immunity restrictions8 on the tax system in question here. Congress has made it quite clear that disclosure of marihuana transfer tax payments is to be made to prosecuting authorities. § 6107. See also, United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950). It is for the legislature, rather than the judiciary, to make new law; the judiciary can only say whether a statutory enactment of legislative intent, or its enforcement, in a particular instance, is constitutionally permissible.
Wherefore, the Court determines that the defendant has properly asserted the constitutional privilege against self-incrimination as a total defense to prosecution in this case. However, the Court also feels compelled to add that nothing determined herein serves as a holding that the marihuana tax provisions are unconstitutional or that the states may not continue to enforce their statutes prohibiting the sale, possession, etc., of marihuana. As to the application of the federal tax provisions, their enforcement through penalties may continue against persons not confronted by real, appreciable or substantial hazards of self-incrimination, or persons who are otherwise outside of the privilege's protection.
The motion to dismiss the indictment is granted.
1 Title 26, United States Code, Section 4411; Marchetti.
2 Title 26, United States Code, Section 4412; Marchetti.
3 Title 26, United States Code, Section 4401; Grosso.
4 Title 26, United States Code, Section 5851; Haynes.
5 That section provides that:
In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E with respect to a trade or business carried on within such district. Such list shall be prepared and kept pursuant to...
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