Appellee Knox has been charged with six counts of violation of federal law in connection with his wagering activities. The first four counts of the indictment charge that between July 1964 and October 1965 he engaged in the business of accepting wagers without first filing Internal Revenue Service Form 11-C, the special return and registration application required by § 4412 of the Internal Revenue Code of 1954, and without first paying the occupational tax imposed by § 4411 of the Code. Counts Five and Six charge that when Knox did file such a form on October 14, 1965, and when he filed a supplemental form the next day, he knowingly and willfully understated the number of employees accepting wagers on his behalf—in violation of 18 U. S. C. § 1001, a general criminal provision punishing fraudulent statements made to any federal agency.
Knox moved to dismiss the indictment, asserting that this Court's decisions in Marchetti v. United States, 390 U.S. 39 (1968), and Grosso v. United States, 390 U.S. 62 (1968), had held invalid
In Bryson v. United States, ante, p. 64, decided today, we reaffirmed the holding of Dennis v. United States, 384 U.S. 855 (1966), that one who furnishes false information to the Government in feigned compliance with a statutory requirement cannot defend against prosecution for his fraud by challenging the validity of the requirement itself. Bryson, like Dennis,
The indictment charges that the forms Knox filed with the District Director of Internal Revenue contained false, material information,
This is not to deny that the presence of §§ 4412 and 7203 injected an element of pressure into Knox's predicament at the time he filed the forms. At that time, this Court's decisions in United States v. Kahriger, 345 U.S. 22 (1953), and Lewis v. United States, 348 U.S. 419 (1955), established that the Fifth Amendment did not bar prosecution for failure to file a form such as 11-C. But when Knox responded to the pressure under which he found himself by communicating false information, this was simply not testimonial compulsion. Knox's ground for complaint is not that his false information inculpated him for a prior or subsequent criminal act; rather, it is that under the compulsion of §§ 4412 and 7203 he committed a criminal act, that of giving false information to the Government. If the compulsion was unlawful under Marchetti,
Knox argues that the criminal sanction for failure to file, coupled with the danger of incrimination if he filed truthfully, was more coercive in its effect than, for example, the prospect that the petitioners in Dennis would lose their jobs as union officers unless they filed non-Communist affidavits. While this may be so, the question whether Knox's predicament contains the seeds of a "duress" defense, or perhaps whether his false statement was not made "willfully" as required by § 1001, is one that must be determined initially at his trial.
The judgment of the District Court is
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
In this case, as in Bryson v. United States, ante, p. 64, the relevant inquiry is whether "constitutionally speaking it was `within the jurisdiction' " of a government agency to require the filing of certain information. Id., at 74 (dissenting opinion). In Marchetti v. United States, 390 U.S. 39, 61, we held that the statutory requirement of filing Internal Revenue Service Form 11-C is not unconstitutional per se. It is clear, however, that under Marchetti, supra, and Grosso v. United States, 390 U.S. 62, the "jurisdiction" of the Internal Revenue Service to require this form to be filed is subject to the Fifth Amendment privilege against self-incrimination.
This is not a case where an individual, with knowledge that he has a right to refuse to provide information, nonetheless provides false information. Under the decisions in United States v. Kahriger, 345 U.S. 22, and Lewis v. United States, 348 U.S. 419, which were controlling at the time Knox filed his wagering form, Knox faced prosecution under 26 U. S. C. § 7203 for failure to file the form, despite claims of self-incrimination. The Government's requirement to file the wagering form was unconditional. The majority argues that by the terms of Marchetti the Government is not prohibited from requesting the form, but is only prohibited from prosecuting an individual for his failure to comply with the request. Ante, at 80, n. 3. The question in this case, however, is not whether the Government has the power to request the form to be filed, but whether it has the power to require the form to be filed. If Knox had
Marchetti and Grosso held that those in Knox's position have the Fifth Amendment right to remain silent irrespective of the statutory command that they submit forms which could incriminate them. Had Knox asserted his right of silence under the Fifth Amendment, it is clear that the Internal Revenue Service could not, consistently with Marchetti and Grosso, have required him to file the wagering form.
For the reasons stated in my dissent in Bryson, ante, p. 73, and in MR. JUSTICE BLACK'S separate opinion in Dennis v. United States, 384 U.S. 855, 875, if the Internal Revenue Service had no constitutional authority to require Knox to file any wagering form at all, his filing of a form which included false information in no way prejudiced the Government and is not, in my view, a matter "within the jurisdiction" of the Internal Revenue Service.
I would affirm the judgment below.
"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
"From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy."
The District Court sustained the claim of privilege not on the basis of facts peculiar to this case but on the basis of its conclusion that the Fifth Amendment provides a defense to any prosecution under § 1001 based on misstatements on a Form 11-C. This amounts to a holding that § 1001, as applied to this class of cases, is constitutionally invalid. The generality of the impact of the District Court's holding appears to us to render our jurisdictional holding a fortiori compared to analogous jurisdictional holdings in such cases as Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921); Fleming v. Rhodes, 331 U.S. 100, 102-104 (1947); Wissner, v. Wissner, 338 U.S. 655 (1950); Department of Employment v. United States, 385 U.S. 355, 356-357 (1966). We prefer to rest our jurisdiction on this aspect of § 3731 rather than, as advocated by the Government, the statute's "motion in bar" provision, in light of the fact that the scope of the latter provision will be the subject of full-dress consideration, as will certain problems under the "dismissing any indictment" provision not present in this case, in United States v. Sisson, consideration of jurisdiction postponed, post, p. 812.