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.
At petitioner's trial, the Government used the networth method to prove evasion of income taxes.
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.
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
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
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 cases from Linkletter
In Tehan v. Shott, 382 U.S. 406 (1966), the Court declined to apply the rule of Griffin v. California, 380 U.S. 609 (1965), to prisoners seeking collateral relief. Griffin had construed the Fifth Amendment to forbid comment on defendants' failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose. The basic purpose of the privilege, we said, was not related to "protecting the innocent from conviction," 382 U. S., at 415; the privilege "is not an adjunct to the ascertainment of truth," but is aimed at serving the complex of values on which it has historically rested. 382 U. S., at 416. Given this purpose, clear reliance on the pre-Griffin rules, and the frustration of state interests which retroactivity would have entailed, we refused relief to a state prisoner seeking collateral relief although the prosecutor's comment on his failure to take the stand at his trial would have infringed the new rule that was announced in Griffin and was being applied in contemporary trials.
Johnson v. New Jersey, 384 U.S. 719 (1966), reaffirmed this view of the Fifth Amendment by declining to apply the Miranda
Guided by our decisions dealing with the retroactivity of new constitutional interpretations of the broad language of the Bill of Rights, we agree with the Court of Appeals that Marchetti and Grosso should not have any retroactive effect on Mackey's conviction. Petitioner was convicted in strict accordance with then-applicable constitutional norms. Mackey would have a significant claim only if Marchetti and Grosso must be given full retroactive sweep. But in overruling Kahriger and Lewis, the Court's purpose was to provide for a broader implementation of the Fifth Amendment privilege—a privilege that does not include at its core a concern for improving the reliability of the results reached at criminal trials. There is no indication in Marchetti or Grosso that one of the considerations which moved the Court to hold that the Congress could not constitutionally compel citizens to register as gamblers and file related tax returns was the probable unreliability of such statements once given. Petitioner has not advanced any objective considerations suggesting such unreliability. The wagering tax returns introduced in evidence at his trial have none of the characteristics, and hence none of the potential unreliability, of coerced confessions produced by "overt and obvious coercion." Johnson, 384 U. S., at 730. Nor does Mackey suggest that his returns—made under
The short of the matter is that Marchetti and Grosso raise not the slightest doubt about the accuracy of the verdict of guilt returned here. Under these circumstances, the principles represented by Elkanich and Williams, as well as by Tehan and Johnson, must control. For Tehan and Johnson indicate that even though decisions reinterpreting the Fifth Amendment may create marginal doubts as to the accuracy of the results of past trials, the purposes of those decisions are adequately served by prospective application. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
MR. JUSTICE HARLAN, concurring in the judgments in Nos. 36 and 82 and dissenting in No. 81.
These three cases have one question in common: the extent to which new constitutional rules prescribed by this Court for the conduct of criminal cases are applicable to other such cases which were litigated under different but then-prevailing constitutional rules.
One of these cases is before us on direct review, No. 81, Williams, the other two being here on collateral review, No. 82, Elkanich, and No. 36, Mackey. In each instance the new rule is held not applicable, and, in
Today's decisions mark another milestone in the development of the Court's "retroactivity" doctrine, which came into being somewhat less than six years ago in Linkletter v. Walker, 381 U.S. 618 (1965). That doctrine was the product of the Court's disquietude with the impacts of its fast-moving pace of constitutional innovation in the criminal field. Some members of the Court, and I have come to regret that I was among them, initially grasped this doctrine as a way of limiting the reach of decisions that seemed to them fundamentally unsound. Others rationalized this resort to prospectivity as a "technique" that provided an "impetus . . . for the implementation of long overdue reforms, which otherwise could not be practicably effected." Jenkins v. Delaware, 395 U.S. 213, 218 (1969). The upshot of this confluence of viewpoints was that the subsequent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim. See my dissenting opinion in Desist v. United States, 394 U.S. 244, 256-257 (1969). See also United States v. United States Coin & Currency, post, p. 728 (appendix to concurring opinion of BRENNAN, J.). It was this train of events that impelled me to suggest two Terms ago in Desist that the time had come for us
What emerges from today's decisions is that in the realm of constitutional adjudication in the criminal field the Court is free to act, in effect, like a legislature, making its new constitutional rules wholly or partially retroactive or only prospective as it deems wise. I completely disagree with this point of view. While I do not subscribe to the Blackstonian theory that the law should be taken to have always been what it is said to mean at a later time, I do believe that whether a new constitutional rule is to be given retroactive or simply prospective effect must be determined upon principles that comport with the judicial function, and not upon considerations that are appropriate enough for a legislative body.
At the outset, I think it is clear that choosing a binding, generally applicable interpretation of the Constitution presents a problem wholly different from that of choosing whether to apply the rule so evolved "retroactively" to other cases arising on direct review.
In adopting a particular constitutional principle, this Court very properly weighs the nature and purposes of various competing alternatives, including the extent to which a proposed rule will enhance the integrity of the criminal process and promote the efficient administration of justice, as well as the extent to which justifiable expectations have grown up surrounding one rule or another. Indeed, it is this very process of weighing such
But we possess this awesome power of judicial review, this duty to bind coordinate branches of the federal system with our view of what the Constitution dictates, only because we are a court of law, an appellate court charged with the responsibility of adjudicating cases or controversies according to the law of the land and because the law applicable to any such dispute necessarily includes the Federal Constitution. That is the classic explanation for the basis of judicial review, an explanation first put forth by Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 177-178 (1803), and from that day to this the sole continuing rationale for the exercise of this judicial power:
We announce new constitutional rules, then, only as a correlative of our dual duty to decide those cases over
If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. If there is no need for an anti-majoritarian judicial control over the content of our legal system in nine cases precisely like that presented by Mr. Chimel's dispute with the State of California, it is hard to see the necessity, wisdom, or justification for imposing that control in the Chimel case itself. In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation. We apply and definitively interpret the Constitution, under this view of our role, not because we are bound to, but only because we occasionally deem it appropriate, useful, or wise. That sort of choice may permissibly be made by a legislature or a council of revision, but not by a court of law.
The notion that cases before us on direct review need not be adjudicated in accordance with those legal principles
Refusal to apply new constitutional rules to all cases arising on direct review may well substantially deter those whose financial resources are barely sufficient to withstand the costs of litigating to this Court, or attorneys who are willing to make sacrifices to perform their professional obligation in its broadest sense, from asserting rights bottomed on constitutional interpretations different from those currently prevailing in this Court. More importantly, it tends to cut this Court loose from the force of precedent, allowing us to restructure artificially those expectations legitimately created by extant law and thereby mitigate the practical force of stare decisis, Linkletter v. Walker, 381 U. S., at 644 (BLACK, J., dissenting), a force which ought properly to bear on the
One could catalogue virtually ad infinitum what I view as unacceptable ancillary consequences of this aspect of the Court's ambulatory retroactivity doctrine. For me, the fact that this doctrine entails an inexplicable and unjustifiable departure from the basic principle upon which rests the institution of judicial review is sufficient to render it untenable. I continue to believe that a proper perception of our duties as a court of law, charged with applying the Constitution to resolve every legal dispute within our jurisdiction on direct review, mandates that we apply the law as it is at the time, not as it once was. Inquiry into the nature, purposes, and scope of a particular constitutional rule is essential to the task of deciding whether that rule should be made the law of the land. That inquiry is, however, quite simply irrelevant in deciding, once a rule has been adopted as part of our legal fabric, which cases then pending in this Court should be governed by it.
Of the cases presently under discussion, only Williams involves direct review of a nonfinal criminal judgment. The other two, Elkanich and Mackey, were brought here by persons in federal custody, seeking release through issuance of a writ of habeas corpus.
While, as I have just stated, I think it clear what law should be applied to nonfinal convictions here on direct review, the choice of law problem as it applies to cases here on habeas seems to me a much more difficult one. However, that choice, in my view, is also one that can be responsibly made only by focusing, in the first instance, on the nature, function, and scope of the adjudicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available.
As I first pointed out in my dissent in Desist, 394 U. S., at 260-261, this Court's function in reviewing a decision allowing or disallowing a writ of habeas corpus is, and always has been, significantly different from our role in reviewing on direct appeal the validity of nonfinal criminal convictions. While the entire theoretical underpinnings of judicial review and constitutional supremacy dictate that federal courts having jurisdiction on direct review adjudicate every issue of law, including federal constitutional issues, fairly implicated by the trial process below and properly presented on appeal, federal courts have never had a similar obligation on habeas corpus.
Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that
Thus, prior to Brown v. Allen, it must have been crystal clear that the "retroactivity" of a new constitutional rule was a function of the scope and purposes of the habeas corpus writ. Absent unusual circumstances, a new rule was not cognizable on habeas simply because of the limited scope of the writ. While the extent of inquiry into alleged constitutional error on habeas has been drastically expanded in the past 20 years, the retroactivity problem remains analytically constant. In my view, the issues respectively presented by the two cases I treat here that arise on collateral review (Elkanich and Mackey)— whether the new rules of the Chimel case and the Marchetti and Grosso cases should be applied "retroactively" —must be considered as none other than a problem as to the scope of the habeas writ. We can properly decline to apply the Chimel rule, or the principles of Marchetti and Grosso, to the present cases only if that is consistent with the reasons for the provision, in our federal legal system, of a habeas corpus proceeding to test the validity of an individual's official confinement.
Thus I am led to make some inquiry into the purposes of habeas. At the outset I must note that this faces
I start with the proposition that habeas lies to inquire into every constitutional defect in any criminal trial, where the petitioner remains "in custody" because of the judgment in that trial, unless the error committed was
While it has been generally, although not universally, assumed that habeas courts should apply current constitutional law to habeas petitioners before them,
Clearly, it is at least fair to regard this issue as not yet settled by this Court. Consequently, I go on to inquire how it ought to be resolved. For me, with a few exceptions, the relevant competing policies properly balance out to the conclusion that, given the current broad scope of constitutional issues cognizable on habeas,
I do not mean to neglect the force of countervailing contentions. Assuring every state and federal prisoner a forum in which he can continually litigate the current constitutional validity of the basis for his conviction tends to assure a uniformity of ultimate treatment among prisoners; provides a method of correcting abuses now, but not formerly, perceived as severely detrimental to societal interests; and tends to promote a rough form of justice, albeit belated, in the sense that current constitutional notions, it may be hoped, ring more "correct" or "just" than those they discarded.
In my view, however, these interests are too easily overstated. Some discrimination must always exist in the legal treatment of criminal convicts within a system where the governing law is continuously subject to change. And it has been the law, presumably for at least as long as anyone currently in jail has been incarcerated, that procedures utilized to convict them must have been fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." Twining v. New Jersey, 211 U.S. 78 (1908). Moreover, it is too easy to suggest that constitutional updating is necessary in order to assure that the system arrives only at "correct" results. By hypothesis, a final conviction, state or federal, has been adjudicated by a court cognizant of the Federal Constitution and duty bound to apply it. To argue that a conclusion reached by one of these "inferior" courts is somehow forever erroneous because years later this Court took a different view of the relevant constitutional command
More importantly, there are operative competing policies in this area which I regard as substantial. It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. See, e. g., Fay v. Noia, 372 U. S., at 445 (Clark, J., dissenting); Spencer v. Texas, 385 U.S. 554, 583 (1967) (Warren, C. J., concurring and dissenting). See also Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-151 (1970). As I have stated before, "Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U. S., at 24-25 (HARLAN, J., dissenting). At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to
A rule of law that fails to take account of these finality interests would do more than subvert the criminal process itself. It would also seriously distort the very limited resources society has allocated to the criminal process. While men languish in jail, not uncommonly for over a year, awaiting a first trial on their guilt or innocence, it is not easy to justify expending substantial quantities of the time and energies of judges, prosecutors, and defense lawyers litigating the validity under present law of criminal convictions that were perfectly free from error when made final. See Friendly, supra, at 148-149. This drain on society's resources is compounded by the fact that issuance of the habeas writ compels a State that wishes to continue enforcing its laws against the successful petitioner to relitigate facts buried in the remote past through presentation of witnesses whose memories of the relevant events often have dimmed. This very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first. See Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 384 (1964).
In sum, while the case for continually inquiring into the current constitutional validity of criminal convictions
Although not necessary to the resolution of either of the two collateral cases now here, for sake of completeness I venture to add that I would make two exceptions to this general principle. First, the above discussion is written only with new "procedural due process" rules in mind, that is, those applications of the Constitution that forbid the Government to utilize certain techniques or processes in enforcing concededly valid societal proscriptions on individual behavior.
Secondly, I think the writ ought always to lie for claims of nonobservance of those procedures that, as so aptly described by Mr. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 325 (1937), are "implicit in the concept of ordered liberty." Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.
Subsequent reflection upon what I wrote in Desist, where I undertook to expose in a preliminary way some of the considerations I thought ought to govern the problem of deciding which, if any, new constitutional rules should be held cognizable in habeas proceedings, leads me to these additional observations. There I tentatively suggested we might apply those new rules that "significantly improve the pre-existing fact-finding procedures" mandated by the Federal Constitution. 394 U. S., at 262. Cf. Mishkin, The Supreme Court 1964 Term—Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 77-101 (1965). As indicated above, I am now persuaded that those new rules cognizable on habeas ought to be defined, not by the "truth-determining" test, but by the Palko test. My reasons are several. First, adherence to precedent, particularly Kaufman v. United States, must ineluctably lead one to the conclusion that it is not a principal purpose of the writ to inquire whether a criminal convict did in fact commit the deed alleged. Additionally, recent decisions of this Court, e. g., Coleman v. Alabama, 399 U.S. 1 (1970), have revealed just how marginally effective are some new rules purportedly aimed at improving the factfinding
Secondly, in Desist I went to some lengths to point out the inevitable difficulties that will arise in attempting "to determine whether a particular decision has really announced a `new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." 394 U. S., at 263. See generally id., at 263-269. I remain fully cognizant of these problems and realize they will produce some difficulties in administering the writ, but believe they would be greatly ameliorated by adequate recognition of the principle of finality in the operation of the criminal process.
I realize, of course, that this opinion, which is already unfortunately lengthy, has thus far not been directly responsive to the plurality opinions announced in these
In the plurality opinions in Williams and Elkanich, and Mackey the only challenge I perceive to my views is the single assertion that my analysis is untenable because unsupported by precedent. Williams v. United States, ante, at 651-652. Truly, this is a remarkable claim. For Linkletter v. Walker, supra, the wellspring of the current retroactivity doctrine, took as its point of departure the very distinction between direct review and collateral attack which I have argued is crucial to any analysis in this field, a distinction which the Court now firmly discards.
Further, as the dissenting opinion in United States v. United States Coin & Currency, post, at 735, points out, in an analogous situation, the legislative repeal of a criminal statute, "the judge-made rule was that those whose convictions had been finally affirmed when repeal took place received no benefit from the new rule; but repeal of a statute abated pending prosecutions and required reversal of convictions still on appeal when the law was changed." In other words, the precise distinction I have urged between direct review and collateral attack, based not on the nature of the act of changing the law or of the new law thus pronounced but, instead, on the nature of the adjudicatory context in which the claim of legal error was presented has consistently
Other aspects of the dissent in Coin & Currency, supra, might, it seems to me, be construed as a further challenge to the views I have expressed here since that opinion is subscribed to by a majority of those members of the Court who have determined that, for purposes of deciding whether new search and seizure rules apply to subsequent cases arising in federal courts, the process invoked by the litigants is irrelevant. In any event, I find the implications of the analysis underlying that dissent startling. For example, that Congress currently provides that statutory repeal shall not abate pending prosecutions or require reversal of nonfinal convictions seems to me a singularly unhelpful bit of information. We sit as a court of law, not a council of revision. Our powers of judicial review are judicial, not legislative, in nature. The assertion that this evidence is relevant data for resolving the problems at hand serves at best only to make explicit that which I have attempted to demonstrate in Part I of this opinion—that the retroactivity analysis currently ascendant in this Court proceeds on the false and unacceptable premise that constitutional interpretation is not purely a judicial, but, rather, something akin to a legislative, process. If, in fact, that premise is true we ought not to be writing retroactivity opinions but instead relinquishing some of our powers of judicial review.
The dissenting opinion attempts to palliate its invocation of the legislative process by alternately suggesting that the typical statutory rule is, because widespread, part
Because my comprehension of the relevant issues diverges so substantially from that of the Court it is necessary for me to discuss separately my view as to the proper disposition of each of these three cases.
Williams v. United States (direct review). As this case is here on direct review, I would apply to its resolution the rule enunciated in Chimel v. California, 395 U.S. 752. The plurality correctly describes the salient facts in this case at n. 2 of its opinion, ante, at 650-651, and I agree they plainly reveal a violation of Chimel. Indeed, the Ninth Circuit panel below, although it held Chimel nonretroactive, explicitly found the search here involved inconsistent with the dictates of Chimel. 418 F.2d 159, 161 (CA9 1969). Consequently, I would reverse the judgment below and remand with instructions to vacate the judgment of conviction.
Elkanich v. United States (collateral review). I agree, but for wholly different reasons, with the Court's view, expressed in n. 2 of its opinion, ante, at 651, that we need not evaluate the search of Elkanich's apartment in light of the precepts of Chimel. His conviction became final five years prior to Chimel's promulgation, and prevailing law at that time certainly validated the search here involved. See United States v. Rabinowitz, 339 U.S. 56 (1950), and Harris v. United States, 331 U.S. 145 (1947). An appraisal of the facts surrounding this search leads me quite easily to conclude that the procedures used in obtaining this conviction were not so fundamentally devoid of the necessary elements of procedural
Mackey v. United States (collateral review). Petitioner in this case seeks relief from confinement by way of habeas. At his trial for evading payment of income taxes, part of the Government's case in chief consisted of the introduction of 60 wagering excise tax returns. At the time his conviction became final in 1965, the introduction of these statements would have been permissible under the authority of United States v. Kahriger, 345 U.S. 22 (1953). I find it unnecessary to inquire whether it inevitably follows from the new rule enunciated in Marchetti and Grosso that such a procedure would today be held an unacceptable abridgment of petitioner's Fifth Amendment right to be free of compulsory self-incrimination. For, even assuming the latter cases, if applicable, would produce a different result, I cannot conclude that this change in the law would be sufficient to entitle petitioner to the issuance of a writ of habeas corpus.
Mackey is not asserting that the conduct for which he is being punished, evading payment of his federal income taxes, has been held to be constitutionally immune from punishment. In this regard, Mackey's claim differs from that raised by the respondent in Coin & Currency, also decided today, where Marchetti and Grosso do operate to render Congress powerless to punish
Although the question is, for me, not free of difficulty, I would affirm the judgment below for the reasons stated above.
In conclusion, the Court in deciding these cases seems largely to have forgotten the limitations that accompany its functions as a court of law. For the retroactivity doctrine announced today bespeaks more considerations of policy than of legal principle. Treating direct and collateral review as if they were of one piece seems to me faulty analysis, ignoring, as it does, the jurisprudential considerations that differentiate the two kinds of adjudicatory functions. As a court of law we have no right on direct review to treat one case differently from another with respect to constitutional provisions applicable to both. As regards cases coming here on collateral review, the problem of retroactivity is in truth
I would affirm the judgments in Nos. 36 and 82 and reverse the judgment in No. 81 upon the premises discussed in this opinion.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.
Three years ago we held that the federal wagering tax statutes, 26 U. S. C. § 4401 et seq., subjected those to whom they applied to such a real and substantial danger of self-incrimination that those statutes could "not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination." Marchetti v. United States, 390 U.S. 39, 42 (1968); Grosso v. United States, 390 U.S. 62 (1968). This case presents the question what, if any, use the Government is entitled to make of wagering excise tax returns, filed pursuant to the statutory scheme, in a prosecution for income tax evasion. Since I believe the Fifth Amendment does not prevent the use of such returns to show a likely source of unreported income in a criminal prosecution for income tax evasion, I concur in the judgment of the Court.
The relevant facts may be briefly stated. As required by statute, petitioner from 1956 through 1960 filed monthly wagering excise tax returns showing his name, address, and the gross amount of wagers accepted by him during the month in question.
At first glance, petitioner's argument appears compellingly simple. Since the information required of him under the federal wagering tax statutes presented a real and substantial danger of subjecting him to criminal prosecution for his gambling activities, the Government
But in Marchetti and Grosso, we dealt with the question whether, in light of possible uses of testimonial evidence sought to be compelled over a claim of privilege, the Fifth Amendment allows the individual concerned to withhold the evidence without penalty. In the present case, however, we deal with the scope of immunity required when the privilege is claimed and the evidence is nevertheless compelled. This distinction, in my view critical, is overlooked by petitioner. Where testimony has been refused, adjudication of necessity must take place in something of a vacuum. Although an individual may not "draw a conjurer's circle around the whole matter" by refusing to provide any explanation why the information sought might be incriminating, United States v. Sullivan, 274 U.S. 259, 264 (1927), he need not provide the incriminating evidence in order to demonstrate that the privilege was validly invoked, Hoffman v. United States, 341 U.S. 479, 486 (1951). In such circumstance, sanctions may be applied for refusal
But where the individual has succumbed to compulsion and provided the information sought, finer analytical tools may be employed. "A factual record showing, for example, the substance of the individual's compelled testimony, the way that testimony was subsequently used by the prosecutor, and the crime for which the individual was ultimately prosecuted, provides important considerations to anchor and inform the constitutional judgment." Piccirillo v. New York, 400 U.S. 548, 558 (1971) (BRENNAN, J., dissenting). Thus, even when the privilege against self-incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements. United States v. Knox, 396 U.S. 77, 80-83 (1969).
The flaw in petitioner's argument lies in its misunderstanding of Marchetti and Grosso as applied to a situation where testimonial evidence has been compelled over a claim of privilege. For we did not, in those cases, cast any doubt upon the power of the United States to impose taxes on unlawful, as well as on lawful activities. 390 U. S., at 44; see United States v. Sullivan, 274 U. S., at 263. Nor did we suggest that the Fifth Amendment would make it impossible for Congress to construct an enforceable statutory scheme for reporting by individuals of their illicit gains. See 390 U. S., at 72 (BRENNAN, J., concurring). Rather, we noted that "[t]he laws of every State, except Nevada, include broad prohibitions against gambling, wagering, and associated activities," and that even Nevada imposed
This dual purpose is significant here. For while the Government may not undertake the prosecution of crime by inquiring of individuals what criminal acts they have lately planned or committed, it may surround a taxing or regulatory scheme with reporting requirements designed
Of course, the Government may not insulate inquiries designed to produce incriminating information merely by
Viewed in this light, then, Marchetti and Grosso are the outgrowth of two principles inapplicable to the problem at hand. The first is that when a given class of activities is, in the main, made criminal by either state or federal law, an individual may not be compelled to disclose whether he engages in activities within the class unless his disclosure is compensated by the requisite grant of immunity.
Neither of these principles, however, controls the case at hand. The relevant class of activities "permeated with criminal statutes," Albertson v. SACB, 382 U. S., at 79, is the class of activities related to gambling. But this case does not involve a prosecution for gambling or related activities. It involves a prosecution for income tax evasion, by use of information compelled pursuant to a scheme requiring all those who engage in the business of accepting wagers
Finally, our decisions in both Marchetti and Grosso not to attempt to salvage the statutory scheme by imposing
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
I had assumed that all criminal and civil decisions involving constitutional defenses which go in favor of the defendant were necessarily retroactive. That is to say, the Constitution has from Chief Justice Jay's time been retroactive,
I could understand today's decision if Marchetti and Grosso had announced only a prospective rule applicable to all like defendants. But when the defendants in those cases are given the benefit of a new constitutional rule forged by the Court, it is not comprehensible, if justice rather than the fortuitous circumstances of the time of the trial is the standard, why all victims of the old unconstitutional rule should not be treated equally.
I can find nothing in the Constitution that authorizes some constitutional rules to be prospective and others to be retroactive. The majority often says the test is whether a new rule affects the integrity of the factfinding process, Desist v. United States, 394 U.S. 244. Yet even that test is not applied when the majority thinks that the impact of the new rule, if applied with due regard to the Equal Protection Clause, would be "devastating." Tehan v. Shott, 382 U.S. 406, 419. The Constitution grants this Court no such legislative powers.
My views have been expressed in Linkletter v. Walker, 381 U.S. 618, 640, and Johnson v. New Jersey, 384 U.S. 719, 736, and I adhere to them. I would continue to construe all constitutional safeguards "strictly."
"An examination of these and other cases reveals no instance where the [Supreme] Court has given retroactive application to an exclusionary rule or other Constitutional guarantee where the reliability of the fact finding process had not been jeopardized. The briefs for [Mackey] have suggested none. In [petitioner] Mackey's trial, the introduction of the wagering tax forms did not jeopardize the integrity of the trial except to the extent that they showed that he was engaged in illegal activities other than that charged. This possibility was raised by Mackey's attorneys at the trial, and apparently on appeal, and both times the Courts held that there was no error." Id., at 36.
We note in reference to the last point mentioned by the District Judge that at trial the court's charge to the jury included several strong admonitions to the effect that the question of whether any business run by petitioner was legal or illegal was irrelevant to the offense charged in the indictment—failure to report income for five years. See Brief for the United States 11.
Conversely, is it not perfectly clear that, had such a party procured and collected a final damage award prior to New York Times, the defendant could not have urged that the case be reopened solely because of our subsequent decision in that case? Absent proof of fraud or want of jurisdiction in the trial court that judgment would be res judicata and entitled to full faith and credit throughout the land.
This is not to suggest that civil and criminal collateral attack ought necessarily to be precisely congruent in the federal system. But certainly it illustrates that the law has always perceived collateral attack as a problem quite different from direct appeal.
For a counter-example, see Milton v. Wainwright, 306 F.Supp. 929 (SD Fla. 1969), where a district judge adjudicating a habeas petition declined to consider any of this Court's decisions relating to involuntary confessions that postdated 1958, the time at which the petitioner's murder conviction became final. See also n. 4, infra.
"In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review . . . of the decision of such State court, shall be conclusive as to all issues of fact or law . . . actually adjudicated by the Supreme Court therein, unless the applicant . . . shall plead and the court shall find the existence of a material and controlling fact which did not appear in the record of the proceeding in the Supreme Court [and could not have been put in by exercising due diligence]." 28 U. S. C. § 2244 (c) (1964 ed., Supp. V) (emphasis added).
Unless one is to read "fact" as including a change in the law, it would seem that Congress has provided in these circumstances for finality as to legal determinations. That "fact" is properly read narrowly seems the better view in light of subsections (a) and (b) which permit a subsequent habeas petition (where there was no Supreme Court review) if it presents a "new ground" or "a factual or other ground not adjudicated on the [prior] hearing." Although the legislative history is extremely sparse, it fully supports this reading. Both the House and Senate committee reports accompanying these amendments stated that the purpose of the reformulation of § 2244 was to introduce a greater measure of finality into the law by providing for a qualified application of the res judicata concept. See H. R. Rep. No. 1892, 89th Cong., 2d Sess., 3, 8 (1966); S. Rep. No. 1797; 89th Cong., 2d Sess., 2 (1966). There was no relevant floor debate on these amendments.
Nor do I think the converse inference can properly be drawn that, if Congress provided legal finality for those prisoners whose convictions had been affirmed by us, it intentionally determined that other convicts should be able to avail themselves of all new constitutional rules on habeas. The language of subsections (a) and (b) certainly does not compel such a conclusion. The congressional committee reports neither state nor fairly imply that these amendments were designed to achieve the maximum feasible or desirable finality in habeas proceedings. Most important, it is difficult to imagine what would be the rationale for such a distinction merely between those who have and have not, at some time in the remote past, had full review of their cases in this Court.