In this companion case to
Leary v. United States, ante,
p.
395 U. S. 6,
appellee was charged in a one-count indictment in the Southern
District of Ohio with having violated a provision of the Marihuana
Tax Act by having obtained a quantity of marihuana without having
paid the transfer tax imposed by the Act. Appellee, asserting that
his possession of marihuana was illegal under Ohio law and that he
would have substantially risked incrimination had he complied with
the Act, moved to dismiss the indictment under the authority of
Marchetti v. United States, 390 U. S.
39,
Grosso v. United States, 390 U. S.
62, and
Haynes v. United States, 390 U. S.
85. The District Court upheld the motion to dismiss on
the ground that the Fifth Amendment privilege against
self-incrimination provided a complete defense to prosecution, and,
alternatively, that, if (as the Government contended) appellee was
not required to pay the tax, there could be no basis for the
indictment.
Held:
1. The decision was one which might be appealed directly to this
Court under 18 U.S.C. § 3731: if the dismissal of the indictment
rested on the ground that the Fifth Amendment privilege would be a
defense, then the decision was one "sustaining a plea in bar"; if
the dismissal was based on acceptance of the Government's
interpretation of the Marihuana Tax Act, then the decision
necessarily was "based upon [a] construction of the statute upon
which the indictment was founded." P.
395 U. S.
59.
2. The Marihuana Tax Act requires persons like appellee to
prepay the transfer tax.
Leary v. United States, supra. P.
395 U. S.
59.
3. The Fifth Amendment privilege provides a complete defense to
prosecution under that Act if the defendant's plea of
self-incrimination is timely, the defendant confronts a substantial
risk of self-incrimination by complying with the Act's terms, and
he has not waived his privilege.
Ibid. Pp.
395 U. S.
59-61.
282 F. Supp. 886, affirmed.
Page 395 U. S. 58
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a companion case to
Leary v. United States,
decided today,
ante, p.
395 U. S. 6.
Appellee was charged in a one-count federal indictment in the
Southern District of Ohio with having violated 26 U.S.C. §
4744(a)(1), a part of the Marihuana Tax Act, by obtaining 737.1
grams of marihuana without having paid the transfer tax imposed by
26 U.S.C. § 4741(a). [
Footnote
1] On appellee's motion, the District Court dismissed the
indictment, holding that, under principles established in
Marchetti v. United States, 390 U. S.
39 (1968),
Grosso v. United States,
390 U. S. 62
(1968), and
Haynes v. United States, 390 U. S.
85 (1968), appellee's privilege against
self-incrimination necessarily would provide a complete defense to
the prosecution. 282 F. Supp. 886 (1968).
On motion for reconsideration, the Government advanced the
argument, more fully described in
Leary, supra, at
395 U. S. 18-20,
that the transfer tax provisions of the Marihuana Tax Act do not
compel incriminatory disclosures because, as administratively
construed and applied, they allow prepayment of the tax only by
persons whose activities are otherwise lawful. The District Court
responded by ruling in the alternative that, if appellee was not
required to pay the tax, there could be no basis for the
indictment. Appendix 20.
Page 395 U. S. 59
The Government appealed directly to this Court pursuant to 18
U.S.C. § 3731, which authorizes direct appeal from the dismissal of
an indictment when the decision is one "sustaining a motion in bar"
or "is based upon the invalidity or construction of the statute
upon which the indictment or information is founded." We noted
probable jurisdiction, 393 U.S. 910 (1968), [
Footnote 2] and the appeal was argued together
with
Leary v. United States, supra.
As has been noted, the District Court dismissed the indictment
on two alternative grounds. We begin with the second, which was
that, assuming the Government's construction of the Marihuana Tax
Act to be correct, the indictment did not charge an offense under
that statute. Our decision today in
Leary, supra, makes it
plain that this was an improper ground of dismissal, for we have
held that the Government's interpretation is incorrect, and that
the Act requires persons like appellee to prepay the transfer tax.
See ante at
395 U. S.
20-26.
The District Court's other basis for dismissal was that
appellee's Fifth Amendment privilege necessarily would provide a
complete defense to the prosecution. We have held today in
Leary that the privilege does provide such a defense
unless the plea is untimely, the defendant confronted no
substantial risk of self-incrimination, or the privilege has been
waived.
See ante at
395 U. S. 27.
[
Footnote 3]
See
also
Page 395 U. S. 60
Marchetti v. United States, 390 U. S.
39,
390 U. S. 61
(1968). The questions remain whether such a plea of the privilege
may ever justify dismissal of an indictment, and, if so, whether
this is such an instance.
Federal Rule of Criminal Procedure 12(b)(1) states that: "Any
defense or objection which is capable of determination without the
trial of the general issue may be raised before trial by motion." A
defense is thus "capable of determination" if trial of the facts
surrounding the commission of the alleged offense would be of no
assistance in determining the validity of the defense. [
Footnote 4] Rule 12(b)(4) allows the
District Court, in its discretion, to postpone determination of the
motion to trial, and permits factual hearings prior to trial if
necessary to resolve issues of fact peculiar to the motion.
In many instances, a defense of self-incrimination to a
Marihuana Tax Act prosecution will be "capable of determination
without the trial of the general issue." A plea on motion to
dismiss the indictment is plainly timely. The question whether the
defendant faced a substantial risk of incrimination is usually one
of law which may be resolved without reference to the circumstances
of the alleged offense. There may more frequently be instances when
the issue of waiver will be suitable for trial together with the
"general issue." [
Footnote 5]
However, the question whether the privilege has been waived also is
one of law, and, in most cases, there will be no factual dispute
about it. Hence, we think that a defendant's assertion of the
privilege should be sufficient to create a legal presumption
Page 395 U. S. 61
of nonwaiver, and thus to require dismissal of the indictment
unless the Government can rebut the presumption by showing a need
for further factual inquiries.
Application of these principles to this appeal requires
affirmance. Appellee asserted in his motion to dismiss that his
possession of marihuana was illegal under Ohio law, and that he
would have run a substantial risk of incrimination had he complied
with the Act. The District Court reached the same conclusion. The
Government appears to acknowledge the illegality of appellee's
possession. [
Footnote 6] We
conclude that there is no possibility of any factual dispute with
regard to the hazard of incrimination.
There is in this brief record no indication that appellee waived
his privilege, and the Government has never alleged the existence
of a factual controversy on that score. Hence, we think it "just
under the circumstances" that the case be finally disposed of at
this level.
See 28 U.S.C. § 2106;
Grosso v. United
States, 390 U. S. 62,
390 U. S. 71-72
(1968);
Haynes v. United States, 390 U. S.
85,
390 U. S.
100-101 (1968). Accordingly, the judgment of the
District Court is
Affirmed.
MR. CHIEF JUSTICE WARREN, considering himself bound by the
decisions in
Marchetti v. United States, 390 U. S.
39 (1068),
Grosso v. United States,
390 U. S. 62
(1968), and
Haynes v. United States, 390 U. S.
85 (1968), concurs in the judgment of the Court.
MR. JUSTICE STEWART joins the opinion and judgment of the Court
upon the premise stated in his concurring opinion in
Leary v.
United States, ante, p.
395 U. S. 54.
[
Footnote 1]
The relevant provisions of the Marihuana Tax Act are set out and
their relationships explained in
Leary v. United States,
supra, at
395 U. S.
14-15.
[
Footnote 2]
If the dismissal rested on the ground that the Fifth Amendment
privilege would be a defense, then the decision was one "sustaining
a motion in bar."
See United States v. Murdock,
284 U. S. 141
(1931). If the dismissal was based on a finding that, under the
Government's construction of the Marihuana Tax Act, the indictment
stated no offense, then the decision necessarily was "based upon
the . . . construction of the statute upon which the indictment . .
. [was] founded."
See United States v. Borden Co.,
308 U. S. 188,
308 U. S. 193
(1939).
[
Footnote 3]
Leary was convicted under 26 U.S.C. § 4744(a)(2), prohibiting
transportation or concealment of marihuana by one who acquired it
without having paid the transfer tax, while appellee was indicted
under 26 U.S.C. § 4744(a)(1), forbidding such acquisition. We think
it clear that there is no significant distinction between the
statutes for purposes of the Fifth Amendment privilege.
[
Footnote 4]
See 8 J. Moore, Federal Practice � 12.04 (R. Cripes
ed.1968); 2 L. Orfield, Criminal Procedure Under the Federal Rules
§§ 12.51-12.60 (1966).
[
Footnote 5]
Cf. Leary v. United States, supra, at
395 U. S.
28-29.
[
Footnote 6]
See Brief for the United States 3, n. 1.