At petitioner's trial for income tax evasion, the Government
used monthly wagering tax forms petitioner had filed, as required
by statute, to show that the gross amount of wagers he reported,
less business expenses, exceeded the gambling profits reported on
his income tax returns. Petitioner objected on the ground that the
forms were prejudicial and irrelevant, but he was convicted in
1964, and the Court of Appeals affirmed. After this Court's 1968
decisions in
Marchetti v. United States, 390 U. S.
39, and
Grosso v. United States, 390 U. S.
62, petitioner applied for post-conviction relief on the
ground that the Fifth Amendment barred the prosecution's use of the
wagering tax forms. The District Court denied the application. The
Court of Appeals affirmed, holding that
Marchetti and
Grosso would not be applied retroactively to overturn the
earlier income tax evasion conviction based on the then-applicable
constitutional principles.
Held: The judgment is affirmed. Pp.
401 U. S.
671-675,
401 U. S.
700-701,
401 U. S.
703-713.
411 F.2d 504, affirmed.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE BLACKMUN, concluded that
Marchetti and
Grosso are not to be applied
retroactively, since no threat to the reliability of the
factfinding process was involved in the use of the wagering tax
forms at petitioner's trial.
Tehan v. Shott, 382 U.
S. 406;
Johnson v. New Jersey, 384 U.
S. 719;
Williams v. United States, ante, p.
401 U. S. 646. Pp.
401 U. S.
671-675.
MR. JUSTICE HARLAN concluded that, in this case, here on
collateral review, the judgment should be affirmed, since he cannot
say that the pre-
Marchetti rule that prevailed at the time
of petitioner's conviction,
viz., that the registration
requirement and obligation to pay the gambling tax did not violate
the Fifth Amendment, was so grossly erroneous as to work an
inexcusable inequity against petitioner, and that the then-existing
justification for that result (that persons could avoid
self-incrimination by ceasing to engage in illegal activities) is
not without some force. Pp.
401 U. S.
700-701.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded
that the Fifth Amendment does not bar the use of information
Page 401 U. S. 668
that, in furtherance of the general scheme of collecting taxes
and enforcing the tax laws, required those in the business of
accepting wagers to report their income, a situation readily
distinguishable from that in
Marchetti and
Grosso, where the Amendment was held to bar forced
disclosure of information that would have subjected the individual
concerned to the "real and appreciable" hazard of
self-incrimination for violating pervasive state or federal laws
proscribing gambling. Pp.
401 U. S.
703-713.
WHITE, J., announced the Court's judgment and delivered an
opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ.,
joined. HARLAN, J., filed an opinion concurring in the judgment,
post, p.
401 U. S. 675.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined,
post, p.
401 U. S. 702.
DOUGLAS, J., filed a dissenting opinion, in which BLACK, J.,
joined,
post, p.
401 U. S.
713.
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. [
Footnote 1] The
conviction was affirmed on appeal by the Court of Appeals for
the
Page 401 U. S. 669
Seventh Circuit in the spring of 1965. 345 F.2d 499 (CA7),
cert. denied, 382 U.S. 824 (1965).
At petitioner's trial, the Government used the net worth method
to prove evasion of income taxes. [
Footnote 2] As part of its case, it introduced 60 wagering
excise tax returns -- one for every month of each of the five years
covered by the indictment -- filed by petitioner pursuant to 26
U.S.C. § 4401. A summary exhibit prepared from these returns and
petitioner's income tax returns were also introduced, and an
Internal Revenue Service technical advisor testified that, for the
years in question, the totals of the gross amount of wagers
reported on the wagering tax returns, less the expenses of running
petitioner's "policy wheel" operation as reported on his annual
income tax returns, exceeded the net profits from gambling reported
on the petitioner's income tax returns. Defense counsel objected to
the introduction of these exhibits, arguing that they were
prejudicial, inflammatory, and irrelevant; the Government responded
that the wagering tax returns and the summary exhibit were relevant
because they showed a likely source of unreported income. The
exhibits were admitted, and the Court of Appeals found, without
specific discussion, no error in the ruling. [
Footnote 3]
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.
Page 401 U. S. 670
§§ 4401, 4411, 4412.
Marchetti v. United States,
390 U. S. 39
(1968);
Grosso v. United States, 390 U. S.
62 (1968). Petitioner, who had begun serving his
sentence in December, 1965, filed on February 12, 1968, a motion
pursuant to 28 U.S.C. § 2255 to vacate his sentence and set aside
the judgment of conviction on authority of
Marchetti and
Grosso. The motion was denied by the District Court for
the Northern District of Indiana, [
Footnote 4] and the Court of Appeals affirmed. 411 F.2d
504 (CA7 1969).
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
Page 401 U. S. 671
evading payment of income tax simply because the wagering excise
tax returns filed pursuant to 26 U.S.C. § 4401 were introduced in
evidence at trial. Employing the threefold analysis set forth in
our retroactivity decisions,
see, e.g., Stovall v. Denno,
388 U. S. 293,
388 U. S. 297
(1967), the Court of Appeals found that law enforcement officials
had relied on the old rule, that retroactive application of
Marchetti and
Grosso in cases such as
petitioner's would have a substantial impact on the administration
of justice, and that
"[t]he unreliability of the factfinding process which is the
touchstone of retroactivity is simply not threatened by the
impersonal command of the wagering tax laws."
411 F.2d at 509. We granted certiorari. 396 U.S. 954.
I
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
345 U. S. 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
390 U. S. 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
Page 401 U. S. 672
evidence.' 390 U.S. at
390 U. S. 54. The gambling
registration and tax requirements were held to present substantial
risks of self-incrimination, and therefore to be unenforceable;
imposition of criminal penalties for noncompliance was an
impermissible burden on the exercise of the privilege."
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.
401 U. S. 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
[
Footnote 5] in 1965 to
Desist [
Footnote 6] in
1969. Among those cases were two which determined that earlier
decisions extending the
Page 401 U. S. 673
reach of the Fifth Amendment privilege against compelled
self-incrimination would not be retroactively applied to invalidate
prior convictions that in all respects conformed to the then
controlling law.
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
382 U. S. 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
382 U. S. 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 [
Footnote 7] rules to cases pending on direct
review as well as to those involving applications for collateral
relief. Stating that the "prime purpose of these rulings is to
guarantee full effectuation of the privilege against
self-incrimination, the mainstay of our adversary system of
criminal justice," 384 U.S. at
384 U. S. 729,
the Court also recognized that the new rules to some extent did
guard against the possibility of unreliable admissions given
Page 401 U. S. 674
during custodial interrogation.
Id. at
384 U. S. 730.
The question, however, was one of "probabilities." The hazard of
untrustworthy results in past trials was not sufficiently apparent
to require retroactive application in view of the existing, well
defined remedies against the use of many involuntary confessions,
the obvious fact that the new warnings had not been standard
practice prior to
Miranda, and the consequent disruption
to the administration of the criminal law.
II
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
384 U. S. 730.
Nor does Mackey suggest that his returns -- made under
Page 401 U. S. 675
oath -- were inaccurate in any respect. [
Footnote 8] Thus, a gambling excise tax return, like
physical evidence seized in violation of a new interpretation of
the Fourth Amendment, is concededly relevant and probative even
though obtained by the Government through means since defined by
this Court as constitutionally objectionable. As in
Desist,
Elkanich, and
Williams, the result here should be
that a pre-
Marchetti trial in which the Government
employed such evidence is not set aside through retroactive
application of the new constitutional principle.
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.
[
Footnote 1]
Petitioner received a sentence of five years' imprisonment and a
fine of .$10,000 on each count, the prison terms to be served
concurrently.
[
Footnote 2]
This method of prosecution is discussed and approved in
Holland v. United States, 348 U.
S. 121 (1954);
Friedberg v. United States,
348 U. S. 142
(1954);
Smith v. United States, 348 U.
S. 147 (1954);
United States v. Calderon,
348 U. S. 160
(1954).
[
Footnote 3]
In rejecting petitioner's application for relief under 28 U.S.C.
§ 2255, the District Judge so read the Court of Appeals' earlier
opinion.
See App. 28.
[
Footnote 4]
The District Court advanced several reasons for denying
petitioner's application.
See App. 27-38. Noting that,
with gambling excise tax returns, "there is little danger of their
unreliability other than their possible understatement of
liability,"
id. at 32, the District Judge held that
Marchetti and
Grosso should not be applied to
petitioner's case:
"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.
[
Footnote 5]
Linkletter v. Walker, 381 U. S. 618
(1965).
[
Footnote 6]
Desist v. United States, 394 U.
S. 244 (1969).
[
Footnote 7]
Miranda v. Arizona, 384 U. S. 436
(1966).
[
Footnote 8]
See n 4,
supra.
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
Page 401 U. S. 676
consequence, the judgments below are affirmed without reaching
the merits of the underlying questions presented. Two of the cases,
Williams and
Elkanich, involve the Court's
decision in
Chimel v. California, 395 U.
S. 752 (1969), changing the rule as to the scope of
permissible searches and seizures incident to a lawful arrest. The
other case,
Mackey, involves the Court's decisions in
Marchetti v. United States, 390 U.S.
39 (1968), and
Grosso v. United States, 390 U.S.
62 (1968), changing the rule as to the application of the
privilege against self-incrimination with respect to criminal
prosecutions arising under the federal gambling tax statutes.
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,
395 U. S. 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,
394 U. S.
256-257 (1969).
See also United States v. United
States Coin & Currency, post, p.
401 U. S. 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
Page 401 U. S. 677
to pause to consider just where these haphazard developments
might be leading us. That is what I had thought underlay the taking
of these cases, and their companions,
United States v. United
States Coin & Currency, post, p.
401 U. S. 715, and
Hill v. California, post, p.
401 U. S. 797.
Regrettably, however, this opportunity has largely eventuated in
little more than a reaffirmation of the post-
Linkletter
developments.
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.
I
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
Page 401 U. S. 678
factors that should constitute the core of our task in giving
concrete embodiment to those constitutional commands that govern
the procedures by which the State and Federal Governments enforce
their criminal laws.
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,
5 U. S. 177-178
(1803), and, from that day to this, the sole continuing rationale
for the exercise of this judicial power:
"Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount law of
the nation. . . ."
"
* * * *"
"It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that
rule. If two laws conflict with each other, the courts must decide
on the operation of each."
"
* * * *"
"If then the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the legislature,
the constitution, and not such ordinary act, must govern the case
to which they both apply."
We announce new constitutional rules, then, only as a
correlative of our dual duty to decide those cases over
Page 401 U. S. 679
which we have jurisdiction and to apply the Federal Constitution
as one source of the matrix of governing legal rules. We cannot
release criminals from jail merely because we think one case is a
particularly appropriate one in which to apply what reads like a
general rule of law or in order to avoid making new legal norms
through promulgation of dicta. This serious interference with the
corrective process is justified only by necessity, as part of our
task of applying the Constitution to cases before us. Simply
fishing one case from the stream of appellate review, using it as a
vehicle for pronouncing new constitutional standards, and then
permitting a stream of similar cases subsequently to flow by
unaffected by that new rule constitute an indefensible departure
from this model of judicial review.
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
Page 401 U. S. 680
governing at the time we are possessed of jurisdiction in the
case entails additional significant untoward consequences. By this
doctrine another courts in this country are, in effect, reduced
largely to the role of automatons, directed by us to apply
mechanistically all then-settled federal constitutional concepts to
every case before them. No longer do the inferior courts -- and, in
the constitutional realm, all courts are inferior to us -- bear
responsibility for developing or interpreting the Constitution. For
it is a necessary corollary of this current retroactivity doctrine
that an inferior court errs when it arrives at a result which this
Court subsequently adopts but later decides must operate
prospectively only.
See my dissent in
Desist, 394
U.S. at
394 U. S. 259.
Cf. United States v. White, post, p.
401 U. S. 754
(Part II), and my dissenting opinion in that case,
post,
p.
401 U. S. 768.
See also United States v. United States Coin & Currency,
post, p.
401 U. S. 730
(WHITE, J., dissenting). Although it is necessary for the proper
functioning of the federal system that this Court possess the last
word on issues of federal constitutional law, it is intolerable
that we take to ourselves the sole ability to speak to such
problems.
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
381 U. S. 644
(BLACK, J., dissenting), a force which ought properly to bear on
the
Page 401 U. S. 681
judicial resolution of any legal problem.
Cf. Moragne v.
States Marine Lines, 398 U. S. 375,
398 U. S. 403
(1970).
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.
II
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. [
Footnote
2/1] At the time their
Page 401 U. S. 682
convictions became final, there was no constitutional error in
the conviction of either. Since that time, subsequent decisions of
this Court have formulated new constitutional rules that invalidate
the procedures like those involved in their trials.
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
394 U. S.
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
Page 401 U. S. 683
have become otherwise final. It is not designed as a substitute
for direct review. The interest in leaving concluded litigation in
a state of repose, that is, reducing the controversy to a final
judgment not subject to further judicial revision, may quite
legitimately be found by those responsible for defining the scope
of the writ to outweigh in some, many, or most instances the
competing interest in readjudicating convictions according to all
legal standards in effect when a habeas petition is filed. Indeed,
this interest in finality might well lead to a decision to exclude
completely certain legal issues, whether or not properly determined
under the law prevailing at the time of trial, from the cognizance
of courts administering this collateral remedy. This has always
been the case with collateral attacks on final civil judgments.
[
Footnote 2/2] More immediately
relevant here is the fact that,
Page 401 U. S. 684
prior to
Brown v. Allen, 344 U.
S. 443 (1953), federal courts would never consider the
merits of a constitutional claim raised on habeas if the petitioner
had a fair opportunity to raise his arguments in the original
criminal proceeding,
see my dissent in
Fay v.
Noia, 372 U. S. 391,
372 U. S.
449-463 (1963), unless the petitioner attacked the
constitutionality of the federal,
Ex parte Siebold,
100 U. S. 371
(1880), or state,
Crowley v. Christensen, 137 U. S.
86 (1890), statute under which he had been convicted.
See generally Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463 (1963);
Note, Developments in the Law -- Federal Habeas Corpus, 83
Harv.L.Rev. 1040, 1042-1062 (1970).
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
Page 401 U. S. 685
me with difficult problems. I have consistently protested a long
course of habeas decisions in this Court which, I still believe,
constitute an unsound extension of the historic scope of the writ
and an unfortunate display of insensitivity to the principles of
federalism which underlie the American legal system.
See, e.g.,
Fay v. Noia, 372 U. S. 391,
372 U. S. 448
(1963);
Sanders v. United States, 373 U. S.
1,
373 U. S. 23
(1963);
Kaufman v. United States, 394 U.
S. 217,
394 U. S. 242
(1969);
Townsend v. Sain, 372 U.
S. 293,
372 U. S. 325
(1963) (STEWART, J., dissenting). If I felt free to decide the
present cases consistently with my own views of the legitimate role
of the Great Writ, I should have little difficulty. But as my views
on this score have not commended themselves to most of my Brethren,
I feel obliged to approach these two collateral cases within the
framework of current habeas corpus doctrine. This is not an easy
exercise, for present habeas corpus decisions provide little
assistance in fathoming the underlying understanding of habeas
corpus upon which these decisions have been premised. The short of
the matter is that this Court has in recent times yet to produce
any considered, coherent statement of the general purposes of
habeas. In considering the problem of "retroactivity" on direct
review, it is possible to work from a general classic theory of
judicial review, but while the specific uses of the habeas writ
have greatly multiplied, the earlier perception of its general
metes and bounds has been swallowed up and gone unreplaced. About
the only way to proceed is to work from the bottom up, ascertaining
first which issues are cognizable on habeas, and which are not, and
thereafter inferring what must be thought to be the nature of the
writ.
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
Page 401 U. S. 686
knowingly and deliberately waived or constitutes mere harmless
error. That seems to be the implicit premise of
Brown v. Allen,
supra, and the clear purport of
Kaufman v. United States,
supra. This is not to say, however, that the function of
habeas corpus is to provide a federal forum for determining whether
any individual is presently "in custody in violation of the
constitution . . . of the United States," 28 U.S.C. § 2254 (1964
ed., Supp. V), in the sense that the basis for his incarceration
would, under the law existing at the time a petition is filed or
adjudicated, as distinguished from the law that was applicable at
the time his conviction became final, be held free of
constitutional error.
Cf. Meador, Habeas Corpus and the
"Retroactivity" Illusion, 50 Va.L.Rev. 1115 (1964).
While it has been generally, although not universally, assumed
that habeas courts should apply current constitutional law to
habeas petitioners before them, [
Footnote 2/3] I do not believe this is or should be the
correct view. First, no such proposition has ever been squarely
considered and embraced by this Court, at least since the recent
proliferation of criminal defendants' protected constitutional
Page 401 U. S. 687
rights and the concomitant expansion of the writ. [
Footnote 2/4] Moreover, applying current
constitutional standards to convictions finalized while different
views were ascendant appears unnecessary to achieve the ends sought
by
Brown and
Kaufman. The primary justification
given by the Court for extending the scope of habeas to all alleged
constitutional errors is that it provides a
quasi-appellate review function, forcing trial and
appellate courts in both the federal and state system to toe the
constitutional mark.
See Kaufman v. United States, 394
U.S. at
394 U. S. 226.
However, the opinion in
Kaufman itself concedes that there
is no need to apply new constitutional rules on habeas to serve the
interests promoted by that decision. 394 U.S. at
394 U. S. 229.
Further, as I explain in the margin below, [
Footnote 2/5] Congress, in at least one significant
Page 401 U. S. 688
regard, seems plainly to have disapproved the notion that
supervening constitutional interpretation ought to apply on habeas
involving state convictions.
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,
Page 401 U. S. 689
it is sounder, in adjudicating habeas petitions, generally to
apply the law prevailing at the time a conviction became final than
it is to seek to dispose of all these cases on the basis of
intervening changes in constitutional interpretation.
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
Page 401 U. S. 690
carries more emotional than analytic force. No one has put this
point better than Mr. Justice Jackson, in his concurring opinion in
Brown v. Allen, 344 U.S. at
344 U. S.
540:
"[R]eversal by a higher court is not proof that justice is
thereby better done. There is no doubt that, if there were a
super-Supreme Court, a substantial proportion of our reversals of
state courts would also be reversed. We are not final because we
are infallible, but we are infallible only because we are
final."
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
372 U. S. 445
(Clark, J., dissenting);
Spencer v. Texas, 385 U.
S. 554,
385 U. S. 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
373 U. S. 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
Page 401 U. S. 691
be treated once convicted. If law, criminal or otherwise, is
worth having and enforcing, it must at some time provide a
definitive answer to the questions litigants present or else it
never provides an answer at all. Surely it is an unpleasant task to
strip a man of his freedom and subject him to institutional
restraints. But this does not mean that, in so doing, we should
always be halting or tentative. No one, not criminal defendants,
not the judicial system, not society as a whole, is benefited by a
judgment providing a man shall tentatively go to jail today, but
tomorrow and every day thereafter his continued incarceration shall
be subject to fresh litigation on issues already resolved.
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
Page 401 U. S. 692
on collateral attack is not an insubstantial one, it is by no
means overwhelming. Most interests such a doctrine would serve will
be adequately protected. by the current rule that all
constitutional errors not waived or harmless are correctible on
habeas and by defining such errors according to the law in effect
when a conviction became final. Those interests not served by this
intermediate position are, in my view, largely overridden by the
interests in finality.
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. [
Footnote 2/6] New "substantive due process" rules, that
is, those that place, as a matter of constitutional interpretation,
certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe, [
Footnote 2/7] must, in my view, be placed
on a different footing. As I noted above, the writ has
historically
Page 401 U. S. 693
been available for attacking convictions on such grounds.
[
Footnote 2/8] This, I believe, is
because it represents the clearest instance where finality
interests should yield. There is little societal interest in
permitting the criminal process to rest at a point where it ought
properly never to repose. Moreover, issuance of the writ on
substantive due process grounds entails none of the adverse
collateral consequences of retrial I have described above. Thus,
the obvious interest in freeing individuals from punishment for
conduct that is constitutionally protected seems to me sufficiently
substantial to justify applying current notions of substantive due
process to petitions for habeas corpus.
See generally Part
II of my opinion for the Court in
United States v. United
States Coin & Currency, post, p.
401 U. S.
722.
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,
302 U. S. 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.
Page 401 U. S. 694
For example, such, in my view, is the case with the right to
counsel at trial now held a necessary condition precedent to any
conviction for a serious crime.
See my separate opinion in
Gideon v. Wainwright, 372 U. S. 335,
372 U. S. 349
(1963), where I concurred in conferring this right on a state
prisoner, seeking state habeas corpus, on the grounds that this
"new" rule was mandated by
Palko. Hence, I would continue
to apply
Gideon itself on habeas, even to convictions made
final before that decision was rendered. Other possible exceptions
to the finality rule I would leave to be worked out in the context
of actual cases brought before us that raise the issue.
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 preexisting factfinding procedures"
mandated by the Federal Constitution. 394 U.S. at
394 U. S. 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
Page 401 U. S. 695
process. I cannot believe that the interest in finality is
always outweighed by the interests protected in cases like
Coleman. Cf. Spencer v. Texas, 385 U.S. at
385 U. S. 583
(Warren, C.J., concurring and dissenting). I believe
Palko
more correctly marks the tipping point of finality interests not
only in terms of divining which new rules should apply on habeas,
but also in its reminder that a particular rule may be more or less
crucial to the fairness of a case depending on its own factual
setting. Finally, I find inherently intractable the purported
distinction between those new rules that are designed to improve
the factfinding process and those designed principally to further
other values. For a perfect example, note the plurality's
difficulty today in explaining, on that basis, retroactivity
decisions such as
Johnson v. New Jersey, 384 U.
S. 719 (1966);
Stovall v. Denno, 388 U.
S. 293 (1967); and
DeStefano v. Woods,
392 U. S. 631
(1968).
Williams v. United States, ante at
401 U. S.
655-656, n. 7.
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
394 U. S. 263.
See generally id. at
394 U. S.
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.
III
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
Page 401 U. S. 696
cases. Essentially, this is because I do not perceive the issues
raised by these cases from the same perspective as my Brethren.
Certain aspects of the other opinions announced today do, however,
fairly call for a response both because they contain some small
seeds of a challenge to what I have said above and because I think,
with respect, that what is written today by some of those who would
give virtually unlimited sweep to this "retroactivity" doctrine
strikingly illuminates the faulty premises of the thinking in this
entire field.
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
401 U. S.
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
401 U. S. 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
Page 401 U. S. 697
been the model for the judicial process. Indeed, it would seem
that the only precedential support for the position that prevails
today is that conflicting and confusing flurry of "retroactivity"
opinions that commenced less than five years ago with
Johnson
v. New Jersey, 384 U. S. 719
(1966).
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
401 U. S. 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
Page 401 U. S. 698
of our fabric of "positive law," and the issue, therefore, is
whether this Court should carry this policy over to the realm of
constitutional interpretation. Three cases are cited that allegedly
reveal we are not foreclosed from taking this course. The short
answer to all this remains the same: the distinction between
judicial and legislative power is equally woven deeply into the
fabric of our positive law. So, too, is the notion that this Court
definitively interprets the Constitution only because its role as a
court of law requires it to do so. It is not surprising, then, to
discover upon closer analysis that the cited cases do not bear the
heavy weight placed on them.
Gelpcke v. City of
Dubuque, 1 Wall. 175 (1864), holds only that state
courts may be compelled in some situations by particular provisions
of the Federal Constitution to apply certain new rules
prospectively only. No such claim has ever been made about these
new constitutional rules of criminal procedure.
Great Northern
R. Co. v. Sunburst Oil Refining Co., 287 U.
S. 358 (1932), merely holds that the Federal
Constitution imposes no barrier to a state court's decision to
apply a new state common law rule prospectively only. Is it not
sufficient answer to the dissenters' final assertion of
precedential support to point out that
Chicot County Drainage
District v. Baxter State Bank, 308 U.
S. 371 (1940), was a collateral attack on a civil
judgment already otherwise final and entitled to
res
judicata effect? And, further, that it was written by the same
Chief Justice, Hughes, who had held six years earlier, in
United States v. Chambers, 291 U.
S. 217 (1934), that repeal of the Eighteenth Amendment
abated all prosecutions begun, and required reversal on direct
review of all convictions obtained, under statutes dependent for
their constitutionality on the repealed amendment, yet did not
affect final convictions so obtained?
Page 401 U. S. 699
IV
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.
A
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
401 U. S.
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.
B
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
401 U. S. 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
Page 401 U. S. 700
due process as to require upsetting this conviction in spite of
the fact that it was perfectly lawful when made final. The agents
here clearly had probable cause to arrest petitioner, were not
undertaking a fishing expedition for any evidence they might find
but, rather, were looking for specific items that they had reason
to believe might be concealed in various places around the premises
and, indeed, generally limited their search to areas indicated by
petitioner. I would affirm the judgment below.
C
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
Page 401 U. S. 701
the conduct there at issue. Instead, Mackey's claim is that the
procedures utilized in procuring his conviction were vitiated by
the
Marchetti and
Grosso decisions. Since matters
of procedure rather than substance are involved,
see
401 U. S. I
would apply to the resolution of this habeas petition the law in
effect at the time Mackey's conviction became final, absent a
showing that the procedures employed were fundamentally unfair.
While
Kahriger did, indeed, in my judgment, rest upon an
"excessively narrow" view of the scope of the privilege against
self-incrimination, I cannot say that hindsight reveals that
judgment to have been so grossly erroneous as to amount to the
perpetration of an inexcusable inequity against Mackey in these
circumstances. Despite our rejection of it as a matter of Fifth
Amendment policy, the prior justification of the Government's
activity in this area -- that persons affected could avoid
incrimination by ceasing to engage in illegal activities -- is not
without some force.
Although the question is, for me, not free of difficulty, I
would affirm the judgment below for the reasons stated above.
V
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,
Page 401 U. S. 702
none other than one of resettling the limits of the reach of the
Great Writ, which, under the recent decisions of this Court, has
been given almost boundless sweep. [
Footnote 2/9] Until the Court is prepared to do this, I
can see no really satisfactory solution to the retroactivity
problem. Meanwhile, I very much regret to see the existing
free-wheeling approach to that problem now rewritten into the
jurisprudence of this Court.
I would affirm the judgments in Nos. 36 and 82 and reverse the
judgment in No. 81 upon the premises discussed in this opinion.
[
Footnote 2/1]
I realize, of course, that state prisoners are entitled to seek
release via habeas corpus under 28 U.S.C. § 2241, while federal
prisoners technically utilize what is denominated a motion to
vacate judgment under 28 U.S.C. § 2255. However, our cases make
these remedies virtually congruent, and the purpose of substituting
a motion to vacate for the traditional habeas action in the federal
system was simply to alter one minor jurisdictional basis for the
writ.
See United States v. Hayman, 342 U.
S. 205 (1952). As I do not propose to make any
distinction, for retroactivity purposes, between state and federal
prisoners seeking collateral relief, I shall refer throughout this
opinion to both procedures as the writ of habeas corpus, and cases
before us involving such judgments as cases here on collateral
review.
[
Footnote 2/2]
For example, we have more than once in recent years had before
us a libel case in which a party was allegedly libeled and brought
suit for redress prior to this Court's decision in
New York
Times Co. v. Sullivan, 376 U. S. 254
(1964), where we announced a new constitutional rule governing
liability in libel suits brought by public officials. Yet no one
connected with such cases has ever been heard to do so much as hint
that the
New York Times rule is not applicable because the
conduct complained of occurred or the suit was brought before this
new rule was promulgated.
See, e.g., Rosenblatt v. Baer,
383 U. S. 75
(1966).
Cf. Thorpe v. Housing Authority, 393 U.
S. 268,
393 U. S.
281-283 (1969).
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.
[
Footnote 2/3]
Professor Mishkin has pointed out that,
"prior to
Linkletter, the criteria applied in federal
habeas corpus proceedings were uniformly the constitutional
standards in effect at the time of those proceedings, regardless of
when the conviction was actually entered."
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, 78 (1965).
See also, e.g., Note,
Developments in the Law -- Federal Habeas Corpus, 83 Harv.L.Rev.
1040, 1151, 1153 (1970);
Sanders v. United States,
373 U. S. 1,
373 U. S. 17
(1963);
Miller v. Gladden, 341 F.2d 972, 975 (CA9
1965).
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 post-dated 1958, the time
at which the petitioner's murder conviction became final.
See
also n.
401
U.S. 667fn2/4|>4,
infra.
[
Footnote 2/4]
Arguably,
Reck v. Pate, 367 U.
S. 433 (1961), tacitly holds that habeas petitions must
be judged in accordance with current law. The Court there directed
the issuance of the writ on the ground that petitioner's
conviction, which became final in 1936, had been procured by the
introduction into evidence of an illegally obtained confession,
relying heavily on cases decided by this Court subsequent to 1936.
The District Court, in denying relief, had clearly held that the
admissibility of his confession was to be judged by standards
prevailing in 1936.
United States ex rel. Reck v.
Ragen, 172 F.
Supp. 734, 745-746 (ND Ill.1959). However, this choice of law
problem was not expressly adverted to, and the case arose before
this Court produced the recent enlargement of new constitutional
rules of criminal procedure.
[
Footnote 2/5]
In 1966, Congress amended the habeas statutes to deal with this
Court's discussion in
Sanders v. United States,
373 U. S. 1 (1963),
of
res judicata principles as they apply to habeas corpus.
One subsection of that new statute provides:
"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 rule 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.
[
Footnote 2/6]
I have in mind, of course, decisions such as
Gideon v.
Wainwright, 372 U. S. 335
(1963);
Mapp v. Ohio, 367 U. S. 643
(1961);
Miranda v. Arizona, 384 U.
S. 436 (1966);
Chimel v. California,
395 U. S. 752
(1969).
[
Footnote 2/7]
For example,
Street v. New York, 394 U.
S. 576 (1969);
Stanley v. Georgia, 394 U.
S. 557 (1969);
Griswold v. Connecticut,
381 U. S. 479
(1965);
Loving v. Virginia, 388 U. S.
1 (1967). Some rules may have both procedural and
substantive ramifications, as I have used those terms here.
See, e.g., my discussion, in
401 U.
S. United States,
390 U. S. 39
(1968), and Grosso v. United States,@
390 U. S.
62 (1968), bear on the problems raised by today's Fifth
Amendment cases.
[
Footnote 2/8]
See, e.g., Ex parte Siebold, 100 U.
S. 371 (1880);
Crowley v. Christensen,
137 U. S. 86
(1890);
Yick Wo v. Hopkins, 118 U.
S. 356 (1886). And see cases collected in Amsterdam,
Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378,
384 n. 30 (1964), and the discussion therein of the finality
implications such instances present.
[
Footnote 2/9]
For example, though correct in its result, I am now of the view
that
Linkletter would have been better decided had it
simply held that federal habeas corpus does not lie for claimed
errors in the introduction of illegally seized evidence.
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,
390 U. S. 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. [
Footnote 3/1]
Page 401 U. S. 703
I
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. [
Footnote 3/2] He was subsequently indicted
for willfully attempting to evade payment of his income taxes for
those years. 26 U.S.C. § 7201. At trial, the Government used the
wagering tax returns to show that the gross amount of wagers
reported, less the expenses of petitioner's business as reported on
his annual income tax returns, was greater than the profits from
gambling reported on those same annual returns. The Court of
Appeals affirmed over petitioner's claim that the returns were
inflammatory, prejudicial, and irrelevant. 345 F.2d 499 (CA7 1965).
After our decisions in
Marchetti v. United States, supra,
and
Grosso v. United States, supra, petitioner filed an
application for post-conviction relief on the ground that use of
the wagering tax returns was barred by the Fifth Amendment. The
application was denied by the District Court in an unreported
opinion, and the denial was affirmed by the Court of Appeals. 411
F.2d 504 (CA7 1969).
II
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
Page 401 U. S. 704
lacked the power to compel the information absent a waiver of
his Fifth Amendment privilege unless it provided the necessary
immunity from prosecution.
Marchetti v. United States,
390 U. S. 39
(1968);
Grosso v. United States, 390 U.S.
62 (1968);
Heike v. United States, 227 U.
S. 131,
227 U. S.
143-144 (1913);
Counselman v. Hitchcock,
142 U. S. 547,
142 U. S.
584-586 (1892). Since petitioner filed the wagering tax
returns under threat of criminal prosecution for failure to do so,
26 U.S.C. § 7203, and since he never knowingly waived his Fifth
Amendment privilege,
see Grosso v. United States, supra,
at
390 U. S. 70-71,
he is entitled to the immunity required by the Fifth Amendment.
Adams v. Maryland, 347 U. S. 179,
347 U. S. 181
(1954). Therefore, petitioner argues, the Government was foreclosed
from using the information provided by him on the wagering tax
returns against him in a criminal prosecution for evasion of the
income tax.
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,
274 U. S. 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,
341 U. S. 486
(1951). In such circumstance, sanctions may be applied for
refusal
Page 401 U. S. 705
to testify only if it is
"'
perfectly clear, from a careful consideration of all
the circumstances in the case . . . that the answer[s] cannot
possibly have [a] tendency' to incriminate."
Id. at
341 U. S. 488,
quoting
Temple v. Commonwealth, 75 Va. 892, 898 (1881)
(emphasis in original).
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,
400 U. S. 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,
396 U. S. 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
390 U. S. 44;
see United States v. Sullivan, 274 U.S. at
274 U. S. 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
390 U. S. 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
Page 401 U. S. 706
"criminal penalties upon lotteries and certain other wagering
activities taxable under [the federal] statutes."
Id. at
390 U. S. 44-46.
We noted that federal statutes prohibit the use of the mails and of
interstate commerce for many activities ancillary to wagering.
[
Footnote 3/3]
Id. at
390 U. S. 44. On
that basis, we concluded that,
"throughout the United States, wagering is 'an area permeated
with criminal statutes,' and those engaged in wagering are a group
'inherently suspect of criminal activities.'
Albertson v.
SACB, 382 U. S. 70,
382 U. S.
79."
Marchetti, 390 U.S. at
390 U. S. 47.
Accordingly, registration and payment of the occupational tax, or
the filing of a wagering excise tax return that the Government
required as a prerequisite to payment of the excise tax, [
Footnote 3/4] would subject the individual
concerned to "
real and appreciable,' and not merely `imaginary
and unsubstantial,' hazards of self-incrimination." Id. at
390 U. S. 48;
Grosso, 390 U.S. at 390 U. S. 64-67.
Since we found the "required records" doctrine of Shapiro v.
United States, 335 U. S. 1 (1948),
inapplicable to the statutory requirement that a gambler admit his
present or future involvement in gambling activity,
Marchetti, 390 U.S. at 390 U. S. 55-57;
Grosso, 390 U.S. at 390 U. S. 67-69,
we held that the privilege against self-incrimination was available
to the petitioners as a defense to prosecution for failure to
register for, report, or pay the federal wagering taxes. [Footnote 3/5]
Page 401 U. S. 707
Had the present case arisen in the context of a federal
investigation designed simply to uncover evidence of criminal
activity, we would need to go no further. [
Footnote 3/6] In such a situation, petitioner would be
entitled to "absolute immunity . . . from prosecution [under
federal laws] for any transaction revealed in that testimony."
Piccirillo v. New York, 400 U.S. at
400 U. S. 562
(BRENNAN, J., dissenting);
Counselman v. Hitchcock, 142
U.S. at
142 U. S.
584-586. But although we recognized in
Marchetti that
"Congress intended information obtained as a consequence of
registration and payment of the [gambling] occupational tax to be
provided to interested prosecuting authorities,"
Marchetti, 390 U.S. at
390 U. S. 58-59,
[
Footnote 3/7] we nevertheless
concluded that the "United States' principal interest is evidently
the collection of revenue, and not the punishment of gamblers."
Id. at
390 U. S. 57;
see United States v. Calamaro, 354 U.
S. 351,
354 U. S. 358
(1957).
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
Page 401 U. S. 708
to insure compliance with the scheme.
See Marchetti,
390 U.S. at
390 U. S. 44,
390 U. S. 60;
Grosso, 390 U.S. at
390 U. S. 72-74
(concurring opinion). In the latter situation, the privilege may
not be claimed if the danger of incrimination is only that the
information required may show a violation of the taxing or
regulatory scheme. Thus, in
Shapiro v. United States,
335 U. S. 1 (1948),
we upheld a conviction based upon records of sales provided under
compulsion of a regulation under the Emergency Price Control Act,
56 Stat. 23. The privilege had been claimed on the basis that the
records would (as they did) provide evidence of a violation of the
Act. We rejected the claim, reasoning that the Government has power
to compel
"'suitable information of transactions which are the appropriate
subjects of governmental regulation and the enforcement of
restrictions validly established.'"
Id. at
335 U. S. 33.
[
Footnote 3/8] And in
United
States v. Sullivan, 274 U. S. 259
(1927), we rejected a claim that the privilege against
self-incrimination allowed an individual whose income was earned in
crime to file no form of income tax return whatsoever. Although
dubious, we noted the possibility that the privilege could be
claimed to excuse reporting the amount of income earned because
that alone would disclose the criminal activities that had produced
the income.
Id. at
274 U. S.
263-264. But neither in
Sullivan nor in any
other of our cases is there the slightest suggestion that an
individual may refuse to disclose the income he has earned solely
because such disclosure will indicate a failure to pay the taxes
imposed on that income.
Of course, the Government may not insulate inquiries designed to
produce incriminating information merely by
Page 401 U. S. 709
labeling the inquiry a necessary incident of a regulatory
scheme. Where the essence of a statutory scheme is to forbid a
given class of activities, it may not be enforced by requiring
individuals to report their violations.
See Marchetti, supra;
Haynes v. United States, 390 U. S. 85
(1968);
Albertson v. SACB, 382 U. S.
70 (1965). But where the statutory scheme is not
designed to forbid certain acts, but only to require that they be
done in a certain way, the Government may enforce its requirements
by a compulsory scheme of reporting, directed at all who engage in
those activities, and not on its face designed simply to elicit
incriminating information.
Shapiro v. United States, supra; see
Albertson v. SACB, supra, at
382 U. S.
77-80.
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. [
Footnote 3/9]
Marchetti, supra; Haynes v.
United States, supra; Albertson v. SACB, supra. The second is
that such individuals may likewise not be compelled, absent
sufficient immunity, to disclose the details of their activities
within such a suspect class: for if the mere admission of engaging
in any of a class of activities is sufficiently likely to lead to
criminal prosecution that the privilege against self-incrimination
may be invoked,
Page 401 U. S. 710
admission of the details of these activities is
a
fortiori likely to lead to incrimination.
Grosso,
supra.
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
382 U. S. 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 [
Footnote 3/10] to report their income twice. For the
reasons discussed above, the Government may validly enforce the tax
laws by a scheme of required reports, directed at all persons
engaging in certain types of activity, and requiring them to report
the amount of their income so that the Government may insure that
the requisite taxes have been paid. If such a reporting requirement
raises a substantial danger of incrimination under state or federal
statutes making criminal the activity that is being taxed, an
individual may, of course, assert the privilege against
self-incrimination and refuse to disclose the information sought.
We so held in
Marchetti and
Grosso. And if the
information has been compelled over a claim of privilege,
application of those cases requires that the individual be
protected against the use of that information in state prosecutions
under the statutes making criminal the taxed activity, and to
complete immunity from prosecution under federal statutes of like
kind.
Piccirillo v. New York, 400 U.S. at
400 U. S.
561-574 (BRENNAN, J., dissenting);
Adams v.
Maryland, 347 U.S. at
347 U. S. 181;
Counselman v. Hitchcock, 142
U.S. at
142 U. S.
584-586;
cf. Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S. 79,
and n. 18 (1964). He is, in short, entitled to the protection
Page 401 U. S. 711
required by the Fifth Amendment. But here the Government was
entitled to demand the information that petitioner supplied -- his
gross income from wagering -- in order to enforce the tax laws.
Petitioner was entitled to claim the privilege only because of the
possibility of prosecution under state or federal gambling laws. No
such prosecution is involved here. "Once the reason for the
privilege ceases, the privilege ceases."
Ullmann v. United
States, 350 U. S. 422,
350 U. S. 439
(1956). Since the United States was entitled to demand the
information at issue here for the purpose to which it was
eventually put, the danger that petitioner's disclosures might also
have been impermissibly used does not prevent their present,
legitimate use even though the danger of impermissible use would
justify refusal to provide the information at all. [
Footnote 3/11]
III
Finally, our decisions in both
Marchetti and
Grosso not to attempt to salvage the statutory scheme by
imposing
Page 401 U. S. 712
use restrictions do not require that, once evidence has actually
been compelled, we refuse to protect a valid governmental interest
by restricting use of that evidence any more than is required by
the Fifth Amendment. For although we recognized in
Marchetti that
"the imposition of use restrictions would directly preclude
effectuation of a significant element of Congress' purposes in
adopting the wagering taxes,"
390 U.S. at
390 U. S. 59,
the primary basis for our refusal to impose such restrictions was
that
"the imposition of such restrictions would necessarily oblige
state prosecuting authorities to establish in each case that their
evidence was untainted by any connection with information obtained
as a consequence of the wagering taxes; the federal requirements
would thus be protected only at the cost of hampering, perhaps
seriously, enforcement of state prohibitions against gambling."
Ibid. [
Footnote 3/12]
Since a balance between effective state enforcement of gambling
laws and the interests of the federal treasury was one to be struck
by Congress, and not this Court, we declined to impose the proposed
restrictions.
Id. at
390 U. S. 59-60.
And, in
Grosso, we merely noted that it would be
"inappropriate to impose such restrictions upon one portion of a
statutory system when we have concluded that it would be improper,
for reasons discussed in
Marchetti, to do so upon 'an
integral part' of the same system."
390 U.S. at
390 U. S. 69.
Once again, however, different considerations apply when the
question is not whether information may be compelled, but rather to
what uses compelled information may be put. Once the return has
Page 401 U. S. 713
been filed, prosecution under state gambling laws can take place
only if the State can demonstrate that its evidence is not tainted
by information derived from the incriminatory aspects of the
return. Since disclosure, once made, may never be completely
undone, this burden must be borne by the State regardless of what
additional restrictions are imposed upon use of the return.
Accordingly, the considerations that led us to decline the
imposition of use restrictions for the future in
Marchetti
and
Grosso are not compelling in situations where the
incriminating information has already been disclosed. Petitioner is
therefore entitled to the immunity required by the Fifth Amendment,
and to no more. Since I believe the Amendment is no bar to the use
to which his wagering tax returns were put, I concur in the
judgment of the Court.
[
Footnote 3/1]
This view of the case makes it unnecessary for me to decide
whether petitioner's conviction should be examined without regard
to the standards embodied in
Marchetti and
Grosso. The balance of this opinion is written on the
assumption that
Marchetti and
Grosso are
applicable.
[
Footnote 3/2]
See 26 U.S.C. § 6011(a); Treas.Reg. § 44.6011(a)-1(a),
26 CFR § 44.6011(a)-1(a).
[
Footnote 3/3]
See 18 U.S.C. § 1084 (interstate transmission of
wagering information), §§ 1301-1304 (conduct of lotteries by mails
or broadcasting), § 1952 (interstate travel in aid of,
inter
alia, gambling), § 1953 (interstate transportation of wagering
paraphernalia).
[
Footnote 3/4]
We were informed by the United States in
Grosso that
the wagering excise tax would not be accepted unless accompanied by
the required return. 390 U.S. at
390 U. S.
65.
[
Footnote 3/5]
In addition, we declined in both
Marchetti and
Grosso the Government's invitation to salvage the
statutory scheme by imposing use restrictions on the information
required.
Marchetti, 390 U.S. at
390 U. S. 58-60;
Grosso, 390 U.S. at
390 U. S. 69.
The relevance of this to the issue before us is discussed
infra at
401 U. S.
711-713. For the moment, it is sufficient to note that
even the imposition of use restrictions could not have saved the
convictions at issue in those cases, for the petitioners obviously
had no way of knowing, when they failed to register and file the
required forms, that use restrictions might be imposed.
See
Murphy v. Waterfront Comm'n, 378 U. S. 52,
378 U. S. 79-80
(1964);
Regina v. United States, 364 U.
S. 507,
364 U. S.
514-515 (1960).
[
Footnote 3/6]
See 401
U.S. 667fn3/1|>n. 1,
supra.
[
Footnote 3/7]
In
Grosso, we remarked that,
"although there is no statutory instruction, as there is for the
occupational tax, that state and local prosecuting officers be
provided listings of those who have paid the excise tax, neither
has Congress imposed explicit restrictions upon the use of
information obtained as a consequence of payment of the tax,"
and that the Revenue Service, in fact, disseminated such
information to "interested prosecuting authorities."
Grosso, 390 U.S. at
390 U. S.
66.
[
Footnote 3/8]
The regulation upheld in
Shapiro required only the
keeping of records, and not their reporting; the information there
was compelled pursuant to an administrative subpoena. But as we
noted in
Marchetti, this situation is constitutionally
indistinguishable from a simple reporting requirement. 390 U.S. at
390 U. S. 56 n.
14.
[
Footnote 3/9]
Since the statutory scheme in
Marchetti and
Grosso provided no immunity whatsoever, and since those
cases arose in the context of an attempt by the Government to
punish individuals for failure to disclose the information
requested, we had no occasion there to determine the precise scope
of the immunity that would be required to displace the
privilege.
[
Footnote 3/10]
The few exceptions to this requirement are noted in
Marchetti, 390 U.S. at
390 U. S.
42.
[
Footnote 3/11]
The filing of a wagering tax return (or registration as a
prospective gambler) necessarily involves an admission that one has
engaged in, or intends to engage in gambling. Since gambling and
related activities are very likely to be criminal under state or
federal law, the Government lacks power to compel such an admission
absent the requisite grant of immunity. This was the question
involved in
Marchetti and
Grosso. But what is
relevant to the present case is not whether petitioner was involved
in criminal activity, but whether he paid the taxes imposed on his
income. I have indicated above why I believe that the Government
may enforce an otherwise unobjectionable scheme designed to insure
that individuals report the amount of their income in order to
enforce the tax laws. It therefore follows that the registration
and reporting requirements of the federal wagering tax statutes
could properly be enforced under a statute granting those who
complied with the requirements immunity from prosecution under
federal statutes that outlaw gambling and related activities, and
protection against the use of information contained in the returns
in aid of prosecution under state or federal laws making such
activities criminal.
[
Footnote 3/12]
That this was the primary basis for our refusal is evidenced by
our recognition that the "United States' principal interest is
evidently the collection of revenue, and not the punishment of
gamblers." 390 U.S. at
390 U. S. 57.
Absent the necessity for balancing state and federal interests, we
would surely not have crippled the primary purpose of the statutes
because a secondary purpose was necessarily disabled.
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,
* for there were
no decisions on the points prior thereto.
Marchetti v. United
States, 390 U. S. 39, and
Grosso v. United States, 390 U. S. 62,
exonerated defendants who, when they failed to file returns, were
not, by reason of
United States v. Kahriger, 345 U. S.
22, entitled to a constitutional immunity. Why Marchetti
and Grosso are entitled to relief and Mackey is not is a mystery.
It is said that Mackey's gambling return,
"like physical evidence seized in violation of a new
interpretation of the Fourth Amendment, is concededly relevant and
probative even though obtained by
Page 401 U. S. 714
the Government through means since defined by this Court as
constitutionally objectionable."
The same could be said of Marchetti and Grosso. Yet their
convictions were reversed.
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,
382 U. S. 419.
The Constitution grants this Court no such legislative powers.
My views have been expressed in
Linkletter v. Walker,
381 U. S. 618,
381 U. S. 640,
and
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 736,
and I adhere to them. I would continue to construe all
constitutional safeguards "strictly."
*
See Chisholm v.
Georgia, 2 Dall. 419.