This is an appeal by the Government from the dismissal of two
counts of an indictment charging appellee with violating 18 U.S.C.
§ 1001 by making false statements in wagering tax forms required by
26 U.S.C. § 4412. The District Court dismissed the indictment,
reasoning that appellee could not be prosecuted for "failure to
answer the wagering form correctly," since his privilege against
self-incrimination would have prevented prosecution for "failure to
answer the form in any respect."
Held:
1. One who furnishes false information to the Government in
feigned compliance with a statutory requirement cannot defend
against prosecution for his fraud by challenging the validity of
the requirement itself.
Bryson v. United States, ante, p.
396 U. S. 64. Pp.
396 U. S.
79-80.
2. By filing false statements, appellee took a course other than
the one that § 4412 was designed to compel, a course that the Fifth
Amendment gave him no privilege to take. Pp.
396 U. S.
81-82.
3. Whether, as appellee argues, he gave the false information
under the duress of §§ 4412 and 7203 of the Internal Revenue Code,
or his false statements were not made "willfully" as required by 18
U.S.C. § 1001, must be determined initially at his trial. Pp.
396 U. S.
82-84.
298 F. Supp. 1260, reversed.
Page 396 U. S. 78
MR. JUSTICE HARLAN delivered the opinion of the Court.
Appellee Knox has been charged with six counts of violation of
federal law in connection with his wagering activities. The first
four counts of the indictment charge that, between July, 1964, and
October, 1965, he engaged in the business of accepting wagers
without first filing Internal Revenue Service Form 11-C, the
special return and registration application required by § 4412 of
the Internal Revenue Code of 1954, and without first paying the
occupational tax imposed by § 4411 of the Code. Counts Five and Six
charge that, when Knox did file such a form on October 14, 1965,
and when he filed a supplemental form the next day, he knowingly
and willfully understated the number of employees accepting wagers
on his behalf -- in violation of 18 U.S.C. § 1001, a general
criminal provision punishing fraudulent statements made to any
federal agency.
Knox moved to dismiss the indictment, asserting that this
Court's decisions in
Marchetti v. United States,
390 U. S. 39
(1968), and
Grosso v. United States, 390 U. S.
62 (1968), had held invalid [
Footnote 1] the provisions of the wagering tax laws that
required him to file the special return. The Government, in
response, stated that it would not pursue the first four counts,
but argued that Knox's objections based on the
Marchetti
and
Grosso decisions were "largely irrelevant" to Counts
Five and Six. The District Court disagreed. It dismissed all six
counts, reasoning that Knox could not be prosecuted for his
"failure to answer the wagering form correctly," since his Fifth
Amendment privilege against self-incrimination would have prevented
prosecution for "failure to answer the form in any respect." 298 F.
Supp. 1260, 1261. The United States filed a direct appeal to this
Court
Page 396 U. S. 79
from the dismissal of the two count charging violations of §
1001, and we noted probable jurisdiction, 394 U.S. 971 (1969).
[
Footnote 2]
In
Bryson v. United States, ante, p.
396 U. S. 64,
decided today, we reaffirmed the holding of
Dennis v. United
States, 384 U. S. 855
(1966), that one who furnishes false information to the Government
in feigned compliance with a statutory requirement cannot defend
against prosecution for his fraud by challenging the validity of
the requirement itself.
Bryson, like
Dennis,
Page 396 U. S. 80
involved § 9(h) of the National Labor Relations Act, as amended
by the Taft-Hartley Act, 61 Stat. 146, which was attacked as an
abridgment of First Amendment freedoms and as a bill of attainder
forbidden by Art. I, § 9, of the Constitution. In contrast, Knox
alleges infringement of his Fifth Amendment privilege against
self-incrimination. We do not think that the different
constitutional source for Knox's claim removes his case from the
ambit of the principle laid down in those decisions. The validity
of the Government's demand for information is no more an element of
a violation of § 1001 here than it was in
Bryson.
[
Footnote 3]
The indictment charges that the forms Knox filed with the
District Director of Internal Revenue contained false, material
information, [
Footnote 4] an
accusation that concededly
Page 396 U. S. 81
falls within the terms of § 1001. However, Knox claims that the
Fifth Amendment bars punishing him for the filings because they
were not voluntary, but were compelled by §§ 4412 and 7203 of the
Internal Revenue Code. He points out that, if he had filed truthful
and complete forms as required by § 4412, he would have
incriminated himself under Texas wagering laws. On the other hand,
if he had filed no forms at all, he would have subjected himself to
criminal prosecution under § 7203. [
Footnote 5] In choosing the third alternative, submission
of a fraudulent form, he merely opted for the least of three evils,
under a form of duress that allegedly makes his choice involuntary
for purposes of the Fifth Amendment.
Page 396 U. S. 82
For this proposition, Knox relies on
United States v.
Lookretis, 398 F.2d 64 (C.A. 7th Cir.1968), where, after this
Court had remanded for reconsideration in light of
Marchetti,
see 390 U. S. 338
(1968), the Court of Appeals ruled that truthful disclosures made
under the compulsion of § 4412 could not be introduced against
their maker in a criminal proceeding. However, the Fifth Amendment
was offended in
Lookretis precisely because the defendant
had succumbed to the statutory compulsion by furnishing the
requested incriminatory information. Knox does not claim that his
prosecution is based upon any incriminatory information contained
in the forms he filed, nor that he is being prosecuted for a
failure to supply incriminatory information. He has taken a course
other than the one that the statute was designed to compel, a
course that the Fifth Amendment gave him no privilege to take.
This is not to deny that the presence of §§ 4412 and 7203
injected an element of pressure into Knox's predicament at the time
he filed the forms. At that time, this Court's decisions in
United States v. Kahriger, 345 U. S.
22 (1953), and
Lewis v. United States,
348 U. S. 419
(1955), established that the Fifth Amendment did not bar
prosecution for failure to file a form such as 11-C. But when Knox
responded to the pressure under which he found himself by
communicating false information, this was simply not testimonial
compulsion. Knox's ground for complaint is not that his false
information inculpated him for a prior or subsequent criminal act;
rather, it is that, under the compulsion of §§ 4412 and 7203, he
committed a criminal act, that of giving false information to the
Government. If the compulsion was unlawful under
Marchetti, [
Footnote
6] Knox may have a defense to
Page 396 U. S. 83
this prosecution under the traditional doctrine that a person is
not criminally responsible for an act committed under duress.
See generally Model Penal Code §§ 2.09, 3.02 (Proposed
Official Draft, 1962);
id. § 2.09, Comment (Tent.Draft No.
10, 1960). It is only in this sense that there is any relevance to
Knox's attempted distinction of this case from
Dennis,
Bryson, and their predecessors,
United States v.
Kapp, 302 U. S. 214
(1937), and
Kay v. United States, 303 U. S.
1 (1938), on the ground that, in those cases, the false
statements were voluntarily filed for the purpose of obtaining
benefits from the Government.
Knox argues that the criminal sanction for failure to file,
coupled with the danger of incrimination if he filed truthfully,
was more coercive in its effect than, for example, the prospect
that the petitioners in
Dennis would lose their jobs as
union officers unless they filed non-Communist affidavits. While
this may be so, the question whether Knox's predicament contains
the seeds of a "duress" defense, or perhaps whether his false
statement was not made "willfully," as required by § 1001, is one
that must be determined initially at his trial. [
Footnote 7] It
Page 396 U. S. 84
is not before us on this appeal from dismissal of the
indictment, and we intimate no view on the matter.
The judgment of the District Court is
Reversed.
[
Footnote 1]
But see nn.
3
6 infra.
[
Footnote 2]
Such a direct appeal is authorized by the Criminal Appeals Act,
18 U.S.C. § 3731, which provides:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases in the following instances: "
"From a decision or judgment setting aside, or dismissing any
indictment or information, or any count thereof, where such
decision or judgment is based upon the invalidity or construction
of the statute upon which the indictment or information is
founded."
"
* * * *"
"From the decision or judgment sustaining a motion in bar, when
the defendant has not been put in jeopardy."
The District Court sustained the claim of privilege not on the
basis of facts peculiar to this case, but on the basis of its
conclusion that the Fifth Amendment provides a defense to any
prosecution under § 1001 based on misstatements on a Form 11-C.
This amounts to a holding that § 1001, as applied to this class of
cases, is constitutionally invalid. The generality of the impact of
the District Court's holding appears to us to render our
jurisdictional holding
a fortiori compared to analogous
jurisdictional holdings in such cases as
Dahnke-Walker Milling
Co. v. Bondurant, 257 U. S. 282
(1921);
Fleming v. Rhodes, 331 U.
S. 100,
331 U. S.
102-104 (1947);
Wissner v. Wissner,
338 U. S. 655
(1950);
Department of Employment v. United States,
385 U. S. 355,
385 U. S.
356-357 (1966). We prefer to rest our jurisdiction on
this aspect of § 3731, rather than, as advocated by the Government,
the statute's "motion in bar" provision, in light of the fact that
the scope of the latter provision will be the subject of full-dress
consideration, as will certain problems under the "dismissing any
indictment" provision not present in this case, in
United
States v. Sisson, consideration of jurisdiction postponed,
post, p. 812.
[
Footnote 3]
Knox argues that his false Forms 11-C were not filed "in any
matter within the jurisdiction of any department or agency of the
United States," a necessary element of a violation of § 1001,
because
Marchetti and
Grosso held that the
Internal Revenue Service was not authorized to require the filing
of the forms. Even if his reading of those decisions were correct,
his argument would fail for the reasons explained in
Bryson. The Internal Revenue Service has express statutory
authority to require the filing, and when Knox submitted his forms
this Court had held that such a requirement raised no
self-incrimination problem.
United States v. Kahriger,
345 U. S. 22
(1963);
Lewis v. United States, 348 U.
S. 419 (1955). Further, in
Marchetti, we did
not hold that the Government is constitutionally forbidden to
direct the filing of the form, but only that a proper assertion of
the constitutional privilege bars prosecution for failure to comply
with the direction.
See n 6, infra;
see also Grosso v. United States, 390
U.S. at
390 U. S. 69-70,
n. 7.
[
Footnote 4]
Knox claims on appeal that neither Count Five nor Count Six
charges any affirmative misstatements, but only omissions. Count
Five charges that the statements on the form filed on October 14,
1965,
"were not true, correct, and complete, in that the number of
employees and/or agents engaged in receiving wagers in his behalf
were misrepresented and understated, in that the number, name,
special stamp number, street address, and city and state of
employees and/or agents engaged in receiving wagers in the said
JAMES D. KNOX's behalf had been omitted. . . ."
Count Six contains language identical except for an apparently
inadvertent difference in punctuation. Although the wording is not
entirely clear, we need not decide whether on a fair reading the
indictment encompasses affirmative misstatements. The District
Court read the indictment as alleging that Knox violated § 1001 "by
willfully and knowingly making a false statement" on the forms, and
it was on the basis of this construction that the court dismissed
Counts Five and Six. We have no jurisdiction on this direct appeal
to review the construction of the indictment.
E.g., United
States v. Harriss, 347 U. S. 612
(1954);
United States v. Petrillo, 332 U. S.
1 (1947);
United States v. Borden Co.,
308 U. S. 188,
308 U. S. 193
(1939).
But see United States v. CIO, 335 U.
S. 106 (1948).
See also n 2,
supra.
[
Footnote 5]
Title 26 U.S.C. § 7203 provides:
"Any person required under this title to pay any estimated tax
or tax, or required by this title or by regulations made under
authority thereof to make a return (other than a return required
under authority of section 6015 or section 6016), keep any records,
or supply any information, who willfully fails to pay such
estimated tax or tax, make such return, keep such records, or
supply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law,
be guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $10,000, or imprisoned not more than 1 year, or
both, together with the costs of prosecution."
[
Footnote 6]
We stressed in
Marchetti
"that we do not hold that these wagering tax provisions are, as
such, constitutionally impermissible; we hold only that those who
properly assert the constitutional privilege as to these provisions
may not be criminally punished for failure to comply with their
requirements. If, in different circumstances, a taxpayer is not
confronted by substantial hazards of self-incrimination, or if he
is otherwise outside the privilege's protection, nothing we decide
today would shield him from the various penalties prescribed by the
wagering tax statutes."
390 U.S. at
390 U. S. 61.
Nothing before us indicates that the hazard of incrimination faced
by Knox was less substantial than that faced by Marchetti, or that
Knox would have been disqualified for any other reason from
asserting the privilege in defense of a prosecution for failure to
comply with § 4412.
[
Footnote 7]
Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which
cautions the trial judge that he may consider on a motion to
dismiss the indictment only those objections that are "capable of
determination without the trial of the general issue," indicates
that evidentiary questions of this type should not be determined on
such a motion.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
In this case, as in
Bryson v. United States, ante, p.
396 U. S. 64, the
relevant inquiry is whether, "constitutionally speaking, it was
within the jurisdiction'" of a government agency to require the
filing of certain information. Id. at 396 U. S. 74
(dissenting opinion). In Marchetti v. United States,
390 U. S. 39,
390 U. S. 61, we
held that the statutory requirement of filing Internal Revenue
Service Form 11-C is not unconstitutional per se. It is
clear, however, that, under Marchetti, supra, and
Grosso v. United States, 390 U. S. 62, the
"jurisdiction" of the Internal Revenue Service to require this form
to be filed is subject to the Fifth Amendment privilege against
self-incrimination.
This is not a case where an individual, with knowledge that he
has a right to refuse to provide information, nonetheless provides
false information. Under the decisions in
United States v.
Kahriger, 345 U. S. 22, and
Lewis v. United States, 348 U. S. 419,
which were controlling at the time Knox filed his wagering form,
Knox faced prosecution under 26 U.S.C. § 7203 for failure to file
the form, despite claims of self-incrimination. The Government's
requirement to file the wagering form was unconditional. The
majority argues that, by the terms of
Marchetti, the
Government is not prohibited from requesting the form, but is only
prohibited from prosecuting an individual for his failure to comply
with the request.
Ante at
396 U. S. 80, n.
3. The question in this case, however, is not whether the
Government has the power to
request the form to be filed,
but whether it has the power to
require the form to be
filed. If Knox had
Page 396 U. S. 85
merely been requested to file the form and, with full knowledge
of his right to silence under the Fifth Amendment, had done so
voluntarily, we would have quite a different case. That is not this
case. Under the scheme then in effect, the Government demanded
unconditionally that Knox file the form, regardless of the fact
that it would incriminate him. Heavy penalties were placed on a
failure to file the form.
Marchetti and
Grosso held that those in Knox's
position have the Fifth Amendment right to remain silent
irrespective of the statutory command that they submit forms which
could incriminate them. Had Knox asserted his right of silence
under the Fifth Amendment, it is clear that the Internal Revenue
Service could not, consistently with
Marchetti and
Grosso, have required him to file the wagering form.
* Thus, any
argument that the Internal Revenue Service did have "jurisdiction"
to require the form to be filed in this case would have to rest on
a theory that Knox had "waived" his Fifth Amendment right by not
asserting it in lieu of filing the form. A similar claim was made
in
Grosso, where the petitioner had not asserted his Fifth
Amendment right as to certain counts concerning his failure to pay
the special occupational tax imposed by 26 U.S.C. § 4411. The Court
there said:
"Given the decisions of this Court in
Kahriger and
Lewis, supra, which were on the books at the time of
petitioner's trial, and left untouched by
Albertson v.
SACB [
382 U.S.
70], we are unable to view his failure to present this issue as
an effective waiver of the constitutional privilege."
390 U.S. at
390 U. S.
71.
Page 396 U. S. 86
That reasoning is equally applicable here, for
Kahriger
and
Lewis were still on the books at the time Knox filed
his form.
And see Leary v. United States, 395 U. S.
6,
395 U. S.
27-29.
For the reasons stated in my dissent in
Bryson, ante,
p.
396 U. S. 73,
and in MR. JUSTICE BLACK's separate opinion in
Dennis v. United
States, 384 U. S. 855,
384 U. S. 875,
if the Internal Revenue Service had no constitutional authority to
require Knox to file any wagering form at all, his filing of a form
which included false information in no way prejudiced the
Government, and is not, in my view, a matter "within the
jurisdiction" of the Internal Revenue Service.
I would affirm the judgment below.
* As the majority opinion states:
"Nothing before us indicates that the hazard of incrimination
faced by Knox was less substantial than that faced by Marchetti, or
that Knox would have been disqualified for any other reason from
asserting the privilege. . . ."
Ante at
396 U. S. 83 n.
6.