# Mackey v. United States (401 U.S. 667)/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion Douglas
United States Supreme Court
401 U.S. 667
Mackey v. United States (401 U.S. 667)
Argued: Oct. 21, 1970. --- Decided: April 5, 1971
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. The conviction was affirmed on appeal by the Court of Appeals for the Seventh Circuit in the spring of 1965. 345 F.2d 499 (CA7), cert. denied, 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69 (1965).
At petitioner's trial, the Government used the networth method to prove evasion of income taxes. 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.
On January 29, 1968, this Court held that the Fifth Amendment privilege against compulsory self-incrimiantion 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. ss 4401, 4411, 4412. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (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, 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 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, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (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 fact-finding 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, 90 S.Ct. 426, 24 L.Ed.2d 419.
* In United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), a prosecution for failure to register and pay the gambling tax, this Court held that the registration requirement and the obligation to pay the gambling tax did not violate the Fifth Amendment. The Court construed the privilege as relating 'only to past acts, not to future acts that may or may not be committed. * * * Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.' 345 U.S., at 32-33, 73 S.Ct., at 515. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), reaffirmed this construction of the Fifth Amendment. Thirteen years later we could not agree with what was deemed an 'excessively narrow' view of the scope of the privilege. 390 U.S., at 52, 88 S.Ct., at 704. 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 evidence.' 390 U.S., at 54, 88 S.Ct., at 705. 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, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388. The decision in those cases represents the approach to the question of when to accord retroactive sweep to a new constitutional rule taken by this Court in the line of cases from Linkletter in 1965 to Desist in 1969. Among those cases were two which determined that earlier decisions extending the 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. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), the Court declined to apply the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), to prisoners seeking collateral relief. Griffin had construed the Fifth Amendment to forbid comment on defendants' failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose. The basic purpose of the privilege, we said, was not related to 'protecting the innocent from conviction,' 382 U.S., at 415, 86 S.Ct., at 464, the privilege 'is not an adjunct to the ascertainment of truth,' but is aimed at serving the complex of values on which it was historically rested. 382 U.S., at 416, 86 S.Ct., at 465. 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, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), reaffirmed this view of the Fifth Amendment by declining to apply the Miranda 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 729, 86 S.Ct., at 1779, the Court also recognized that the new rules to some extent did guard against the possibility of unreliable admissions given during custodial interrogation. Id., at 730, 86 S.Ct., at 1779. The question, however, was one of 'probabilities.' The hazard of untrustworthy results in past trials was not sufficient 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.
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 wjas the probable unreliability of such statements once given. Petitioner has not advanced any objective considerations suggesting such unreliability. The wagering tax returns introduced in evidence at his trial have none of the characteristics, and hence none of the potential unreliability, of coerced confessions produced by 'overt and obvious coercion.' Johnson, 384 U.S., at 730, 86 S.Ct., at 1779. Nor does Mackey suggest that his returns-made under oath-were inaccurate in any respect. 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.
Judgment affirmed.

## Notes

* ↑ Petitioner received a sentence of five years' imprisonment and a fine of $10,000 on each count, the prison terms to be served concurrently.
* ↑ This method of prosecution is discussed and approved in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Friedberg v. United States, 348 U.S. 142, 75 S.Ct. 138, 99 L.Ed. 188 (1954); Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954).
* ↑ 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.
* ↑ 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:
* ↑ Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
* ↑ Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).
* ↑ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
* ↑ See n. 4, supra.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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