# Mackey v. United States (401 U.S. 667)

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## Concurring Opinion

    Harlan

## Dissenting Opinion

    Douglas
United States Supreme Court
401 U.S. 667
Mackey v. United States
Certiorari to the United States Court of Appeals for the Seventh Circuit
No. 36. Argued: October 21, 1970 --- Decided: April 5, 1971
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 postconviction 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. 671-675, 700-701, 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. 646. Pp. 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. 700-701.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the Fifth Amendment does not bar the use of information 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. 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. 675. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 702. DOUGLAS, J., filed a dissenting opinion, in which BLACK, J., joined, post, p. 713.
William M. Ward argued the cause and filed briefs for petitioner.
Matthew J. Zinn argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Francis X. Beytagh, Jr., Beatrice Rosenberg, and Mervyn Hamburg.

## Notes

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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