UNITED STATES v. KNOX

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Argument of Mervyn Hamburg

Chief Justice Warren E. Burger: Mr. Hamburg, in number 17, United States against Knox.

Are you ready?

Mr. Mervyn Hamburg: Mr. Chief Justice and may it please the Court.

The issue involved in this case is related to the proceeding when -- in that involves a prosecution under 18 U.S.C. 1001 for making false statements in purported compliance with other statutes, in this case, certain sections of the Internal Revenue Code relating to wagering taxes.

The precise issue here is whether an individual may properly assert the privilege against self-incrimination as a complete defense to a charge of making false statements on wagering tax returns.

The District Court in the Western District of Texas held that the privilege was such a defense and dismissed false statement charges against the appellee, James Knox.

The case is here on the Government's appeal of that dismissal.

The indictment was filed before this Court decided the Marchetti and Grosso cases.

This indictment charged the appellee with four counts of failing to file wagering tax returns, that is Form 11-C, a copy of which we've included in our appendix, and with failure to pay the special occupational tax, covering various prior to October 14, 1965.

The indictment also contains two counts, Counts Five and Six, which charge that the appellee made false statements on returns which he did file on October 14 and on October 15, 1965.

The statements being that he declared under penalties of perjury that the returns were to the best of his knowledge, true, correct and complete whereas in truth, they were not in that the number of employees he had claimed had been understated and misrepresented.

Now prior to trial, this Court decided Marchetti versus United States and Grosso versus United States and in those cases, this Court recognized that an individual charge with failing to file wagering tax forms which invariably contained information incriminating him under other laws, could properly assert that privilege, the privilege against self-incrimination as a complete defense.

Thereafter, the appellee moved to dismiss all of the charges against him including Counts Five and Six, the false statement Counts alleging that such a disposition was required as a result of the holding of the Marchetti and Grosso.

The Government responded that it intended to pursue only Counts Five and Six and as to those counts it argued in effect that their validity had not been affected by Marchetti and Grosso.

The District Court disagreed with the Government's position and in a brief memorandum, dated July 24, 1968, the Court -- that Court held that the constitutional privilege against self-incrimination prevents prosecution for failure to answer the form in any respect.

Judge Roberts relied upon Grosso in particular where charge of conspiracy to evade payment of the excise tax on wagering was dismissed along with the substitute charges of failing to pay the excise tax and failing to pay this special computational tax.

In the Government's view, Judge Roberts misinterpreted and misapplied the Court's decisions, particularly Grosso.

Thus I believe, it's appropriate to begin with the discussion of the difference between Grosso and this situation.

In Grosso, the Court held that a conspiracy charge had to fall with other counts since it was bottomed solely on allegations of invasion of the excise and occupational taxes.

The courts words, the conspiracy raise “Questions identical with those presented by the substitutes counts.”

In contrast to Grosso, the false statement counts are not identical.

They are not even similar to the charges of failure to file a wagering tax return or pay the tax.

While we no longer contest that privilege against self-incrimination as an appropriate defense to one charged with failure to file, we don't believe that that privilege protects an independent act of making a false statement on a form which the appellee did in fact filed.

In order words, the problem of incrimination arises at the threshold when one decides whether or not to file and face -- if he files perhaps, he might face prosecution under some state gambling laws or if he fails to file prosecution under a federal statute.

The appellee here resolved this question of whether to stand on his privilege or not.

He didn't avail himself of the what we believe to be the customary means by which statutes are challenged by non compliance.

Instead, he purported to comply and in this purported compliance, he lied.

He is now charged with a substantive offense of making false statements in violation of a statute having no connection with the wagering tax laws except insofar as the tax laws form that framework within which the appellee committed violations of this wholly distinct criminal statute.

Thus in our view, the Fifth Amended privilege should not control the outcome of the case in the District Court.

Our stand is not novel by any means.

A number of cases decided in the previous case argued here beginning with Kapp and Kay also cited in our brief have been controlled by a rational similar to the one we urge here.

Justice Byron R. White: Did the District Court consider Dennis?

Mr. Mervyn Hamburg: If it did Your Honor, it's certainly didn't mention in its brief in any way the --

Justice Byron R. White: Or was it say --

Mr. Mervyn Hamburg: And then, I'm sorry, and its appeal --

Justice Byron R. White: You know whether it was cited to the Court or not?

Mr. Mervyn Hamburg: As a matter of fact, it was not cited to the lower court.

Justice Byron R. White: It had been decided though at the end?

Mr. Mervyn Hamburg: I believe so, yes.

But I don't believe the Government in its reply in the District Court cited any of the cases here, Kapp or Kay or Dennis.

Justice Byron R. White: So, it's never been considered by the District Court in the light Dennis?

Mr. Mervyn Hamburg: Except insofar as Dennis had been decided and I assume that the Court was aware of the holding in Dennis.

Moreover, certainly the same principles of Dennis had been used and applied in Kapp and Kay insofar as this situation is concerned.

These cases holding that the uncons -- the claim of unconstitutionality of the underlying statute doesn't excuse a calculated, deliberate course of perjury or fraud or deceit.

In this case by the way of course, we are not dealing with the claim that the underlying statute is unconstitutional.

We're only dealing with a privilege against self-incrimination.

You could properly assert this privilege if the lawful process, time tested process of raising it when he fails to comply and that defense is all that Marchetti and Grosso established.

But if an underlying statute can't be attacked on constitutional grounds, certainly, an individual shouldn't be heard to raise a constitutional privilege in a situation where he purported to comply with the law.

Justice John M. Harlan: Am I right in thinking that speaking from recollection, am I right in thinking that the perjury statements that you complain of here charged him with concern not merely a failure to fill out a blank, a space in the blank which called for number of employees, but an affirmative filling out of that blank with the wrong number?

Mr. Mervyn Hamburg: Yes, Your Honor.

Justice John M. Harlan: No doubt about that?

Mr. Mervyn Hamburg: No doubt about it.

Justice Byron R. White: He said none in one case and gave a wrong number to another?

Mr. Mervyn Hamburg: Yes.

We have in fact photo copy the --

Justice Byron R. White: The address?

Mr. Mervyn Hamburg: The statements --

Justice Byron R. White: That's -- recollection.

Mr. Mervyn Hamburg: And I have included in the country in our appendix.

Justice Potter Stewart: So, the indictment itself is more than a little ambiguous in that regard, it is not?

Mr. Mervyn Hamburg: It might need to be quite awkward Your Honor, but it certainly is sufficient to indicate --

Justice Potter Stewart: That's the indictment that I remember when time this case we granted certiorari.

It said it indicates -- the indictment indicates, so what he did was leave the certain things blank?

Mr. Mervyn Hamburg: The indictment --

Justice Potter Stewart: Now, you're trying to cure that ambiguity with this photo stat of what he apparently actually did i.e the right to none the first time and on the amendment one to write the names and addresses of two or three people and you said they were more people than that?

Mr. Mervyn Hamburg: Yes.

Justice Potter Stewart: But the -- with -- was that exhibit appended to the original indictment?

Mr. Mervyn Hamburg: I don't believe so.

Justice Potter Stewart: How do they get here in the record?

Mr. Mervyn Hamburg: It was part of the prosecution's file.

Justice Potter Stewart: But it's in the record of this case?

Mr. Mervyn Hamburg: I, I--

Justice Potter Stewart: Or where was it consider --

Mr. Mervyn Hamburg: I -- I really couldn't say whether it was in fact in the record.

I don't know that the court below considered it, but I suppose --

Justice Potter Stewart: The court below did not at all address itself to this question or not considering the --

Mr. Mervyn Hamburg: The Court did not address itself to this.

No.

Justice Potter Stewart: -- that is the question that speaking for myself alone that interested me because the indictment seem to indicate that you were charged with somebody with the false statement who hadn't made any statement at all?

Mr. Mervyn Hamburg: Well, if -- its seems -- the indictment is rather awkward, we'll be glad to furnish particulars at the appropriate occasion to explain any situation of in artful drawing, but we certainly believe that the indictment states in the sense that it apprises the dependent of what he is charged against and will protect him from double jeopardy problems.

Justice Thurgood Marshall: So far as you concerned, it could be that this is just been put in the record?

Mr. Mervyn Hamburg: Yes, Mr. Justice Marshall.

Justice Thurgood Marshall: Does that helped you at all?

Mr. Mervyn Hamburg: Well, it is just there for explanation.

We're concerned only at the indictment stage as to what the man has been charged with.

He point --

Justice Thurgood Marshall: But this isn't a part of what he has been charged with?

Mr. Mervyn Hamburg: Yes.

His -- his charged with making a false statement and at a trial, we are going to show what the false statement was all about.

Justice Thurgood Marshall: The big difficulty of that -- of both in the indictment with an exhibit -- nobody knew about it until just now?

Mr. Mervyn Hamburg: Oh, I am not sure of it, no one knew about it.

All I can tell you is that isn't discussed by the district judge.

Justice Thurgood Marshall: Because it wasn't before it, he never saw it?

Mr. Mervyn Hamburg: Well, he saw the indictment, yes.

Justice Thurgood Marshall: But you never saw those exhibits that you have in the back here?

Mr. Mervyn Hamburg: Well, the chances are that you didn't -- I really don't know whether he do it -- did or did not.

Justice Byron R. White: The District Court didn't dismiss this case because on the grounds that failure to fill out a blank wouldn't covered by Title I?

Mr. Mervyn Hamburg: No.

He reached the constitutional issue.

Justice Byron R. White: He dismissed the case because the underlying statute is unconstitutional, that's what he put it here?

Mr. Mervyn Hamburg: That's correct Mr. Justice White.

Chief Justice Warren E. Burger: And so, we don't need this photo stat copy of the tax return at all to decide this case.

It's --

Mr. Mervyn Hamburg: No, I don't think you do.

We just put it there and just --

Chief Justice Warren E. Burger: Totally irrelevant?

Mr. Mervyn Hamburg: Irrelevant and there only for exemplar your purposes.

In view of the fact that we believe that the principles here are similar to the principles just discussed for the reason stated in our brief and reply brief on any other matters, we submit that the District Court's judgment should be reversed and Counts Five and Six ordered reinstated.

Justice Potter Stewart: It would your position that this matter that's listed in the circuit, colloquially here would be a matter -- defensive matter on the merits in the District Court?

Mr. Mervyn Hamburg: That's correct Mr. Justice Stewart.

Justice Thurgood Marshall: And if the defendant asked for it, you could get it?

Mr. Mervyn Hamburg: Yes sir.

Chief Justice Warren E. Burger: Mr. Smith.

Argument of J. Edwin Smith

Mr. J. Edwin Smith: Mr. Chief Justice and may it please the Court.

I'll touch briefly in the beginning on the point that was discussed as to the contents of the indictment in this to make this specific that we submit that an offense is not charged when you charged only that feel to make to answer something in one of the Government's forms that that is not a false statement just by omitting this particular portion of the question and the reading of the indictment will disclose that that's all that the Government charged.

They didn't charge, that he put none, that he put three when he should have put five, and just said that he didn't answer this, instead, he didn't give their names, addresses, staff numbers and so forth.

Chief Justice Warren E. Burger: The District Court didn't decide the case on that ground, did they?

Mr. J. Edwin Smith: Not only as affirmative ruling in his opinion, no sir.

That point was raised in the end and the motion to challenge the indictment that the indictment did not state in effect.

And we urge in our brief here that two state authorities not in the federal but the one with fine that such a charge is not a false statement.

And I -- that point we submit indictment itself just look at it they are not charged an offense when it's an omission to make a statement.

Justice Byron R. White: No, this argue is been here on the next appeal limited to the deciding that the issue that the district judge decided?

It's untrue that if he had decided that this -- that the indictment should have been dismissed because of construction of the statute, maybe that issue could've come here too, but that isn't what he decided?

Mr. J. Edwin Smith: Mr. Justice White, I would believe that at any time, a criminal defendant can challenge this sufficiency of the indictment.

I maybe wrong on my particular phase of the rules, but I think that could be raised almost anytime.

Justice Byron R. White: No, but this was dismissed the question of our jurisdiction under the [Inaudible]

Mr. J. Edwin Smith: That maybe -- I'll be frank with you, I couldn't answer the question as to your jurisdiction.

Justice Byron R. White: Oh, I rather think you should.

Mr. J. Edwin Smith: Then if I may then turn to the question of the constitutionality problem involved here, and I think that the Government in its position here has wholly failed to recognize that if a statement made, assuming he made a false statement was made, it was made under the compulsion of criminal sanctions if he didn't make a statement.

And this Court has held that in Marchetti and Grosso that these tax stamps -- statutes are unconstitutional that to require, they file these stamped tax returns, information returns is a violation of the Fifth Amendment immunity against self-incrimination.

Now, this poses a very fundamental point as to whether the United States Government can by use of a unconstitutional statute which deprived a man of his Fifth Amendment immunity, when here -- in compelling to do that under the threat of criminal prosecution then turn around and persecute him on a 1001 if he makes a false statement in that coerced information.

Justice Hugo L. Black: Then that's not striking to you familiar to the last argument you just heard here?

Mr. J. Edwin Smith: I agree with Your Honors on that point, Mr. Justice Black and I think I've urged it explicitly in my brief from the very beginning that I think the Government in this situation come before this Court or in this prosecution with unclean hands.

Justice Thurgood Marshall: But Mr. Smith as to matter of coercion, he had now the problem?

He could've gotten that in the gambling business, could he?

Mr. J. Edwin Smith: He could've done that, yes sir, but the constitution says, either you committed a crime, the most vile crime, you can't be compelled to give information incriminating yourself.

Justice Thurgood Marshall: Well, if he had stopped gambling, the Government wouldn't have prosecuted him, would they?

Mr. J. Edwin Smith: Do you mean had he stopped to gambling since he filed that return?

Justice Thurgood Marshall: Around about same time?

Mr. J. Edwin Smith: I doubt it.

I doubt it.

I don't know whether he is still gambling or not.

I don't know about that Mr. Justice Marshall.

Justice Thurgood Marshall: What about this point about the Government's position that the photo stats here would clear up the indictment and that if he goes back to trial, there will be available to you for whatever use and does that help the point about the indictment being not quite crystal clear?

Mr. J. Edwin Smith: I don't think that exhibit helps the indictment because I think you got to look at the indictment of what it says and this is something that --

Justice Thurgood Marshall: I'm talking about what indictment says in the light of that?

Mr. J. Edwin Smith: I would say this that the indictment when it says that he is guilty of 1001 because he failed to answer a question; doesn't charge a false statement.

I don't think you can be guilty before statement by not making man answer.

Chief Justice Warren E. Burger: Well, has anybody brought that question here?

Mr. J. Edwin Smith: I raised it in my brief.

Chief Justice Warren E. Burger: Well, but you can't raise it first in the brief.

You must -- it must be raised in accordance with the established rules.

You have a case here decided on the constitutional point, not on the insufficiency of the indictment.

Mr. J. Edwin Smith: Well, that was I believe Mr. Justice White makes another that a ball and I wouldn't be making the point about the jurisdiction of the Court, I was trying to answer this Court.

Chief Justice Warren E. Burger: But it shouldn't be focusing on the constitutional issue only here?

Mr. J. Edwin Smith: This point, they did not state in defense was raised in the challenges to the indictment at trial, but only constitutional question.

I emphasize here that there was a court -- statute here of the Government of this man being required to file this return or if he didn't file it, being faced with prosecution, $10,000 fine and imprisonment.

And here is the Government saying, you do this, you file this thing, you give us this incriminating information or we'll prosecute you for not giving it under 7203 and punish you with a $10,000 fine and imprisonment.

If you come along and give us some incriminating evidence however and it's not quite true, we'll then prosecute you under the 1001.

Justice Byron R. White: But -- when did he file , when did he file?

Mr. J. Edwin Smith: Back in 1964.

Justice Byron R. White: When the Government was putting that kind of question on him why the obligation to file had been upheld in this Court?

Mr. J. Edwin Smith: That is correct and that's --

Justice Byron R. White: So, while the Government -- do they have such dirty hands at that time?

Mr. J. Edwin Smith: Mr. Justice White, I think that the situation there was that the issue of compelling to give the incriminating information was being upheld in the situation of Kahriger-Lewis that this was one of the compulsive points that he is having to file that it was the rule that bore on his having to file or be prosecuted under 7203 for not filing.

Justice Byron R. White: But Marchetti and Grosso, do you think they are retroactive?

Mr. J. Edwin Smith: I don't think this question of retroactivity because in this particular case, Knox has raised the issue at the very moment of the trial level of challenge the indictment, and this Court has held in Grosso and in Covington, I believe in Leary, Marchetti, all of those that this challenge raised by motion challenging the indictment is unquestionably timely.

I believe that's expressed time at time by the authors of those opinions.

And as to coercive, I think that this appeal here should be looked at if I may so suggest in the light of Garrity and Spivak decisions.

Chief Justice Warren E. Burger: Just how was he coerced here, would you clarify that for me?

What forced him to file this statement?

Mr. J. Edwin Smith: I would suggest this if please Mr. Chief Justice Burger that here's a man that has a situation if he doesn't file this return, he is threaten to with criminal prosecution under Article 26, Section 7203 and --

Chief Justice Warren E. Burger: Well, isn't that coupled with something else if he doesn't file it and does something else affirmatively?

Mr. J. Edwin Smith: Well, I think his willful figure to file is the offense.

Chief Justice Warren E. Burger: Well, the filling station operators of grocers have to file this kind of a return, this kind of statement -- gas station operators?

Mr. J. Edwin Smith: This is applicable to a specific special class of people here like was mentioned to same-same group or the class.

Chief Justice Warren E. Burger: What kind of people are included in the class?

Mr. J. Edwin Smith: Sir?

Chief Justice Warren E. Burger: What people are included in that class?

Mr. J. Edwin Smith: Using this language, accused gamblers under these particular statutes.

Chief Justice Warren E. Burger: So, he isn't forced.

He is only forced to file the affidavit if he wants to continue an unlawful activity, isn't that correct?

Mr. J. Edwin Smith: I believe this Court rejected that concept in overruling Kahriger and Lewis when they came with Marchetti and Grosso.

Chief Justice Warren E. Burger: I don't quite read those cases that way counsel, but you go ahead with your argument.

Mr. J. Edwin Smith: But the point I'm trying to make is this that under the rulings of Garrity and Spivak, he had the choice here either to file or to be prosecuted.

In the Garrity case, I believe that this Court held that where the situation was such that you had the choice between losing your job or giving the incriminating information that that was coercion.

Chief Justice Warren E. Burger: Well, he really had the third alternative that you say it was rejected by this Court but which I don't read, he had the third alternative of going out of the illegal gambling business, didn't he?

Mr. J. Edwin Smith: Yes, he --

Chief Justice Warren E. Burger: He could've gone in to an honest profession?

Mr. J. Edwin Smith: He had the third alternative of course of not to gamble; I can -- understand that in filling this return.

But at the same time in Garrity, they had the alternative of not continue to be a policeman.

In Spivak, he had the opportunity of not continue to be a lawyer.

Chief Justice Warren E. Burger: But those are honest activities, isn't that something --

Mr. J. Edwin Smith: In some states, gambling is an honest and illegal activity also, but it declared in the state of Texas, he was not.

This --

Chief Justice Warren E. Burger: My memory maybe wrong, as I recall it was a vigorous to say [Attempt to Laughter] this -- category the other case and I think he can raise that question, doesn't he?

Mr. J. Edwin Smith: I think Mr. Justice Black in Kahriger; you yourself said that the bill of Rights applied, but that the gambler has a right himself also to rely on the Bill of Rights, that's almost what you said verbatim and you just said incorrect.

I believe or may that in just effect that one of you all said that inquiry.

Chief Justice Warren E. Burger: That was in dissent did you say?

Mr. J. Edwin Smith: I'm sorry.

Chief Justice Warren E. Burger: That was in dissent – in dissent, yes.

Mr. J. Edwin Smith: In dissent?

Justice Hugo L. Black: I didn't dissent?

Mr. J. Edwin Smith: And as to the coercion phase of these particular statutes, I recall Mr. Justice Brennan in your concurring opinion in Grosso and Marchetti.

I believe you comment that that the very purpose of these statutes was to coerce evidence – incriminating evidence from these people who filed these statements.

And --

Justice Byron R. White: We haven't got Grosso and Marchetti, we are not having a reargument on Grosso and Marchetti here, are we, having a review of something else – 1001?

Mr. J. Edwin Smith: 1001 and the point we are trying to make here is that the fact that the Grosso and Marchetti hold that the information that he gave here was required by an unconstitutional statute that --

Justice Byron R. White: Well, let's assume it was?

Mr. J. Edwin Smith: Assuming that the statute was unconstitutional to file this information all that returns.

Justice Byron R. White: And you say that therefore, you should not be convicted under 1001?

Mr. J. Edwin Smith: That's our argument, yes sir, that if the Government compels him to do something by this unconstitutional requirement --

Justice Byron R. White: Can you seriously suggest that we could hold with you and not overrule Dennis?

Mr. J. Edwin Smith: Yes.

Justice Byron R. White: How is that?

Mr. J. Edwin Smith: In the sense that in Dennis, Kay and Kapp; all of those were where the individual voluntarily went there and filed those applications for the specific purposes of obtaining benefits like in one of them to get a home loan, I believe it was in another one to -- has made a false statement of about value of his house --

Justice Byron R. White: But it isn't a very -- you don't think it's very coerced if to say that unless you file, you got to lose your job?

Mr. J. Edwin Smith: The coercion here was unless you file, you'll be prosecuted under 26-7203, criminally prosecute.

Justice Byron R. White: Yes, but the court's already also held that if threats to a -- threats to lose your job creates coercion too, when the labor union official is either filed or he lost his job as the officer.

Justice Thurgood Marshall: Mr. Smith, how was the coerced into amended --

Mr. J. Edwin Smith: This Mr. Justice Marshall, I do not know because I must submit that I did not have knowledge of these particular forms that Government exhibits here in the appendix until the appellate level because amendment and not my client didn't filed that.

Justice Thurgood Marshall: Certainly not.

Mr. J. Edwin Smith: But --

Justice Thurgood Marshall: Either if coerce is to give them filing the amendment -- I mean filling the return answering the question or stop gambling, I originally asked you that, do you still say that --

Mr. J. Edwin Smith: And I think was coerce in doing one of the other you had to.

Justice Thurgood Marshall: Well, let me make it a little more particular.

Do you say that he was coerced and to commit a perjury, is that your position?

Mr. J. Edwin Smith: I was saying he was coerced into filing the return, now, the element of coercion in requiring him to file the informational return.

Justice Thurgood Marshall: But where was he coerced to commit the crime of perjury?

Mr. J. Edwin Smith: He wasn't coerced to make the false statement assuming it was a false statement which I am not --

Justice Thurgood Marshall: But don't we have to here assume that it is a false statement?

Mr. J. Edwin Smith: Well assuming it was a false statement.

Justice Thurgood Marshall: Right.

Well, how is he coerced to do that?

Mr. J. Edwin Smith: I would not say that he was coerced to false about it.

I do not make that statement, I make the statement --

Justice Thurgood Marshall: Well, don't you have to in order to prevail here?

Mr. J. Edwin Smith: I submit nor sir, Mr. Justice Marshall.

Justice Thurgood Marshall: Why not?

Mr. J. Edwin Smith: I submit to this that when the Government requires an act in violation of its own fundamental law requires you to file a return that violates the Government's own constitution.

Justice Thurgood Marshall: Then you're free in any crime you want to, including perjury?

Mr. J. Edwin Smith: May I illustrate by an extreme --

Justice Hugo L. Black: -- answer that by saying on your assumption that you are free to commit any crime you want to if you call it a crime to take advantage of the Bill of Rights and not incriminate they say, and he either had to file the statement and admit that he was guilty or committed perjury.

That's what the Government said, you are doing this you got to report it, and that so far as I am concerned be pretty good coercion to file it and maybe the Government has the right to coerce him into done it, but I don't see it can be argued that it did coerced of him to do?

Mr. J. Edwin Smith: And then you see that the coercion or the informational return must be aligned along with a 1001 to give true information as to his incriminating activities.

And I might make these points in sort of emphasizing it and maybe too much, but I think it's mentioned in my brief.

Assuming that you were coercing the man to make statement and as you -- as this Court did in the Garrity relates this to physical torture of illustration that you stretch him on the rack or you put him down with a thumb screw or something of that kind until he makes a statement.

You coerce it by physical torture.

But in trying to get relief from the physical torture, he makes some false statements in the answer that he give to the police.

Under the analogy, I would ask the Government would they prosecute him under those circumstances for the false statement.

And I think this Court has pointed out to number of opinions and Garrity I believe is the latest that there's not just physical torture, but the refinement at times of things.

And when the individual citizen is faced with the issue of whether or not he filed one of his informational returns or as to drum the gamble of being prosecuted by United States District Attorney for not filing it and they -- prior to Grosso and Marchetti, they were filed everyday, every week by the hundreds over the country.

I think that gets into a question of coercion and it's just as much coercion as there was in Garrity, it's just as much coercion as there was in Spivak in the situation.

Justice Byron R. White: Of course, the Government's entitled or at least the court hasn't said yet the Government is not entitled to collect the tax, has it?

Justice Hugo L. Black: No, I'm not arguing that here Mr. Justice White.

Justice Byron R. White: Well, but he filed and said he had three employees instead of five?

Mr. J. Edwin Smith: But this Court has --

Justice Byron R. White: To make --

Mr. J. Edwin Smith: Excuse me.

Justice Byron R. White: I mean it maybe that the Government at least claims that he had five employees instead of three.

Now, I suppose the Government that one the collect the tax from him might say, well, I guess he only owes for three?

Mr. J. Edwin Smith: But --

Justice Byron R. White: He had to file it all --

Mr. J. Edwin Smith: Let me make this point or maybe or maybe it'll help answer the issue you're raising.

When assuming this case came on for trial on the merits and these informational returns that they brought up here and exhibited it the first time on appeal or offered in evidence, and he raises the objection there that they are not admissible because they were extracted from the file in violation of the Fifth Amendment, and the Court I -- under the ruling that this Court has handed down in Garrity, I submit would be legitimately authorized in excluding them from evidence.

And under those circumstances even those circumstances, we submit that --

Justice Byron R. White: We have to cross the evidence should be --

Mr. J. Edwin Smith: Sir.

Justice Byron R. White: Even if we reversed the [Inaudible]

Mr. J. Edwin Smith: I was going to present the practicality of the situation where I believe was pointed out in Grosso and I believe in Covington that when maybe in Garrity also that when the evidence would not be available that you could take it and deal with it on appeal here at this Court to conclude it under the substantial justice of the case.

And under that of course, this is not a situation that all acts involved in Bryson or the case that was argued here just before, this is not a matter of retroactivity.

We have raised this issue from the inception and that we submit that it's a ripe for decision and that the -- this also gets back in a way to this Court's order opinion in Boyd versus United States which is reemphasized in Garrity and the Spivak of situation where the -- when the Government by unconstitutional means causes a man to do something or forces him to do something, they required him to do this under criminal sanctions.

And I think that distinguishes this from Dennis and Kay and Kapp and that line of cases that those cases did not have the criminal sanction of saying that in the very inception, you got to come and do this.

And I think this Court could well I affirm the court below that in no way overruled Covington rules because this man has standing here in the sense that he has brought this issue from the inception of the trial.

And in all of your decisions this Court has held that the issue is timely when raised to challenge to indictment of issues.

I might advert in concluding make one sort of answer of the report that this Court has repeatedly held that the false statements statutes were enacted for the purpose of protecting the Government's -- authorize, the authorized function of Government, I believe the way it expressed in [Inaudible], I submit that that the extraction of incriminating evidence from citizens is not an authorized function of Government.

And there are numbers of cases by this Court where you have held that when the Governmental official took an oath or required an oath or the tribunal requiring the oath was not authorized to require the oath, that there could be no charge of perjury, the cases such is that Christopher, the Baird case, United States versus George, United States versus Williams and Robinson.

Justice Hugo L. Black: You have those cases cited in your brief?

Mr. J. Edwin Smith: On page 10 under Section 3, page 10.

The Internal Revenue [Inaudible] was forbidden by the constitution to require this information.

Now, the Fifth Amendment was forbidden as you have held in Grosso and Marchetti.

Consequently, those cases are Christopher versus United States, Baird versus United States, George versus United States are applicable because if they had no constitutional authority to require the information that's stronger, then, if they had no statutory authority to require it.

At one time had a purported statutory authority to do require it, but this Court has said, the constitutional overrode that and took away that jurisdiction from them and it's settled law by this Court under those circumstances that where like in the Christopher case where there was not a forum at the time a man gave false testimony before constitutional -- I mean before a congressional committee when there was not a forum co-existing at that time.

They said, false statements made there cannot be the basis of perjury and we submit to that where that the situation here where the constitution forbade the Internal Revenue Service to get this information that they had no authority to get it.

Just like in Christopher, the congressional committee at that particular time when there was no forum present had no authority to get the information, that there can be no basis on those circumstances of a charge of perjury of false statement.

Unless this Court has another question I submit that's -- I believe my time is about up in there.

Chief Justice Warren E. Burger: Thank you Mr. Smith.

Mr. Hamburg.

Rebuttal of Mervyn Hamburg

Mr. Mervyn Hamburg: I'll be very brief Your Honor because most of the matters which been raised here are replied to in our reply brief, particularly, the question of the constitutional nature of the wagering tax laws as the Marchetti and Grosso decisions themselves expressly state the wagering tax laws have not been held to be unconstitutional.

And therefore, there is still authority in the Government to require individuals to submit wagering tax returns admittedly if they will incriminate the individual, they may respond to this requirement by not complying and by -- thereby if prosecuted raising the privilege against self-incrimination, but he has no constitutional license to lie if he purportedly complies with the wagering tax scheme.

The counsel has mentioned something about differentiation here between this case in Dennis on a matter of this defendant not receiving any benefits from wagering tax scheme.

We submit that first of all benefits – receipt of benefits is not an element of the False Statements Act.

It has been since 1934 when the present wording was adopted and secondly that we perceive some benefit to be derived by under stating the number of employees one has in any event.

And finally, we submit too that requiring returns is a definite function of the Internal Revenue Service -- a number of returns are required.

This one is required by particular statute which gives the Internal Revenue Service jurisdiction to require this particular return and once again, or whether or not this it so, the statute now before this Court is the false statement statute, and whether this individual should be prosecuted under the false statement statute.

If there are no questions --

Chief Justice Warren E. Burger: Thank you Mr. Hamburg.

We -- the case is submitted.

We thank you for your submission Mr. Smith.