United States v. Knox (396 U.S. 77)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

In this case, as in Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264, 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 74, 90 S.Ct. at 361 (dissenting opinion). In Marchetti v. United States, 390 U.S. 39, 61, 88 S.Ct. 697, 709, 19 L.Ed.2d 889, 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, 88 S.Ct. 709, 19 L.Ed.2d 906, 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, 73 S.Ct. 510, 97 L.Ed. 754, and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475, 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. At 80, n. 3, 90 S.Ct. at 365. 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 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,      86 S.Ct. 194, 15 L.Ed.2d 165, we are unable to view his     failure to present this issue as an effective waiver of the      constitutional privilege.' 390 U.S., at 71, 88 S.Ct., at 715.

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, 27-29, 89 S.Ct. 1532, 1543 1544, 23 L.Ed.2d 57.

For the reasons stated in my dissent in Bryson, p. 64, 90 S.Ct. p. 361, and in Mr. Justice Black's separate opinion in Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851 1852, 16 L.Ed.2d 973, 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.