Mackey v. United States

RESPONDENT: United States
LOCATION: Edward Coolidge's Home

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 401 US 667 (1971)
ARGUED: Oct 21, 1970
DECIDED: Apr 05, 1971

Facts of the case


Media for Mackey v. United States

Audio Transcription for Oral Argument - October 21, 1970 in Mackey v. United States

Warren E. Burger:

The case on for argument this morning is Mackey against the United States, number 36.

Mr. Ward, you may proceed whenever you’re ready.

William M. Ward:

Mr. Chief Justice and may it please the Court.

This matter comes before you this morning in a writ of certiorari to United States Court of Appeals for the Seventh Circuit.

It was commenced in the United States District Court for the Northern District of Illinois, Hammond Division within approximately two weeks of this Court's decisions in the Marchetti-Grosso cases.

The petition was brought under 28 U.S.C 2255 by Mr. Mackey requesting a new trial from a conviction of willful evasion of income taxes.

The gravamen of the petition was that during the course of the income tax evasion trial, the Government had admitted into evidence 60 wagering tax returns which under the Marchetti-Grosso decisions were, of course, taken from the defendants in violation of its privilege against self-incrimination.

The petition was pending for approximately eight months.

No answer was filed by the Government, and in order the court required an answer to the petition.

Briefs were submitted.

In August of 1968, the District Court denied the petition for relief under 2255 and a PO followed to the United States, Court of Appeals which affirmed and petition for certiorari was granted on August 29,.1969 by this Court.

The facts insofar as they bear upon this appeal in the evasion case are as follows; Mr. Mackey was indicted for willful evasion of taxes for the years 1955 - 56 through 1960 inclusive.

The trial and the theory of the Government in the evasion case was a pure net worth case.

In other words, there were no specific items of unreported income shown by the Government.

This type of case has been given the imprimatur by this Court in the Holland and Friedberg decisions.

During the course of this trial, the Government’s offered into evidence 60 wagering tax returns which had been filed by Mr. Mackey monthly during the years in question.

At the time that these returns were offered in evidence, the District Court trying the case decided that they were prejudicial.

Objection was made to their admission on the grounds that they would be prejudicial that Mr. Mackey was not on trial for being a gambler.

The court withheld admitting the exhibits into evidence until the future time, when offered again upon the submission by the Government that these were needed to show the gross income from gambling during the years in question, they were then admitted by the court below. At the close of the Government’s case, Mr. Mackey moved for acquittal.

He was denied. Mr. Mackey then rested.

The case was given at the jury.

The jury then considered the case for approximately 43 hours over a period of five days, but in a judgment of conviction which was affirmed by the Seventh Circuit Court of Appeals and petition for a writ of certiorari, there too was denied by this Court.

This case offers, we think two major issues to the court at this time.

They are Willis decisions and Marchetti-Grosso be retroactively applied to criminal cases which were tried and finalized prior to the date of these decisions and secondly and I think personally more importantly what is the thrust to the privilege against self-incrimination.

Is it a transactional privilege or is it a testimonial privilege?

And does the privilege as specifically written into the Fifth Amendment mean exactly what it says.

Now, as far as the retroactivity part of this case is concerned, I even question the accuracy of the word retroactivity.

Marchetti-Grosso where decisions of this Court which I feel righted a wrong in the Kahriger and Lewis decisions.

Marchetti-Grosso did not break any new ground.

Marchetti-Grosso said and I think reaffirmed and reaffirmed as it should have reaffirmed that the Government, the National Government, the same as the State Government has no part to compel testimony or compel evidence out of the mouth of the citizen if the purpose of this compulsion is to provide evidence to be used against him criminal prosecutions.