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


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.

William M. Ward:

This Court I think Universally and constantly has held in any retroactivity case before it, relative to state matters that where the element of compulsion is present, where statements or where confessions are taken from a defendant through compulsion and used against him in a criminal proceeding at any time, he may thereafter move for a new trial or take whatever steps are necessary to afford him a new trial.

I think what’s before the Court this morning is this, is the standard which this Court has imposed upon the states to be imposed upon the National Government.

And quite frankly upon this Court, I think if this matter would have arisen in the state or in the State Court or relative to state legislation, I don’t think there’d be any problems in the court saying that once you find compulsion and if I may use one of Mr. Justice Stewart’s phrases in dissent.

Compulsion is the focus of the inquiry.

Once you find compulsion, once you find a compelled statement being use against a person in a criminal trial, then retroactivity or a new trial automatically follows.

Warren E. Burger:

Would you clarify it for me here, just what compulsion are you referring to?

Compulsion on whom to produce what consequence?

William M. Ward:

If Mr. Mackey had not filed these returns, he could have been indicted for failure to file a return and could have been sentenced to the penitentiary for five years and could have been fined $1,000.00 for each offense.

Warren E. Burger:

It’s true of all of us, isn’t it, if we don’t file tax returns?

William M. Ward:

That is correct.

That is correct and that’s the difference actually between the Sullivan case and between this case.

In the Sullivan case, this Court specifically held that a return which was required from all of the people and for the purposes of raising revenue, certainly was not sheltered by the privilege against self-incrimination.

Justice Holmes, then however suggested that if any particular part of that return, any particular question in that return would tend to violate the privilege and of course the privilege could be claimed in the return, the difference is in the Marchetti-Grosso situation at least as I read the two decisions and as the lower courts who seem to following it as I suggest them to read decisions, the court held specifically that these returns were not required from a general class of people for general Governmental purpose.

I think this Court held specifically that these returns were required from gamblers in order to provide evidence to prosecute gamblers.

That I think is the gravamen of the case.

Warren E. Burger:

I know this is going over old ground perhaps, but it might help me.

What about an application for passport, statement and an application for a passport?

No one is required to apply for passport, but in order to get a passport, you must file an application.

Would you think that the statements made in the application for passport, for example, or anyone of many other similar optional areas would be sheltered by the same — protected by the same shield of the Fifth Amendment?

William M. Ward:

In the first instance, no.

If the law requiring the passport or if the law requiring the filing of some other hypothetical document is directed towards the populist or the citizens at large.

For a illegitimate Government purpose, in other words, there’s no filing at the purpose of this legislation was specifically to obtain evidence to be used against a narrow class of people in criminal prosecutions.

But if it were as passport’s law are directed to the public at large, certainly I think you would be required to file an application for a passport.

Now, if there were something in that passport application which may tend to incriminate you, then I think yes, you have probably a serious constitutional question.

You got the problem of whether in asking for a passport, the Government can either compel you to waive your privilege against the self-incrimination or make the claiming of the privilege costly.

And I think on that basis, you might have to take it on a case-by-case basis.

Warren E. Burger:

And then what about the applications for Government employment which requires many, many answers and that is accompanied by a statute making it a felony, to give a false answer.

William M. Ward:

Well —

Warren E. Burger:

For testing that that statute just someway violates the Fifth Amendment?

William M. Ward:

Of course, if you file a false answer, I think the Court has decided that decision just last month in the — I mean last fall in the cases and (Inaudible) within this area that we are in.

William M. Ward:

If the privilege against self-incrimination certainly does not protect you against filing a false document, this Court has so held.

Warren E. Burger:

But it’s right to file a false document at many times is there?

William M. Ward:

Not if it’s a felony to so file it.

No, I think this Court held that —

Warren E. Burger:

Absent, absent the statute.

Is there any inherent right to filing —

William M. Ward:

A false document?

Warren E. Burger:

Make a false answer, any question?

William M. Ward:

Inherent right to file a false answer?

I would say — no.

I would say no.

You’ve got 18, 1001 staring in the face no matter anytime you file a document with the national Government.

It’s just a felony to file a false document with the National Government.

I think as a practical matter anytime you file a false document with any agency of the Federal Government, you got a felony staring in the face.

But to the extent going back to your employment provision, to the extent that an employment application again is a document which is directed at all people, which is directed towards everyone, you don’t — at the threshold meet the problem that you meet in Marchetti-Grosso.

This would not be per se a violation of the privilege against self-incrimination.

To the extent that anything was in there, any question or answer was required which may incriminate you, then you get into this question of, do you have a right to federal employment and can they compel you to waive the privilege and again, you may have a problem.

I don’t profess to be able to specifically answer, but you may have a problem on the facts.

But I think this Marchetti-Grosso situation goes one step further because we have a specific, direct finding by this Court that the statutes themselves where aimed at a small class of people for the purposes of getting information to prosecute the small class of people.

I think that is settled by Marchetti-Grosso and I think the lower courts have so held.

For example, the Fifth Circuit Court of Appeals in Nucio case, vacated a conviction upon a plea guilty on the grounds that protecting integrity the privilege against self-incrimination.

The Seventh Circuit Court of Appeals has done the same thing last month.

They have held Marchetti-Grosso retroactive.

They have held that the harmless error rule doesn’t apply.

They attempted to distinguish the Mackey case, but they also have had held that to protect the integrity, the privilege against self-incrimination prosecutions under the statute and land and the basic thrust of it is the rational of Marchetti-Grosso has found in those decisions from this Court.

Potter Stewart:

Mr. Ward, what was used here, as I understand it were the excise tax returns, not the gambling statute.

William M. Ward:

That is correct.

In order to pay the tax, the tax is paid monthly upon gross receipts.

It is not an income tax, it’s an excise tax.

In order to pay the tax, you have to file a return monthly.

Potter Stewart:


William M. Ward:


Now the reasons for putting these in were two-fold: one and I think this is admitted by the Government, it’s always been admitted by the Government to show that he was a gambler.

They had to show he was a gambler.

They had to show that he likely source of unreported income.

Potter Stewart:

Because it was as networth prosecution?

William M. Ward:

Precisely, and if this Court is held both in Friedberg and Holland that this is an absolute necessity in such a case because they are purely totally, solely circumstantial evidence cases.

Now, the prosecutor then went onto say, he needed it for another reason.

He needed those figures.

He had to show that those figures — he had to get those figures into evidence and right after these returns are put into evidence, Mr. Harrington then testified from one of his graphs, exhibit 765 showing the total gross receipts from gambling.

Now the reason that those total — that the prosecutor said he needed those total gross receipts from gambling to show that he had a greater income from gambling, than shown in his schedule C-returns.

In other words, in evidence in this case was schedule C returns a showed income from “policy” and I think one returns had policy wheel, the man paid his income tax and his wagering income.

But the Government argued I have got to show that he had a greater income from gambling than showed on schedule C. So I not only need those wagering tax returns to show that he was a gambler, I need him for the figures.

And so he argued to the jury.

He so argued to the jury on four different occasions.

I think this is — as far as the importance of these returns are concerned with the Government, I think the prosecutor summing up argument is almost the key here.

This was a long trial and all net worth trials are long trials.

I think they were over 800 exhibits, pieces of paper put into the evidence in this trial.

The reason being is because the key testimony in a net worth trial is the Government’s expert.

He has the expert exhibit and of course the foundation has to be laid to support everything in the exhibit.

In spite of the fact that there were 800 exhibits or an excess of 800 exhibits and that they key exhibit in the net worth case is the file net worth summary by the prosecutor, that was mentioned to the jury six times and rightfully so you’d expect it.

The next amount of time as far as any exhibit was mentioned to the jury was these wagering tax returns.

Four different times, the prosecutor came back to these wagering tax returns and one of them in effect was very interested.

It was almost a Griffin type case and these are said out in our reply brief.

He said to the jury if these wagering tax returns are accurate, if they truly reflect the ins and the outs, then they’re okay, but there is only one man that can tell us.

Mr. Mackey.

Come up, waive your privilege against self-incrimination and explain this.

Potter Stewart:

Now, it was the Government’s theory that the wage — the monthly wagering tax returns were accurate and that they were inconsistent with his income tax return or that they were inaccurate and so was his income tax return?

William M. Ward:

The Government never took that position Mr. Justice Stewart.

Potter Stewart:

[Voice overlap] did it not?

William M. Ward:

I don’t know.

They simply — implicit in the jury’s verdict has to be one of two things that didn’t believe the wagering tax returns because the net worth bulge was larger than the wagering tax return.

Or implicit in the jury’s verdict, this confusion, confusion that those wagering tax return represented taxable income.

Potter Stewart:

There was gross receipts?

William M. Ward:


But see, not being and not taking the stand, Mr. Mackey didn’t have the chance of explaining it.

We don’t know for a fact that the jury knew these were gross receipts.

In other words, if you add up the wagering tax returns as exhibit 765 did, you find it in enormously greater figure of income from wagering than you did on the scheduled C upon which taxes were paid.

It’s within the round of possibility and quite frankly, I personally believe that that’s what the jury found.

Potter Stewart:

Sure in a long trial was a good defense, you got it before the jury that gross receipts are not the same thing as net income, didn’t you?

William M. Ward:

We did.

But after 43 hours, we have no idea exactly what the jury ultimately did find.

Potter Stewart:

So far as his occupation, that is he was a gambler by profession or vocation or revocation, what did he put down in his income tax return with respect to his occupation?

William M. Ward:

In that particular area?

I don’t know what else. Quite frankly Mr. Justice, I don’t know what else he put on, but I do know that an income, one place he had in four years, I think just the word policy.

And on the 50-year, he had the word policy wheel, plus other —

Potter Stewart:

That is source of income?

William M. Ward:

One of the sources of income, yes.

Potter Stewart:

Isn’t there a place in the income tax return where you put down — where you put down your employer if any?

William M. Ward:

Yes sir.

Potter Stewart:

As you put down your occupation if any or am I mistaken?

William M. Ward:

To my knowledge and I know I’m correct in this.

I never use the word gambler.

He never used the word gambler.

Potter Stewart:

Remember what he did say?

William M. Ward:

As far as his occupation is concerned?

It could have been insurance.

He was a President of two insurance companies and the MW Investment — I can argue inferentially that he never did because of the argument made by the prosecutor to the jury and show he was a gambler and the argument made to the Seventh Circuit Court of Appeals and the appeal in the original case.

The Government is admitted here that the only evidence of gambling that the wagering tax returns and to some extent the word policy or policy wheel in the income tax returns.

But again, as to the weight given to that and the argument to the jury, the prosecutor never argued.

William M. Ward:

Never argued that you could find that this man was a gambler because of what he put in his scheduled C’s.

Four times the prosecutor argued to the jury, this man is a gambler because of the wagering tax returns and they so argued that in the Seventh Circuit Court of Appeals.

So it seems a bit of a late date to come in here and try in a sense to change the facts.

And of course, to me, the key aspect to that is the District Judge in the 2255 proceedings.

The District Judge in these 2255 proceedings tried this case and when this petition was filed in his opinion, he said this represents a new and serious question.

He specifically said in his memorandum opinion that these returns were put in to show a likely source of unreported income.

And I think that to me is practically decisive as far as how important these returns were to the Government on a trial, the District Judge in these proceedings considered them extremely important.

In its memorandum opinion, in its decision, this case was on the law, not on the facts, but on the law.

Byron R. White:

Do you have any (Inaudible)

William M. Ward:

No I think under the Sullivan case Mr. Justice in Candor, I think under the Sullivan case having put something into schedule C, you waived the privilege.

As far as schedule C is concerned, I think —

Byron R. White:

You say the Government — schedule C usually requires a person to report his business income, doesn’t it?

William M. Ward:

Yes, plus his source.

Byron R. White:

Yes, plus the source and there he can claim any deductions and —

William M. Ward:

Yes sir.

Byron R. White:

Did he?

William M. Ward:

The ins and outs situation, no sir.

He just as far as my recollection is concerned, all he did was —

Byron R. White:

State the net figure?

William M. Ward:

The net figure, the taxable income figure.

Byron R. White:

So, do you say the Government may require the income tax formally, you didn’t object to the use of that schedule C information?

William M. Ward:

No, no sir.

Byron R. White:

You waived your privilege if you had one?

William M. Ward:

Well, the Sullivan case pretty much teaches you that.

The Sullivan case says that the income tax return must be filed and if there is anything specific within the return that would validate —

Byron R. White:

Mr. Marchetti-Grosso fits into that or not?

William M. Ward:

No, no sir because I think there was a particular finding here and this case mentioned Sullivan and distinguished it in Marchetti-Grosso.

Byron R. White:

So the Government may still in the regular income tax form demand that a person state his business and the source of income?

William M. Ward:

Except under Sullivan.

Byron R. White:

Even if it is gambling?

William M. Ward:

They can demand the source of — or they can demand the income figures, yes.

Sullivan specifically holds and I think Sullivan is still the law that if any source of income information would in any way incriminate you, then you can claim the privilege.

Byron R. White:

But you didn’t?

William M. Ward:

In the income tax returns, no sir, no sir.

But there is no as I say the income tax returns, there is no statement that he was a gambler, there was this policy and policy wheel.

But again as I pointed out in the reply, if this were enough to go to the jury and I personally don’t think it would have been fair comments to go to the jury with these schedule C’s and say that this shows the man is a gambler and has a likely source of unreported income, there are two big insurance companies involved there.

Byron R. White:

You can normally say they’re like results of other income from whatever we scheduled C that exist.

William M. Ward:

But he didn’t.

He could’ve but he didn’t.

Four times he went back to the jury and he said here is your likely source of unreported income.

Mr. Downing wants a likely source of unreported income here it is, and another occasion he said one of the witnesses testified that Mr. Mackey never had that kind of money, never had that kind of money.

Do you want to see where he had that kind of money?

Take a look at the schedules, the wagering tax.

Four times he went back to those, four times.

I think they were extremely important to the prosecutor and being extremely important to the prosecutor, they were important — he fought something like two weeks to get these into evidence and even the judge at an evidentiary objection, at an evidentiary objection said they were somewhat inflammatory, didn’t want to leave them in, and then decided to leave them in, not so much into the issue of gambling but they contained figures that the Government said was absolutely necessary to their case.

The Gross income figure is just the gambling.

Now, if they weren’t important, then the O’Connell case would have taken over.

There was a specific ruling in the Seventh Circuit Court of Appeals that returns that characterized the man a gambler if not relevant to the case with prejudicial and reversible error.

So I just don’t think the Government can have it two ways to have one point convince the judge at the trial level that these are relevant and extremely important and must go in and then on the appellant level hearsay, they weren’t very important, they weren’t very relevant and we didn’t really need them because if that were the case, this case should have been reversed the first time around on the issue of Ricardo.

Then we get into the nature of the privilege itself, the transactional testimonial.

The Government is argued that because Marchetti-Grosso specifically talked about gamblers, but this is not a gambling prosecution and therefore, the thrust of the decision should not go to this type of a situation.

I think the privilege itself, no person in a criminal prosecution should be a witness against themselves answers the question.

I think once the privilege is violated and this Court has specifically ruled that the privilege was violated in the Marchetti-Grosso situation.

Once the privilege is violated, that taints the evidence.

I can’t conceive of it being in use of another prosecution.

I can’t conceive of this Court holding or stating that the privilege against self-incrimination can be violated and there are some circumstances in which the evidence could be used in a criminal prosecution against the witness.

To me in any event is the beginning and the end of the privilege against self-incrimination.

If you go back to the Silverthorne Lumber case, this Court held that the essence of a provision which prohibits the acquisition of evidence is not only that the evidence not be used in court, but that it not be used at all.

You get into the Murphy v the Waterfront Commission state, a silver platter sort of a thing where the Court held that if evidence be taken on the state level in violation of a witnesses’s privilege against self-incrimination, it may not be used in any manner, in any manner, these are the words of this Court in a criminal prosecution by the Federal Government against the witness.

The Gardner case reaffirmed, just I think a year or two ago, reaffirmed the Murphy v Waterfront Commission in that situation and I would like to spend a second with the Gardner case because I think it has some relevance to this case.

William M. Ward:

The Gardner case was a police officer who lost his job because he refused to surrender his privilege against self-incrimination.

He wouldn’t sign a waiver of immunity.

A year and a half later, this Court decided the Garrity v. New Jersey case said they couldn’t do that to him, couldn’t make the imposition of the penalty costly.

He then filed a petition for reinstatement for his job which was denied and the case worked itself up and that this Court ultimately decided that he should get his job back but his privilege was a violated.

In other words, in a civil manner, this Court had no problem with making Garrity retroactive to a set of facts that happened a year and a half before where a man had lost his property, his job if you will because of a violations privilege.

It just seems to me in a criminal manner, in a criminal case where a man has been convicted in a very important link of the chain of evidence needed to convict is a part of the conviction process that he has a right to a new trial on the same basis that Garrity or Gardner had the right to his job.

So as far as this Court I think persistently and continuously held that once the privilege has been violated that the evidence cannot be used in any manner against the witnessed, it is always held, at least I read the case as far as state prosecutions are concerned, and it is always been extremely careful and talking in particularly in retroactivity cases.

In talking for example, that the Miranda Rule should be prospectively applied, the Escobedo Rule should be prospectively apply.

It always been extremely careful to iterate and reiterate and continue to carve out this exception that where it a shown that a statement is taken from a witness involuntarily and used against him, then he still has the right at anytime to avail himself at any state or federal machinery for bringing this to the attention of the Court and getting the appropriate relief which is exactly what we have done here.

I believe, I still have four minutes Mr. Chief Justice.

I like to save them if I may.

Warren E. Burger:

Mr. Zinn.

Matthew J. Zinn:

Mr. Chief Justice and may it please the Court I should like first to set out some additional facts relating to petitioner’s conviction which we believe are essential to this Court’s resolution of the case.

As has been noted, the Government proceeded on the networth method of proof.

Under the Government’s proof, petitioner’s networth increased during the prosecution years by more than million dollars, while he and his wife reported taxable income during those years totaling a $143,000.00.

Potter Stewart:

How many years involved.

Matthew J. Zinn:

Five years, 1956 through 60 inclusive.

Warren E. Burger:

About $28,000.00 a year is what he was reporting, but he came out with a million dollars at the end.

Matthew J. Zinn:

Well, he started out with assets of roughly $360,000.00 and according to the Government’s computation had over a million and a half dollars of assets at the end of the prosecution years.

But in terms of taxable income that he reported a $143,000.00.

The principal issue at the trial did not have to do with gambling, the issue was whether the Government was justified in including in petitioner’s networth, certain assets which petitioner’s acquired in the names of corporations which he controlled, in the names of friends, relatives and even a fictitious persons.

It was a long trial.

More than 80 witnesses testified and the bulk of the testimony showed that petitioner had furnished the funds for the purchase of assets consisting of securities, real estate, loans and mortgages paying for these assets either in currency or with cashier’s checks.

The largest transaction and which is typical except for the dollars involved related to petitioners acquisition of stock in a fire insurance company.

He first paid $50,000.00 in currency with instructions that the stock be issued in the name of one of the corporations which he control.

Later, he paid an additional $98,000.00 in currency for the purchase of additional shares in the name of the second company that he controlled, and still later, he paid $15,000.00 in currency for additional shares.

Well, this was the largest investment he made during the prosecution years.

The Government’s proof showed that on literally dozens of occasions, he purchased assets using cash or cashier’s checks.

The largest of the companies which petitioner controlled was the Gibraltar Industrial Life Insurance Company of which he was Chairman of the Board.

Petitioner’s basic contention at the trial in this case was that the assets he purchased and in most instances had registered in the name of Gibraltar actually with the property of Gibraltar and therefore could not be included in his net worth, but the income tax returns that Gibraltar filed showed that the corporation operated at a loss during the prosecution years and did not have sufficient capital to acquire the assets which petitioner paid for during those years.

Matthew J. Zinn:

Petitioner’s sister was Gibraltar’s treasurer.

She testified on direct examination by the Government at Gibraltar’s books and records reflected all receipts of that company.

On cross examination by defense counsel, she changed her testimony and explained that not all receipts had been recorded.

Additional cash was available to Gibraltar she said because insurance premiums paid in cash by policy holders were not taxable and therefore where not recorded, while this might explain why the receipts were not included on Gibraltar’s income tax returns.

It could not explain the absence of a showing of these receipts on the books and records of Gibraltar and on the reports which Gibraltar was required to file annually with the department of insurance of the State of Indiana.

And in this connection, I’d like stress one point that while the investment which petitioner said belonged to Gibraltar but which were unrecorded on its books and records were paid for either in currency or cashier’s checks, that corporation’s expenses were with rare exception paid for by regular bank check.

This then in brief compass was the Government’s proof that petitioner’s net worth has increased during the prosecution years by substantially more than can be accounted for by the taxable income reported on his returns.

In addition, it was the Government’s obligation under the net worth method to show a likely source of additional taxable income that could account for the net worth increase.

To this end the Government introduced into evidence, petitioner’s income tax returns for 1956 to 1960, which show that certain of his income came from being a “policy operator” and in one instance from a “policy wheel”.

I’d like to correct one factual statement that Mr. Ward made and that was that defense counsel did not object to the introduction into evidence of the schedule C forms.

He did object on the grounds of prejudice and the objection was overruled and the income tax returns were admitted.

A second point omitted from Mr. Ward’s statement was that in addition to the schedule C forms which indicated that petitioner was in the policy business, there was the testimony of an Internal Revenue Service agent that in the course of his investigation, petitioner admitted that he was in the gambling business.

The Government also sought to introduce petitioners wagering tax forms for the 60-month period covered by the indictment.

Defense counsel objected and again this is most important, the objection according to Mr. Ward was based on the ground that the wagering tax forms were prejudicial, but it was also based on the ground that the information disclosed in the forms could be computed by reference to the income tax returns.

That is that they showed nothing more than the income tax returns themselves.

The Government attempted to introduce the wagering tax forms; first, during the course of the testimony of the first witness who had prepared petitioner’s income tax returns.

These forms were not mentioned again until more than 60 witnesses had testified regarding petitioner’s cash transactions, and this was during the course of testimony of petitioner’s secretary.

On both occasions, the Court reserved ruling on the ground that the Government had not shown that the forms were not merely cumulative of the information that appeared in the income tax returns, not until the Government’s last witness testified was there further mentioned of the wagering tax forms.

Defense counsel again objected to admission of the forms on the ground both that they were prejudicial and cumulative of what was in the income tax returns.

Now, the forms which are reproduced in the appendix which is on file with this Court, show have an entry and I am reading form page 41 of the appendix, the gross amount of wagers accepted during the month — page 41 Mr. Justice.

Potter Stewart:

That is not including layoffs.

Matthew J. Zinn:

That’s right.

They were involved here though, and so far as I know, well, we do not have all the forms reproduced here.

I am not aware of any layoff so that that was an issue in the case.

So, those figures if you add up, if you take 12 months wagering tax forms and add up the gross receipts figures on those 12 forms presumably, that should be the figure that should go into gross receipts on schedule C of the income tax returns, gross receipts and that’s the line reads, gross receipts on schedule C.

Potter Stewart:

What is this schedule C, it is what?

Matthew J. Zinn:

Income from a business or profession, it is filed by an individual proprietor.

Potter Stewart:

Self employed?

Matthew J. Zinn:

Yes, someone who is employed wouldn’t have to bother with that form.

Warren E. Burger:

Mr. Ward, at least I thought I heard him say that this form that you are referring to now, the tax on wagering is a scheme of Federal Government from the sole purpose of forcing people to disclose their illegal activities.

Warren E. Burger:

Did I hear him correctly well?

Matthew J. Zinn:

I believe you did Mr. Chief Justice and I hope to –-

Warren E. Burger:

The tax is 10% of the gross, isn’t it?

Matthew J. Zinn:

Yes sir.

This is the point I am trying to make.

Warren E. Burger:

This is something it looks something like a reverent measure I should think.

Matthew J. Zinn:

The Court said in Marchetti and Grosso that this was a revenue measure, but that because of the inter relationship of the wagering tax information that had to be furnished and the comprehensive scheme of federal and states statutes prohibiting gambling and gambling related activities that the privilege would be a complete defense if the forms were not filed.

I would like though to make the point because I don’t think it’s clear as to what the income tax returns showed because I think that this is critical to this case.

If I were preparing an income tax return and I have a wagering tax forms in front of me, I would take the 12 forms and I would add up the figures from each one and put it down in the gross receipts line on the income tax return.

That is not what was done here.

The figure that appears on the income tax returns is substantially smaller, the gross receipts figure that is substantially smaller than the sum of any 12 months wagering tax forms.

But the reason for defense counsel’s objection was not only the prejudice, it was that it was cumulative and the reason for this is that on the income tax return in addition to the gross receipts figure, there is a space for deductions and one of the deductions that petitioner claimed was a deduction for the excise taxes paid.

In other words, the sum of the excise taxes paid for the 12-month period appeared as a deduction on the income tax return.

And basically, the argument that was made by petitioner’s counsel at the trial was, well the jury can compute this itself.

All it has to do is to take the excise tax deduction again which on this form if you add up 12 forms, add up the deductions that show on 12 forms which is 10% of the gross.

That figure appeared on the income tax return as a deduction.

So defense counsel’s arguments as to that it didn’t shown anything more was, let the jury and multiply the excise tax deduction by 10 and then they themselves can see what the gross —

Potter Stewart:

Is this deducted?

Matthew J. Zinn:

Yes it is Mr. Justice.

Potter Stewart:

The 10% of excise tax —

Matthew J. Zinn:

Yes, it is and it was —

Potter Stewart:

— and gambling or it is deductible from your income in computing your income capacity.

Matthew J. Zinn:

It is the cost of doing business.

It is a cost of doing business.

And it is deductible and it was claimed.

And so, it wasn’t only the prejudice ground that the defense counsel objected on.

He said it was cumulative, let the jury multiply by 10 and then they will know that the gross receipts figure which was only a fraction of the total gross receipts shown on the wagering tax forms was substantially larger.

Warren E. Burger:

Could you have made your case if you had merely focused on the deduction taken on the general tax return?

Matthew J. Zinn:

I think very frankly Mr. Chief Justice.

I am speaking as a matter of hind side.

Matthew J. Zinn:

I think that the summary form to which Mr. Ward referred earlier, this form 765 which is a summary exhibit of all the wagering tax forms could have been computed by reference to the income tax returns alone.

Warren E. Burger:

Is ordinary, is regular when you speak of income tax returns, you’re distinguishing —

Matthew J. Zinn:

From the wagering tax forms, the schedule C and we have asked the Government prosecutor why did you pushed to put this in.

He said why should not I push, Louis and Cargo was on the books and this was good evidence, and it highlighted the opportunities that a gambler has to since he is always dealing in cash to hide income, but we had here evidence that he was a gambler from the income tax returns.

The evidence of the revenue agent and also the fact that this could have been computed admittedly not as vividly for the jury by reference to the income tax returns.

That is one of the grounds on which defense counsel objected to admission of the evidence on trial.

Potter Stewart:

And it could have been computed by —

Matthew J. Zinn:

Multiplying the excise tax deduction by 10 and subtracting from the product of that multiplication, the figure that was shown as gross receipts on the income tax returns.

Now, that wouldn’t have accounted for all the income that was missing.

A question was asked if Mr. Ward is the Government’s position that the wagering tax forms are right or wrong.

Or we really do not know whether they were right or wrong.

They didn’t account for $4,000.00 a week of cash which is about what it works out was missing from petitioner’s income tax returns, roughly $200,000.00 a year.

We do not know if the net figure was right or not, but we didn’t have to prove whether it was right.

All we have to show was a likely source of income.

Potter Stewart:

Right or wrong, however, what you are telling us is that the wagering tax returns do show a much higher annual gross receipts than he reported as just total annual gross receipts for anyone with these taxable years.

Matthew J. Zinn:

That is right, but they all —

Potter Stewart:

But he did use this or at least was usable as a part of your substantive case.

Matthew J. Zinn:

That’s right.

Potter Stewart:

Much more than just showing his profession as a gambler?

Matthew J. Zinn:

Yes, but the fact is Mr. Justice Stewart that defense counsel had a point in saying this could have been computed by multiplying the excise tax deduction which was also on the income tax returns by 10.

And you would have again had this inflated gross receipts figure.

The two just weren’t consistent and there were other deductions claimed on the income tax returns.

I have examined those.

Mr. Justice White, I believe you asked the question regarding that.

He claims deductions for cost of supplies and other deductions, but he only showed the net figure in the gross receipts column on the schedule C.

Supposing Marchetti and Grosso been on the books turning this prosecution, (Inaudible)

Matthew J. Zinn:

I think we’d still be given Mr. Justice Harlan.

Our position is that at the time that these wagering tax forms were filed, there was no certainty that they would prove a significant link in the chain of evidence tending to convict petitioner of income tax evasion.

And we say this –Mr. Ward has referred to Waterfront — the Murphy and Waterfront Commission case and the very broad language that was used in that case regarding any use of testimony compelled in violation of the privilege.

And I would like to put a hypothetical to the court regarding Murphy and Waterfront Commission which shows we think despite the broad language that there are some limits, let us suppose that a commission is convened to examine bribery by public officials.

Matthew J. Zinn:

And I am called to testify before this commission today, October 21, and I testify that after invoking my privilege and having my claim rejected and so forth that on March 15th of this year, I accepted a $5,000.00 bribe for engaging in some nefarious activity in connection with my employment.

Now, next, April 15 comes and I have to file my income tax return.

If I don’t include that $5,000.00 as an income, I would suggest, that Murphy and the Waterfront Commission doesn’t necessarily resolved the question whether the privilege in that case would bar the introduction of my prior testimony because the theme running through this Court’s decision in the self-incrimination area has been that unless it will surely proved a significant link in the chain of evidence tending to convict, the privilege shall not apply.

And so we say that even in the case you posited Mr. Justice, we think we’d be here.

I would like at this —

Potter Stewart:

In other words, became self-incriminatory only because of a later act which said it was a wrongful act.

Matthew J. Zinn:

That is correct.

We couldn’t have gotten these in under Ricardo if the gross receipts figure and the tax deduction figures tide in with the income tax returns because then I think the argument as to prejudice and again, this would be in the discretion of the trial judge.

He has to weigh the possible effect on the jury of the disclosure of gambling against the additional contribution that the evidence might make.

So I think we would have had a very difficult time getting in the way using tax forms, had they been consistent with the later filed income tax returns.

It was only the later act of showing a smaller gross receipts figure on the income tax returns that made the wagering tax forms at all relevant in this trial.

Thurgood Marshall:

But Mr. Zinn, if you haven’t filed those, it would never put on his income tax.

He would never claimed the tax he paid on his income tax.

Matthew J. Zinn:

If he hadn’t filed the wagering tax forms at all?

Thurgood Marshall:


Matthew J. Zinn:

I am not sure I understand the point of the question.

Thurgood Marshall:

Well, I am just saying that on his income tax, he claimed deduction.

Matthew J. Zinn:


Thurgood Marshall:

For the wagering tax, he paid.

Matthew J. Zinn:

That’s right.

Thurgood Marshall:

Well, I would assume if he had not filed and paid the wagering tax, he wouldn’t have made that deduction.

I think that’s obvious, isn’t it?

Matthew J. Zinn:

Right, I assume he would not have claimed the deduction.

Thurgood Marshall:

Well, can you go along with the thought and stretch it that far that it was all triggered by the wagering tax?

Matthew J. Zinn:

I do not think that is right Mr. Justice.

It seems to me that nothing was triggered by the wagering tax forms.

The last one was filed for any given year.

Let us say 1956 on January 31, 1957 on or before that date and his income tax return was not filed until later and I don’t think at that point that they triggered anything.

Looking at it on January 31st of any given year with respect to the prior year, I don’t think they triggered anything.

Thurgood Marshall:

Well assuming he did not take the deduction which I think is an assumption against fact and assume that he didn’t, he should then have been able to been able to put the wagering tax?

Matthew J. Zinn:

That he did not claim the deduction?

Thurgood Marshall:


Matthew J. Zinn:

I think in that case — I think first of all, let me just say I think that is an extremely unlikely hypothetical that you wouldn’t —

Thurgood Marshall:

Well you did not answer that he still would need it for the gross receipts.

Matthew J. Zinn:

For the gross receipts, if he did not claim the deduction, yes.

But that’s not this case.

Thurgood Marshall:

Don’t get too far and get these two tangled up together, that’s what I am worried about.

Matthew J. Zinn:

Well, we don’t think that —

Thurgood Marshall:

That is one of the same piece I think that there is anything by getting Grosso on the wagering thing and you drag it over into the income tax.

You might be getting some fruits.

Matthew J. Zinn:

I would say on that issue Mr. Justice Marshall that what the court was concerned about in Marchetti and Grosso was the comprehensive scheme of federal and state gambling statutes, anti-gambling statutes, and the fact that possible disclosures merely this form showing gross receipts and a deduction would be enough to incriminate somebody for violations of some of these statutes, but that’s not this case.

These forms could not incriminate anybody of income tax evasion unless they were not consistent with the later filed income tax returns, and I think the proper way to look at it, is to say what was the situation on January 31 of any year?

Warren E. Burger:

Mr. Zinn, let me be sure if I got one of your responses to Justice Marshall clear.

If he had not filed the wagering tax return, could he have taken the deduction of that 10% each year?

Matthew J. Zinn:

Of course not, of course not.

Warren E. Burger:

So he got a very substantial benefit out of filing these wagering tax returns?

Matthew J. Zinn:

In terms of income tax deduction?

He did. I supposed he would argue that he subjected himself to self-incrimination for federal and state anti-gambling statute, but this is not this case Mr. Chief Justice.

In the few minutes I have remaining I would like to turn briefly —

Do you happen to take (Inaudible)

Matthew J. Zinn:

In Marchetti and Grosso?


Matthew J. Zinn:

No Mr. Justice, we’re not.

We’re saying that it simply doesn’t extend to this case that the premises on which Marchetti-Grosso was decided was this conflict between the privilege against self-incrimination on the one hand, and the comprehensive scheme of federal and state anti-gambling statutes on the other hand.

And we’re not involved with this comprehensive scheme in this case.

We’re involved with income tax evasion.

And we say that Marchetti-Grosso’s rationale does not extend to this case because at the time, the wagering tax forms were filed, it could not be said as it could be said in Marchetti and Grosso, that they would surely prove a significant link in the chain of evidence tending to convict petitioner of income tax evasion.

It was only the later act of filing an inconsistent income tax return that made these forms at all relevant in this prosecution.

And we say despite the broad language in Murphy and the Waterfront Commission regarding any use of compelled testimony, that question is an open one and warrants serious consideration by this Court.

Putting it another way, what you are saying is that retroactivity in Marchetti and Grosso who was not involved (Inaudible)

Matthew J. Zinn:

That is one of our arguments Mr. Justice Harlan.

Potter Stewart:

This branch we argument, assuming that they retroactive, still they are inapplicable to this case?

Matthew J. Zinn:

Yes, that is correct.

Now, I would like to spend my last five minutes on the retroactive aspect and I would like to turn first, if I may to the test that was proposed by Mr. Justice Harlan in his dissenting opinion in the Desist case and we submit that under that test, there would be no basis for retroactivity in this case.

We say first but since this is a collateral proceeding under section 2255, the first inquiry that must be made is whether this rule of Marchetti-Grosso is one that improves the fact finding process and it seems clear to us under Mr. Justice Harlan’s test that it does quite the contrary.

It worsens the fact finding process because it excludes evidence that is plainly trustworthy and plainly reliable.

Second, Mr. Justice Harlan would ask is this a new rule or an old rule?

And we think contrary to what Mr. Ward has said earlier that it is clearly a new rule.

There was a time when Lewis and Kahriger were on the books, when this case would not be here because it would be clear that the wagering tax forms were admissible.

Finally, Mr. Justice Harlan would say we have to look at the law that existed at the time the conviction became final in this case.

And the conviction became final in this case on October 11, 1965, when this Court denied petitioner’s petition for certiorari on direct appeal.

No petition for rehearing was filed from that denial and Albertson was not decided until November 15th, 1965.

So that even if one could argue that the viability of Lewis and Kahriger was placed in question by Albertson.

Petitioner would not be entitled to the benefit of Marchetti-Grosso under Mr. Justice Harlan’s analysis.

You’re talking about this is?

Matthew J. Zinn:

Yes sir, I am.

And under your analysis —


Matthew J. Zinn:

Yes sir.

Nobody else tried?

Matthew J. Zinn:

Yes sir.

And I didn’t decided (Inaudible)

Matthew J. Zinn:

No sir, but I apply the test that you say you would apply, if you had more than one vote and under that test, it seems clear to us that Marchetti-Grosso would not be retroactive.

That’s only preliminary.

I might add that we think the result is the same under the three factor test which this Court has followed beginning with the link letter case.

The purpose of Marchetti-Grosso is to protect the constitutional privilege against the statutory system jeopardizing it.

That statutory system is not involved in this case.

Petitioner has not been prosecuted for any violation of a federal or state anti-gambling statute.

Potter Stewart:

Would you say, I missed what you said, the purpose was to protect something —

Matthew J. Zinn:

The constitutional privilege against the statutory system that jeopardizes it and that statutory system is not involved in this case.

Warren E. Burger:

You are referring to the requirement for example, for registering a gun or I see that one case.

Matthew J. Zinn:

In this case, the comprehensive federal and state anti-gambling provisions are just not involved.

And furthermore to the extent that the privilege against self-incrimination rests on notions of an individual’s right of privacy.

The invasion of that privacy cannot now be restored by according Marchetti-Grosso retroactive effect.

Finally, and most important in terms of the purpose criteria in which this Court has stressed, the Marchetti-Grosso rule does not go to the integrity of the fact finding process.

We think the evidence here is far more reliable than the evidence involved in Johnson against New Jersey which held that Miranda was not retroactive.

The plain fact is that nobody files wagering tax forms who does not have to file them and nobody puts a figure down on a wagering tax form for gross receipts that’s higher than it has to be.

We think it is clear that the — at the very minimum petitioner had gross receipts from wagering as shown on his wagering tax forms.

We would suggest to the Court that the trustworthiness and reliability of the evidence here is almost as great as it was in Linkletter and Desist.

Petitioner attempts to avoid the rule of the Johnson case which we think is controlling and that of Tehan and Shott on the ground that he comes within the holding of Johnson and Deno.

In short that this is a coerce confession case.

We think this argument was adequately answered by the court below.

I’d like to quote briefly from the first full paragraph on page 53 of the appendix.

Defendant contends however that the wagering tax returns constitute coerce confessions since they were filed under the compulsion of a legal command and that retroactivity follows automatically once the question is so characterized, but the compulsion which turns interrogation into a violation of the privilege against self-incrimination is not the same as the coercion and intimidation which makes a confession involuntary and a denial of Due Process.

And at this point, the court cited Davis v. North Carolina which was decided on the same day as Johnson and showed precisely what the court was pointing out but not every self-incrimination case is a coerce confession case and this is not a coerce confession case under any standards that this Court has applied.

Putting the retroactivity aside and what’s your argument on the merits so to speak is, this itself is (Inaudible)

Matthew J. Zinn:

I am not sure (Voice Overlap)

This evidence is governed by the Sullivan rationale or out of Marchetti and Grosso?

Matthew J. Zinn:

I would like to say that completely Mr. Justice Harlan, I don’t quite think I can, except to the extent that I can show that the gross receipts figure could have been computed.

The gross receipts figure from wagers could have been computed by reference to the income tax returns.

To that extent to Sullivan is dispositive.

Warren E. Burger:

Well, is that part of the harmless error?

Matthew J. Zinn:

Yes it is Mr. Chief Justice.

Warren E. Burger:

Independent of Sullivan.

Matthew J. Zinn:

Yes, we are arguing harmless error here and at least that the court should set the standards for harmless error if it does not decide the case on one of the other two grounds that we have urged in our brief.

If I may and if the Court will indulge me for one more minute, I would like to finish on retroactivity and I won’t take long.

Warren E. Burger:

You can march one more minute to —

Matthew J. Zinn:

As far as the second factor reliance, it seems to us clear that the Government could reasonably have relied on Lewis and Kahriger.

They were still on the books when petitioner was tried and Albertson was decided almost two years after the trial ended.

In fact, petitioner can’t make too much of an argument regarding reliance because he himself relies on Lewis and Kahriger to avoid the claim of waiver in this case.

Matthew J. Zinn:

He says he didn’t raise the privilege against self-incrimination because he did not know that he had it.

And so there can’t be any serious question about the reliance prong of the three factor test.

Finally, with regard to the burden on the administration of justice, it must be considered if Marchetti-Grosso is held retroactive that collateral attacks maybe brought not only with respect to convictions failing to filed wagering tax forms.

Not only with respect to convictions of income tax evasion like petitioner’s conviction in which wagering tax forms were introduced into evidence, but also as to convictions under the comprehensive prohibitory scheme both federal and state outlawing gambling and gambling related activities which this Court described in Marchetti-Grosso.

And it seems to us that in Mr. Justice Harlan’s opinion, one of the reasons that he rejected the restrictions on use test which the Government urged in Marchetti-Grosso was the difficulty that states would have in showing that prosecutions under federal and state law for gambling, that states and the federal Government would have would be — they could not show that they were untainted because of the filing of the wagering tax forms.

Here if this Court holds to Marchetti-Grosso retroactive, that issue will be raised with respect to every conviction for violation of federal and state gambling statutes going all the way back to 1951, in cases in which wagering tax forms were filed.

We urge therefore that the judgment of the Court of Appeals be affirmed.


Matthew J. Zinn:

Yes, Mr. Justice.

It has been served and he is out on parole at this point.

But I think your question points up really another aspect of the retroactivity of Marchetti-Grosso because one of the issues that is involved in this case is Mr. Mackey’s civil income tax liability and if this Court were to affirm the judgment below under settled principles of collateral estoppal, Mr. Mackey would be liable for tax, penalties and interests amounting to about a million-and-a-half dollars.

Warren E. Burger:

Your time is now enlarged to five minutes.

William M. Ward:

Mr. Chief Justice, on many occasions, the Assistant Solicitor General said that is not the case and that is quite true.

The case he argued on the facts here is not the case that existed in the criminal trial.

He is arguing basically is we should have won.

He is arguing that the court was wrong, that this evidence should not come in, there are objections to the evidence at the time we made it were proper and correct, and of course I agree with him.

The problem is we lost the argument and the evidence was admitted against us, and it was used against us.

And I think to the effect that it was used against us, I refer the court to page 16 and 17 of our reply with a prosecutor having gotten that evidence in, relied on it, immensely before the jury.

It was the second most important part of his argument to the jury.

This is what we are talking about.

How did this affect the jury out 43 hours for five days?

That is exactly what we are talking about.

Warren E. Burger:

You have mentioned that I think three times now, is there anything remarkable about taking not many days to review a case that has 865 exhibits?

William M. Ward:

I think so, yes sir.

I think that is a long time for a jury to be out, yes sir.

I think it is a very long time for the jury to (Voice Overlap).

Warren E. Burger:

And how do you read all that materials in much less time?

William M. Ward:

Well, I question how much they really – they might have read it a quite number and quite a lot of it was foundation evidence, evidence that didn’t necessarily had to be read but had to be in for the purposes of providing the foundation for the exhibit evidence.

So I think that is a long time to be out, yes sir.

As far as the million dollar net worth case, I am not too sure it’s before this Court but I would like to refer in the large appendix that was filed, government’s exhibit 800 property held in the name of Gibraltar Industrial Life Insurance Company.

William M. Ward:

In other words, I don’t take too much time on this, approximately $1 million in assets, held in the names of regulated insurance companies, under the control of the director of insurance in the State of Indiana makes up that bulge.

That is one of the big arguments in the case, but that was an argument in the case of the original level and would be on retrial.

It certainly has nothing to do with the privilege against self-incrimination which is before this Court right now.

On the harmless error doctrine, I do want to make this point.

I want to make it strongly.

The constitution says, the Fifth Amendment says, no person shall be a witness against himself on a criminal prosecution.

It does not say that no person shall be a witness against himself in a criminal prosecution except he can be compelled to have testimony admitted against him, if later is found to be harmless error.

The harmless error in the constitutional rulings, the Harrington and the Chapman situations usually at least as I read them come up on Fourth Amendment situations or confrontation situations.

The constitution does not prohibit searches and seizures.

It prohibits unreasonable searches and seizures and the constitution requires confrontation but it doesn’t necessarily, specifically prohibit evidence which would go in, in a trial without confrontation.

These rules have exclusion or judge made rules and I think there can be a further emendation on these of harmless error, but the constitution specifically says, no person shall be a witness against himself in a criminal proceeding and Mr. Mackey was a witness against himself in a criminal proceeding.

Thurgood Marshall:

But Mr. Ward, what about the claim or the deduction that was legitimately an evidence, right?

William M. Ward:

Well, that was the claim I believe of the Mr. Mackey’s defense lawyer at trial that all of the evidence —

Thurgood Marshall:

No, maybe he made a specific with — in his return, you said —

William M. Ward:

Are we talking about the wagering tax return Mr. Justice or the —

Thurgood Marshall:

Income tax.

William M. Ward:

Income tax return.

Thurgood Marshall:

He said that I pay the tax for wages.

William M. Ward:


Thurgood Marshall:

And all you have to do is one part of a 10, and you got to figure out.

William M. Ward:

That is what the defense lawyer argued.

That is —

Thurgood Marshall:

Do you find any fault with that?

William M. Ward:

I think you should have wanted at the time, yes, but having lost it having lost the argument.

Thurgood Marshall:

I am not saying it lost.

But if you pay a 10%, if $1.00 is 10% to $10.00, then if I pay $1.00 as a 10% tax, I earn him $10.00.

So once you put that in this tax return, there was no coercion there was.

William M. Ward:

In the wagering tax return?

Thurgood Marshall:

No sir.

William M. Ward:

In the income — no, there was no coercion there.

William M. Ward:

That is correct.

Thurgood Marshall:

And wouldn’t it be proper for the prosecutor to argue to the jury you quote the statute, this is what it means, we multiply it by 10 and we have got that much of admitted gross income.

William M. Ward:

He could have, yes.

But he didn’t.

That’s why I say the case as it existed below —

Thurgood Marshall:

This is not just harmless error —

William M. Ward:

No, I think not because I think that you cannot have a person testify against himself.

The only thing I can rely on Mr. Justice is the prosecutor’s actions in the court below.

He denied that argument.

He told the judge that that was not a valid argument.

He told the judge he absolutely needed these figures from these returns and the judge agreed with him.

The judge agreed with them, said these returns must go in and then he argued to the jury from these returns.

I can only argue the cases that happened below.

These were used and they were used very violently against the petitioner.

Warren E. Burger:

But at that time, there was no objections made to the introduction of the wagering tax forms on the Fifth Amendment grounds, is that correct?

William M. Ward:

That is correct Your Honor.

I think the Solicitor General, as far as I understand is the man on this point now.

They haven’t raised the question of waive.

They waived it and raised it in the Seventh Circuit but they necessarily have not raised that here.

Of course, our position is we had no privilege.

Kahriger and Lewis had taken that privilege away.

It wasn’t a question of something we didn’t know, it isn’t a question of something that the — on the state — we had no privilege.

We had no privilege.

Warren E. Burger:

But you have one now, you think?

William M. Ward:

Yes, yes.

I again, I just go back to the fact that I think Marchetti-Grosso righted a wrong.

Kahriger and Lewis were bad long.

Marchetti-Grosso so held.

Are the summations part of the record?

William M. Ward:

Yes sir, yes sir.

William M. Ward:

The parts that I thought were important are in the reply put on the (Inaudible) in the reply.

The full summations will be found in volume four of the appellant’s appendix in the original trial which was filed in this Court when I filed the petition for certiorari.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.