author: Mr. Justice Harlan Mr. Justice Douglas,

text:
    BRYSON v. UNITED STATES
    No. 35.
    Argued October 14, 1969
    Decided December 8, 1969

      Richard Gladstein argued the cause for petitioner. With him on the brief was Norman Leonard.

      Francis X. Beytagh, Jr., argued the cause for the United States. On the brief were Solicitor General Gris-wold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson.

   Mr. Justice Harlan

delivered the opinion of the Court.

Petitioner asks this Court to set aside his 1955 jury-conviction under 18 U. S. C. § 1001 for having falsely and fraudulently denied affiliation with the Communist Party in an affidavit he had filed with the National Labor Relations Board, pursuant to § 9 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act. This collateral proceeding was brought in the District Court for the Northern District of California in 1967, some 10 years after his original conviction was upheld over a variety of challenges on direct review. The District Court distinguished Dennis v. United States, 384 U. S. 855 (1966), and decided that § 9 (h), which had been upheld in American Communications Assn. v. Douds, 339 U. S. 382 (1950), could no longer be thought constitutionally valid, particularly in light of United States v. Brown, 381 U. S. 437 (1965). Having concluded that the Government had no right to ask the questions which petitioner answered falsely in his affidavit, the District Court ruled that petitioner’s conviction under § 1001 should be “without effect.” It therefore set aside petitioner’s conviction and discharged his parole (unreported opinion).

On the Government’s appeal, the Ninth Circuit reversed because it found “no significant differences” between this case and Dennis, and it therefore thought it unnecessary to consider the constitutionality of § 9 (h). 403 F. 2d 340 (1968). We granted certiorari, 393 U. S. 1079 (1969), and we now affirm.

I

Petitioner bottoms his claim to relief on asserted constitutional deficiencies of § 9 (h) of the National Labor Relations Act, enacted by Congress in 1947 out of concern that Communist Party influence on union officers created the risk of “political strikes,” see American Communications Assn. v. Douds, 339 U. S., at 387-389. Under § 9 (h), a union could participate in representation proceedings conducted by the NLRB or utilize the Board’s machinery to protest employer unfair labor practices only if each of the union’s officers had filed a “non-Communist” affidavit. See n. 2, supra. Petitioner filed such an affidavit in 1951, and his subsequent conviction under § 1001 was based on a jury’s determination that petitioner had knowingly and willfully lied in his affidavit by denying affiliation with the Communist Party.

About one year before petitioner filed the false affidavit, this Court had upheld § 9 (h) after considering a variety of asserted constitutional deficiencies, American Communications Assn. v. Douds, supra. However, in 1959 Congress replaced § 9 (h) with a provision that simply made it a crime for one who was or had recently been a Communist Party member to be a union officer, and this successor statute was subsequently held unconstitutional as a bill of attainder, United States v. Brown, supra.

Relying primarily on Brown, petitioner argues that § 9 (h) was also a bill of attainder, prohibited by Art. I, § 9, cl. 3, of the Constitution. Petitioner also argues that the statute abridged Eirst Amendment rights of speech, assembly, and association, and was so vague as to offend the Due Process Clause of the Fifth Amendment. We do not decide whether § 9 (h) — now repealed for over 10 years — would today pass constitutional muster and whether Douds would be reaffirmed. Guided by Dennis v. United States, supra, we hold that the question of whether § 9 (h) was constitutional or not is legally irrelevant to the validity of petitioner’s conviction under § 1001, the general criminal provision punishing the making of fraudulent statements to the Government.

II

In Dennis v. United States, 384 U. S. 855 (1966), the petitioners had been convicted of a conspiracy to obtain fraudulently the services of the National Labor Relations Board by filing false affidavits in purported satisfaction of the requirements of § 9 (h). Those petitioners, like the petitioner here, asked the Court to reverse Douds and hold § 9 (h) invalid. Deciding that “the claimed invalidity of § 9 (h) would be no defense to the crime of conspiracy charged in [the] indictment,” the Court refused in Dennis to “reconsider Douds.” 384 U. S., at 867. The Court, drawing on United States v. Kapp, 302 U. S. 214 (1937), and Kay v. United States, 303 U. S. 1 (1938), stated:

“The governing principle'is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners’ fraud. It is not an action to enforce the statute claimed to be unconstitutional.” 384 U. S., at 867.

We find the principle of Dennis no less applicable in the case before us. First, none of the elements of proof necessary for petitioner’s conviction under § 1001 has been shown to depend on the validity of § 9 (h). Petitioner suggests in this collateral proceeding that when he filed his affidavit he misunderstood the meaning of the statutory term “affiliated,” a word which he claims is unconstitutionally vague and overbroad. But the trial court narrowly defined the term in an instruction later explicitly approved by this Court in Killian v. United States, 368 U. S. 231, 25A-258 (1961). Moreover, the jury’s verdict reflects a determination that petitioner’s false statement was knowingly and willfully made. This negates any claim that petitioner did not know the falsity of his statement at the time it was made, or that it was the product of an accident, honest inadvertence, or duress. Insofar as petitioner in this collateral proceeding attempts to suggest the contrary, he is simply trying to impeach the jury’s verdict, upheld after careful review on direct appeal.

As another element of the offense, § 1001 requires that the false statement be made “in any matter within the jurisdiction of any department or agency of the United States.” Petitioner argues that if § 9 (h) was unconstitutional, then the affidavit requirement was not within the “jurisdiction” of the Board, and therefore the false statement was not punishable under § 1001. Because there is a valid legislative interest in protecting the integrity of official inquiries, see United States v. Bramblett, 348 U. S. 503 (1955); United States v. Gilliland, 312 U. S. 86, 93 (1941), we think the term “jurisdiction” should not be given a narrow or technical meaning for purposes of § 1001, Ogden v. United States, 303 F. 2d 724, 742-743 (C. A. 9th Cir. 1962); United States v. Adler, 380 F. 2d 917, 921-922 (C. A. 2d Cir. 1967). A statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under § 1001.

In this case, the Board received petitioner’s affidavit pursuant to explicit statutory authority, which only a short time before had been upheld as constitutional in Douds. Given that under § 9 (h) the Board’s “power to act on union charges [was] conditioned on filing of the necessary affidavits,” Leedom v. International Union of Mine Workers, 352 U. S. 145, 148-149 (1956), the Board certainly had the apparent authority, granted by statute, necessary for purposes of § 1001. Thus, we hold that irrespective of whether Douds would be reaffirmed today, petitioner made a false statement in a “matter within the jurisdiction” of the Board.

Notwithstanding the fact that the Government has proved the elements necessary for a conviction under § 1001, the petitioner would have us say that the invalidity of § 9 (h) would provide a defense to his conviction. But after Dennis it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.

Ill

Petitioner argues, and the District Court also found, that Dennis is distinguishable, and that its teachings therefore have no relevance in this instance. The first distinction offered is that Dennis involved a conviction for conspiracy, whereas this petitioner was prosecuted under § 1001 for individually making a false statement. We see nothing in that fact that makes Dennis less applicable in this instance. The cases are indeed very similar in that both involve the use of false affidavits “to circumvent the law and not to challenge it— a purported compliance with [ § 9 (h) was] designed to avoid the courts, not to invoke their jurisdiction.” 384 U. S., at 865.

Petitioner also attempts to distinguish Dennis on the ground that the behavior involved in the present case was less culpable than that found punishable in Dennis, and that this petitioner, unlike the petitioners in Dennis, did not “flout” the law for he had “every right to believe” that he had not perjured himself. If apart from attempting to impeach the jury’s verdict, see n. 8, supra, petitioner is suggesting that the principles of Dennis depend on an assessment of moral culpability beyond the jury’s determination of guilt, he simply misconceives the basis of Dennis. Dennis can hardly be read as instructing courts to impose an extra punishment on a defendant found to have been dishonest by refusing to consider a constitutional argument that is legally relevant to his defense. Dennis refused to reconsider Douds because of the legal conclusion that the constitutionality of § 9 (h) was not relevant to the validity of the conspiracy prosecution.

Petitioner finally contends that the Court should not follow Dennis because '“its strictures . . . have no relevance at all to postconviction proceedings.” Of course, federal courts have jurisdiction to consider constitutional claims on collateral review, but a substantive defense that is not legally relevant on direct review becomes no more relevant because asserted on collateral review.

The judgment of the Court of Appeals is

Affirmed.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

This conviction was founded on an indictment which in the words of 18 U. S. C. § 1001 makes it a crime to file “any false, fictitious or fraudulent statements or representations” in any matter “within the jurisdiction” of the National Labor Relations Board. Former § 9 (h) of the Labor Management Relations Act, 1947, 29 U. S. C. § 159 (h) (1958 ed.), barred á union from using the services of the Board unless and until each of the union’s officers had filed his affidavit that he was neither a member of nor affiliated with the Communist Party. The basic question in this proceeding under 28 U. S. C. § 2255 is whether constitutionally speaking it was “within the jurisdiction” of the Board to require the filing of those affidavits.

Obviously the power of Congress to authorize prosecution for crimes of this character must rest on an interference with or obstruction of some “lawful” function of the agency in question. See United States v. Johnson, 383 U. S. 169, 172. Apart from constitutional problems, the question of what is “within the jurisdiction” of an agency should be construed in a restrictive, not an expansive, way. The Court of Appeals for the Eighth Circuit so held in Friedman v. United States, 374 F. 2d 363, when it ruled that telling a falsehood to the FBI in its role as “investigator” was not “within the jurisdiction” of that agency in the sense of § 1001. If it were, then telling lies to agencies would carry heavier penalties than committing perjury in court. 374 F. 2d, at 367.

The words “within the jurisdiction” must be read not only with the common-sense approach of Friedman but also in light of our constitutional regime. One of many mandates imposed on Congress by the Constitution is the prohibition against bills of attainder. Art. I, § 9.

It was said in American Communications Assn. v. Douds, 339 U. S. 382, that § 9 (h) was not a bill of attainder. The opinion was by Mr. Chief Justice Vinson and it was called an “opinion of the Court.” It was, however, a six-man Court and the ruling on the bill of attainder point was in Part VII of the opinion. Mr. Justice Frankfurter concurred in the opinion “except as to Part VII.” Id., at 415. Mr. Justice Jackson concurred in part and dissented in part. Id., at 422. Section 9 (h) was vulnerable in his view because it proscribed opinion or belief which had not manifested itself “in any overt act.” Id., at 436. He said:

“Attempts of the courts to fathom modern political meditations of an accused would be as futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs.” Id., at 437.
“[E]fforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues.” Id., at 438.

From this opinion I conclude that Mr. Justice Jackson did not reach the bill of attainder point in Mr. Chief Justice Vinson’s opinion. And Mr. Justice Black dissented. Id., at 445.

So I .conclude that no more than three members of the Court (Vinson, C. J., and Reed and Burton, JJ.) ever held that § 9 (h) was constitutional against the challenge that it was a bill of attainder.

In United States v. Brown, 381 U. S. 437, we held that the successor of § 9 (h), § 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. § 504, was a bill of attainder. It made it a crime for a member of the Communist Party to serve as an officer or employee (except in clerical or custodial positions) of a labor union. The Yinson opinion in Douds upheld § 9 (h) on the basis that it was “intended to prevent future action rather than to punish past action.” 339 U. S., at 414. In Brown, it was likewise argued that the statute there involved was “preventive rather than retributive in purpose.” 381 U. S., at 457. That view was rejected. The question, we said, was whether § 504 inflicted “punishment” which, we pointed out, “serves several purposes: retributive, rehabilitative, deterrent— and preventive.” Id., at 458. The dissenters — Mr. Justice Clark, Me. Justice Harlan, Me. Justice Stewart, and Mr. Justice White — concluded that Douds was “obviously overruled.” Id., at 46A-465. Whatever may be said technically about any remaining vitality of the Douds case, it obviously belongs to a discredited regime, though, like Plessy v. Ferguson, 163 U. S. 537, it has never been officially overruled.

The rule invoked by the Court to deny petitioner the opportunity to challenge that bill of attainder in this proceeding is, as stated by Mr. Justice Black in his separate opinion in Dennis v. United States, 384 U. S. 855, 878, “a new court-made doctrine.” As he pointed out in that opinion, the prior decisions of this Court relied on to deny the defense of unconstitutionality of a federal law were instances of false claims for benefits to which the complainant had “no possible right whether the statute was constitutional or unconstitutional.” Ibid.

In this case, however, Congress installed an unconstitutional barrier to receipt of the benefits administered by the Labor Board. Since § 9 (h), in light of Brown, was plainly unconstitutional, petitioner’s union was entitled to those services without the filing of any affidavit. Therefore, unlike prior cases, the United States had been deprived of nothing and defrauded of nothing by the filing of any affidavit or other form of claim.

I would reverse the judgment below.

       Title 18 U. S. C. § 1001 provides: “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

       Until repealed in 1959, § 9 (h) of the National Labor Relations Act, 61 Stat. 146, provided that no labor organization could draw upon the jurisdiction of the National Labor Relations Board unless each officer of such organization had filed with the Board an affidavit stating “that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of [§§286, 287, 1001, 1022, and 1023 of Title 18] shall be applicable in respect to such affidavits.”

       See Bryson v. United States, 238 F. 2d 657 (C. A. 9th Cir. 1956), rehearing denied, 243 F. 2d 837, cert. denied, 355 U. S. 817 (1957). After direct review, but before initiating this proceeding, petitioner’s application for reduction of sentence was rejected, Bryson v. United States, 265 F. 2d 9 (C. A. 9th Cir.), cert. denied, 360 U. S. 919 (1959).

       After his conviction, petitioner had been sentenced to five years’ imprisonment and a $10,000 fine. He had served almost two years of his sentence before being paroled in December 1959. Because only $2,000 of his fine had been paid, however, petitioner had not yet been discharged from his parole status when he commenced the present proceedings in 1967.

       The jury acquitted petitioner of the separate charge that he had fraudulently denied that he was a “member” of the Communist Party.

       Section 504, Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U. S. C. § 504.

       The instructions of the court on affiliation were:
      “The verb ‘affiliated/ as used in the Second Count of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party.
      “A person may be found to be ‘affiliated’ with an organization, even though not a member, when there is shown to be a close working alliance or association between him and the organization, together with a mutual understanding or recognition that the organization can rely and depend upon him to cooperate with it, and to work for its benefit, for an indefinite future period upon a fairly permanent basis.
      “Briefly stated, affiliation as charged in the Second Count of the indictment, means a relationship which is equivalent or equal to that of membership in all but name.
      “I tried to think of some analogy which would make that possibly clearer to you, and the best one I can think of — we have all in our experience probably heard of a man and woman who live together but are not married. They are husband and wife in everything but name only. You have probably heard that expression. A person to be affiliated with the Communist Party within the meaning of that term as used in the Second Count of the indictment must be a member in every sense and stand in the relationship of a member in every sense but that of the mere technicality of being a member,— in everything but name.” Bryson v. United States, 238 F. 2d, at 664 n. 8.

       Petitioner claims that he did not know that his relationship with the Communist Party amounted to affiliation, and that he signed the affidavit submitted to the Board after counsel had advised him that he was not at the time “affiliated.” This is apparently the same claim he made in an affidavit prepared in connection with his motion to reduce his sentence. At his trial, however, petitioner did not take the stand, and his unproved allegations are not even found in the record upon which the jury found him guilty.

       In concluding that the Board had no jurisdiction for purposes of § 1001, the District Court reasoned that if § 9 (h) were unconstitutional, the Board was not performing one of its “authorized functions,” a phrase taken from United States v. Gilliland, 312 U. S., at 93. By taking Gilliland’s unelaborated reference to “authorized functions” out of context, the District Court gave that phrase a meaning both unsupported by the holding and inconsistent with the spirit of that decision. The holding of Gilliland that there need be no “pecuniary . . . loss to the government” in order to punish fraudulent behavior was based on the Court’s concern that the statute be given a broad reading in order to protect the Government “from the perversion which might result from the deceptive practices described,” ibid.

       We do not read previous decisions of this Court, in contexts other than prosecutions under § 1001, e. g., Williamson v. United States, 207 U. S. 425, 453-462 (1908); United States v. George, 228 U. S. 14 (1913); Viereck v. United States, 318 U. S. 236 (1943); Christoffel v. United States, 338 U. S. 84 (1949), as inconsistent with this conclusion. Petitioner has cited no cases of this Court, and we know of none, in which there existed statutory authority to require a statement but the Court nevertheless held that a prosecution for a false answer could not be maintained because the statute was later determined invalid. Friedman v. United States, 374 F. 2d 363 (C. A. 8th Cir. 1967), cited by the dissent, held that a false and fraudulent statement willfully and knowingly given to the FBI in order “to initiate a federal prosecution under the Civil Rights Laws” was not “in any matter within the jurisdiction of any department or agency” for purposes of § 1001 because the FBI “had no power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry.” Id., at 365, 368. We have no occasion in the present context either to approve or disapprove Friedman’s holding.

       We have no need to decide in this case whether jurisdiction would exist under § 1001 if at the time the request for information was made a court had already authoritatively determined that the statutory basis was invalid. Cf. United States v. Kapp, supra.

       For two examples of how the constitutional validity of § 9 (h) could be raised, see American Communications Assn. v. Douds, 339 U. S., at 385-387.

       In support of the contention that Dennis was meant to apply only to conspiracy charges and not simply to § 1001 violations, both the District Court and petitioner here quote the language in Dennis to the effect that: “It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge.” 384 U. S., at 860. That language, however, was addressed to the threshold question that the Court faced in Dennis, namely, whether the facts alleged in the indictment were sufficient to warrant a conspiracy charge, which requires elements additional to those necessary for a violation of § 1001.


source: Caselaw Access Project

author: Mr. Justice Hablan Mr. Justice Douglas,

license: Public Domain

text:
    UNITED STATES v. KNOX
    No. 17.
    Argued October 14, 1969
    Decided December 8, 1969

      Mervyn Hamburg argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, Francis X. Beytagh, Jr., and Beatrice Rosenberg.

      J. Edwin Smith argued the cause and filed a brief for appellee.
   Mr. Justice Hablan

delivered the opinion of the Court.

Appellee Knox has been charged with six counts of violation of federal law in connection with his wagering activities. The first four counts of the indictment charge that between July 1964 and October 1965 he engaged in the business of accepting wagers without first filing Internal Revenue Service Eorm 11-C, the special return and registration application required by § 4412 of the Internal Revenue Code of 1954, and without first paying the occupational tax imposed by § 4411 of the Code. Counts Five and Six charge that when Knox did file such a form on October 14, 1965, and when he filed a supplemental form the next day, he knowingly and willfully understated the number of employees accepting wagers on his behalf — in violation of 18 U. S. C. § 1001, a general criminal provision punishing fraudulent statements made to any federal agency.

Knox moved to dismiss the indictment, asserting that this Court’s decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), had held invalid the provisions of the wagering tax laws that required him to file the special return. The Government in response stated that it would not pursue the first four counts but argued that Knox’s objections based on the Marchetti and Grosso decisions were “largely irrelevant” to Counts Five and Six. The District Court disagreed. It dismissed all six counts, reasoning that Knox could not be prosecuted for his “failure to answer the wagering form correctly” since his Fifth Amendment privilege against self-incrimination would have prevented prosecution for “failure to answer the form in any respect.” 298 F. Supp. 1260, 1261. The United States filed a direct appeal to this Court from the dismissal of the two counts charging violations of § 1001, and we noted probable jurisdiction, 394 U. S. 971 (1969).

In Bryson v. United States, ante, p. 64, decided today, we reaffirmed the holding of Dennis v. United States, 384 U. S. 855 (1966), that one who furnishes false information to the Government in feigned compliance with a statutory requirement cannot defend against prosecution for his fraud by challenging the validity of the requirement itself. Bryson, like Dennis, involved § 9 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 146, which was attacked as an abridgment of First Amendment freedoms and as a bill of attainder forbidden by Art. I, § 9, of the Constitution. In contrast, Knox alleges infringement of his Fifth Amendment privilege against self-incrimination. We do not think that the different constitutional source for Knox’s claim removes his case from the ambit of the principle laid down in those decisions. The validity of the Government’s demand for information is no more an element of a violation of § 1001 here than it was in Bryson,

The indictment charges that the forms Knox filed with the District Director of Internal Revenue contained false, material information, an accusation that con-cededly falls within the terms of § 1001. However, Knox claims that the Fifth Amendment bars punishing him for the filings because they were not voluntary but were compelled by § § 4412 and 7203 of the Internal Revenue Code. He points out that if he had filed truthful and complete forms as required by § 4412, he would have incriminated himself under Texas wagering laws. On the other hand, if he had filed no forms at all, he would have subjected himself to criminal prosecution under § 7203. In choosing the third alternative, submission of a fraudulent form, he merely opted for the least of three evils, under a form of duress that allegedly makes his choice involuntary for purposes of the Fifth Amendment.

For this proposition Knox relies on United States v. Lookretis, 398 F. 2d 64 (C. A. 7th Cir. 1968), where, after this Court had remanded for reconsideration in light of Marchetti, see 390 U. S. 338 (1968), the Court of Appeals ruled that truthful disclosures made under the compulsion of § 4412 could not be introduced against their maker in a criminal proceeding. However, the Fifth Amendment was offended in Lookretis precisely because the defendant had succumbed to the statutory compulsion by furnishing the requested incriminatory information. Knox does not claim that his prosecution is based upon any incriminatory information contained in the forms he filed, nor that he is being prosecuted for a failure to supply incriminatory information. He has taken a course other than the one that the statute was designed to compel, a course that the Fifth Amendment gave him no privilege to take.

This is not to deny that the presence of §§4412 and 7203 injected an element of pressure into Knox’s predicament at the time he filed the forms. At that time, this Court’s decisions in United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955), established that the Fifth Amendment did not bar prosecution for failure to file a form such as 11-C. But when Knox responded to the pressure under which he found himself by communicating false information, this was simply not testimonial compulsion. Knox’s ground for complaint is not that his false information inculpated him for a prior or subsequent criminal act; rather, it is that under the compulsion of §§4412 and 7203 he committed a criminal act, that of giving false information to the Government. If the compulsion was unlawful under Marchetti, Knox may have a defense to this prosecution under the traditional doctrine that a person is not criminally responsible for an act committed under duress. See generally Model Penal Code § § 2.09, 3.02 (Proposed Official Draft, 1962); id., § 2.09, Comment (Tent. Draft No. 10, 1960). It is only in this sense that there is any relevance to Knox’s attempted distinction of this case from Dennis, Bryson, and their predecessors, United States v. Kapp, 302 U. S. 214 (1937), and Kay v. United States, 303 U. S. 1 (1938), on the ground that in those cases the false statements were voluntarily filed for the purpose of obtaining benefits from the Government.

Knox argues that the criminal sanction for failure to file, coupled with the danger of incrimination if he filed truthfully, was more coercive in its effect than, for example, the prospect that the petitioners in Dennis would lose their jobs as union officers unless they filed non-Communist affidavits. While this may be so, the question whether Knox’s predicament contains the seeds of a “duress” defense, or perhaps whether his false statement was not made “willfully” as required by § 1001, is one that must be determined initially at his trial. It is not before us on this appeal from dismissal of the indictment, and we intimate no view on the matter.

The judgment of the District Court is

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

In this case, as in Bryson v. United States, ante, p. 64, 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 (dissenting opinion). In Marchetti v. United States, 390 U. S. 39, 61, 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, 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, and Lewis v. United States, 348 U. S. 419, 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. Ante, at 80, n. 3. 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], we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege.” 390 U. S., at 71.

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.

For the reasons stated in my dissent in Bryson, ante, p. 73, and in Mr. Justice Black’s separate opinion in Dennis v. United States, 384 U. S. 855, 875, 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.

       But see nn. 3, 6, infra.

       Such a direct appeal is authorized by the Criminal Appeals Act, 18 U. S. C. § 3731, which provides: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
      “From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.”
      The District Court sustained the claim of privilege not on the basis of facts peculiar to this case but on the basis of its conclusion that the Fifth Amendment provides a defense to any prosecution under § 1001 based on misstatements on a Form 11-C. This amounts to a holding that § 1001, as applied to this class of cases, is constitutionally invalid. The generality of the impact of the District Court’s holding appears to us to render our jurisdictional holding a fortiori compared to analogous jurisdictional holdings in such cases as Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 (1921); Fleming v. Rhodes, 331 U. S. 100, 102-104 (1947); Wissner v. Wissner, 338 U. S. 655 (1950); Department of Employment v. United States, 385 U. S. 355, 356-357 (1966). We prefer to rest our jurisdiction on this aspect of § 3731 rather than, as advocated by the Government, the statute’s “motion in bar” provision, in light of the fact that the scope of the latter provision will be the subject of full-dress consideration, as will certain problems under the “dismissing any indictment” provision not present in this case, in United States v. Sisson, consideration of jurisdiction postponed, post, p. 812.

       Knox argues that his false Forms 11-C were not filed “in any matter within the jurisdiction of any department or agency of the United States,” a necessary element of a violation of § 1001, because Marchetti and Grosso held that the Internal Revenue Service was not authorized to require the filing of the forms. Even if his reading of those decisions were correct, his argument would fail for the reasons explained in Bryson. The Internal Revenue Service has express statutory authority to require the filing, and when Knox submitted his forms this Court had held that such a requirement raised no self-incrimination problem. United States v. Kahriger, 345 U. S. 22 (1953); Lewis v. United States, 348 U. S. 419 (1955). Further, in Marchetti we did not hold that the Government is constitutionally forbidden to direct the filing of the form, but only that a proper assertion of the constitutional privilege bars prosecution for failure to comply with the direction. See n. 6, infra; see also Grosso v. United States, 390 U. S., at 69-70, n. 7.

         Knox claims on appeal that neither Count Five nor Count Six charges any affirmative misstatements, but only omissions. Count Five charges that the statements on the form filed on October 14, 1965, “were not true, correct, and complete, in that the number of employees and/or agents engaged in receiving wagers in his behalf were misrepresented and understated, in that the number, name, special stamp number, street address, and city and state of employees and/or agents engaged in receiving wagers in the said JAMES D. KNOX’s behalf had been omitted . . . .” Count Six contains language identical except for an apparently inadvertent difference in punctuation. Although the wording is not entirely clear, we need not decide whether on a fair reading the indictment encompasses affirmative misstatements. The District Court read the indictment as alleging that Knox violated § 1001 “by wilfully and knowingly making a false statement” on the forms, and it was on the basis of this construction that the court dismissed Counts Five and Six. We have no jurisdiction on this direct appeal to review the construction of the indictment. E. g., United States v. Harriss, 347 U. S. 612 (1954); United States v. Petrillo, 332 U. S. 1 (1947); United States v. Borden Co., 308 U. S. 188, 193 (1939). But see United States v. CIO, 335 U. S. 106 (1948). See also n. 2, supra.

       Title 26 IT. S. C. § 7203 provides: “Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep sueh records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.”

       We stressed in Marchetti “that we do not hold that these wagering tax provisions are as such constitutionally impermissible; we hold only that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements. If, in different circumstances, a taxpayer is not confronted by substantial hazards of self-incrimination, or if he is otherwise outside the privilege’s protection, nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes.” 390 U. S., at 61. Nothing before us indicates that the hazard of incrimination faced by Knox was less substantial than that faced by Marchetti, or that Knox would have been disqualified for any other reason from asserting the privilege in defense of a prosecution for failure to comply with § 4412.

       Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are “capable of determination without the trial of the general issue,” indicates that evidentiary questions of this type should not be determined on such a motion.

       As the majority opinion states: “Nothing before us indicates that the hazard of incrimination faced by Knox was less substantial than that faced by Marchetti, or that Knox would have been disqualified for any other reason from asserting the privilege . . . .” Ante, at 83 n. 6.


author: Mr. Justice White Mr. Justice Douglas,

text:
    MINOR v. UNITED STATES
    No. 189.
    Argued October 15, 1969
    Decided December 8, 1969

      Phylis Skloot Bamberger, by appointment of the Court, post, p. 809, argued the cause for petitioner in No. 189. With her on the briefs was William E. Heller-stein. David A. Diamond argued the cause and filed a brief for petitioner in No. 271.

      Peter L. Strauss argued the cause for the United States in No. 189. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Leonard H. Dickstein. Joseph J. Connolly argued the cause for the United States in No. 271. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Miss Rosenberg, and Mervyn Hamburg.

       Together with No. 271, Buie v. United States, also on certiorari to the same court.

   Mr. Justice White

delivered the opinion of the Court.

These cases raise related questions about the availability of the Fifth Amendment as a defense to convictions for selling narcotic drugs and marihuana without the written order forms required by law.

James Minor, petitioner in No. 189, sold heroin on two separate occasions in 1967 to an undercover narcotics agent. Having waived trial by jury, petitioner was convicted in the United States District Court for the Southern District of New York of selling narcotics not pursuant to a written order on an official form — a violation of § 2 of the Harrison Narcotics Act, now 26 U. S. C. §4705 (a).

Michael Buie, petitioner in No. 271, sold five packages of marihuana in May 1967 to an undercover narcotics agent. The agent did not have the official order form required for such transactions by § 6 of the Marihuana Tax Act, now 26 U. S. C. §4742 (a). A jury in the United States District Court for the Southern District of New York convicted petitioner of violating §4742 (a).

In separate opinions, the Court of Appeals for the Second Circuit affirmed both convictions over objections in each case that the statutory obligation to sell only in pursuance of an official order form violated petitioner’s Fifth Amendment privilege against self-incrimination. United States v. Minor, 398 F. 2d 511 (1968); United States v. Buie, 407 F. 2d 905 (1969). We granted certiorari, 395 U. S. 932 and 976, to consider petitioners’ Fifth Amendment claims, particularly in light of our intervening decision in Leary v. United States, 395 U. S. 6 (1969). For the reasons that follow, we affirm the judgments in both cases.

We deal first with No. 271. Under pertinent provisions of the Marihuana Tax Act, 26 U. S. C. §§ 4751-4753, every person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupational tax. The Act also imposes a tax on transfers of marihuana, to be paid by the transferee; the rate for those who have registered and paid the occupational tax is $1 per ounce; for those who have not or who cannot register the rate is $100 per ounce. Under § 4742 (a) it is illegal to transfer marihuana except pursuant to a written order of the transferee on a form obtained by the latter at the time he pays the transfer tax. The order form when issued must carry the name and address of both buyer and seller and the amount of marihuana to be purchased. 26 U. S. C. § 4742 (c). Other provisions of § 4742 require the form to be issued in triplicate, one copy to be retained by the Internal Revenue Service, the other copy to be kept in the buyer’s files, and the original to be delivered to the seller and retained by him. 26 U. S. C. § 4742 (d). Both original and copies are open to inspection by federal and state law enforcement officers. 26 U. S. C. §§ 4742 (d), 4773.

Buie argues that because the buyer’s order must be on the form issued by the Secretary of the Treasury and because § 4742 (c) requires the seller’s name and address to be on the form before its issuance to the buyer, the seller is forced to incriminate himself: he is forced to insist on an order form linking him to an illicit transaction and in many instances must furnish one of those links himself by giving his name to the buyer so that the latter will have the data necessary to secure the form. Moreover, it is said that the very act of selling pursuant to the order form forces the seller to admit that he is the person named in the document and to acknowledge the sale of specified amounts of marihuana on a specified date; the sale also leads to the further requirement that both seller and buyer retain a copy of the form open to inspection by law enforcement officials.

We have considerable doubt that any of these arguments would withstand close scrutiny, but we find it unnecessary to appraise them in detail because we have concluded that there is no real and substantial possibility that Buie’s purchaser, or purchasers generally, would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law.

The situation of the buyer is this: if he applies for the order form he must announce his intention to purchase marihuana — a transaction that, if he is unregistered, will involve a tax of $100 for each ounce of marihuana involved in the impending sale and that is illegal under both federal and state law. We have great difficulty in believing, and nothing in this record convinces us, that one who wishes to purchase marihuana will comply with a seller’s request that he incriminate himself with federal and local authorities and pay $100 per ounce in taxes in order to secure the order form. The possibility is particularly unlikely in view of the fact that the Eifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form. Leary v. United States, 395 U. S. 6 (1969). Except that they are sources of marihuana, sellers have no magic power over, buyers; and the characteristics of marihuana do not suggest that buyers would be driven by such urgent need that to get the drug they would incriminate themselves at the seller’s behest and pay the prohibitive tax imposed on the transfer. As insistent as sellers might be, it is extremely unlikely that buyers would comply.

Buie’s situation thus bears little resemblance to the situation that confronted Leary. The vice of the statute in that case — as in Marchetti v. United States, 390 U. S. 39, Grosso v. United States, 390 U. S. 62, and Haynes v. United States, 390 U. S. 85 (1968) — stemmed from the dilemma that confronted the buyer. The statute purported to make all purchases of marihuana legal from the buyer’s viewpoint at his option; all he had to do to avoid the federal penalty was to secure the form and pay the tax. But to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. In the present case, the first horn of this dilemma does not confront the seller. In the face of a buyer’s refusal to secure the order form, the option of making a legal sale under federal law is foreclosed by the buyer’s decision, and “full and literal compliance” with the law by the seller means simply that he cannot sell at all. There is no real and substantial possibility that the § 4742 (a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form.

This conclusion is not affected by the fact that there is a tiny number of registered marihuana dealers — some 83 in the entire country according to government figures for 1967. In order to register, dealers must show that they are in compliance with local laws and, when registered, can get order forms by paying a transfer tax of only $1 per ounce. A registered dealer is thus not subject to the deterrent pressures operating on the unregistered dealer. But the possibility that a registered dealer would present an order form to an unregistered seller like Buie is itself a hypothesis more imaginary than real; any buyer who can purchase marihuana from a legitimate source is hardly likely to find it to his advantage to secure the drug instead on the illegal market. In any event, it is quite clear in this case that Buie’s customer was not a registered dealer. Nor is there anything to suggest that he would have been willing or able to get an order form had he been asked.

No. 189. The same result must follow in Minor’s case and for similar reasons. The Harrison Narcotics Act, 26 U. S. C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U. S. C. §§ 4721-4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U. S. C. §§4701, 4703, 4771 (a)(1); and it is illegal to purchase or sell except from the original stamped package, 26 U. S. C. §4704 (a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U. S. C. § 4705 (a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U. S. C. §§4705 (f), (g) ; see 26 U. S. C. § 4721; 26 CFR § 151.24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U. S. C. § 4705 (f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163-151.165, 151.167. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161 (a), 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705 (d) of the Act requires both seller and buyer to keep their respective copies for a period of two years and to make them accessible to inspection by law enforcement officers.

The order form provisions for narcotic drugs thus differ from the marihuana provisions in three principal respects. First, the prospective seller’s name does not have to be given to the Government when the order form is secured, but is filled in only when the form is subsequently executed. Second, although the marihuana seller apparently does not have to add anything to the order form in making the sale, the seller of narcotics must enter the amounts sold and the dates. Finally, unlike the Marihuana Tax Act, which at least in theory permits any person to buy as long as the transfer tax is paid, the Harrison Narcotics Act explicitly forbids the sale of order forms to any but registered dealers and permits registration only by those “lawfully entitled” under the laws of their State to deal in the drug.

Like Buie, Minor argues that compliance with the order form provision would compel him to give incriminating information to be preserved in his and the buyer’s files and to be made readily accessible to law enforcement agents. Like Buie’s argument, Minor’s argument assumes that an order form would otherwise be forthcoming if he refused to sell without it and founders if in reality there is no substantial possibility that the buyer would or could have secured an order form. As in Buie’s case, we are convinced that this possibility is an unreal one. Prospective buyers who have either failed to register or cannot register because their dealings in the drug are illicit — and petitioner himself strenuously argues that virtually all dealings in heroin are illicit — simply are not among the class of persons to whom sellers are permitted to sell under any condition. When dealing with buyers in this class, the seller faces no risk of incrimination by reason of § 4705 (a) since there will be and can be no order form involved. Confronted with would-be buyers in this class, “full and literal compliance” with § 4705 (a) leaves the seller only one alternative: not to sell. Since from this record it is clear that Minor’s customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical.

We doubt that our conclusion would be different even if Minor’s customer were registered. It is true that there were some 400,000 registered dealers under the Harrison Narcotics Act in 1967 and that registered dealers can readily get order forms issued in blank. It is conceivable, of course, that a registered dealer would seek to buy heroin on the illegal market, but it is difficult to imagine that he would enter the name of an unregistered seller on the order form and make a record of what would surely be an illegal sale. Such unlikely possibilities present only “imaginary and insubstantial” hazards of incrimination, rather than the “real and appreciable” risks needed to support a Fifth Amendment claim.

The judgments in both cases are affirmed.

It is so ordered.

Mr. Justice Black and Mr. Justice Douglas dissent in No. 271.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs, dissenting in No. 189.

The guilt of petitioner on this record seems plain. Two counts charge sales of heroin on two different dates in 1967 “not in pursuance of a written order . . . form.” He was found guilty on each count by the District Court, a trial by jury having been waived. The basis of his attack upon his conviction in this Court is that the requirement of an order form violates his privilege against self-incrimination. But that is not the end of the matter for me. Mr. Justice Holmes used to say that one dealing with the Government should turn square corners. See Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143. When the present all-powerful, all-pervasive Government moves to curtail the liberty of the person, it too should turn square corners.

The statute involved in this case, 26 U. S. C. § 4705 (a), was derived from the Anti-Narcotic Act of December 17, 1914, 38 Stat. 785, commonly called the Harrison Narcotics Act. This Act, as amended, imposes an occupational tax on registered dealers in narcotics, 26 U. S. C. §§4721-4722, and also imposes a commodity excise tax on narcotics sold or removed for consumption or sale, 26 U. S. C. §4701. Under §4705 (a), with certain exceptions not relevant here, all transfers of narcotics must be made pursuant to an official order form given to the transferor by the transferee. The order form can be obtained only by persons properly registered to deal in narcotics. It was conceded by the Government on oral argument, however, that “it is impossible to secure an order form for the purchase of heroin. . . . The order forms may only be used to purchase a lawful drug for a lawful purpose. Heroin is an unlawful drug for which there is no lawful purpose.”

The Federal Government does not have plenary power to define and punish criminal acts. Its power in this regard derives from other powers specifically delegated to it by the Constitution, as the Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Section 4705 (a) derives from the power to “lay and collect Taxes.” Art. I, § 8. Its constitutionality on this basis was sustained in United States v. Doremus, 249 U. S. 86 — a five-to-four decision. It was there said that the “order form” requirement tended “to keep the traffic aboveboard and subject to inspection by those authorized to collect the revenue,” and also tended “to diminish the opportunity of unauthorized persons to obtain the drugs and sell them clandestinely without paying the tax imposed by the federal law.” Id., at 94.

As I view this case, the Government is punishing an individual for failing to do something that the Government has made it impossible for him to do — that is, obtain an order form from the prospective purchaser prior to making a sale of heroin. Petitioner did, of course, have the option not to sell the heroin, and in that sense his compliance with the statute was indeed quite possible. This argument, however, overlooks the fact that the statute does not simply outlaw all sales of heroin. The critical interest of the Government is necessarily in the collecting of the tax imposed by the Act, and it is the order form which provides the crucial link to this proper constitutional purpose. In Nigro v. United States, 276 U. S. 332, 341, Chief Justice Taft, speaking for the Court, said:

“In interpreting the Act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid . . . .”

Thus it is the order form — not the mere sale — that constitutes the heart of the offense for which this petitioner was convicted. I do not see how the Government can make a crime out of not receiving an order form and at the same time allow no order forms for this category of sales.

Nor is it relevant to suggest, as does the majority opinion, ante, at 98 n. 13, that a statute imposing a fiat ban on sales of heroin might be sustainable under the Commerce Clause. We are concerned in this case with what the Congress did, not with what it might have done or might yet do in the future. It is clear that what Congress did in § 4705 (a) was to enact a taxing measure. And the crime charged was not selling heroin, but selling it “not in pursuance of a written order . . . form,” as prescribed in § 4705 (a).

I would reverse this judgment of conviction.

       Section 4705 (a) provides:
      “It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.”

       Section 4742 (a) provides:
      “It shall be unlawful for any person ... to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
      Under 26 U. S. C. §7237 (b), any person who violates the provisions of §§ 4705 (a) or 4742 (a) “shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000.”

       The obligation to furnish the necessary information is in terms placed on the buyer; while his compliance with that obligation may “inform” on the seller, it would not ordinarily be thought to result in the latter’s “self-incrimination.” Nor is there anything in the record to suggest that buyers cannot get a seller’s name except through the seller himself, or that the simple act of selling pursuant to an order form — even assuming the act is “testimonial” for purposes of the Fifth Amendment — adds significantly to the information that the Government has already obtained from the buyer. Finally, whatever the merits of a seller’s attempt to assert the privilege in a prosecution for failure to keep and exhibit the order forms, it need not follow that he can similarly dispense with the requirement that he sell only to buyers who first identify themselves, via the order form, as lawful purchasers. Cf. Nigro v. United States, 276 U. S. 332, 351 (1928); United States v. Doremus, 249 U. S. 86, 94 (1919).

       It would have been no answer in Leary to suggest that the buyer avoid his dilemma by not buying. See Marchetti v. United States, 390 U. S. 39, 51-52. But the buyer in Leary, unlike the seller here, was presented with the possibility of both purchasing and complying with the federal law, if he would only incriminate himself. In the present case, compliance by selling is foreclosed as a viable option, not because the seller might incriminate himself, but because the buyer refuses to meet a specified condition. Nothing in the Fifth Amendment prevents Congress from restricting a seller’s market to specified classes of duly licensed buyers. And although the buyer’s refusal to comply with the Act’s requirements may stem from his fear of incrimination, the buyer’s personal privilege cannot be raised by the seller as an excuse for evading the clear statutory requirement. See George Campbell Painting Corp. v. Reid, 392 U. S. 286 (1968) ; Rogers v. United States, 340 U. S. 367 (1951).

       U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 42 (1968).

       The regulations, 26 CFR §§ 152.22, 152.23, which limit registration to persons whose dealings are legal under relevant state and local laws, are supported by the legislative history and represent what is by now long-established administrative practice. See Leary v. United States, 395 U. S. 6, 24 n. 38 (1969); H. R. Rep. No. 792, 75th Cong., 1st Sess., 2 (1937); S. Rep. No. 900, 75th Cong., 1st Sess., 3 (1937); Hearings on H. R. 6906 before a subcommittee of the Senate Committee on Finance, 75th Cong., 1st Sess., 6 (1937); Hearings on H. R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 8 (1937).

       It is not specified in either the statute or the regulations when the blank for the seller's name is filled in or by whom. But the form itself is addressed “to” the seller, and the form and the regulations contain provisions that enable a form “made out to” one seller, to be endorsed by him to another if the first seller cannot fill the order. See 26 CFR § 151.189. This suggests that it is the buyer who fills in the seller’s name when he sends in the order. Whether or not that is the case in fact is irrelevant under the analysis in the text.

       The difference between the availability of order forms under the Harrison Narcotics Act and the Marihuana Tax Act was explicitly recognized by Congress when it passed the latter Act. See Leary v. United States, 395 U. S. 6, 21-22 (1969). The regulation restricting registration to those “lawfully entitled” to deal in narcotic drugs, 26 CFR § 151.24, finds specific support in the language of the Act. See 26 U. S. C. §§4705 (g), 4721.

       Even if order forms could realistically be secured, Minor’s Fifth Amendment arguments are no more persuasive than Buie’s. See n. 3, supra.

       See Brief for Petitioner 22-23. Convinced that “[h]eroin has no medical value that is not better served by legitimate drugs,” S. Rep. No. 1997, 84th Cong., 2d Sess., 7 (1956), Congress in 1956 required the surrender of all theretofore lawfully possessed heroin, to be distributed only as approved by the Secretary for purposes of scientific research. 18 U. S. C. § 1402. The Narcotic Drugs Import and Export Act, 35 Stat. 614, as amended, 21 U. S. C. §§ 173, 174, effectively prohibits the importation of heroin or of opium for the purpose of manufacturing heroin, and makes it a felony to traffic in drugs knowing them to have been unlawfully imported. The Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U. S. C. § 501 et seq., prohibits the manufacturing of heroin except as authorized for limited scientific purposes. Given the resulting absence of original stamped packages of heroin, 26 U. S. C. § 4704 (a) effectively forbids buying, selling, dispensing, or distributing the drug. Since for ail practical purposes there is thus no legitimate dealing in heroin, any attempt to use an order form to purchase the drug would almost certainly subject the buyer to prosecution under 26 U. S. C. §4705 (g):
      “It shall be unlawful for any person to obtain by means of said order forms narcotic drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.”

       See U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22, 42 (1968).

       Even if the hypothetical became a reality, it is doubtful that the incriminating information would get back to the Government via the buyer, wrho would himself be guilty of a violation of the narcotics laws. See n. 10, supra. See also 26 CFR § 151.181, which provides that order forms may be filled only by registered sellers— a class to which Minor does not belong. It is significant that of the nearly 400,000 registered dealers in 1967, only four were reported during that year for a violation of the narcotics laws. See U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22 (1968).

       The dissent suggests that the courts should refuse to enforce § 4705 (a) as part of a revenue measure. But these very order form provisions were upheld long ago as valid revenue laws even though they operated to prevent large classes of people from obtaining order forms — and hence from acquiring drugs — at all. United States v. Doremus, 249 U. S. 86 (1919); Webb v. United States, 249 U. S. 96 (1919); see Nigro v. United States, 276 U. S. 332 (1928). A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal. See, e. g., Marchetti v. United States, 390 U. S. 39, 44 (1968); United States v. Kahriger, 345 U. S. 22, 28 (1953); License Tax Cases, 5 Wall. 462 (1867).
      Even viewing § 4705 (a) as little more than a flat ban on certain sales, it is sustainable under the powers granted Congress in Art. I, §8. See Yee Hem v. United States, 268 U. S. 178, 183 (1925). Brolan v. United States, 236 U. S. 216, 222 (1915); cf. United States v. Sullivan, 332 U. S. 689 (1948); United States v. Darby, 312 U. S. 100 (1941).


author: Per Curiam.

text:
    MORALES v. NEW YORK
    No. 86.
    Argued November 20, 1969
    Decided December 8, 1969

      Richard T. Farrell argued the cause and filed a brief for petitioner.

      Burton B. Roberts argued the cause for respondent. With him on the brief was Daniel J. Sullivan.

   Per Curiam.

On October 4, 1964, a murder by stabbing took place in an elevator of an apartment building where petitioner Morales’ mother lived and where Morales frequently visited. On October 13, his mother informed Morales by telephone that the police wished to talk with him; petitioner said that he would come that evening to his mother’s place of business. This he did. He was apprehended by police officers and taken to the police station, arriving at 8:30 p. m. Within 15 minutes he had confessed to the crime and by 9:05 p. m. he had written and signed a statement. In response to subsequent questioning by police officers, Morales later repeated the substance of this confession. At the trial, the court held a separate hearing on the voluntariness of the confessions, found them voluntary, and admitted them over Morales’ objection. Morales was convicted, the jury apparently rejecting his alibi defense that he was with his mother at the time of the murder. The Appellate Division of the New York Supreme Court affirmed without opinion. People v. Morales, 27 App. Div. 2d 904, 280 N. Y. S. 2d 520 (1967). In the New York Court of Appeals, Morales for the first time raised a Fourth Amendment issue, claiming that there was no probable cause for his detention at the time of his confessions and that the confessions, even if voluntary, were inadmissible fruits of the illegal detention. The State asserted that the issue had not been decided below and that there had hence been no opportunity to make a record of the relevant facts; moreover, the State claimed that Morales had voluntarily surrendered himself for questioning and that in any event the voluntary confessions were the result of an independent choice by Morales such that the legality of the detention was irrelevant to the admissibility of the confessions.

The Court of Appeals affirmed, accepting without discussion the trial court’s finding as to the voluntariness of Morales’ confessions. People v. Morales, 22 N. Y. 2d 55, 238 N. E. 2d 307 (1968). The court dealt with and rejected the Fourth Amendment claim not on the ground that there was probable cause to arrest but rather on the ground that the police conduct involved was reasonable under the circumstances of the case. Although Morales was not free to leave at the time he was apprehended and would have been restrained had he attempted to flee, the Court of Appeals stated that his detention was not a formal arrest under New York law and that had he refused to answer questions in the police station (where he was entitled to have a lawyer if he desired one) he would have been free to leave. The Court of Appeals held that the State had authority under the Fourth Amendment to conduct brief custodial interrogation of “those persons reasonably suspected of possessing knowledge of the crime under investigation in circumstances involving crimes presenting, a high degree of public concern affecting the public safety.” 22 N. Y. 2d, at 65, 238 N. E. 2d, at 314. We granted certiorari, 394 U. S. 972 (1969).

After considering the full record, we do not disturb the determination of the trial court, affirmed by the New York appellate courts, that Morales’ confessions were voluntarily given. The trial occurred prior to Miranda v. Arizona, 384 U. S. 436 (1966), and the totality of the circumstances surrounding the confessions shows that the confessions were voluntary, not coerced.

We should not, however, decide on the record before us whether Morales’ conviction should otherwise be affirmed. The ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Sibron v. New York, 392 U. S. 40 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U. S. 721 (1969). But we have concluded after considering the parties’ briefs and hearing oral argument that there is merit in the State’s position that the record does not permit a satisfactory evaluation of the facts surrounding the apprehension and detention of Morales. A lengthy hearing was held on the question of the voluntariness of the confessions, but the basis for the apprehension of Morales does not appear to have been fully explored since no challenge to the lawfulness of the apprehension was raised until the case came to the Court of Appeals. Although that court stated that “[i]t may be conceded that the apprehending detectives did not have probable cause to justify an arrest of defendant at the time they took him into custody,” 22 N. Y. 2d, at 58, 238 N. E. 2d, at 310, the court later said that “[t]he checkerboard square of the police investigation, although resting upon circumstantial evidence, pointed only to defendant. ... In fact, defendant was the only person the police could have reasonably detained for questioning based upon the instant record.” 22 N. Y. 2d, at 64, 238 N. E. 2d, at 313.

Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales’ confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention. In any event, in the absence of a record that squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises, we choose not to grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.

We accordingly vacate the judgment below and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black dissents and would affirm.


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    CONWAY v. CALIFORNIA ADULT AUTHORITY et al.
    No. 40.
    Argued November 12, 1969
    Decided December 8, 1969

      Charles Stephen Ralston, by appointment of the Court, 394 U. S. 941, argued the cause and filed briefs for petitioner.

      Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondents. With him on the brief were Thomas C. Lynch, Attorney General, and George R. Nock, Deputy Attorney General.
   Per Curiam.

The petition for habeas corpus in this case, which was filed in the District Court for the Northern District of California and which was prepared by petitioner pro se, attacked the constitutionality of petitioner’s confinement in the state prison system pursuant to the California Indeterminate Sentence Law. Petitioner recited that he was convicted in 1952 on two counts of first-degree robbery and was given consecutive sentences of not less than five years each, with no maximum prescribed by law. California law provides that where no maximum term is set, the punishment shall be life imprisonment subject to the power of the California Adult Authority to “determine and redetermine” the length of time that a prisoner shall be required to serve. Cal. Penal Code §§ 671 (1955), 1168, 3020 (1956).

Petitioner asserted that in June 1961 he appeared before the Adult Authority for parole consideration, as he had done on a yearly basis during his confinement. According to petitioner, during that appearance the members of the Authority evinced an intention to extend his term beyond March 1962, the date that had been tentatively set for his discharge, solely because petitioner refused to admit his guilt. Shortly after the appearance, the Adult Authority rescinded its earlier action scheduling petitioner for release in 1962; no new date for release was fixed, and petitioner has remained in custody continuously since that time.

The petition for habeas corpus stated flatly that the appearance before the Authority in June 1961 was for routine parole consideration; petitioner claimed that he had been free from infractions of prison rules for at least a year prior to the appearance. He further declared that he was given no reason for the redetermination of his sentence, and received no notice or hearing concerning any possible basis for such action. In conclusion, petitioner stated that, “obviously, the only reason for this action was to coerce petitioner to plead guilty and not challenge his conviction after being released on discharge.”

Respondents filed no response to the petition in the District Court. That court denied the writ without a hearing, in a brief order stating that no federal questions had been presented. The Court of Appeals for the Ninth Circuit denied a certificate of probable cause to appeal for the reasons expressed by the District Court, and petitioner applied to this Court for a writ of certiorari. On the facts recited by petitioner, we granted certiorari to consider his contention that his privilege against compulsory self-incrimination had been infringed by the prison authorities. 393 U. S. 1062 (1969).

In its brief on the merits, respondents have brought to our attention a series of prison documents, whose accuracy has in no way been drawn into question by petitioner, that cast petitioner’s detention in a light wholly different from that shed by his petition for certiorari. These documents show that in December 1960 Conway was served with a notice charging him with violation of prison rules and informing him that the violation might result in a refixing of his prison term; he attended a hearing at which he was found guilty of fighting with another prisoner and was sentenced to three days in isolation, with a recommendation that his Adult Authority appearance be postponed until June 1961. Following that appearance, as petitioner notes, the Authority rescinded its earlier action fixing a determinate sentence, thereby reinstating by operation of law his initial indeterminate sentence. Thus, it now appears respondents have documentary evidence that the actual facts simply do not present the issue for which certiorari was granted by us.

That this imposition on this Court has been revealed only at this late stage seems to have been the result of the policy of the Attorney General of California, as explained in the respondents' brief, to make no response to habeas corpus petitions of state prisoners unless the court in which a petition is filed requests a response, as for example, so respondents say, by issuing an order to show cause why the writ should not be granted. Since no response eventuated in this instance and respondents also failed to flush the problem at the certiorari stage, both this Court and the attorney appointed by the Court to represent petitioner here have unwittingly been placed in the unfortunate posture of addressing a situation that does not exist.

In this state of affairs we decline to adjudicate this case. Were we to pass upon the purely artificial and hypothetical issue tendered by the petition for certiorari we would not only in effect be rendering an advisory opinion but also lending ourselves to an unjustifiable intrusion upon the time of this Court. Accordingly, the writ of certiorari is dismissed as improvidently granted.

It is so ordered.

       See Cal. Penal Code § 1168 (1956) and provisions there listed.

       Petitioner claimed that his discussion with the members of the Authority had turned to what he planned to do if released. When petitioner stated that he expected to go “to Bakersfield,” one member responded: “But that is where you got into this trouble. What are you planning to do there?” Petitioner declared, “I’m going to fight my case,” prompting the member to ask whether petitioner had not admitted to the Authority, two years earlier, that he was guilty. After petitioner denied the previous admission, the members raised — assertedly for the first time — the possibility of extending petitioner’s term.

       In response to the petition for certiorari respondents merely locked horns with the allegations of the petition as filed, without drawing the Court’s attention to the actual facts as subsequently revealed in its brief on the merits.


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    NATIONAL SMALL SHIPMENTS TRAFFIC CONFERENCE, INC., et al. v. MIDDLEWEST MOTOR FREIGHT BUREAU et al.
    No. 539.
    Decided December 8, 1969

      Arthur A. Arsham and John J. C. Martin for appellants.

      Roland Rice for Middlewest Motor Freight Bureau et al., and Solicitor General Griswold and Fritz Kahn for the Interstate Commerce Commission, appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction.


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    INTERNATIONAL NICKEL CO., INC. v. CITY OF BAYONNE
    No. 542.
    Decided December 8, 1969

      Prospero DeBona for appellant.

      Nicholas A. Panepinto for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


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    AMBROSE et al. v. WELLS et al.
    No. 580.
    Decided December 8, 1969

      John M. Armentano for appellants.

      Robert B. McKay for Wells, and Louis J. Lefkowitz, Attorney General of New York, pro se, and George D. Zuckerman, Assistant Attorney General, for Rockefeller et al., appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


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    GOODING, WARDEN v. WILSON
    No. 582.
    Decided December 8, 1969

      Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon and Courtney Wilder Stanton, Assistant Attorneys General, and Franklin Pierce for appellant.
   Per Curiam.

The motion of the appellee for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


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    PERK, AUDITOR OF CUYAHOGA COUNTY v. OHIO ex rel. CORRIGAN, PROSECUTING ATTORNEY OF CUYAHOGA COUNTY
    No. 590.
    Decided December 8, 1969

      Gerald A. Donahue and Donald M. Robiner for appellant.

      John T. Corrigan, pro se, and John L. Dowling for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


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    MISSISSIPPI POWER & LIGHT CO. v. CAPITAL ELECTRIC POWER ASSN.
    No. 611.
    Decided December 8, 1969

      Bernard G. Segal, Samuel D. Slade, Sherwood W. Wise, Garner W. Green, and Joshua Green for appellant.

      T. Harvey Hedgepeth for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


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    BALTHAZAR et ux. v. MARI LTD. et al.
    No. 593.
    Decided December 8, 1969

      Marshall Patner for appellants.

      Maurice P. Raizes for Mari Ltd. et al., and Daniel P. Coman, Thomas E. Brannigan, and Dean H. Bilton for Boyle, appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


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    MATHIS v. NELSON, WARDEN
    No. 620,
    Misc.
    Decided December 8, 1969

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Robert R. Oranucci, Deputy Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


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    NEW ORLEANS CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC. v. UNITED STATES
    No. 599.
    Decided December 8, 1969

      R. Emmett Kerrigan, Ralph L. Kaskell, Jr., and George W. Wise for appellant.

      Solicitor General Griswold, Assistant Attorney General McLaren, and Irwin A. Seibel for the United States.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Black is of thé opinion that probable jurisdiction should be noted.


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    HUESDASH v. HASKINS, CORRECTIONAL SUPERINTENDENT
    No. 816,
    Misc.
    Decided December 8, 1969
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


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    UNITED FUEL GAS CO. v. HADEN, TAX COMMISSIONER OF WEST VIRGINIA
    No. 617.
    Decided December 8, 1969

      C. E. Goodwin for appellant.

      Chauncey H. Browning, Jr., Attorney General of West Virginia, and William F. Carroll, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


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    INGRAM v. CALIFORNIA
    No. 1017,
    Misc.
    Decided December 8, 1969
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


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    FOSTER v. CALDWELL, INDUSTRIAL INSTITUTE SUPERINTENDENT
    No. 72,
    Misc.
    Decided December 8, 1969

      Reber F. Boult, Jr., Charles Morgan, Jr., Melvin L. Wulj, and Eleanor Holmes Norton for appellant.

      Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, and Marion O. Gordon, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


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    McMANN, WARDEN, et al. v. ROSS et al.
    No. 153.
    Decided December 8, 1969

      Louis J. Lefkoioitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen and Brenda Soloff, Assistant Attorneys General, for petitioners.

      Thomas D. Barr for respondent Ross.

      Frank S. Hogan, pro se, and Michael R. Juviler for the District Attorney of New York County as amicus curiae urging reversal.
   Per Curiam.

Upon consideration of the suggestion of mootness by reason of the death of respondent Ross the judgment of the Court of Appeals, as to Ross, is vacated and the case as to him is remanded to the United States District Court for the Eastern District of New York with directions to dismiss the petition for writ of habeas corpus as moot.


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    CARLOS v. NEW YORK
    No. 524.
    Decided December 8, 1969

      Herald Price Fahringer and Eugene Gressman for petitioner.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U. S. 767.

The Chief Justice and Mr. Justice Harlan are of the opinion that certiorari should be denied. However, the case having been taken for review, they would affirm the judgment of the state court upon the premises stated in Mr. Justice Harlan’s separate opinion in Roth v. United States, 354 U. S. 476, 496 (1957), and in his dissenting opinion in Memoirs v. Massachusetts, 383 U. S. 413, 455 (1966).


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    SHANKER et al. v. RANKIN, CORPORATION COUNSEL OF THE CITY OF NEW YORK
    No. 552.
    Decided December 8, 1969

      Ralph P. Katz for appellants.

      J. Lee Rankin, pro se, Frederic S. Nathan, and Stanley Buchsbaum for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted.


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    HOUSE OF SEAGRAM, INC. v. STATE LIQUOR AUTHORITY et al.
    No. 563.
    Decided December 8, 1969

      H. Gardner Ingraham and Emanuel Becker for appellant.

      Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Grace K. Banoff for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.