UNITED STATES v. COVINGTON

No. 366

89 S. Ct. 1559 (1969) | Cited 210 times | Supreme Court | May 19, 1969

MR. JUSTICE HARLAN delivered the opinion of the Court.

This is a companion case to Leary v. United States, decided today, ante, p. 6. Appellee was charged in a one-count federal indictment in the Southern District of Ohio with having violated 26 U. S. C. § 4744 (a)(1), a part of the Marihuana Tax Act, by obtaining 737.1 grams of marihuana without having paid the transfer tax imposed by 26 U. S. C. § 4741 (a).1 On appellee's motion, the District Court dismissed the indictment, holding that under principles established in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), appellee's privilege against self-incrimination necessarily would provide a complete defense to the prosecution. 282 F.Supp. 886 (1968).

On motion for reconsideration, the Government advanced the argument, more fully described in Leary, supra, at 18-20, that the transfer tax provisions of the Marihuana Tax Act do not compel incriminatory disclosures because, as administratively construed and applied, they allow prepayment of the tax only by persons whose activities are otherwise lawful. The District Court responded by ruling in the alternative that if appellee was not required to pay the tax there could be no basis for the indictment. Appendix 20.

     The Government appealed directly to this Court pursuant to 18 U. S. C. § 3731, which authorizes direct appeal from the dismissal of an indictment when the decision is one "sustaining a motion in bar" or "is based upon the invalidity or construction of the statute upon which the indictment or information is founded." We noted probable jurisdiction, 393 U.S. 910 (1968),2 and the appeal was argued together with Leary v. United States, supra.

As has been noted, the District Court dismissed the indictment on two alternative grounds. We begin with the second, which was that, assuming the Government's construction of the Marihuana Tax Act to be correct, the indictment did not charge an offense under that statute. Our decision today in Leary, supra, makes it plain that this was an improper ground of dismissal, for we have held that the Government's interpretation is incorrect and that the Act requires persons like appellee to prepay the transfer tax. See ante, at 20-26.

The District Court's other basis for dismissal was that appellee's Fifth Amendment privilege necessarily would provide a complete defense to the prosecution. We have held today in Leary that the privilege does provide such a defense unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived. See ante, at 27.3 See also

     of non-waiver, and thus to require dismissal of the indictment, unless the Government can rebut the presumption by showing a need for further factual inquiries.

Application of these principles to this appeal requires affirmance. Appellee asserted in his motion to dismiss that his possession of marihuana was illegal under Ohio law, and that he would have run a substantial risk of incrimination had he complied with the Act. The District Court reached the same conclusion. The Government appears to acknowledge the illegality of appellee's possession.6 We conclude that there is no possibility of any factual dispute with regard to the hazard of incrimination.

There is in this brief record no indication that appellee waived his privilege, and the Government has never alleged the existence of a factual controversy on that score. Hence, we think it "just under the circumstances" that the case be finally disposed of at this level. See 28 U. S. C. § 2106; Grosso v. United States, 390 U.S. 62, 71-72 (1968); Haynes v. United States, 390 U.S. 85, 100-101 (1968). Accordingly, the judgment of the District Court is

Affirmed.

MR. CHIEF JUSTICE WARREN, considering himself bound by the decisions in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), concurs in the judgment of the Court.

MR. JUSTICE STEWART joins the opinion and judgment of the Court upon the premise stated in his concurring opinion in Leary v. United States, ante, p. 54.

Disposition

282 F.Supp. 886, affirmed.

1. The relevant provisions of the Marihuana Tax Act are set out and their relationships explained in Leary v. United States, supra, at 14-15.

2. If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one "sustaining a motion in bar." See United States v. Murdock, 284 U.S. 141 (1931). If the dismissal was based on a finding that under the Government's construction of the Marihuana Tax Act the indictment stated no offense, then the decision necessarily was "based upon the . . . construction of the statute upon which the indictment . . . [was] founded." See United States v. Borden Co., 308 U.S. 188, 193 (1939).

3. Leary was convicted under 26 U. S. C. § 4744 (a)(2), prohibiting transportation or concealment of marihuana by one who acquired it without having paid the transfer tax, while appellee was indicted under 26 U. S. C. § 4744 (a)(1), forbidding such acquisition. We think it clear that there is no significant distinction between the statutes for purposes of the Fifth Amendment privilege.

4. See 8 J. Moore, Federal Practice para. 12.04 (R. Cripes ed. 1968); 2 L. Orfield, Criminal Procedure Under the Federal Rules §§ 12.51-12.60 (1966).

5. Cf. Leary v. United States, supra, at 28-29.

6. See Brief for the United States 3, n. 1.

MR. JUSTICE HARLAN delivered the opinion of the Court.

This is a companion case to Leary v. United States, decided today, ante, p. 6. Appellee was charged in a one-count federal indictment in the Southern District of Ohio with having violated 26 U. S. C. § 4744 (a)(1), a part of the Marihuana Tax Act, by obtaining 737.1 grams of marihuana without having paid the transfer tax imposed by 26 U. S. C. § 4741 (a).1 On appellee's motion, the District Court dismissed the indictment, holding that under principles established in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), appellee's privilege against self-incrimination necessarily would provide a complete defense to the prosecution. 282 F.Supp. 886 (1968).

On motion for reconsideration, the Government advanced the argument, more fully described in Leary, supra, at 18-20, that the transfer tax provisions of the Marihuana Tax Act do not compel incriminatory disclosures because, as administratively construed and applied, they allow prepayment of the tax only by persons whose activities are otherwise lawful. The District Court responded by ruling in the alternative that if appellee was not required to pay the tax there could be no basis for the indictment. Appendix 20.

     The Government appealed directly to this Court pursuant to 18 U. S. C. § 3731, which authorizes direct appeal from the dismissal of an indictment when the decision is one "sustaining a motion in bar" or "is based upon the invalidity or construction of the statute upon which the indictment or information is founded." We noted probable jurisdiction, 393 U.S. 910 (1968),2 and the appeal was argued together with Leary v. United States, supra.

As has been noted, the District Court dismissed the indictment on two alternative grounds. We begin with the second, which was that, assuming the Government's construction of the Marihuana Tax Act to be correct, the indictment did not charge an offense under that statute. Our decision today in Leary, supra, makes it plain that this was an improper ground of dismissal, for we have held that the Government's interpretation is incorrect and that the Act requires persons like appellee to prepay the transfer tax. See ante, at 20-26.

The District Court's other basis for dismissal was that appellee's Fifth Amendment privilege necessarily would provide a complete defense to the prosecution. We have held today in Leary that the privilege does provide such a defense unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived. See ante, at 27.3 See also

     of non-waiver, and thus to require dismissal of the indictment, unless the Government can rebut the presumption by showing a need for further factual inquiries.

Application of these principles to this appeal requires affirmance. Appellee asserted in his motion to dismiss that his possession of marihuana was illegal under Ohio law, and that he would have run a substantial risk of incrimination had he complied with the Act. The District Court reached the same conclusion. The Government appears to acknowledge the illegality of appellee's possession.6 We conclude that there is no possibility of any factual dispute with regard to the hazard of incrimination.

There is in this brief record no indication that appellee waived his privilege, and the Government has never alleged the existence of a factual controversy on that score. Hence, we think it "just under the circumstances" that the case be finally disposed of at this level. See 28 U. S. C. § 2106; Grosso v. United States, 390 U.S. 62, 71-72 (1968); Haynes v. United States, 390 U.S. 85, 100-101 (1968). Accordingly, the judgment of the District Court is

Affirmed.

MR. CHIEF JUSTICE WARREN, considering himself bound by the decisions in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), concurs in the judgment of the Court.

MR. JUSTICE STEWART joins the opinion and judgment of the Court upon the premise stated in his concurring opinion in Leary v. United States, ante, p. 54.

Disposition

282 F.Supp. 886, affirmed.

1. The relevant provisions of the Marihuana Tax Act are set out and their relationships explained in Leary v. United States, supra, at 14-15.

2. If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one "sustaining a motion in bar." See United States v. Murdock, 284 U.S. 141 (1931). If the dismissal was based on a finding that under the Government's construction of the Marihuana Tax Act the indictment stated no offense, then the decision necessarily was "based upon the . . . construction of the statute upon which the indictment . . . [was] founded." See United States v. Borden Co., 308 U.S. 188, 193 (1939).

3. Leary was convicted under 26 U. S. C. § 4744 (a)(2), prohibiting transportation or concealment of marihuana by one who acquired it without having paid the transfer tax, while appellee was indicted under 26 U. S. C. § 4744 (a)(1), forbidding such acquisition. We think it clear that there is no significant distinction between the statutes for purposes of the Fifth Amendment privilege.

4. See 8 J. Moore, Federal Practice para. 12.04 (R. Cripes ed. 1968); 2 L. Orfield, Criminal Procedure Under the Federal Rules §§ 12.51-12.60 (1966).

5. Cf. Leary v. United States, supra, at 28-29.

6. See Brief for the United States 3, n. 1.

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