This is an appeal by the Government from the dismissal of two counts of an indictment charging appellee with violating 18 U.S.C. § 1001 by making false statements in wagering tax forms required by 26 U.S.C. § 4412. The District Court dismissed the indictment, reasoning that appellee could not be prosecuted for "failure to answer the wagering form correctly" since his privilege against self-incrimination would have prevented prosecution for "failure to answer the form in any respect." Held:

1. 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 v. United States, ante, p. 64. Pp. 79-80.

2. By filing false statements appellee took a course other than the one that § 4412 was designed to compel, a course that the Fifth Amendment gave him no privilege to take. Pp. 81-82.

3. Whether, as appellee argues, he gave the false information under the duress of §§ 4412 and 7203 of the Internal Revenue Code, or his false statements were not made "willfully" as required by 18 U.S.C. § 1001, must be determined initially at his trial. Pp. 82-84.

MR. JUSTICE HARLAN 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 Form 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 concededly 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.