Full opinion text
KOELSCH, Circuit Judge. Appellant Garner appeals from the judgment convicting him of conspiring to violate federal gambling statutes. To prove that appellant was engaged in the “business of betting and wagering,” and essential element of the conspiracy as charged, the Government offered into evidence appellant’s federal income tax returns for the years 1965 through 1967, on which appellant had reported gambling as the source' of most of his income. The returns were admitted over appellant’s objection. In 1927, the Supreme Court held in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), that a person could not refuse to file a federal income tax return on the ground that certain disclosures in the return would tend to incriminate him. The Court, per Mr. Justice Holmes, said: “It would be an extreme if not extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.” 274 U.S. at 263-264, 47 S.Ct. at 607. The Court did suggest that a taxpayer might refuse to answer certain questions on the return which might incriminate him, but that he could not refuse to file any return at all, because, “[m]ost of the items [on the return] warranted no complaint.” 274 U.S. at 263, 47 S.Ct. at 607. What Sullivcm left open, and what no Supreme Court case has yet decided, is this question: to what extent and under what circumstances may incriminating information supplied by a taxpayer in an income tax return be used against the taxpayer in a criminal prosecution unrelated to the income tax laws ? First, it must be pointed out that recent Supreme Court decisions dealing with the right of persons to refuse to file reports with the Government, when such reports would have the “direct and unmistakable consequence of incriminating [the person reporting] .” [Marchetti v. United States, 390 U.S. 39, 49, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) ; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) ; Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965)], do not apply to the requirement of filing income tax returns. Those cases dealt with statutes which were designed to elicit information about specific activities from a specific group of individuals who were “inherently suspect of criminal activities,” Albertson, supra, 382 U.S. at 79, 86 S.Ct. 194, such as possessors of unlawful firearms, persons engaged in unlawful wagering activities, communists, and persons dealing in certain unlawful drugs. In each case, the activity required to be reported was “an area permeated with criminal statutes,” Marchetti, supra, 390 U.S. at 47, 88 S.Ct. at 702. Each case distinguished, and asserted the continuing vitality of, Sullivan, supra, on the ground that the questions on an income tax return are not inherently directed at the detection of criminal activity, but are instead directed at the general public and are “neutral on their face.” Albertson, supra, 382 U.S. at 79, 86 S.Ct. 194; Grosso, supra, 390 U.S. at 73, 88 S.Ct. 709 (Brennan, J. concurring). See California v. Byers, 402 U.S. 424, 431, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). However, this does not end the inquiry. It is merely the point of departure, for appellant in this case did not refuse to file an income tax return. Rather, he filed his returns as required by the Internal Revenue Code and, as far as the record shows, disclosed accurately both the amount and source of all his taxable income for the years involved. He revealed the principal source of such income — gambling. This disclosure, the Government insists, may be used to prove an essential element of violation of the federal gambling laws. The Government relies upon this court’s decision in Stillman v. United States, 177 F.2d 607 (9th Cir. 1949) for the proposition that income tax returns may be used as evidence in non-tax-related criminal proceedings. In that case we rejected the Fifth Amendment objections of the defendant, who was charged with violations of the wartime Emergency Price Control Act, and whose income tax returns were omitted to prove the amounts of income defendant unlawfully earned; relying solely on the reasoning of the Fifth Circuit in Shushan v. United States, 117 F.2d 110 (5th Cir. 1941), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531, reh. denied, 314 U.S. 706, 62 S.Ct. 53, 86 L.Ed. 564, we said: “The income tax returns were voluntarily executed by appellants under oath. They were not made in compliance with a subpoena or court order, nor were they made under the threat of prosecution or induced by any form of compulsion save that reflected in the duty of every person to report all forms of taxable income in the manner prescribed by our Internal Revenue Laws. If appellants believed that certain declarations in their tax returns might incriminate them they could have refrained from making the voluntary tax declarations here in evidence. However, they chose to report the illicit income rather than risk possible prosecution for making false or incomplete returns covering such income. The disclosures upon the tax returns must therefore be deemed to have been voluntarily entered upon a public record.” 177 F.2d at 617-618. The passage quoted above makes it clear that in Stillman we applied a concept of “implied waiver” to the defendant’s disclosure of self-incriminatory information on his income tax return. But, in view of recent constitutional developments, this concept has no place where the issue involves the assertion of a constitutional right and, consequently, we believe that the Supreme Court has eliminated the doctrinal keystone of the Stillman decision. Marchet-ti v. United States, 390 U.S. 39, 51, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). All the decisions involving the question of compelled disclosures to government since Sullivan have consistently noted that there does exist a constitutional privilege to object to the disclosure of information which is self-incriminatory. In California v. Byers, supra, Mr. Justice Harlan carefully distinguished between requiring a person to report information crucial to fulfilling the “noncriminal governmental purpose in securing the information . . .” 402 U.S. at 458, 91 S.Ct. at 1553 (Harlan, J., concurring), and information from which criminal behavior could or would be proved: “I do not minimize the aid given the State of California by virtue of the requirement to stop and identify oneself [at an automobile accident]. But this minimal requirement is essential to the State’s nonprosecutorial goal, and, the stop having been once coerced, virtually all information secured after the stop is likely to be tainted for the purposes of exclusion under the Fifth Amendment in any subsequent prosecution.” 402 U.S. at 458, n. 10, 91 S.Ct. at 1553 (Harlan, J., concurring). In Byers the issue was whether a report of an accident must be made at all, not whether individual responses in a report, if filed, could be used as criminal evidence. While it is true that the California court in Byers had held that such reports could be required only if a use restriction were put on the information contained therein, the Supreme Court’s reversal of the California court was on the basic question of whether the filing of any such report would be self-incriminating. The California court held that filing alone was incriminating under the Marchetti line of cases; the Supreme Court held that it was not, because the primary purpose of requiring the report was not to collect information about inherently criminal behavior. However, under this analysis, the question of the use of compelled disclosures in unrelated criminal proceedings was not at issue. Neither was the question of whether a criminal prosecution could be based upon a refusal, unaccompanied by a claim of privilege, to give inculpatory information. It is our opinion, then, that the admissibility of appellant’s disclosures here must be determined by an examination of the context in which they were made. First is the question of whether the disclosures were compelled. We are clear that the answer is yes. 26 U.S.C. § 7203 makes it a crime to fail to file any return, pay any tax, or supply any information. 26 U.S.C. § 7206 likewise makes it a crime for a person to make and subscribe any return “which he does not believe to be true and correct in every material matter. . ” For the Internal Revenue Service to correctly evaluate a taxpayer’s claim of particular expenses, deductions, and losses, the Service must of course be provided with information showing whether or not the taxpayer qualifies. This is especially true where the taxpayer’s occupation brings into play special provisions of the tax laws and regulations. For example, a person whose income is derived from wagering may deduct his wagering losses only to the extent of his winnings from wagering, 26 U.S.C. § 165(d). Gambling losses may not be carried back or carried over [See 5 Mertens, Law of Federal Income Taxation § 28.85], and a gambler whose losses offset his winnings must nevertheless report all winnings as gross income and losses as deductions. McClanahan v. United States, 292 F.2d 630, 631 (5th Cir. 1961), cert. denied, 368 U.S. 913, 82 S.Ct. 193, 7 L.Ed.2d 130. Disclosure in the tax return of a gambler’s source of income is thus essential. If a gambler fails to provide this information, he subjects himself to a criminal prosecution for tax evasion or perjury; his “choice” to disclose is thus a Hob-son’s choice. Nor can we automatically conclude that submitting to the statutory compulsion constitutes waiver of the right to object to the use of the incriminatory disclosure. The “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights, and ... we ‘do not presume acquiescence in the loss of fundamental rights’.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 at 1023 (1962). It would be “artificial, if not disingenuous, ’ Byers, supra, 402 U.S. at 442, 91 S.Ct. 1535 (Harlan, J., concurring), to distinguish this principle by assuming a waiver of appellant’s Fifth Amendment rights in this case merely because he disclosed the source of his income truthfully under the statutory compulsion to truthfully state all material tax information on his return. It is one thing to say that government can compel a person to make disclosures which are deemed necessary for government to adequately administer a program such as the revenue collection system. It is entirely another matter, however, to then disregard the fact that the disclosure was forced and to say that, since the original purpose of compelling disclosure was not inherently hazardous to an individual’s rights, any subsequent use of that compelled information is the use of “volunteered” information and therefore constitutionally inoffensive. Such a formulation makes the government’s need for the information, rather than the individual’s relinquishment of a known right, the controlling factor in the waiver determination, and would allow comprehensive schemes of self-reporting in non-criminal areas to become data banks containing numerous “admissions” of criminal activity, available without limitation to prosecuting authorities. To consider information supplied to the government under such circumstances as voluntarily supplied would . . ultimately license widespread erosion of the privilege through ‘ingeniously drawn legislation’.” Marchetti, supra, 390 U.S. at 51, 88 S.Ct. at 704. Although the reporting of incriminatory information on income tax returns would not perhaps have the direct and immediate effect of incriminating a taxpayer, as did the reporting of such information on returns required only of those engaged in criminal activities, we are not persuaded that such information must be the first “link in the chain” of incriminatory evidence to be objectionable. Nor are we persuaded that appellant’s right to object to making this disclosure in the first instance —recognized ever since Sullivan, supra —was lost by appellant’s submitting to the statutory requirement of reporting. We cannot sanction waivers of constitutional rights “without the most deliberate examination of the circumstances surrounding them . . . ” Marchetti, supra, 390 U.S. at 51, 88 S.Ct. at 704. This record contains no fact tending to establish that appellant was aware of his right to object and thus the conclusion is impermissible that his declarations were “voluntarily entered upon a public record.” Stillman, supra. The admission of the returns was thus error and, obviously, the information in them was highly prejudicial. None of appellant’s remaining contentions has merit or is of sufficient substance to warrant discussion. The judgment is reversed. . We noted a number of opinions in which appellate courts had approved the admission of such evidence, but acknowledged that in none was there “any discussion by the courts regarding the constitutional privilege.” 177 F.2d at 617. . In Grimes v. United States, 379 F.2d 791 (5th Cir. 1967) cert. denied, 389 U.S. 846, 88 S.Ct. 104, 19 L.Ed.2d 113, the Fifth Circuit continued to follow this approach. The court there ..said: “Assuming, without deciding, that the law required Grimes to truthfully state his occupation on the [tax] return, that a false statement would subject him to criminal penalty, and that he was thus forced to report as he did, he nevertheless had the right to claim self-incrimination at that time. Not claiming it then, his statement amounted to a voluntary admission which we hold could be used in this [gambling] prosecution.” 379 F.2d at 796. Cf. United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435, reh. denied, 384 U.S. 982, 86 S.Ct. 1856, 16 L.Ed.2d 693, relied upon by the Grimes court. Zizzo relied on the Supreme Court’s statement in Lewis v. United States, 348 U.S. 419, 422, 75 S.Ct. 415, 99 L.Ed. 475 (1955) that: “If petitioner desires to engage in an unlawful business, he does so only on his own volition. The fact that he may elect to pay the [wagering] tax and make the disclosures required by the Act is a matter of his choice. There is nothing compulsory about it, and consequently, there is nothing violative of the Fifth Amendment.” In Marchetti, supra, the Court overruled Lewis on this point, leaving Grimes and Zizzo as dubious authority on the waiver question. . On this point, Mr. Justice Brennan remarked, “[Olertainly I would expect this Court to hesitate before affirming the conviction of a fugitive from justice for filing a tax return which omitted his address.” California v. Byers, supra, 402 U.S. at 472, 91 S.Ct. at 1560 (Brennan, J., dissenting). In Marchetti v. United States, supra, the Court overruled United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953) and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), which had held that a gambler’s failure to raise his Fifth Amendment objection at the time filing of the wagering tax form was required constituted a waiver of his right to assert the privilege. 390 U.S. at 51-52, 88 S.Ct. 697. . In United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969) the Court recognized that the filing and truthful filing requirements of the Internal Revenue laws might constitute compulsion, but that this compulsion would not constitute a defense to a prosecution for the falsification of the information required to be reported. . It was on this basis that the Court in California v. Byers, supra, held that a person could be compelled to disclose his presence at the scene of an automobile accident. . “[Different considerations apply when the question is not whether information may be compelled but rather to what uses compelled information may be put. Once the return has been filed, prosecution under state [or federal, it would follow] gambling laws can take place only if the State can demonstrate that its evidence is not tainted by information derived from the incriminatory aspects of the return. Since disclosure once made may never be completely undone, this burden must be borne by the State regardless of what additional restrictions are imposed upon use of the return. Accordingly, the considerations that led us to decline the imposition of use restrictions for the future in Marohetti and Gh'osso are not compelling in situations where the incriminating information has already been disclosed.” Mackey v. United States, 401 U.S. 667, 712-713, 91 S.Ct. 1160, 1170, 28 L.Ed.2d 404 (1971) (Brennan, J., concurring). Mr. Justice Brennan’s discussion of the “taint” on compelled disclosures would not appear to be restricted to those disclosures made under a reporting requirement directed solely at illegal activities. And in California v. Byers, supra, Mr. Justice Harlan made the same observation about the taint on disclosures compelled under a scheme which the Court held was not directed solely at criminal behavior. 402 U.S. at 458, n. 10, 91 S.Ct. 1535, 29 L.Ed.2d 9 (Harlan J., concurring). . See, e. g., United States v. Cerone, 452 F.2d 274 (7th Cir. 1971). In that case, the Seventh Circuit held admissible in a criminal proceeding the defendant’s testimony in an earlier lawsuit. The court found that since defendant had been advised in the earlier proceeding of his Fifth Amendment privilege and had nonetheless agreed to testify, he had waived his Fifth Amendment privilege with respect to the subsequent use of his testimony. 452 F.2d at 291.
WALLACE, District Judge (dissenting) : I respectfully dissent. I The majority reaches a constitutional issue which is not necessary for a proper disposition of this appeal. Ashwander v. TVA, 297 U.S. 288, 341, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Assuming, arguendo, that the admission of appellant’s tax returns violated the Fifth Amendment privilege against self-incrimination, any error was harmless for two reasons. See Fed.R.Crim.P. 52; Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). First, there was ample evidence other than the tax returns to demonstrate appellant’s gambling proclivities provided by co-conspirators William Lawler and Clarence Swank and witness Emery Long. Second, and more important, the jury found appellant guilty as charged in Count One of the indictment. Count One did not charge Garner with a substantive gambling or betting violation contrary to federal law, but rather with a conspiracy to violate one or more of the following statutes: 18 U.S.C. § 1084 (interstate transmission of bets or wagers by one in the business of betting or wagering), 18 U.S.C. § 1952 (use of an interstate facility to distribute proceeds of unlawful activity), and 18 U.S.C. § 224 (bribery in sporting contests). The gist of the government’s evidence and argument was that co-conspirators Law-ler and Swank were elaborately betting on selected horses on the basis of information supplied by appellant. In other words, appellant’s gambling tendencies were irrelevant to his part in this particular conspiracy; and, as appellant’s attorney correctly argued, there was no testimony proving that Garner had placed any bets on any of the races selected as evidence of the conspiracy. Consequently, the majority errs in assuming that proof of appellant’s business of betting and wagering was an essential element of the conspiracy charged. Count Two of the indictment had charged Garner with a substantive violation of § 1084, which would have required proof of a “business of betting and wagering” as an essential element; but appellant’s Motion for a Judgment of Acquittal as to Count Two was granted at the end of the government’s case. Consequently, the admission of the tax returns was, at worst, harmless because Garner’s alleged role in the conspiracy was that of an information source, a role that need not be filled by one in the “business.” II More fundamental than the fact that the alleged error was harmless is the constitutional fact that there was no error at all. The majority holds, and I agree, that the rule of United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), requires all citizens to file income tax returns despite the obvious hazards of self-incrimination. The majority makes a proper application of this rule to require disclosure of the sources of a taxpayer’s income. The majority then holds, and I disagree, that the appellant’s Fifth Amendment privilege prevents the use of volunteered answers as evidence in this non-tax prosecution. Without an en banc determination [see Upton v. Commissioner of Internal Revenue, 283 F.2d 716, 723 (9th Cir. 1960)], the majority overrules Stillman v. United States, 177 F.2d 607 (9th Cir. 1949), which held to the contrary, contending that Stillman relied upon a concept of “implied waiver,” the theoretical basis of which was repudiated in Mar-chetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). It is unclear to me that Marchetti so held. That case dealt with an interrelated statutory system for taxing wagers and itself distinguished Sullivan. 390 U.S. at 50-51, 88 S.Ct. 697. Marchetti rejected the implied waiver theory only to the extent of the circumstances presented by that case. Therefore, the doctrine is still viable in a Sullivan-type situation. Pursuant to Sullivan, any claim of Fifth Amendment privilege must be asserted when the income tax return is filed, not at the time of a subsequent prosecution. “[T]o honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim.” Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 765 (1965). That the facts of this case (reporting source of income in response to a neutral question) are similar to those of Sullivan (reporting amount of income in response to a neutral question) and not to Marchetti (an interrelated statutory system to tax wagers) seems abundantly clear. Further, Sullivan did not leave open, as contendéd by the majority, whether information gained through the tax return, similar to the facts secured here, may be blocked from evidence in a subsequent non-tax prosecution. If, as stated in Sullivan, the privilege must be asserted at the time the return is filed, there is a waiver after the filing. Further, I do not find support for the majority opinion in the most recent pronouncement in this area by the Supreme Court. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (,1971). Byers asserted a violation of his Fifth Amendment rights when he was charged with leaving the scene of an automobile accident, without furnishing his name and other information as required by a California statute. The California Supreme Court found the statute did not violate the Fifth Amendment only if the required disclosures and the fruits thereof could not be used in a subsequent criminal proceeding arising out of the accident. The majority in the case before us adopts this same type of use restriction although the Supreme Court impliedly rejected it in Byers. The four-judge plurality opinion, authored by the Chief Justice, clearly found no necessity for such a restriction, and Justice Harlan’s concurrence indicated that a restriction was unwarranted as a condition to the statute’s enforcement. Therefore, I cannot conclude, as does the majority, that Byers dealt only with whether the accident report must be filed and not whether the information in the report may be used as evidence in a subsequent prosecution. A close reading of Byers shows it to be quite similar to this case. Both statutes request information in a neutral manner, the furnishing of which may, in a specific case, provide incriminating answers. In the present matter, Garner furnished answers indicating the source of much of his income from 1965 to 1967 was gambling. Having failed to assert the privilege at the proper time, if indeed it was applicable, he has waived it. United States v. Sullivan, 274 U.S. 259, 263-264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927); Stillman v. United States, 177 F.2d 607 (9th Cir. 1949). I feel I am bound by the cases referred to above and must dissent. If, however, the case is to be retried, I suggest the trial court give more consideration to the foundational requirement for the introduction of The Daily Racing Form. . The ease before us falls squarely within Sullivan as defined by Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). Clearly the request for sources of income is neutral on its face and directed to the public at large. . See 390 U.S. at 48-49, 50-51, 88 S.Ct. 697. . “But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon.” 274 U.S. at 264, 47 S.Ct. at 607 (emphasis supplied). . See Heligman v. United States, 407 F.2d 448, 450-451 (8th Cir.), cert. denied, 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 (1969) ; Grimes v. United States, 379 F.2d 791 (5th Cir.), cert. denied, 389 U.S. 846, 88 S.Ct. 104, 19 L.Ed.2d 113 (1967) ; Stillman v. United States, 177 F.2d 607, 618 (9th Cir. 1949) (which the majority overrules) ; Shushan v. United States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941). . California Vehicle Code § 20002(a) (1) (1960). The statute has subsequently been amended. See California A'ehicle Code § 20002 (West 1971). . See Byers v. Justice Court, 71 Cal.2d 1039, 1050, 80 Cal.Rptr. 553, 458 P.2d 465 (1969). . “We granted certiorari to assess the validity of the California Supreme Court’s premise that without a use restriction § 20002(a) (1) would violate the privilege against compulsory self-incrimination. AVe conclude that there is no conflict between the statute and the privilege.” 402 U.S. at 427, 91 S.Ct. at 1537, 29 L.Ed.2d 9 (emphasis supplied). . “I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute.” Id. at 458, 91 S.Ct. at 1553 (Harlan, J., concurring) . . To paraphrase Chief Justice Burger: Disclosure of the source of income is an essentially neutral act. AVliatever the collateral consequences of disclosing the source of income, the statutory purpose is to implement the federal power to tax. See 402 U.S. at 432, 91 S.Ct. 1535. See also id. at 430, 433-434, 91 S.Ct. 1535.
ON REHEARING EN BANC Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN and WALLACE, Circuit Judges. WALLACE, Circuit Judge: A jury found Garner guilty of conspiring to violate various federal gambling statutes. He appeals the conviction based upon that verdict, alleging error of constitutional proportions. We affirm. The gist of the government’s evidence was that co-conspirators Lawler and Swank were making elaborate bets on selected horses on the basis of information supplied by Garner. Near the conclusion of the case, the government introduced into evidence, over objection, Garner’s federal income tax returns (Forms 1040) for the years 1965, 1966 and 1967. Those returns indicated that Garner derived almost all of his income from gambling or wagering. Although the prosecutor did not question any witnesses concerning the returns, he did refer to them during his closing argument to the jury. Garner argues that the introduction of his tax returns into evidence in this non-tax prosecution violates his privilege against self-incrimination. He claims that the decision in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), eroded the vitality of this circuit’s rule that income tax returns may be used as evidence in a non-tax prosecution. See Stillman v. United States, 177 F.2d 607, 617-618 (9th Cir. 1949). At issue is the nature of the privilege against self-incrimination guaranteed by the Fifth Amendment. The language of the amendment would permit a construction which limited its availability to a defendant’s oral testimony in a criminal proceeding. However, in 1892, the Supreme Court rejected so narrow an interpretation. The privilege is now available to a potential criminal defendant well before proceedings actually begin as well as to a witness in criminal, civil, grand jury, or legislative proceedings. However, the scope of a defendant’s privilege is greater than that he would enjoy if he were only a witness. Not only may a defendant refuse to answer questions but he is also entitled not to be called as a witness at his trial. The witness, on the other hand, has no right to be immune from inquiries though he mov decline to respond to them by claiming his privilege. This differing treatment results from the nature of the privilege. See C. McCormick, Evidence §§ 130, 136 (2d ed. 1972). Garner stated in his tax returns that he derived income from gambling and wagering. At that time, he was not a defendant but a witness. The privilege, therefore, must be asserted at some time. The simple question is whether he should have claimed his privilege at the time he filed his return or whether he could wait until his subsequent conspiracy trial. Our inquiry necessarily must begin with United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Sullivan was a bootlegger who did not file income tax returns. He was convicted for this failure and appealed. A unanimous Court upheld the conviction, holding that a tax return was required. Justice Holmes wrote: If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. Id. at 263-264, 47 S.Ct. at 607. Sullivan clearly establishes that all citizens must file tax returns despite obvious hazards of self-incrimination. By stating that “if the defendant desired to test that or any other point he should have tested it in the return . . . ,” the Court intimates that full disclosure of the amounts and sources of income must be made unless the taxpayer makes an objection in his return, asserting his privilege not to incriminate himself. Garner provided the source of his income on his return and failed to invoke his privilege. Can he, at the late date of his trial, assert it? Assume Garner had witnessed an automobile accident in the parking lot of Pomona Fairgrounds on September 25, 1968. If he had been subpoenaed as a witness in a civil trial concerning the accident and had testified that he was there and saw everything, those admissions could have been used in his conspiracy trial to prove that he was at the race track on the day when the first race was allegedly fixed. His privilege would be unavailable because he had failed to assert it during the civil trial. At the civil trial, he was subpoenaed to testify by the power of the court; and he could have been awed by the direction of the judge to answer the questions. But, if he failed to assert his privilege and proceeded to testify, his answers could be used against him. His failure to invoke his privilege in his tax return produces a similar result. Recent Fifth Amendment cases have indicated that compelled disclosures in response to governmental inquiries may violate the privilege against self-incrimination. See Leary v. United States, 395 U.C. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). However, the compulsion in those cases was intended to elicit incriminating responses and was directed at individuals “inherently suspect of criminal activities” in “an area permeated with criminal statutes . . . . ” This case, Sullivan and California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), are different. The questions in Sullivan and here were neutral on their face and directed to the public at large in an effort to implement the federal tax power. In fact, many cases have distinguished Sullivan for exactly those reasons. Byers involved a noncriminal state statute “directed at all persons . . . who drive automobiles in California.” 402 U.S. at 430, 91 S.Ct. at 1539. The Court noted that self-reporting was “indispensable to its fulfillment.” Id. at 431. In other words, the questions asked in each of these cases were designed to asssist the government in its accomplishment of a legitimate goal. They were not designed to produce incriminating answers and thus should be treated differently. Although the dissent vigorously contends that Garner was compelled to incriminate himself and that his answers were not voluntary, the question of “volutariness” relates more to the Miranda situation than it does to Garner’s ease. Here, it only tends to divert from the critical issue. There is a vast difference between an in-custody interrogation and filling out a tax return in the quiet of one’s home. We have no doubt that every taxpayer is under a form of “compulsion” to complete and file his return not dissimilar to the compulsion involved in other activities in which the government also has a legitimate regulatory interest. This form of compulsion, however, is not the kind of involuntariness that was condemned in Miranda. The questions asked on the tax return were completely neutral; only Garner knew a response might be incriminating. As to all taxpayers in general, there was only “compulsion” to provide the government with the information it was entitled to demand. As to Garner specifically, there was “compulsion” to incriminate. But because Garner knew his answers might be incriminating, he had a choice either of claiming his privilege or declining to do so and answering the questions. Had Garner chosen to claim his privilege on the tax return, the government would ultimately have had to decide whether it was willing to grant him immunity in order to obtain the answer. But the granting of immunity must be in the hands of the government, not in .the hands of taxpayers who provide incriminating answers rather than assert their privilege. Accepting appellant’s contention would provide us with an unpalatable result. We have held that a taxpayer must assert his privilege against self-incrimination in his return in response to a specific question. Just as he has no right to be immune from questioning, likewise he is not free to immunize himself from prosecution by volunteering information to the government. To hold otherwise would allow any witness in any proceeding the later protection of the Fifth Amendment to frustrate the use of information derived from earlier testimony when that witness failed to invoke his privilege. If this were the law, immunity from use of incriminating information might well be achieved without government approval by merely including it in a tax return. Such a decision would “embark us on unchartered and treacherous seas.” Byers, supra, 402 U.S. at 458, 91 S.Ct. at 1553 (Harlan, J., concurring) . An equally disquieting result of an acceptance of appellant’s contention would be the difficulty in defining the outer perimeters. If a privilege can be asserted at a later date for information contained in a tax return, could not every subpoenaed witness in court make the same claim? Would not every response to an inquiry, originating at any level of government from census taken to property tax questioner, repose a right in the respondent to later shield those answers ? This “would be an extreme if not an extravagant application of the Fifth Amendment . ” Sullivan, supra, 274 U.S. at 264-264, 47 S.Ct. at 607. We have stated that Garner failed- to assert his privilege. Others might construe this as an implied waiver of its protection. That characterization overlooks the fact that the Fifth Amendment does not automatically cloak our every utterance in the fabric of its rubric. We must invoke and assert its benefits. “It is important to reiterate that the Fifth Amendment privilege is a personal privilege : it adheres basically to the person, not to information that may incriminate him.” Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973). Essentially, the question is whether in this situation the Fifth Amendment is a right which can be invoked retrospectively or whether it is a privilege which must be claimed when the incriminating information is requested. Here, we hold it to be a privilege which Garner should have asserted in his tax return. Having failed to do so, he may not claim its benefit during his trial. Affirmed. Circuit Judges CHAMBERS, MERRILL, DUNIWAY, EUGENE A. WRIGHT, TRASK and CHOY concur in this opinion. Honorable Joseph T. Sneed was inducted subsequent to the submission of this case and, therefore, did not participate in the decision. . See 18 U.S.C. § 371. . See 18 U.S.C. § 224 (bribery in sporting contests); 18 U.S.C. § 1084 (interstate transmission of bets or wagers by one in the business of betting or wagering); and 18 U.S.C. § 1952 (use of an interstate facility to distribute proceeds of unlawful activity). . Although he listed income from those sources, lie took none of the offsetting deductions allowed by law. See, e. g., Int.Rev. Code of 1954, § 165(d). . The original panel opinion in this case (June 5, 1972), agreed with this contention, dismissing his other claims as without merit or lacking sufficient substance. That opinion already has provoked considerable academic comment. See, e. g., comment, 86 Harv.L.Rev. 914 (1973) ; 17 How.L.J. 919 (1973) ; 26 Vand.L.Rev. 350 (1973) ; 34 U.Pitt.L.Rev. 510 (1973) ; 30 Wash. & Lee L.Rev. 182 (1973) ; 7 U.Rich.L.Rev. 371 (1972) ; 14 Wm. & Mary L.Rev. 203 (1972) ; 24 Hastings L.J. 959 (1973) ; Gannen v. United States: Regulatory and Taxing Schemes, Compelled Disclosures, and the Privilege Against Self-Incrimination, 8 Ga. L.Rev. 160 (1973). . Although Stillman relied in part on the public records language of Int.Rev.Code of 1939, § 255, and on Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), we choose neither as a basis for this decision. . The Fifth Amendment of the United States Constitution provides in part: “nor shall [any person] be compelled in any criminal case to be a witness against himself . . . .” . “I am convinced that the Fifth Amendment’s privilege against compulsory self-incrimination was originally meant to do no more than confer a testimonial privilege upon a witness in a judicial proceeding.” Grosso v. United States, 390 U.S. 62, 76, 88 S.Ct. 709, 718, 19 L.Ed.2d 906 (1968) (Stewart, J., concurring). . Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The case’s holding was rather narrow, but the opinion contained broad language indicating availability in any criminal matter. Id. at 562, 12 S.Ct. 195. Thirty years later, the Court held that the privilege applied “alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). . See, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Counselman v. Hitchcock, supra note 8. . McCarthy v. Arndstein, supra note 8. . United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943), relying upon Counselman v. Hitchcock, supra, note 8. . Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955). . We believe the Fifth Amendment privilege is at issue in this case. This may not be a universal conclusion. Justice Harlan would not have extended the privilege to a regulatory scheme such as that involved in California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). He contended that the privilege was not founded on absolute values and that conflicting interests must be balanced to determine whether the privilege exists. Id. at 449-450, 454, 458, 91 S.Ct. 1535. (Harlan, J., concurring). See also Meltzer, Privileges Against Self-Incrim-¡nation and the Hit-and-Run Opinions, in 1971 Sup.Ct.Rev. 16-25. . An earlier case, Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913), might also serve as a starting point. Johnson transferred his books to the trustee in bankruptcy under the compulsion of law. Bankruptcy Act § 70, cli. 541, 30 Stat. 544 (1898) (codified at 11 U.S.C. § 110). These books were introduced against him in a criminal prosecution for concealing money from the trustee. The Court held that Johnson was not privileged from their production. . Albertson, supra, 382 U.S. at 79, 86 S.Ct. at 199. . See Grosso, supra, 390 U.S. at 67, 88 S.Ct. 709; Marchetti, supra, 390 U.S. at 48-49, 50-51, 88 S.Ct. 697; Albertson, supra, 382 U.S. at 78-79, 86 S.Ct. 194. See also Byers, supra, 402 U.S. at 433-434, 91 S.Ct. 1535 (plurality), 471-472 (Brennan, X, dissenting) ; Grosso, supra, 390 U.S. at 72, 88 S.Ct. 709 (Brennan, .1., concurring). It comes too easy to say that because Sullivan was decided forty-five years ago it is no longer an effective precedent. This overlooks the fact that, by continuously distinguishing and referring to Sullivan, tire Court has maintained its vitality. . Since the privilege is applicable only if the specific response would come within the scope of protection and the witness is not the ultimate arbiter of whether this is the situation, a decision on the propriety of invoking it cannot be made unless the question has been put and the witness has asserted his basis for refusal to answer. C. McCormick, Evidence § 136, at 289 (2d ed. 1972) (footnote omitted). . Sullivan upheld a conviction for failure to file an income tax return on the. theory that “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” 274 U.S., at 263, 47 S.Ct. at 607. That declaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim. Albertson v. SACB, 382 U.S. 70, 79, 86 S.C. 194, 199, 15 L.Ed.2d 65 (1965). . If Congress feels that this decision might jeopardize revenue collection, it might provide use immunity for information contained in tax returns. However, we do not feel that a judicial decision is the appropriate method for altering the complex and interrelated tax systems of this country. See Byers, supra, 402 U.S. at 442-443, 91 S.Ct. 1535 (Harlan, J., concurring) ; Marchetti, supra, 390 U.S. at 59-60, 88 S.Ct. 697; 86 Harv.L.Rev. 914, 919 n. 25 (1973).
KOELSCH, Circuit Judge, with whom Circuit Judges BROWNING, ELY, HUF-STEDLER and ALFRED T. GOODWIN join, dissenting: The question presented is whether Garner, in this criminal prosecution unrelated to the federal income tax laws, may invoke the protection of the Fifth Amendment privilege not to “be compelled in any criminal case to be a witness against himself . . . ” to exclude incriminating answers to questions on his tax return. The answer requires the resolution of two issues. The first, whether the disclosure requirement in the tax law, backed by statutory penalties for noncompliance, is governmental compulsion of the type proscribed by the Fifth Amendment; the second, whether by answering, Garner voluntarily relinquished his privilege. Both require careful factual analysis and scrutiny of the purposes served by Supreme Court decisions. The majority opinion avoids the analysis by purporting to reach neither issue, although, in my opinion, the conclusory rationale offered conceals an unexplained decision on one of the two, and perhaps both, grounds. The majority agrees that the privilege applies in the context of regulatory inquiries (n. 14), but, expressly rejecting reliance on the argument that Garner might have waived his privilege by answering (p. 233), holds that the nature of the privilege precludes consideration of Garner’s constitutional claim when asserted at his criminal trial rather than on the return. The majority states: Essentially, the question is whether the Fifth Amendment is a right which can be invoked retrospectively or whether it is a privilege which must be claimed when the incriminating information is requested. Here, we hold it to be a privilege which Garner should have asserted in his tax return, (p. 233). The holding proceeds from the premise that the Fifth Amendment provision creates a testimonial privilege which in its historical development has come to be applied to one in Garner’s position (p. 230). The majority reasons that a privilege operates to justify a refusal to answer questions when they are first asked —not as an exclusionary mechanism to exclude answers once they have been given — and therefore Garner’s objection at trial is not properly the invocation of a privilege. The majority concludes that since the Fifth Amendment creates a privilege and not a “retrospective” right, any protection the Amendment provides is unavailable to exclude the answers compelled from Garner when introduced at trial. To the extent that the majority relies solely on this basis, its decision is completely untenable, both in theory and under the Supreme Court decisions which bind the determination in this case. The majority draws important consequences from the technical distinction between a right and a privilege, rather than analyzing the Fifth Amendment dangers in light of the particular circumstances under which Garner answered. However, even accepting the assumption that the protection of the Fifth Amendment is limited to that afforded by a technical privilege, the majority is still wrong in the assertion that the nature of a testimonial privilege precludes Garner’s objection to the introduction of the tax return. Many testimonial privileges operate not only to excuse the person holding the privilege from answering, but also to allow him to exclude the testimony of others. For instance, the client may invoke the lawyer-client privilege to prevent the lawyer from testifying about the client’s communications, even those involving admissions of a crime. The privilege is available to exclude reliable testimony in order to advance the public policies surrounding the relationship in which the communication was made. By analogy, the policy against governmental compulsion is served by the exclusion of answers obtained in violation of the policy, and Garner’s ability to command their exclusion is the exercise of a privilege in the same sense that the client’s ability to exclude the lawyer’s recital of his prior admission is a privilege. If the majority rests its decision on the ground that the concept of a “privilege” is too narrow to encompass Garner’s objection, an analysis of common law privileges alone suggests that the majority is in error. More fundamentally, the fact that the constitutional provision has been historically regarded as a “privilege” does not mean, as the majority assumes, that the clause does not create a constitutional right cognizable at Garner’s trial. In a strict Hohfeldian sense the freedom from testimonial compulsion created by the Amendment is a right against the court. If Garner has a privilege on his tax return, he may answer or not; and the government has no right to compel the answer. If he answers, the government is privileged to introduce his answer if he has no right which the court will recognize to prevent it. The court, however, exercises the judicial power to decide Garner’s case on the basis of the Constitution’s delegation of sovereignty, one of the express conditions of which is the Fifth Amendment. The court is under a constitutional duty not to allow Garner to be compelled to be a witness against himself because the Constitution commands forebearance for the benefit of those in his position; against the court’s duty he has a correlative right, not privilege. The scope of his right depends on the extent of the court’s duty to exclude the evidence, ordinarily entailing an analysis of the policy of the constitutional provision in light of the particular facts involved. The point is not that Garner is entitled to reversal because he has a constitutional right, but rather that the majority opinion neatly, but inaccurately, sidesteps the constitutional analysis required to decide the case. The majority’s position has been repeatedly rejected, both explicitly and implicitly, by the Supreme Court. For instance, in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), Justice Goldberg states: The constitutional privilege against self-incrimination has two primary interrelated facets: The Government may not use compulsion to elicit self-incriminating statements,' see, e. g., Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed.2d 1110 and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. See, e. g., Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513. . . . Now that both governments are fully bound by the privilege, the conceptual difficulty of pinpointing the alleged violation of the privilege on “compulsion” or “use” need no longer concern us. (378 U.S. at 57 n. 6, 84 S.Ct. at 1598.) In Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), Justice White, writing for a unanimous Court, states: [A] witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is' a defendant. Kastigar v. United States, 406 U.S. 441 [92 S.Ct. 1653, 32 L.Ed.2d 212] (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, supra; Boyd v. United States, supra. The coerced confession cases, from Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), through Miranda and its progeny, consistently indicate that the failure of the defendant to remain silent does not end the analysis, and that the protection against self-incrimination afforded by the constitutional privilege extends to the exclusion of prior answers when they are involuntarily given. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The majority’s reliance on the assertion that Garner’s privilege cannot be “retrospectively” invoked because he failed to “invoke and assert the benefits of his privilege” (p. 232-233) when first asked the incriminating question is misplaced —the coerced confession cases do not require a ritualistic explicit invocation of the privilege, or a request to remain silent or see a lawyer, before a subsequent self-incriminating answer may be excluded at trial. Rather, the cases make clear that the privilege is applicable at trial if the prior answer was coerced. Instead of addressing the relevant inquiry of whether Garner’s answers were in fact coerced, the majority ostensibly avoids the issue by restricting the Fifth Amendment to the first of Justice Goldberg’s facets. Under the majority’s reasoning, incriminating answers extracted by governmental coercion do not fall within the Fifth Amendment if the defendant fails to invoke and assert his privilege when first asked. Clearly that is not the law. The privilege does more than provide a defense to one who sticks to his guns and is prosecuted for his silence rather than succumbing to the governmental compulsion. In a situation analogous to the present case, the Court, in decisions relating to the wagering tax law found unconstitutional in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), has indicated the privilege is available to exclude incriminating answers on tax returns at trial even though the defendant had failed to invoke his privilege on the return. For instance, in Lookretis v. United States, where the defendant had given incriminating answers on the wagering tax return found violative of the privilege in Marchetti and his answers had been used against him in a subsequent prosecution (see 398 F.2d 64 (7th Cir. 1968)), the Court, apparently considering the use of the returns an equivalent violation of his privilege, vacated his conviction and remanded. Lookretis v. United States, 390 U.S. 338, 88 S.Ct. 1097, 19 L.Ed.2d 1219 (1968). In United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), the Court, in upholding a conviction for filing a false return which under Marchetti did not have to be filed, distinguished Lookretis: 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. 396 U.S. at 82, 90 S.Ct. at 366. Adhering to that view, Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), again indicated that the Court views the use of compelled answers as the equivalent of the compulsion of answers for purposes of Fifth Amendment analysis. The Court in Mackey held that its decision in Mar-chetti did not have retroactive application, but Mackey, unlike Marchetti, had filed an incriminating return without asserting a privilege. The Seventh Circuit thought Mackey’s objection might have been waived, but the Supreme Court plurality opinion, in a comment on which eight of the nine Justices agreed, stated: The statutory requirement to register and file gambling tax returns was held to compel self-incrimination and the privilege became a complete defense to a criminal prosecution for failure to register and pay the related taxes. It followed that the registration and excise tax returns filed in response to the statutory command were compelled statements within the meaning of the Fifth Amendment and accordingly were inadmissible evidence as part of the prosecution’s case in chief. 401 U.S. at 672, 91 S.Ct. at 1163. In contrast to the circuit court, the Supreme Court indicated that the privilege is sufficient to exclude answers at a subsequent trial if the privilege was a “defense to a criminal prosecution for failure to register,” (401 U.S. at 672, 91 S.Ct. at 1163), without analysis of whether answering waived the privilege. The majority’s approach is irreconcilable with Mackey, particularly if one reads United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), as the majority purports to, for the proposition that Sullivan recognized the privilege as a defense to a prosecution for filing an incomplete return if claimed with respect to particular questions on the return. If Garner was, as the majority asserts, privileged not to answer particular questions on the return, it is only because in respect to those questions the self-reporting scheme of the tax return, backed by statutory compulsion to answer, unconstitutionally compelled him to incriminate himself. It follows that the privilege became a complete defense for failure to answer those particular questions, and under Mackey, — “It followed . . .” that answers to questions he was privileged not to answer “filed in response to the statutory command were compelled statements within the meaning of the Fifth Amendment and accordingly were inadmissible evidence as part of the prosecution’s case in chief.” 401 U.S. at 672, 91 S.Ct. at 1163. As the majority correctly points out (p. 231), the differences in the statutory schemes make Marchetti and Mackey in-apposite in determining whether there is unconstitutional compulsion in Garner’s case. However, once the majority acknowledges the existence of a privilege on the return, depending only on whether the information requested is incriminating, the distinction becomes irrelevant, unless the majority is making the unexplained, and probably inexplicable, argument that different consequences should flow from supposed qualitative differences in acknowledged constitutional violations. The root of the majority’s dilemma is that it has mistaken a privilege for the opportunity to assert one. Garner is privileged to ignore the statutorily imposed duty to answer questions only if the court will not impose the sanctions provided by the tax laws for incomplete returns. The court will refrain from doing so only to the extent dictated by statute, or prior decision interpreting the constitutional command — in those cases the court must recognize the privilege as completely excusing the breach of the normal duty to answer. The privilege is not the possible availability of a constitutional defense if prosecuted, but rather the actual recognition that he is free not to answer. In fact, what Garner had, when filling out his tax return, was at most the knowledge that the constitutional provision might lead a court to validate the privilege as a defense, and not a privilege. No court has ever recognized the Fifth Amendment as the source of a valid defense for failure to answer a question on a tax return. Sullivan does not. It holds only that the privilege does not excuse a failure to file a tax return. Since many of the questions were innocuous, Sullivan’s remedy of refusing to answer all of them was overbroad. It was considered an extreme and extravagant application of the privilege to allow it to defeat the social purpose in obtaining a tax return from Sullivan. The oft-repeated dicta, on which the majority relies for the proposition that Garner must assert the privilege on the return, told Sullivan that the privilege might have provided a defense for refusal to answer particular questions and that the Court might have decided the merit of his claim of privilege in respect to them. The Court has never, as it recently recognized, held that the privilege excuses a failure to answer particular questions on the return. Either way one reads Sullivan, the majority’s holding is wrong. It is either inconsistent with Mackey, or the majority is telling Garner that the court will not decide his claim of privilege in a criminal case, the only point in time at which the constitutional provision applies on its face, because he did not .run the risk of an uncertain invocation of the privilege on his tax return. The majority criticizes the position Garner, and the original panel opinion, take for making the Fifth Amendment into a “right which can be invoked retrospectively.” (p. 23