7. Gambling wins constitute gross income which must be reported. Garner v. United States, 501 F.2d 228, 232 (9th Cir. 1972), aff'd., 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). A taxpayer is permitted to take a deduction for his gambling losses up to the amount of his winnings.
Pp. 650-655. 501 F.2d 228, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913).See Smith v. United States, 236 F.2d 260 (8th Cir.), cert. denied, 352 U.S. 909, 77 S.Ct. 148, 1 L.Ed.2d 118 (1956); Beard v. United States, 222 F.2d 84 (4th Cir.), cert. denied, 350 U.S. 846, 76 S.Ct. 48, 100 L.Ed. 753 (1955); United States v. Mousley, 201 F. Supp. 510 (D.C.Pa. 1962), aff'd, 311 F.2d 795 (3rd Cir. 1963); Garner v. United States, 501 F.2d 228, 236 (9th Cir. 1972), aff'd, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). The fifth amendment commands that "No person . . . shall be compelled . . . to be a witness against himself."
Gonzalez lacks standing to assert that Swanson violated Fleming's constitutional rights; as a result, Gonzalez's argument that his arrest ran afoul of the Fourth Amendment as being based on the purported coerced confession from Fleming is unavailing. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Alderman v. U.S., 394 U.S. 165, 174-75, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369-70 (9th Cir. 1998); Garner v. United States, 501 F.2d 228, 240 (9th Cir. 1972), aff'd, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). Similarly, Gonzalez's claim that his misdemeanor arrest for solicitation was unreasonable for Fourth Amendment purposes because the crime was not committed in Swanson's presence as required by state law lacks merit.
The district court's decision to exclude evidence may only be reversed for an abuse of discretion. E.g., United States v. Smith, 735 F.2d 1196, 1198 (9th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984). The court did not abuse its discretion here. Malquist wanted to introduce into evidence copies of the Constitution, the Declaration of Independence, portions of Garner v. United States, 501 F.2d 228 (9th Cir. 1972), aff'd, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), a trial transcript in another person's section 7203 prosecution, and six tax protester articles. The government objected to the introduction of this evidence on relevancy grounds.
A witness only has the right to refuse to answer incriminating questions by claiming this privilege, but has no immunity for other inquiries. Garner v. United States, 501 F.2d 228 (9th Cir. 1972), aff'd, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). The privilege against self-incrimination is as broad as is necessary to guard against the mischief from which protection is sought.
Furthermore, an objection may properly be raised only in response to specific questions asked in the return. Id. See Garner v. United States, 501 F.2d 228, 239 n. 18 (9th Cir. 1974) (en banc), aff'd Garner v. United States, supra, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370. We are here faced with a case in which the taxpayer did assert his privilege in response to specific questions in the tax return form, but did so on such a wholesale basis as to deny the IRS any useful financial or tax information.
Accordingly, without considering every hypothetical case in which a demand for information on a tax return might be challenged, we have no hesitation in holding that the Fifth Amendment has no application to the statutory requirement that every citizen must report his entire income even if a taxpayer is thereby compelled to disclose an incriminating fact.See Garner v. United States, 500 F.2d 228 (9th Cir. 1974) (en banc), and Comment, Reporting Illegal Gains as Taxable Income: A Compromise Solution to a Prosecutorial Windfall, 69 Nw.U.L.Rev. 111, 141-142 (1974). We note that the indictment here, as in United States v. Garcilaso de la Vega, 489 F.2d 761, 765 (2d Cir. 1974), was based on Oliver's failure to state the amount, and not the source, of his income.
We have recently held that the Fifth Amendment protection against self-incrimination in the filing of income tax information is a privilege. Garner v. United States, 501 F.2d 228 (9th Cir. 1974). Because it is a privilege and not a right it must be claimed or it is waived.
In Stillman v. United States, 177 F.2d 607 (9th Cir. 1949), the Court held that the admission of certified copies of tax returns reporting illicit income did not compel defendants to testify against themselves in violation of their constitutional rights. This position was recently re-affirmed in Garner v. United States, 500 F.2d 228 (9th Cir. 1974). In Garner, supra, the Court held that the questions asked on a tax return are completely neutral so that only one filing a return knows whether his answers will be incriminating, and that, under these circumstances, he has a choice of claiming his privilege or answering the questions.