United States v. Covington

Background

A person in the Southern District of Ohio was indicted for acquiring 737.1 grams of marihuana without paying the transfer tax imposed by the Marihuana Tax Act. The District Court dismissed the one-count indictment, relying on earlier decisions that protected defendants from self-incrimination and, alternatively, finding that under the Government’s construction no offense was charged. The Government appealed directly to the Supreme Court, and the case was argued together with Leary v. United States.

Reasoning

The Court examined whether a claim of the Fifth Amendment right against self-incrimination can justify dismissing an indictment before trial. Relying on the Rules of Criminal Procedure, the Court said many self-incrimination defenses can be decided without trying the underlying facts. It adopted a legal presumption that asserting the privilege creates nonwaiver unless the Government shows a need for factual inquiry. The Court noted that Leary had already rejected the Government’s claim that only lawful actors must prepay the tax, but also confirmed that the privilege can be a complete defense unless untimely, there is no substantial risk of incrimination, or the privilege was waived.

Real world impact

Because the defendant said his possession was illegal under Ohio law, the Government appeared to acknowledge that risk, and no waiver or factual dispute was shown. Applying the presumption, the Court affirmed the dismissal. The decision makes it possible for people who would incriminate themselves by complying with the tax to obtain dismissal unless the prosecution can show waiver or a factual need to proceed.

Dissents or concurrances

Chief Justice Warren concurred, citing prior decisions, and Justice Stewart joined the opinion on the premise explained in his Leary concurrence.