The opinion
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. Consequent *235 ly, 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. 1 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. 2 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. 3 “[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. 4
*236 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. 5 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. 6 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, 7 and Justice Harlan’s concurrence indicated that a restriction was unwarranted as a condition to the statute’s enforcement. 8 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. 9 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 *236 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 .