Lewis v. United States (348 U.S. 419)/Dissent Black

by Hugo Black

United States Supreme Court

348 U.S. 419

Lewis  v.  United States (348 U.S. 419)

 Argued: Feb. 3, 4, 1955. --- Decided: March 14, 1955

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, put a most restrictive interpretation on the Fifth Amendment's provision against compelling persons to confess facts which will help government take away their liberty. But this case reduces the Fifth Amendment's protection still more. Kahriger had to confess only to state law violations to save himself from going to jail for violating the federal registration law. This was one of the arguments relied on by the Government to persuade this Court to sustain the federal law as applied to Kahriger. ^[1] But the petitioner here, in order to be permitted to pay the $50 tax, must file a written confession with the District of Columbia Internal Revenue Collector revealing that, in violation of federal law, he is at the moment he registers 'engaged in the business of accepting wagers.' ^[2] He must also tell where he carries on the illegal business, the names and addresses of those who receive wagers for him and of those for whom he receives wagers. ^[3] For engaging in this wagering business, which registration would compel petitioner to confess, he could be convicted of felony, fined $1,000, imprisoned three years, or both. ^[4] And for conspiring with his employers or employees to promote a lottery even in the future, which compulsory registration is designed to reveal, petitioner could be punished by a fine of $10,000, imprisonment for five years, or both. ^[5] Thus in order to pay the tax, petitioner would be compelled to supply evidence useful and maybe sufficient to convict him of felonies for which he could be incarcerated for years. If this would not violate the Fifth Amendment's privilege against self-incrimination, it is hard to think of anything that would. Cf. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, and cases cited.

And yet the Court holds petitioner can be sent to jail for refusal to make a public registration of his guilt of criminal conduct. This result seems to be largely dependent on the statement that petitioner has 'no constitutional right to gamble.' Of course not. But if we remain faithful to the letter and spirit of the Bill of Rights, gamblers, like others, have a right to invoke its safeguards. It should not be forgotten that breaches opened to get lawless gamblers remain to jeopardize the liberty of the law-abiding.

Notes

1. The Government there argued: 'Wagering is doubtless unlawful in many states (perhaps in all but Nevada) but it is not forbidden by any federal law.
2. See United States v. Kahriger, 3 Cir., 210 F.2d 565, 570. Paragraph 4 of Instructions on the tax return which petitioner would have been compelled to sign in order to pay the $50 tax provides: 'The information called for on the return must be completely furnished. If not so furnished, the special tax stamp will not be issued.'
3. That petitioner would have been compelled to make such confessions is shown by a copy of the 'Special Tax Return and Application for Registry-Wagering' in effect at the time of petitioner's failure to register. It reads in part: '5. Are you engaged in the business of accepting wagers on your own account? * * * If yes, (give) (a) Name and address where each such business is conducted. * * * (b) Number of employees and/or agents engaged in receiving wagers on your behalf. * * * (c) True name, current address, and special tax stamp number of each such person. * * * 6. Do you receive wagers for or on behalf of some other person or persons? * * * If yes, give true name and address of each such person. * * *'
4. The D.C.Code, 1951, § 22-1501 makes promotion of lotteries a crime. The definition of lotteries here includes the definition of wagers in the registration law. 65 Stat. 529, 26 U.S.C. § 3285, 26 U.S.C.A. § 3285.
5. 18 U.S.C. § 371, 18 U.S.C.A. § 371.