Marchetti v. United States

United States Supreme Court

390 U.S. 39

Marchetti  v.  United States

Certiorari to the United States Court of Appeals for the Second Circuit

No. 2.  Argued: January 17-18, and October 10, 1967 --- Decided: January 29, 1968

Petitioner was convicted for conspiring to evade payment of the occupational tax relating to wagers imposed by 26 U.S.C. § 4411, for evading such payment, and for failing to comply with § 4412, which requires those liable for the occupational tax to register annually with the Internal Revenue Service and to supply detailed information for which a special form is prescribed. Under other provisions of the interrelated statutory system for taxing wagers, registrants must "conspicuously" post at their business places or keep on their persons stamps showing payment of the tax; maintain daily wagering records; and keep their books open for inspection. Payment of the occupational taxes is declared not to exempt persons from federal or state laws which broadly proscribe wagering, and federal tax authorities are required by § 6107 to furnish prosecuting officers lists of those who have paid the occupational tax. Petitioner, whose alleged wagering activities subjected him to possible state or federal protection, contended that the statutory requirements to register and pay the occupational tax violated his privilege against self-incrimination. The Court of Appeals affirmed, relying on United States v. Kahriger, 345 U.S. 22, and Lewis v. United States, 348 U.S. 419, which held the privilege unavailable in a situation like the one here involved.

Held:

1. The recognized principle that taxes may be imposed upon unlawful activities is not at issue here. P. 44.

2. Petitioner's assertion of his Fifth Amendment privilege against self-incrimination barred his prosecution for violating the federal wagering tax statutes. Pp. 48-61.

(a) All the requirements for registration and payment of the occupational tax would have had the direct and unmistakable consequence of incriminating petitioner. Pp. 48-49.

(b) Petitioner did not waive his constitutional privilege by failing to assert it when the tax payments were due. Pp. 50-51.

(c) United States v. Kahriger, supra, Lewis v. United States, supra both pro tanto overruled. Pp. 50-54.

(d) The premises supporting Shapiro v. United States, 335 U.S. 1 (viz., that the records be analogous to public documents and of a kind which the regulated party has customarily kept, and that the statutory requirements be essentially regulatory rather than aimed at a particular group suspected of criminal activities), do not apply to the facts of this case and therefore Shapiro's "required records" doctrine is not controlling. Pp. 55-57.

(e) Permitting continued enforcement of the registration and occupational tax provisions by imposing restrictions against the use by prosecuting authorities of information obtained thereunder might improperly contravene Congress' purpose in adopting the wagering taxes and impede enforcement of state gambling laws. Pp. 58-60.

352 F. 2d 848, reversed.

Jacob D. Zeldes reargued the cause for petitioner. With him on the brief on the reargument were David Goldstein, Elaine S. Amendola, Francis J. King and Ira B. Grudberg, and on the original argument Messrs. Goldstein, King, and Grudberg.

Francis X. Beytagh, Jr., reargued the cause for the United States, pro hac vice. With him on the brief on the reargument were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg and Jerome M. Feit, and on the original argument Solicitor General Marshall, Assistant Attorney General Vinson, Miss Rosenberg. and Theodore George Gilinsky.

Notes