federal treasury and of state gambling prohibitions; we are, however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values.18 We therefore must decide that it would be improper for the Court to impose restrictions of the kind urged by the United States.

VI.

We are fully cognizant of the importance for the United States' various fiscal and regulatory functions of timely and accurate information, compare Mansfield, supra, and Meltzer, Required Records, the McCarran Act, and the Privilege against Self-Incrimination, 18 U. Chi. L. Rev. 687; but other methods, entirely consistent with constitutional limitations, exist by which Congress may obtain such information. See generally Counselman v. Hitchcock, supra, at 585; compare Murphy v. Waterfront Commission, supra. Accordingly, nothing we do today will prevent either the taxation or the regulation by Congress of activities otherwise made unlawful by state or federal statutes.

Nonetheless, we can only conclude, under the wagering tax system as presently written, that petitioner properly asserted the privilege against self-incrimination, and that his assertion should have provided a complete defense to this prosecution. This defense should have reached both

18 It should be emphasized that it would not suffice here simply to sever § 6107. See 26 U. S. C. § 7852 (a). Cf. Warren v. Mayor of Charlestown, 2 Gray 84, 99; Carter v. Carter Coal Co., 298 U. S. 238, 316. We would be required not merely to strike out words, but to insert words that are not now in the statute. Here, as in the analogous circumstances of United States v. Reese, 92 U. S. 214, "This would, to some extent, substitute the judicial for the legislative department of the government. . . . To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty." Id., at 221.

...

Opinion of the Court.

the substantive counts for failure to register and to pay the occupational tax, and the count for conspiracy to evade payment of the tax. We emphasize that we do not hold that these wagering tax provisions are as such constitutionally impermissible; we hold only that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements. If, in different circumstances, a taxpayer is not confronted by substantial hazards of self-incrimination, or if he is otherwise outside the privilege's protection, nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes.

The judgment of the Court of Appeals is

Reversed.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

[For concurring opinion of MR. JUSTICE BRENNAN, see post, p. 72.]

[For concurring opinion of MR. JUSTICE STEWART, see post, p. 76.]

[For dissenting opinion of MR. CHIEF JUSTICE WARREN, see post, p. 77.]

Syllabus.

390 U.S.

GROSSO v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 12. Argued January 18, 1967.-Reargued October 10-11, 1967. Decided January 29, 1968.

Petitioner was convicted for failure to pay the excise tax on wagering and the occupational tax imposed, respectively, by 26 U. S. C. §§ 4401 and 4411 and for conspiracy to defraud the Government by evading payment of both taxes. In addition to the general statutory and regulatory requirements described in Marchetti v. United States, ante, p. 39, those liable for payment of the excise tax must submit monthly to the tax authorities on a special form, to accompany payment, detailed information concerning their wagering activities which the tax authorities make available to prosecuting officers. The Court of Appeals affirmed, rejecting petitioner's contention that the charges relating to the excise tax violated his Fifth Amendment rights against self-incrimination. Petitioner has not made a similar contention concerning his conviction on charges involving the special occupational tax. Held:

1. The wagering excise tax provisions, which, like the provisions involved in Marchetti v. United States, supra, were directed almost exclusively to individuals inherently suspect of criminal activities, violated petitioner's privilege against self-incrimination secured by the Fifth Amendment. Ibid. Pp. 64-69.

2. The "required records" doctrine of Shapiro v. United States, 335 U. S. 1, cannot appropriately be applied here. Marchetti v. United States, supra. Pp. 67-69.

3. Restrictions upon the use by prosecuting authorities of information obtained as a consequence of payment of the wagering excise tax would be inappropriate where this Court has held it improper to impose similar restrictions with respect to "an integral part" of the same system. Ibid. P. 69.

4. Since petitioner did not waive the privilege against selfincrimination with regard to the charges involving the occupational tax and reversal by the lower courts of his conviction thereon would be inevitable in the light of this case and Marchetti, the judgment of conviction in its entirety is reversed by this Court. Pp. 71–72.

358 F. 2d 154, reversed.

62

Opinion of the Court.

Charles Alan Wright reargued the cause for petitioner. With him on the briefs on the reargument and on the original argument was James E. McLaughlin.

With him on the brief on
Solicitor General Spritzer,

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

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner was convicted in the United States District Court for the Western District of Pennsylvania of 15 counts of willful failure to pay the excise tax imposed on wagering by 26 U. S. C. § 4401, four counts of willful failure to pay the special occupational tax imposed by 26 U. S. C. § 4411, and one count of conspiracy to defraud the United States by evading payment of both taxes. 18 U. S. C. § 371. Petitioner moved before trial to dismiss the counts which charged conspiracy to defraud and failure to pay the excise tax, asserting that payment would have obliged him to incriminate himself, in violation of the privilege against self-incrimination guaranteed by the Fifth Amendment. He reiterated this contention in support of unsuccessful motions for acquittal after verdict and for a new trial. The Court of Appeals for the Third Circuit affirmed the conviction. 358 F. 2d 154.

Petitioner did not assert below, and therefore has not urged here, that his privilege was violated by reason of his convictions for conspiracy and for failure to pay the special occupational tax. He has contended only

Opinion of the Court.

390 U.S.

that payment of the excise tax would have required him to incriminate himself, that he therefore may not properly be prosecuted for willful failure to pay the tax or for conspiracy to evade its payment, and that conduct of the trial court after submission of the case to the jury denied him a fair trial. We granted certiorari, 385 U. S. 810, and the case was argued with Marchetti v. United States, decided today, ante, p. 39.1 For reasons which follow, we reverse.

I.

We turn first to petitioner's contention that payment of the wagering excise tax would have compelled him to incriminate himself. We have summarized in Marchetti, supra, the various state and federal penalties which have been imposed upon wagering. It is enough now to reiterate that Pennsylvania, in which petitioner allegedly accepted wagers, has adopted a comprehensive statutory system for the punishment of gambling and ancillary activities. Pa. Stat. Ann., Tit. 18, §§ 4601-4607 (1963). These penalties, in combination with the federal statutes described in Marchetti, place petitioner entirely within "an area permeated with criminal statutes," where he is "inherently suspect of criminal activities." Albertson v. SACB, 382 U. S. 70, 79. The issues here are therefore

1 After argument, the case was returned to the calendar, and set for reargument at the 1967 Term, again with Marchetti, supra. 388 U. S. 904. Counsel were asked to argue, in addition to the original questions, the following: "(1) What relevance, if any, has the required records doctrine, Shapiro v. United States, 335 U. S. 1, to the validity under the Fifth Amendment of the obligation to pay the wagering excise tax imposed by 26 U. S. C. § 4401? (2) Is satisfaction of an obligation to pay a wagering excise tax imposed by 26 U. S. C. § 4401 conditioned upon the filing of a return required under 26 U. S. C. § 6011 and pertinent regulations? If it is not, what information, if any, must accompany the payment of a wagering excise tax obligation in order to extinguish the taxpayer's liability for that obligation?"