WETTER ET AL. v. CITY OF INDIANAPOLIS ET AL. APPEAL FROM THE SUPREME COURT OF INDIANA. Ind. denied. No. 895. Decided January 22, 1968. 226 N. E. 2d 886, appeal dismissed and certiorari Edward H. Knight and Richard M. Givan for appellants. Harry T. Ice for appellees. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. BOGART v. STATE BAR OF CALIFORNIA ET AL. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 806, Misc. Decided January 22, 1968. Appeal dismissed and certiorari denied. Peter D. Bogart, appellant, pro se. Homer I. Mitchell and F. La Mar Forshee for appellees. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. CROSS v. UNITED STATES BOARD OF APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT. No. 842, Misc. Decided January 22, 1968. Appeal dismissed. Solicitor General Griswold, Assistant Attorney General Vinson and Beatrice Rosenberg for appellees. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. CREPEAULT v. VERMONT. APPEAL FROM THE SUPREME COURT OF VERMONT. Vt. No. 778, Misc. Decided January 22, 1968. 229 A. 2d 245, appeal dismissed and certiorari denied. PER CURIAM. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. Syllabus. MARCHETTI v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 2. Argued January 17-18, 1967.-Reargued 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 prosecution, contended that the statutory requirements to register and to 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, sup, a, Lewis v. United States, supra, both pro tanto overruled. Pp. 50-54. Opinion of the Court. 390 U.S. (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 contravené 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. MR. JUSTICE HARLAN delivered the opinion of the Court. Petitioner was convicted in the United States District Court for the District of Connecticut under two indictments which charged violations of the federal wagering tax statutes. The first indictment averred that petitioner and others conspired to evade payment of the annual occupational tax imposed by 26 U. S. C. § 4411. The second indictment included two counts: the first 39 Opinion of the Court. alleged a willful failure to pay the occupational tax, and the second a willful failure to register, as required by 26 U. S. C. § 4412, before engaging in the business of accepting wagers. After verdict, petitioner unsuccessfully sought to arrest judgment, in part on the basis that the statutory obligations to register and to pay the occupational tax violated his Fifth Amendment privilege against selfincrimination. The Court of Appeals for the Second Circuit affirmed, 352 F. 2d 848, on the authority of United States v. Kahriger, 345 U. S. 22, and Lewis v. United States, 348 U. S. 419. We granted certiorari to re-examine the constitutionality under the Fifth Amendment of the pertinent provisions of the wagering tax statutes, and more particularly to consider whether Kahriger and Lewis still have vitality.1 383 U. S. 942. For reasons which follow, we have 1 Certiorari was originally granted in Costello v. United States, 383 U. S. 942, to consider these issues. Upon Costello's death, certiorari was granted in the present case. 385 U. S. 1000. Marchetti and Costello, with others, were convicted at the same trial of identical offenses, arising from the same series of transactions. Certiorari both here and in Costello was limited to the following questions: "Do not the federal wagering tax statutes here involved violate the petitioner's privilege against self-incrimination guaranteed by the Fifth Amendment? Should not this Court, especially in view of its recent decision in Albertson v. Subversive Activities Control Board, 382 U. S. 70 (1965), overrule United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955)?" After argument, the case was restored to the calendar, and set for reargument at the 1967 Term. 388 U. S. 903. 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 registration and special occupational tax requirements of 26 U. S. C. §§ 4411, 4412? (2) Can an obligation to pay the special occupational tax required by 26 U. S. C. § 4411 be satisfied without filing the registration statement provided for by 26 U. S. C. § 4412?" |