Marchetti v. United States 390 U.S. 39 (1968) Grosso v. United States 390 U.S. 62 (1968) Haynes v. United States 390 U.S. 85 (1968) United States v. United States Coin & Currency 401 U.S. 715 (1971)

AuthorLeonard W. Levy
Pages1670

Page 1670

In Marchetti and Grosso the Supreme Court, in opinions by Justice JOHN MARSHALL HARLAN from which only Chief Justice EARL WARREN dissented, held that the RIGHT AGAINST SELF-INCRIMINATION constituted an ironclad defense against a criminal prosecution for failure to register as a gambler pursuant to federal gambling statutes or to pay federal occupational and EXCISE TAXES on gambling. The Court overruled United States v. Kahriger (1953) and Lewis v. United States (1955), which had held that the Fifth Amendment right could not be asserted by professional gamblers because the federal gambling laws did not compel self-incrimination. In those earlier cases the Court reasoned that the right was inapplicable to prospective acts: a gambler had the initial choice of deciding whether to continue gambling at the price of surrendering his right against self-incrimination, or cease gambling and thereby avoid the need to register and pay the taxes. In 1968 the Court found its earlier reasoning "no longer persuasive."

Justice Harlan explained how the statutes worked. A gambler had an obligation to register annually with the Internal Revenue Service as one engaged in the business of accepting wagers. He paid a $50 occupational tax plus an excise tax of ten percent on the gross amount of all bets. He had to keep daily records of all bets and reveal those records to IRS inspectors. The issue posed by such congressional requirements was not whether the United States may tax gambling, for the unlawfulness of an activity did not preclude its taxation. The issue, rather, was whether the registration, record-keeping, and tax provisions whipsawed gamblers into confessing criminal activities. Federal and state laws made gambling illegal, and the IRS made available to law enforcement agencies the identities of those who complied with the gambling...

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