Grosso v. United States, 390 U.S. 62 (1968)

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Author: Justice Harlan

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Grosso v. United States, 390 U.S. 62 (1968)

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 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, § 4601607 (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 whether payment of the excise tax would have provided information incriminating to petitioner, and, if it would have done so, whether petitioner is otherwise prevented from asserting the constitutional privilege.

The statutory scheme by which wagering is taxed is described in Marchetti, supra. Two additional observations are, however, required in order to assess fully the hazards of self-incrimination created by the wagering excise tax. First, those liable for payment of that tax are required to submit each month Internal Revenue Service Form 730. Treas.Reg. § 44.6011(a)-1(a). The return is expressly designed for the use only of those engaged in the wagering business; its submission, and the replies demanded by each of its questions, evidence in the most direct fashion the fact of the taxpayer’s wagering activities. Although failures to pay the excise tax and to file a return are separately punishable under 26 U.S.C. § 723, the two obligations must be considered inseparable for purposes of measuring the hazards of self-incrimination which might stem from payment of the excise tax. Nothing in the pertinent statutes or regulations contemplates payment of the tax without submission of the return,{2} and we are informed by the United States that, if the return does not accompany the tax payment, "the money is not accepted." Brief for the United States on Reargument 39, n. 35. We must conclude that here, as in Albertson, the validity under the Constitution of criminal prosecutions for willful failure to pay the excise tax may properly be determined only after assessment of the hazards of incrimination which would result from "literal and full compliance" with all the statutory requirements. 382 U.S. at 78.

Second, although there is no statutory instruction, as there is for the occupational tax, that state and local prosecuting officers be provided listings of those who have paid the excise tax, neither has Congress imposed explicit restrictions upon the use of information obtained as a consequence of payment of the tax. Moreover, it appears that the Revenue Service, evidently acting under the authority of certain general statutory provisions,{3} has undertaken to tender this information to interested prosecuting authorities.{4} We can only conclude that those liable for payment of the excise tax reasonably may expect that information obtainable from its payment, or from submission of Form 730, will ultimately be proffered to state and federal prosecuting officers.

In these circumstances, it would be impossible to say that the hazards of incrimination which stem from the obligation to pay the excise tax and to file Form 730 are "imaginary and unsubstantial." Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599-600. The criminal penalties for wagering with which petitioner is threatened are scarcely "remote possibilities out of the ordinary course of law," Heike v. United States, 227 U.S. 131, 144; yet he is obliged, on pain of criminal prosecution, to provide information which would readily incriminate him, and which he may reasonably expect would be provided to prosecuting authorities. These hazards of incrimination can only be characterized as "real and appreciable." Reg. v. Boyes, supra, at 330; Brown v. Walker, supra, at 599-600. Moreover, unlike the income tax return at issue in United States v. Sullivan, 274 U.S. 259, petitioner’s submission of an excise tax payment, and his replies to the questions on the attendant return, would directly and unavoidably have served to incriminate him; his claim of privilege as to the entire tax payment procedure was therefore neither "extreme" nor "extravagant." Compare id. at 263.

We are thus obliged to inquire whether petitioner is otherwise foreclosed from asserting the constitutional privilege. For reasons indicated in Marchetti, supra, we have found nothing in United States v. Kahriger, 345 U.S. 22, or Lewis v. United States, 348 U.S. 419, which now warrants the exclusion of this situation from the privilege’s protection.{5} It need only be added that the requirements associated with the excise tax are directed wholly to past and present wagering activities; they lack even the illusory prospectivity which characterizes the special occupational tax and registration requirements.

Similarly, we have concluded that the "required records" doctrine, Shapiro v. United States, 335 U.S. 1, cannot be appropriately applied to these circumstances. See generally Marchetti v. United States, supra. The premises of the doctrine, as it is described in Shapiro, are evidently three: first, the purposes of the United States’ inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept, and third, the records themselves must have assumed "public aspects" which render them at least analogous to public documents. There is no need, for present purposes, to examine the relative significance of these three factors, or to undertake to define more specifically their incidents, for both the first and third factors are plainly absent from this case.

Here, as in Marchetti, the statutory obligations are directed almost exclusively to individuals inherently suspect of criminal activities. The principal interest of the United States must be assumed to be the collection of revenue, and not the prosecution of gamblers, United States v. Calamaro, 354 U.S. 351, 358; but we cannot ignore either the characteristics of the activities about which information is sought or the composition of the group to which the inquiries are made. These collateral circumstances, in combination with Congress’ apparent wish that any information obtained as a consequence of the wagering taxes be made available to prosecuting authorities, readily suffice to distinguish these requirements from those at issue in Shapiro. Moreover, the information demanded here lacks every characteristic of a public document. No doubt it is desired by the United States, but we have concluded, for reasons indicated in Marchetti, that this alone does not render information "public," and thus does not deprive it of constitutional protection.

We must note that the pertinent Treasury regulations provide that the replies to the questions included on Form 730 are to be compiled each month "from the daily records required by §§ 44.4403-1 and 44.6001-1." Treas.Reg. § 44.6011(a)-1(a). It might therefore be argued that Form 730 is merely a monthly abstract of records essentially similar to those required to be preserved by the regulations in Shapiro. The difficulties with this argument are two. First, it is scarcely plain that the records required here are "of the same kind [the taxpayer] has customarily kept." 335 U.S. at 5, n. 3. Second, and more important, there are, as we have indicated, other points of significant dissimilarity between this situation and that in Shapiro. We have concluded that, in combination, these points of difference preclude any appropriate application to these circumstances of the "required records" doctrine.

Finally, as in Marchetti, we have been urged by the United States to permit continued enforcement of the wagering excise tax requirements by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of payment of the tax. We recognize that § 6107 (see Marchetti, supra at 59, n. 15) is not, by its terms, applicable to the excise tax, and that there is no similar statutory obligation that the Commissioner provide prosecutors with listings of those who have paid the excise tax. Nonetheless, it would be inappropriate to impose such restrictions upon one portion of a statutory system, when we have concluded that it would be improper, for reasons discussed in Marchetti, to do so upon "an integral part"{6} of the same system. We therefore decline to impose the restrictions urged by the United States.

II

There remain for disposition the substantive counts for willful failure to pay the occupational tax, and the count for conspiracy to defraud.{7} The latter was bottomed on allegations that petitioner had conspired to evade payment both of the excise tax and of the occupational tax. Petitioner has consistently contended that the constitutional privilege should have prevented his conviction on the conspiracy count, evidently on the basis that, insofar as it is founded on his failure to pay the excise tax, this count raises questions identical with those presented by the substantive counts for failure to pay that tax. We agree, and conclude that a taxpayer may not be convicted of conspiracy to evade payment of the tax, if the constitutional privilege would properly prevent his conviction for willful failure to pay it. Cf. Marchetti v. United States, supra at 60-61.

Petitioner has not, however, asserted a claim of privilege either as to the counts which charged willful failure to pay the occupational tax or as to the allegation that he conspired to evade payment of the occupational tax.{8} Given the decisions of this Court in Kahriger and Lewis, supra, which were on the books at the time of petitioner’s trial, and left untouched by Albertson v. SACB, supra, we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege. By the same token, we do not think that we can well reach these counts on the theory of "plain error."

It might, therefore, be thought that the proper disposition of the substantive occupational tax counts, and of the portion of the conspiracy count concerned with the occupational tax, would be to vacate, rather than to reverse, the judgments of conviction, and to return the case to the lower courts for further proceedings consistent with our opinions in this case and in Marchetti.

We think, however, that a different course is indicated. Under 28 U.S.C. § 2106,{9} we have power to dispose of this case "as may be just under the circumstances." See Yates v. United States, 354 U.S. 298, 327-331. Since the record is barren of any evidence on which a finding of waiver of the privilege against self-incrimination might properly be predicated, and since, absent such a waiver, reversal of the conviction would be inevitable in light of our holdings today in this case and in Marchetti, we consider that the entire case should now be finally disposed of at this level. In the special circumstances presented, this course seems to us to be dictated by considerations of sound judicial administration, in order to obviate further and entirely unnecessary proceedings below.{10} Cf. Yates v. United States, supra.

Accordingly, the judgment of the Court of Appeals is reversed in its entirety.

It is so ordered.

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

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?

2. Indeed, so far as the pertinent materials can be said to reflect any position, it is that a return must accompany a tax payment. See 26 U.S.C. § 6011; Treas.Reg. § 44.6011(a)-1(a).

3. The United States has suggested that the Commissioner has authority to make information obtained as a result of the excise tax available to prosecuting officers under 26 U.S.C. § 6103, 5 U.S.C. §§ 22, 1002(c) and Treas.Reg. §§ 601.702(a)(3) and (d). Brief for the United States on the original argument, p. 14, n. 10. But see Transcript of Record 101-102.

4. See State v. Mills, 229 La. 758, 86 So.2d 895; State v. Baum, 230 La. 247, 88 So.2d 209; Boynton v. State, 75 So.2d 211, 213; United States v. Whiting, 311 F.2d 191, 193. And see Caplin, The Gambling Business and Federal Taxes, 8 Crime & Delin. 371, 372. Further, we note that the United States has acknowledged the "limited availability" of the excise tax returns, "in certain circumstances" to state and local officials. Brief on Reargument 33, n. 30.

5. It is useful to note that the validity under the Fifth Amendment of the wagering excise tax was not at issue in either Kahriger or Lewis; Lewis involved an information which charged a willful failure to pay the occupational tax, and Kahriger an information which charged willful failures both to register and to pay the occupational tax.

6. H.R.Rep. No. 586, 82d Cong., 1st Sess., 60.

7. Section 4411 provides that the occupational tax must be paid "by each person who is liable for tax under section 4401" and by each person who receives wagers for one liable under § 4401. It might therefore be argued that, since petitioner is entitled to claim the constitutional privilege in defense of a prosecution for willful failure to pay the excise tax, he is thereby freed from liability for the occupational tax. We cannot accept such an argument. We do not hold today either that the excise tax is, as such, constitutionally impermissible, or that a proper claim of privilege extinguishes liability for taxation; we hold only that such a claim of privilege precludes a criminal conviction premised on failure to pay the tax.

8. It should be noted that petitioner’s trial counsel did once assert, in colloquy with the trial judge, that

We contended and have always contended -- and, if required to go on appeal, will continue to contend -- that the requirements of this Act in requiring you to pay this excise tax and take out the stamp are a violation of the privilege against self incrimination.

The court then inquired, "You are raising the Constitutional question of the validity of the law?" Petitioner’s counsel replied, "That is right." Transcript of Record 33. Petitioner did not, however, challenge his obligation to pay the occupational tax either in any of his various motions or in any of his other arguments, here or in the courts below.

9. Section 2106 provides that

The Supreme Court . . . may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

10. In light of this disposition, we find it unnecessary to reach petitioner’s alternative contention, that conduct of the trial judge after submission of the case to the jury prevented a fair trial.

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Chicago: Harlan, "Harlan, J., Lead Opinion," Grosso v. United States, 390 U.S. 62 (1968) in 390 U.S. 62 390 U.S. 64–390 U.S. 72. Original Sources, accessed August 22, 2019, http://www.originalsources.com/Document.aspx?DocID=QC7FIWK77DQ6YSD.

MLA: Harlan. "Harlan, J., Lead Opinion." Grosso v. United States, 390 U.S. 62 (1968), in 390 U.S. 62, pp. 390 U.S. 64–390 U.S. 72. Original Sources. 22 Aug. 2019. www.originalsources.com/Document.aspx?DocID=QC7FIWK77DQ6YSD.

Harvard: Harlan, 'Harlan, J., Lead Opinion' in Grosso v. United States, 390 U.S. 62 (1968). cited in 1968, 390 U.S. 62, pp.390 U.S. 64–390 U.S. 72. Original Sources, retrieved 22 August 2019, from http://www.originalsources.com/Document.aspx?DocID=QC7FIWK77DQ6YSD.