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)

inMarchetti 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 statutes. Gamblers therefore confronted substantial hazards of self-incrimination. On pain of punishment for not complying, they had to provide prosecutors with evidence of their guilt.

Marchetti was convicted of failing to register and pay the occupational tax, Grosso for failing to pay that tax and the excises. Reversing their convictions, the Court distinguished their cases from those in which a criminal had failed to file income tax returns for fear of self-incrimination and another in which the government had required record keeping from persons not engaged in an inherently suspect activity. The mere filing of a tax return, required of all, or the failure to keep routine business records did not identify anyone as a suspect of a crime. In Haynes, the Court ruled that a person possessing a sawedoff shotgun is suspect and therefore cannot be compelled to register his weapon, under the National Firearms Act, because of the hazard of self-incrimination. In United States Coin & Currency a 5–4 Court applied the Marchetti reasoning to a forfeiture proceeding involving property used to violate federal gambling laws.

Leonard W. Levy
(1986)