Grosso v. United States

RESPONDENT: United States
LOCATION: Red Lion Broadcasting

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 390 US 62 (1968)
ARGUED: Jan 18, 1967
REARGUED: Oct 10, 1967 / Oct 11, 1967
DECIDED: Jan 29, 1968

Charles Alan Wright - argued and reargued for the petitioner
Francis X. Beytagh, Jr. - argued and reargued for the United States, reargued the cause for the United States, pro hac vice

Facts of the case


Media for Grosso v. United States

Audio Transcription for Oral Reargument - October 10, 1967 in Grosso v. United States
Audio Transcription for Oral Reargument - October 11, 1967 in Grosso v. United States

Audio Transcription for Oral Argument - January 18, 1967 in Grosso v. United States

Earl Warren:

Number 181, Anthony M. Grosso versus United States.

Mr. Wright.

Charles Alan Wright:

Mr. Chief Justice, may it please the Court.

The first of the issue as presented by Number 181 carries on the inquiry the Court has been making yesterday afternoon and today about wagering taxes.

My client is convicted on 20 counts for involving the occupational tax and wagers and 16 involving the excise tax and wagers.

He was sentenced by Judge Foley to nine years, the fine of $191,000 for these violations.

I'd suppose that our case differed from Marchetti and that with regard to the Fifth Amendment point we are attacking only the excise tax counts.

We're not attacking here the occupational tax count.

And in our submission, the excise tax is invalid whatever maybe the disposition of Kahriger and Lewis in the occupational tax because of our reading in Kahriger and Lewis is turning on the fact that the occupational tax looks to future Acts while the excise tax unequivocally looks to the past.

Potter Stewart:

Mr. Wright just for curiosity, why aren't you attacking the -- the stamp -- the registering tax --

Charles Alan Wright:

Because Mr. Justice Stewart, on my record I can't.

The record was not made in the trial court at the time this indictment came down before Albertson, before I believe Malloy, there was no reason to think the Court might overrule Kahriger and so the --

Potter Stewart:

And so just a motion raised against --

Charles Alan Wright:

Yes, sir.

Potter Stewart:

-- in a timely fashion.

Charles Alan Wright:

Whereas it -- it had been raised below.

I assure you sir that we would be attacking it also.

We think that the perspective nature of the occupational tax was the basis of Kahriger but I understand Mr. Beytagh arguing for the United States a few moments ago, to say that the United States does not rest on that as a justification of Kahriger-Lewis cases and he puts the argument now as -- as an understanding on the thought which is voiced primarily in Lewis case of the voluntary nature of the testimony which is required that since the person may get out of the gambling business.

He is under no compulsion to gamble, therefore under no compulsion to pay tax on gambling.

Now, this line of argument of course, would apply as much to the excise tax as it does to the occupational tax and I've -- we'll get back and -- and comment on that in a moment but at the outset, I would like to address myself to a question which the Chief Justice put yesterday afternoon to Mr. Zeldes in which he inquired about a hypothetical federal tax on bucket shops whether that would raise the same problems as are involved here.

It seems to me that the Chief Justice's question was susceptible of two readings.

If the tax, the Chief Justice had in mind was a tax specifically on the occupation of running a bucket shop then my answer would be the same as Mr. Zeldes gave.

I would find it quiet indistinguishable from the taxes we have here.

But I think that perhaps what the Chief Justice had in mind was a different kind of tax.

A Federal Tax, let us say, when every person engaged in the securities business and someone so engaged refuses to pay up because he is in fact running a bucket shop and the form saying that he is in the securities business might be a link in the chain of evidence that would convict him.

I think that the -- if -- if that is the question the Chief Justice intended, it raises extremely important and interesting problems as to the basic theory of the privilege against self-incrimination and specifically, what kinds of compelled testimony are incriminating.

Now, the test announced by this Court in the Hoffman case and that quoted many times since has been linked in a chain.

But I'm perfectly confident, but the courts never supposed that an important and settled constitutional principle can be expressed in a forcible phrase.

If one goes back to Hoffman itself, though the link in the chain language is used.

The Court also speaks of working to the implications of the question, the setting in which it is asked, the background and the peculiarities of the case.