Marchetti v. United States – Oral Argument – January 18, 1967

Media for Marchetti v. United States

Audio Transcription for Oral Argument – January 17, 1967 in Marchetti v. United States
Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Earl Warren:

James Marchetti, Petitioner, versus United States.

Mr. Zeldes, you may continue your argument.

Jacob D. Zeldes:

Thank you Mr. Chief Justice, may it please the Court.

One more block in the Kahriger-Lewis foundation I believe deserves mention.

In the Kahriger case the Court said, the privilege has relation to past acts only and not to future acts that may or may not occur.

This we think is basically unsound in this context.

First of all, it came solely from a citation in Wigmore and the background material in Wigmore demonstrates that it really has no application to this context.

For what Wigmore was talking about were occupation such as — and this are the examples he mentioned pawn brokers and drugers who had to refer to certain licensing and reporting obligations.

Nothing of the nature here involved where the activity is so fundamentally illegal.

I think another aspect to this that varies mentioned is that no court prior to this Court’s decision in Kahriger in any way stood and upheld the principle that is born out in the Wigmore generalization.

So the recent cases of this Court if Your Honor please, undercut the foundations of Kahriger and Lewis.

The Government offers no basis to show how these rationales of Kahriger and Lewis are consistent with the doctrine of the Fifth Amendment as it’s now known.

I’m well aware of course that the members of the Court have been decided on certain issues relating to the Fifth Amendment divided on certain issues related to the Fifth Amendment.

But nothing in the recent disents in Garrity and Spevack or Malloy, suggest that there’s any vitality left to the Kahriger and Lewis cases.

From a common practical everyday point of view, what do we have with this tax?

We have a wagering tax which the United States says, cannot pay for itself.

In other words, it cost more to enforce it than it nets the Government.

And we have it working as a squeezing device on the citizens.

The citizen has the choice to comply or to defy the wagering tax law.

If he complies with the wagering tax law, he puts himself in a state jail.

If he defies the wagering tax law, he puts himself into a federal jail.

It seems to me Your Honor this is fundamentally opposed to the whole concept of the Fifth Amendment.

Almost as if in accord with that notion, the Government spends very little time attempting to bolster Kahriger and Lewis.

What the Government does if Your Honors please, is offer to this Court as an alternative, the suggestion that there need not be invalidation of these tax statutes.

What does the Government say?

The Government says assuming that these statutes are unconstitutionally violative of the privilege.

There is no need here to uphold the traditional right to silence which is the backbone of the Fifth Amendment.

Rather says the Government, “Leave the tax statute standing but exclude from evidence anything that comes from the tax laws so that there is no possibility of incrimination in the future.”

What the Government then says is we must have an exclusionary rule, down with the concept of silence which is so fundamental with the Fifth Amendment right and up with the concept of an exclusionary rule.

As a basis for this rule, the Government relies almost exclusively on Murphy versus the Waterfront.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Jacob D. Zeldes:

And I think that that case must be put in context to show why the exclusionary rule that the Government relies upon has no real application.

In the Murphy case if Your Honor please, the concept of dual sovereignty was overturned by this Court.

After that was done, the Court then faced this problem and it said it quite specifically, we must now decide what effect our abandonment of dual sovereignty has on the state immunity statute.

For in the Murphy case, unlike situation in the case at bar there were state immunity statutes involved.

The witnesses had been afforded immunity by the States of New Jersey and the State of New York which were there involved.

So the sole issue in the case involved in Murphy was how do we rule in connection with the immunity statute.

The Court had two alternatives that faced it.

If the Court would have said, “Alright, we will uphold the traditional right to silence”, which is the basis of the Fifth Amendment, that would have in effect invalidated all state immunity statutes because it was fundamental that the states could not extend immunity from federal prosecution.

On the other hand, if the Court would have expanded the doctrine of immunity, it would have run completely afoul with the supremacy clause since its fundamental where the states cannot extend to federal prosecution, immunity from prosecution.

So the result in that peculiar circumstances where immunity statutes were an issue was to fashion this exclusionary rule.

But the exclusionary rule has no application here because of the lack of the immunity legislation.

I think perhaps the case that most clearly demonstrates this is Malloy versus Hogan, decided the very day as Murphy.

In the Malloy case, there was no immunity statute and the Court upheld the traditional right to silence in reversing and they did not fashion an immunity statute.

So for these reasons if Your Honor please, we think that the immunity alternative, immunity from use, that the Government proposes is not a meaningful one and that the traditional right to silence in this Fifth Amendment area should be upheld.

We think that Kahriger and Lewis were wrongly decided and that recent decisions of this Court clearly emphasize that.

And for these reasons, we respectfully request that this Court reverse the judgment of the Court of Appeals.

Earl Warren:

Mr. Zeldes, I noticed the briefs that there were 7200 and some persons who had registered under this Act.

I wondered if there any records to show how many of these people were tried and convicted in state courts as a result of having registered.

Is there any basis — any —

Jacob D. Zeldes:

I know of no statistical summaries of that nature Your Honor.

Earl Warren:

I see.

Jacob D. Zeldes:

The Government may have some private information to that effect.

I would however point out the Court at page 7 of my brief, I have catalogued some of the cases, a good number of them where the subsequent state conviction was predicated at least in part upon the compliance with the federal wagering tax laws.

And there they’re listed as I count them about 10 or 12 convictions.

I have no doubt that that’s used widely in — throughout the country.

Earl Warren:

Very well.

Mr. Beytagh.

Francis X. Beytagh, Jr.:

Mr. Chief Justice and may it please the Court.

In the Government’s view what this in the related cases really involved is whether gamblers can refuse to pay a tax because the business — their engagement is illegal.

Petitioner in this case as has been pointed out was convicted for failing to register as required under the federal wagering tax laws and also for failure to pay the special occupational tax, $50 tax, on those engaged in the business of accepting wagers.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

On the companion Grosso case which we’ll be argued subsequently, the petitioner was convicted for failure to pay the 10% excise tax on grocery receipts from wagering.

I don’t think that I have to deal at length with the fact that professional gambling is one of the largest business enterprises in this country.

And although gamblers gross many billions of dollars per year, it’s common knowledge that they pay very little on taxes.

Now, they’re of course — they are of course subject to income taxation but obviously collection is very difficult because of the nature of their operations.

Unlike many other businesses, gambling has been subjected by Congress to an excise tax, a wagering tax that’s here at issue.

This tax as the Court well knows was upheld by this Court over constitutional attack in the Kahriger and Lewis cases decided in 1953 and 1955.

Certiorari was granted in this case, limited to the question whether in light of this Court’s decision last term, in Albertson versus Subversive Activities Control Board, Kahriger and Lewis should be overruled.

Hugo L. Black:

Kahriger or both?

Francis X. Beytagh, Jr.:

For the reference I think in the grant was to Kahriger and Lewis Your Honor.

Hugo L. Black:

Can you see any distinction between the questions in the two cases?

Francis X. Beytagh, Jr.:

No, Your Honor.

In our view, those cases properly considered and properly construed are still good law.

Should the Court disagree however and find merit in petitioner’s Fifth Amendment contentions we suggest that the appropriate result here would be to uphold the wagering tax laws while adopting a rule prohibiting the use of any information disclosed as a result of compliance with those laws, in any subsequent criminal prosecution.

Before discussing Kahriger and Lewis in the context of Albertson, which is of course the central issue here, I would like to touch briefly on our view of the substance of the constitutional claim asserted by petitioners in this — in the related cases.

They don’t deny that they’re gamblers.

Indeed, that’s essential to their constitutional contention.

They don’t assert that the wagering tax is not a tax major, they slap at it occasionally.

Such a position, I think they recognize would fly squarely in the face of this Court’s limited grant of certiorari.

And they don’t deny that under the wagering tax laws, they were required to register as being engaged in the business for accepting wagers and we’re required to pay the prescribed taxes.

What they say however is this.

They say that they’re excused from compliance with the wagering tax laws because of the Fifth Amendment.

Since gambling is illegal under the laws of most states, compliance with the wagering tax laws they assert would require them to incriminate themselves.

This they say they can’t be compelled to do, since the Fifth Amendment’s privilege against self-incrimination is now under this Court’s decision in Malloy versus Hogan fully applicable to the states.

In petitioner’s view in short, state law has the effect of limiting the federal tax problem.

Thus they conclude they cannot be prosecuted for failure to register, file a return to pay the taxes.

As against the statutory requirements, what they essentially assert is the right to remain silent or right to go on with their business in privacy.

Abe Fortas:

Would it take some — on robbers, thieves, receivers of stolen drugs, that’s all it takes to be a — in the requirement that they register that those be constitutional?

Francis X. Beytagh, Jr.:

I doubt it Your Honor.

Abe Fortas:

Why?

What’s the difference?

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

It seems to me that under those circumstances, the engagement in that activity can hardly be regarded as an ongoing, continuing sort of business in the same sense that gambling is.

As this Court pointed out in the Reiken (ph) case and Mr. Justice Black said in the dissent there that gambling and activities like that are recognized, it’s ongoing businesses whereas —

Abe Fortas:

Supposed who is — I supposed you could say the same receiving stolen property, receiving and disposing of stolen property.

How about receiving and disposing of automobiles?

I gather from my detective story reading that there are people who are engaged in receiving and disposing of stolen property, (Inaudible), I think they’re called.

Francis X. Beytagh, Jr.:

Well, I think those questions are difficult and have to — would have to be resolved with respect to each individual situation.

Abe Fortas:

It doesn’t — why would — why do you have any doubt about it and is that because of the Fifth Amendment or because of —

Francis X. Beytagh, Jr.:

This —

Abe Fortas:

— limitations on the federal tax law.

Francis X. Beytagh, Jr.:

I think it’s more because of the limitations on the federal tax power and in —

Abe Fortas:

I mean, why can the federal tax power extend the business of receiving wagers and not to the business of receiving stolen property?

Why wouldn’t this be an easy way to deal with the narcotics trade?

It seems to be difficult to find and get evidence on those people.

Why can’t the Federal Government just pass a statute and say that everybody who uses narcotics, or everybody in needs, in the business of selling narcotics has to register and then that the — doesn’t register — and has to buy tax stamp and if he doesn’t do so, he go to jail.

Why not a simple and easy way that any child can master to put an end to the narcotics trade at least in the sense of — I think — and easy to put people in jail.

Francis X. Beytagh, Jr.:

Well, if the purpose is to put an end to the narcotics trade and not to obtain revenue, then a question is raised as to the propriety of the exercise by Congress of the powers it (Voice Overlap) —

Abe Fortas:

Well, unless you and I have an understanding as to what’s fiction and what’s fact and legal fiction which I accept is that the purpose of this statute is to raise revenue but let’s don’t say that that’s it’s a real social purpose, it’s real social purposes are not right at gambling that we should go in from there on that kind.

Similarly, the — this case I put to you, the purpose of the narcotics tax and registration requirement would be to strike a blow at narcotics.

It would also in illegal purposes raise revenue which I doubt would be adequate for all of our national purposes.

And what’s the distinction of that?

Francis X. Beytagh, Jr.:

With all —

Abe Fortas:

Can you see it?

Francis X. Beytagh, Jr.:

With all deference Your Honor, when I first get involved in looking into these cases, I had the same attitude that you have.

Abe Fortas:

This is not an attitude, it’s a question.

And —

Francis X. Beytagh, Jr.:

But —

Abe Fortas:

— it will come out the other way.

Francis X. Beytagh, Jr.:

Well, if you look at the legislative history of this thing, and the one at the background of its enactment, there really were people in Congress that thought it was going to provide revenue and they were concerned about the problem of gambling being increasingly large enterprise that didn’t pay a substantial amount of taxes.

Abe Fortas:

Then why did they ask more of these questions?

Francis X. Beytagh, Jr.:

Pardon me?

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Abe Fortas:

Why do they ask him questions in form about — are you — who are your employees, and Mr. — employees and that sort of thing?

Francis X. Beytagh, Jr.:

One of the reasons for asking about employees is that the employers are supposed to have a stamp also.

Abe Fortas:

Well, in the (Voice Overlap) —

Francis X. Beytagh, Jr.:

I don’t know.

Abe Fortas:

I don’t want to pursue that line of inquiry with it — you, because you’d never persuade me with that one but what is the distinction —

Francis X. Beytagh, Jr.:

No, in all candor —

Abe Fortas:

Are you still — are you still taking the position that it would not be lawful for the Congress to enact this exactly the same kind of law and apply it to people engaged in the narcotics business?

Francis X. Beytagh, Jr.:

Well, there are similar laws that relate to people in the narcotics business.

Abe Fortas:

I know that, but here is (Inaudible).

Francis X. Beytagh, Jr.:

And —

Abe Fortas:

And how about this tax stamp in the registration technique?

Francis X. Beytagh, Jr.:

I think it depends Your Honor on an assessment of the business-like nature of what’s going on here, whether it’s legal or illegal.

I think all of these taxes are close to the borderline with respect to the propriety of the exercised power by Congress.

And the — that the prior cases on taxes like this have involved this Court’s opinions, have involved the discussion of this consideration.

Some deference I think must be given to the congressional judgment, that the matter is an appropriate one to tax.

Now the farther away you get it seems to me from a legitimate business activity or business activity that goes on a substantial proportion so that Congress could make a judgment that it would produce some revenue, the more questionable the exercise gets.

And at some point, I suppose that the power as you serve.

Hugo L. Black:

Do you think that the Government could impo — both impose and collect tax on gambling without requiring registration?

Francis X. Beytagh, Jr.:

I — well, the — simply could impose it.

I think it would be more difficult to collect the tax.

The purpose of registration which is a fairly common provision in most excised tax situations is to assist the Government in identifying the people that are required to pay the tax, so as to assist in the enforcement of it.

If there was no registration requirement here, but there was a tax, it seems to me that some taxes still continue to be collected but enforcement would be made more difficult.

Hugo L. Black:

Do you see a real difference seeing how the Government to do those two things, to collect the tax on gambling and to require the person who’s engaged in gambling to (Inaudible) it?

Francis X. Beytagh, Jr.:

If you assume that the Government can collect the tax and require compliance with the tax laws which won’t in any sense run afoul with the Fifth Amendment then I think there’s a difference.

But if you say that the registration provision causes serious Fifth Amendment problems —

Hugo L. Black:

Causes what?

Francis X. Beytagh, Jr.:

Serious Fifth Amendment problems, then — problems of incrimination.

You can make distinction but I think that it’s — I think it somewhat difficult to make distinctions which would uphold the power to tax without allowing Congress to impose reasonable incidence to the exercise of that power such as the —

Hugo L. Black:

Wasn’t it — was that one of the — it seem to be what Mr. Justice Holmes was holding in his original case by —

Francis X. Beytagh, Jr.:

In the Sullivan —

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Hugo L. Black:

(Inaudible) in this question here.

Francis X. Beytagh, Jr.:

In the Sullivan case?

Hugo L. Black:

Yes.

Francis X. Beytagh, Jr.:

The holding of Sullivan is — as we view it simply that the Fifth Amendment doesn’t excuse one in failing to file an income tax return at all.

Hugo L. Black:

You don’t see anything in it that indicates the difference in what a man has to admit and what he doesn’t?

Francis X. Beytagh, Jr.:

Yes.

I see some differences Your Honor.

Hugo L. Black:

He drew it, didn’t he?

Francis X. Beytagh, Jr.:

Well —

Hugo L. Black:

It seems to me like he drew it pretty clearly.

Francis X. Beytagh, Jr.:

What Sullivan says is as we read it, is that the Government can compel a person to comply with the income tax law —

Hugo L. Black:

To pay the law — the tax.

Francis X. Beytagh, Jr.:

To pay the tax.

Hugo L. Black:

Pay the tax

Francis X. Beytagh, Jr.:

And —

Hugo L. Black:

Does it require — does it say anything — hold anything else?

Francis X. Beytagh, Jr.:

And file a return.

Hugo L. Black:

Well, file a return but it say, he’s got to say he got it from gambling?

Francis X. Beytagh, Jr.:

No, it doesn’t get to that question.

Hugo L. Black:

You’re rather careful if you refer it from the —

Francis X. Beytagh, Jr.:

Well, that question wasn’t involved in Sullivan.

Hugo L. Black:

It seems to me like it’s involved, doesn’t it?

Francis X. Beytagh, Jr.:

No, well the prosecution was for failure to file a return.

And he said —

Hugo L. Black:

But the return — they required them to confess to something, didn’t they?

Francis X. Beytagh, Jr.:

Well, it may or it may not have depending on — you know what this guy had been doing there.

I think he had some income from illegal liquor activities as I recall.

Hugo L. Black:

Illegal sale of whisky?

Francis X. Beytagh, Jr.:

Yes.

Hugo L. Black:

And there is of course a very decisive distinction between a law which requires you to confess, you may have committed a crime.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Hugo L. Black:

A law which could — requires you to report to the Government that you owe it so much taxes.

Francis X. Beytagh, Jr.:

Well, part of the law that we have here, the —

Hugo L. Black:

I know it’s a part of it but —

Francis X. Beytagh, Jr.:

The aspect —

Hugo L. Black:

— all of it might not be valid and some of it might.

Francis X. Beytagh, Jr.:

Well I think that — that’s a distinction that we suggest in our briefs that the question is involved in the subsequent case more probably because that is the nonpayment situation.

Before turning to our argument, I should mention as a — just refer that — since nonpayment of the excise tax is involved in the subsequent Grosso case, I shall — may confine any further discussion here to the non-registration, nonpayment of the occupational tax.

I should add that registration and payment of this occupational tax really a — one identical act.

You register, you file a return and pay the $50 at one time and get the stamp back.

William J. Brennan, Jr.:

Well, Mr. Beytagh, in Albertson, in dealing with Sullivan and the part of your distinction as to claim the — and inform that the basis of that (Inaudible) in Sullivan the questions that they used from is (Inaudible) distinction is the same as to the (Inaudible)?

Francis X. Beytagh, Jr.:

Well what —

William J. Brennan, Jr.:

The question is directed in the (Inaudible).

Francis X. Beytagh, Jr.:

Now, the registration form or the —

William J. Brennan, Jr.:

Yes.

Francis X. Beytagh, Jr.:

— or the tax of the excise tax return form?

William J. Brennan, Jr.:

Both.

Francis X. Beytagh, Jr.:

Both.

I think it’s fair to say that we concede that the registration form requires a greater amount of potentially incriminating information.

William J. Brennan, Jr.:

Now, would it be accurate to say as in the case (Inaudible) that the pervasive effect of the (Inaudible) is limited.

Francis X. Beytagh, Jr.:

I don’t know whether you say the pervasive effect is there — there is more information called for and in that —

William J. Brennan, Jr.:

What is (Inaudible) on the form of the — is not obtained; (Inaudible) either admissions or (Inaudible) or provided means?

Francis X. Beytagh, Jr.:

Well, it depends —

William J. Brennan, Jr.:

Any — if any information that’s called for — doesn’t fall (Inaudible)?

Francis X. Beytagh, Jr.:

If the person that’s required to file is someone who under — in his state is engaging in activities that are illegal, most of the questions on that form call for information that could be subsequently used against him in a criminal prosecution for gambling.

William J. Brennan, Jr.:

Well, if that — if that’s the (Inaudible)?

Francis X. Beytagh, Jr.:

We think that Kahriger and Lewis properly understood or are outside of Albertson but for several reasons as we developed in the briefs and now developed here.

It’s a difficult argument to make and obviously we wouldn’t have made the alternative argument have we been completely satisfied with our position.

William J. Brennan, Jr.:

The alternative would mean that you can get the information that you can’t use (Inaudible) —

Francis X. Beytagh, Jr.:

Yes.

William J. Brennan, Jr.:

— in a criminal prosecution.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

Yes.

William J. Brennan, Jr.:

Who can’t do this?

(Inaudible)

Francis X. Beytagh, Jr.:

Nobody.

William J. Brennan, Jr.:

And so does the states.

Francis X. Beytagh, Jr.:

State affirmed.

Unless they show that any information that was used came from a wholly independent source as Murphy —

You don’t undertake the (Inaudible)?

Francis X. Beytagh, Jr.:

I don’t think so Your Honor.

The way this case — these particular cases come up, I don’t think there’s a required records problem in them.

Now, there is a statutory requirement that’s amplified by regulation that requires the keeping of daily wagering records that are related to the excise tax.

In a situation in which you had some of these records kept and introduced, you may have a Shapiro situation, we don’t have it here.

I — we haven’t attempted to argue that the returns themselves are records.

There’s some indications at least in various opinions that things that you’re required to file and not keep as a business matter are not within the scope of the required records doctrine.

In our view as I stated Kahriger and Lewis correctly interpreted provide an acceptable rationale for decision here not undermined by Albertson.

Now one of the grounds for decision in Kahriger and mistakenly regarded in our view by some as the sole ground was that the registration required was prospective in operation, therefore there wasn’t any incrimination problem.

Hugo L. Black:

Do you stand on that argument?

Francis X. Beytagh, Jr.:

No Your Honor.

We do point out that the under the form now in used, and I should mention because this question came up yesterday.

The only reason we included the present form is because we didn’t know until we’d got into this case, they’d revised a thing.

We didn’t mean to intimate at all that this form was available and should’ve been used by petitioners here.

I don’t know what was available to them in Connecticut and I’m going to accept that the old form was, but it may be relevant to the Court that the revised form is in certain — pertinent respects different from the old.

This form bears a date of 1963 and was — and we requested from the Internal Revenue Service in forms the one that they provided to us is the one that’s now in used.

Hugo L. Black:

I suppose you would admit that the taxation of a business which is generally known to be criminal, rather a large part of the United States is rather far stretched from the general governmental idea that you’re attacking.

Business for the purpose of giving money and will not in anyway encourage the commission of crime.

Francis X. Beytagh, Jr.:

One of the problems that was involved in the enactment of this thing was Senator Kefauver’s strong opposition.

He kept pointing this out.

He said, this is an ill-conceived statute.

It’s ill-conceived because it looks like the Federal Government is authorizing or sanctioning in the engagement in the business of gambling and he opposed it throughout.

Now, it seems to me that his opposition is relevant.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

He was probably the person at that time in the Congress, most knowledgeable about organized gambling.

Congress enacted this along with the whole array of excise taxes to provide revenue for the Korean War problem.

And as I was discussing with Mr. Justice Fortas, in all candor, we — there are indication in the legislative history that Congress had more than a revenue purpose in mind.

But their indication’s the other way.

The tax —

Hugo L. Black:

Had there been any study made of any kind on the amount of money that United States Government gets out of taxing crimes, in connection with what it calls to collecting?

Francis X. Beytagh, Jr.:

I don’t know that any studies have been made as the petitioner refers — the commissioner of Internal Revenue at one point in time in 1961 stated that it cost more to collect this tax than the tax produced.

The tax has produced money.

It’s produced a hundred million dollars in the 15 years of its operation.

Hugo L. Black:

How much?

Francis X. Beytagh, Jr.:

One — about a hundred million dollars.

We don’t stand as I said on this prospective — retrospective distinction, but we think that this ground was neither the sole nor the primary one for decision in Kahriger and Lewis.

As the Court pointed out in those cases the registration requirement does not compel the individual to make incriminating disclosures in violation of the Fifth Amendment.

He has a clear and available choice as an initial matter as to whether they’re engaged or not engaged in a business of accepting wagers.

Just like anyone else considering going into a business, he has to decide for himself whether he’s going into the particular business and accept the conditions that are attached by Government to engaging them.

The time that this choice has made he knows that if he decides to accept wagers, he will be required to comply with the federal wagering tax laws.

There was a grace period at the beginning of the statute when it was enacted.

And indeed a lot of people for a time get out of the waging business because of the thing, because of the federal tax.

I think most of them have probably gotten back in.

So viewed, the requirements of those laws including registration and payment of the occupational tax are under Kahriger and Lewis, known conditions to the voluntary act of engaging in the business and this I should add was a construction given by Judge Friendly in the opinion below to this Court’s decisions in Kahriger and Lewis.

The Court stated in Kahriger, that a perspective gambler as merely informed by the statute, “That in order to engage in a business of wagering in the future, he must fulfill certain conditions.”

In Lewis, the Court said if petitioner desires to engage in an unlawful business, he does so only on his own volition.

The fact that he may elect to pay the tax and make the prescribed disclosures required by the Act is a matter of choice.

There’s nothing compulsory about it and consequently, there’s nothing violative of the Fifth Amendment.

The only compulsion under the Act is that requiring a decision which would be gamblers must make at the threshold.

Abe Fortas:

But isn’t that true in so many Fifth Amendment cases?

When you say that a school teacher does not teach school and therefore any kind of oath no matter how objection of what it is under this Court’s decisions in not compelled.

Which never explain that kind of situation in your present argument?

Francis X. Beytagh, Jr.:

Well, the problem that these people say they have is that gambling is illegal and they have to make an unconscionable choice between incriminating themselves if they comply with the federal law or getting themselves into criminal difficulty if they don’t comply.

Now it seems to me that in the teacher situation, you don’t have that.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

That teaching isn’t illegal.

And whether one deciding to go into teaching accepts certain of the incidents of that or not, it seems to me is a different question whether someone in a business regulated in tax by the Government accepts those conditions, they’re not —

Abe Fortas:

That argument can be run exactly in the opposite way, that is to say that in the tax — you’re taxing wagering and acceptance from wagering as a business.

What you’re saying here is that in order to engage in this business, the person has to make a disclosure and then the disclosure is a disclosure that he’s engaged in illegal activity.

So it couldn’t be argued that the compulsory force of the required disclosure is even greater than in the case that I put to you.

Francis X. Beytagh, Jr.:

No, but he’s got a chance to decide whether he wants to engage in gambling or not and this is one of the conditions that Government attaches to it.

That’s the substance of the point.

Petitioner doesn’t say that anyone forced into engaging in gambling and in our view is voluntary decision to do so results in his being required to register and pay the tax, whether in our view petitioner really seeks as a protective status for his business because of its illegality that in our view is not required by the Fifth Amendment.

Now getting to Albertson, we feel that Albertson can be reconciled with this analysis that are stated here in Kahriger and Lewis.

Now we realized that it could be said that Communist Party members had a period within which they could get out of the party.

And thus to that extent had a choice as to whether or not they would subject themselves to registration.

But under the facts of Albertson it’s clear that the petitioners there had no choice.

Specific orders of the board required them to register.

In addition, Communist Party membership without knowledge of its unlawful purposes or intent to further them as constitutionally protected under the First Amendment so that the compelling registration might have the effect of deterring lawful association.

We can perceive no such countervailing constitutional interest involved whether disclosure pertains not to speech or association with engagement in gambling.

Moreover here, the wagering tax registration requirement as we developed in our brief serves a valid governmental interest, incident to the exercise of a power separate and independent, power to tax, separate and independent for many specific interest in the underlying activity whether it’s legal or illegal.

Registration requirement in Kahriger is characterized as directly and intimately related to the collection of the tax and is obviously supportable in — as an aid of a revenue purpose.

It seems to us that that valid purpose serves to distinguish it from the registration provision involved in Albertson.

That provision as the Court pointed out, particularly in light of the board’s determination serve little purpose other than to require the revelation of incriminating information directly toward regulating the very activity which the registrants were required to admit activity in subversive organizations.

Earl Warren:

Did I understand you Mr. Beytagh to say that it would be questionable whether the Government could require registration and what they require in this situation in the case of narcotics.

In your account, we would — Mr. Justice Fortas?

Francis X. Beytagh, Jr.:

The narcotics laws in the registration of the tax provisions and related provisions have been upheld in several cases —

Earl Warren:

Yes.

Francis X. Beytagh, Jr.:

— by this Court.

In the sense that narcotics — engagement in narcotics is recognized as a business, I don’t think it has all of the similar indicia to businesses that gambling is — has obtained.

But not — no, I didn’t mean to infer that but I think that similar questions can be raised about the scope of the congressional power to — pursuant to the tax power to assess such things.

Hugo L. Black:

Is there any state that legalizes that business of narcotics?

Francis X. Beytagh, Jr.:

Not that I know of.

There are of course legal —

Hugo L. Black:

(Inaudible) difference, doesn’t it?

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Hugo L. Black:

Quite a difference in the Government going out to help the states enforce their policy which the constitution of the United States guarantees them to carry on and taking the absence of courts.

Francis X. Beytagh, Jr.:

Well, that it seems to me that’s a way to characterize the congressional activity.

The —

Hugo L. Black:

It’s authorizing something to be done, the great power of the Federal Government, which under the provision and the powers between the states and the nation belongs to the state to control, is it not?

Francis X. Beytagh, Jr.:

Well, nobody’s interfering with the state control.

These are narcotics or gambling but —

Hugo L. Black:

Well of course it interfered with the prohibition laws when the Federal Government licensed every bootleg in the United States and let them put it up in flaming colors in the place of the business, that they were licensed to sell it in (Inaudible) when the state law forbad it.

What harm would it do the Government to keep its hands on taxing things that it does not permit to be made illegal by the states?

Francis X. Beytagh, Jr.:

Well, you come very close to saying Your Honor that the state then can condition the federal taxing power by making illegal, those things —

Hugo L. Black:

No.

Francis X. Beytagh, Jr.:

— that wants to make a —

Hugo L. Black:

No.

You’re too done but you — you come down, now you’re saying that the Federal Government shouldn’t be running in opposition to the state in connection with the enforcement of governmental policies that the state rightfully think it has the power to regulate in those regulations.

Francis X. Beytagh, Jr.:

Well, I don’t know of any conflict between the Federal Government enforcing excise taxes on gambling and similar activities in the state prosecuting those activities.

Hugo L. Black:

Well, do you think its — there’s a difference in enforcing this federal law in the state that legalizes gambling and one which does not?

Francis X. Beytagh, Jr.:

A difference in enforcing that?

Hugo L. Black:

Yes, difference of the power.

Francis X. Beytagh, Jr.:

Well the — but —

Hugo L. Black:

Is it possible that the law not be valid in those states that permit gambling?

Francis X. Beytagh, Jr.:

It’s possible.

There — in Nevada at least that permit some aspects of gambling that are taxed here.

Hugo L. Black:

Well, should the man there be allowed to claim any privilege, in Nevada?

Francis X. Beytagh, Jr.:

Well, it dep — it seems to me it depends on why he is claiming the privilege.

He may claim the privilege for a variety of reasons other than the fact (Voice Overlap) —

Hugo L. Black:

But he couldn’t claim could he that he was going to be prosecuted in Nevada.

Francis X. Beytagh, Jr.:

Depending on what he is doing, he —

Hugo L. Black:

Well, it’s for gambling.

Francis X. Beytagh, Jr.:

No, he probably couldn’t in the —

Hugo L. Black:

Well, in that instance if the state, the Federal Government would be aiding Nevada to carry out its state recognize local state powers.

Francis X. Beytagh, Jr.:

Well, I don’t know that there’s any requirement that Congress aid the states when it uses the taxing power.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Hugo L. Black:

Well, it may not be that it has to come to the aid of the state but there are some — something to — a concept I should think that in a union of states, the form of National Federal Government, there’s something to them, the idea that the Federal Government ought to be barred in trying to frustrate the policies of the state.

Francis X. Beytagh, Jr.:

Well again, I don’t know how the wagering tax is frustrating any state policies.

The — there wouldn’t be as many —

Hugo L. Black:

You don’t know how it does?

Francis X. Beytagh, Jr.:

No Your Honor.

Hugo L. Black:

Well it gives them a license to engage in it, doesn’t it?

Francis X. Beytagh, Jr.:

No, I don’t think it does at all.

But the statute — this was the problem that Kefauver had.

One provision that’s included in the statute as a result of these problems was that the statute does not exempt people from compliance with the state laws.

The problem that — the reason why gambling got to be as large a business as it is, is because of the failure of the enforcement of state laws which outlawed and Congress may have recognized this when it enacted this tax.

If the states weren’t going to enforce the laws, at least we ought to try to get some revenue out of these people.

And that’s what the statute is about.

Hugo L. Black:

Did you ever hear anybody suggest that there’s any possibility that they get any net tax gain out of that law?

Francis X. Beytagh, Jr.:

No sir, but that means that —

Hugo L. Black:

That means if — does that not mean that the purpose was to bar gambling?

Francis X. Beytagh, Jr.:

I don’t think it speaks to the purpose.

It speaks to the either ineffective enforcement or difficulty of enforcement or impossibility of the enforcement.

That the thing hasn’t worked out in all candor to produce much in a way of revenue, we don’t argue that it does.

Effectively properly enforced, I don’t know.

One of the problems they had right at the beginning of this thing was that after it was enacted, an appropriation was requested to provide additional agents to the Internal Revenue Service to enforce it.

Congress refused to do this.

And the Internal Revenue Service was limited in the amount of funds and resources allocable to attempting to collect this tax, and this difficulty has continued.

Hugo L. Black:

But what they call it as a tax, that what in the attitude it is there’s a method of helping to regulate gambling, isn’t it?

It can’t be a tax if you don’t collect it as I gather it.

Earl Warren:

Well, a hundred men in dollars in pay, and if they got that in 15 years, it would seem to me that size will amount of money, I wonder is this tax cost a hundred million dollars in the last 15 years to collect?

Francis X. Beytagh, Jr.:

I don’t know how much its cost —

Earl Warren:

But a hundred million dollars is a lot of money even in these days.

Francis X. Beytagh, Jr.:

It’s getting less all the time.

Earl Warren:

And I would understand — I understand that their present time, there’re 7200 and some people who were registered under this Act.

Do you have any figures Mr. Beytagh which would indicate whether all or many or few of these people who have registered have actually been prosecuted and convicted as the result of this?

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

In state courts?

Earl Warren:

Yes.

Francis X. Beytagh, Jr.:

As far as their cases as this petitioner’s counsel pointed out, there are some cases that are listed ten or so in their brief.

I don’t know personally of anymore cases and I don’t have any figures on how many have in fact been prosecuted.

Earl Warren:

But isn’t it generally recognized in the literature on the subject that even though there are 7200 to those people who’ve registered in this country that very few of them compared to what you’re speaking have been prosecuted for running illegal gambling games and that the public is wondering why if it’s so easy for the state to get that information if they don’t do it?

Francis X. Beytagh, Jr.:

Well, most of the people frankly that register insofar as we can tell, do it in areas in which they don’t really fear prosecution for their underlying activities.

Now, whatever commentary that is on law enforcement in the states, I don’t know.

But where there’s a real problem, potential state incrimination, most of them just don’t register.

They go ahead and operate, don’t pay the tax.

Run whatever (Voice Overlap) —

Hugo L. Black:

Do you have any idea how many men there are in the Revenue Department, devote that services trying to enforce this particular law?

Francis X. Beytagh, Jr.:

I don’t know anything I said would be injective, I’m sorry.

Abe Fortas:

Well, weren’t there some recent hearings about the work done by — I think, it was some of their law in Missouri.

Recent hearings about the work done by — I think related to the work done by Internal Revenue Service, they do it electronic (Inaudible) on that subject.

Francis X. Beytagh, Jr.:

Yes.

Abe Fortas:

Of hearings that had to do with their work in conjunction with improper justice, wouldn’t it indicate whether or not this statute is a basis of it that the Internal Revenue Service is engaged in the policing of that aspect of crime which shows up in the form of gambling, ordinance gambling.

Francis X. Beytagh, Jr.:

Well, it engaged in policing I suppose in the sense that the people that are required to pay the tax are engaged in illegal activities.

And you’re right, there were some references in —

Abe Fortas:

But don’t those hearings — I am a little — I’m vague about this but I have a vague recollection that Senator Long’s hearings indicate a very close exchange of information and cooperation between Internal Revenue Service and state authorities and the FBI.

Do you have a recollection on that?

Francis X. Beytagh, Jr.:

Yes, I think that’s correct.

Senator Long was looking into this matter and there are some instances that came to light pursuant to those hearings.

It indicated that in enforcing this, this tax, there had been some cooperation between law enforcement and tax collection people.

Abe Fortas:

Are you saying in enforcing this tax and I suppose that it equally –be argued that the chicken came first and that the Internal Revenue Service did this in connection with the state of its — to enforce there antigambling laws or they have — the FBI’s work whatever it may be.

Francis X. Beytagh, Jr.:

Well, Your Honor, these problems and the problems of how much revenue is produced, it seems to me of primary — primarily problems with Congress to reassess.

So, there is some indication there as you point out that some members of Congress are concerned about this law and concerned about its enforcement.

It seems to me that that’s the proper place where the concerned should be left and that Congress (Voice Overlap) —

Abe Fortas:

Alright, but I still have one trouble with you because in your statement, I don’t know how significant that will occur to me or the consistence of this (Inaudible) honest to goodness revenue major, and you’re still insisting on it.

Francis X. Beytagh, Jr.:

Well, it’s — no.

It seems to me (Voice Overlap) that there’re really two questions.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

One has to do with the initiation of the thing, and the other it seems to me has to do with what the practice and development under it.

And it hasn’t produced much revenue, and everybody knows that.

The point that I was making was addressed to the original purpose of Congress in enacting.

It was a great bit of cynicism about it and I have the same cynicism I point — as I said when I first came to this thing and I was kind of surprised with reading the legislative history.

Now legislative history can say whatever anybody wants it to say, I understand that.

But in the floor debates, either they hadn’t thought about the thing or there are a lot of naïve people around because there are over and over indications that the purpose is to try to get some revenue from this massive business that’s going on.

If you can’t stop it at least we can get some money out of it.

That was the purpose.

Now, I think you point out that the thing as Justice Black points out that the tax hasn’t worked out to produce that much revenue.

I don’t know why it hasn’t.

One reason to that is because that people aren’t registered but the — pay the tax.

One problem relates to enforcement of collection.

But it seems to me that’s a different problem and the purpose of Congress initially in enacting.

Another aspect of Albertson should be mentioned in passing as Justice Brennan pointed out, the Court in Albertson carefully distinguished the Sullivan situation.

An income taxation of income from illegal sources has been consistently upheld by this Court.

In our view, Sullivan is in some respects distinguishable here but it’s not fully in apposite.

Just like the non-tax fare in Sullivan, the non-tax fares here seek to draw, find your circle around themselves and their activities by simply not registering and not paying the tax.

The Court now which it noted in discussing Sullivan that to honor the claim of privilege not asserted at the time to return his due would make the tax pay rather than in a tribunal, the final arbiter of the merits of the claim.

In Albertson, the Court found such a consideration inapplicable since the board there had an opportunity to pass on petition self-incrimination claim.

Here on the other hand, assuming that petitioner’s fail to comply with the wagering tax laws because of fear of incrimination they and they alone decided at the time that they fail to comply, that they had a constitutional right not to do so.

Now we recognize that the Court would not agree to hear these cases.

Had it not been concerned about the continuing liability of Kahriger and Lewis.

And should the Court disagree with our analysis with those cases and find that the registration requirement at least, that the wagering tax laws would result in compelling incriminating information so as to bring in to play the protections of the Fifth Amendment.

Then we submit, it does not necessarily follow that the entire wagering tax scheme or even the registration plan must necessarily fall.

We suggest that rather than sanctioning a failure to register and pay the taxes, the result should be to place appropriate restrictions upon the use of the information obtained as a result to compliance with the wagering tax law.

As long as the information of paying —

Earl Warren:

You’re suggestion is that it will be done in much the same way as the income tax is kept confidential, income tax return?

Francis X. Beytagh, Jr.:

The income tax return information is kept confidential pursuant to statute for use except — to assist other states in enforcing their tax laws.

Such a rule would be somewhat similar to that approach.

Now, so long as the information of thing is confined or used the aid of collecting taxes, no problem of self-incrimination arises, because the privilege protects against the compulsion by the government of information which can be used to convict the person of crime.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

If any non-tax use of the information obtained in connection with registration is prescribed, used either by the states or by the Federal Government, privilege in our view would be accorded full protection.

Such an approach would — picking up the footnote to Justice Goldberg as we point in our brief wrote in Murphy would focus upon the time and the attempted use of such information and not the time to attempt that compulsion.

In our view, similar exclusionary rules have been fashioned by the Court to effectuate Fifth Amendment rights in other context.

Just such a rule as we point out is adopted in Murphy versus Waterfront Commission.

The Court there recognized that such an approach was appropriate where a separate and an independent governmental interest, not just an interest in the underlying activity alone such as now which someone is involved.

Hugo L. Black:

Are you suggesting that the Court provides the right of some kind of immunization scheming?

Francis X. Beytagh, Jr.:

No Your Honor, we’re suggesting that in the circumstances here, if Kahriger and Lewis are found no longer to be good law that the Court rather than strike down the wagering tax should indicate and adopt and that it — a use restriction or an exclusionary rule with respect to any —

Hugo L. Black:

But that would be a kind of immunization, wouldn’t it?

Francis X. Beytagh, Jr.:

It would protect individuals required to comply against any of interest —

Hugo L. Black:

Why isn’t that the power of Congress if there is such a power to grant immunity?

Francis X. Beytagh, Jr.:

It —

Hugo L. Black:

That grace was referred — decided question, the government’s policy.

They have not yet decided to grant any governmental immunity.

Francis X. Beytagh, Jr.:

The — we’re not arguing that the rule that we suggest be one of immunity.

We’re suggesting a little (Voice Overlap) —

Hugo L. Black:

It would amount to that, wouldn’t it?

Francis X. Beytagh, Jr.:

It may in some circumstances amount to that.

Potter Stewart:

Well, what I — as I understand you to say (Inaudible) is not just there would be immunity but that no evidence that is in the form of the (Inaudible) or any of these in evidence.

Francis X. Beytagh, Jr.:

Approach these lengths.

Potter Stewart:

Suppose whatever it may be would be admissible in any criminal prosecution, federal or state and that in the event to such a prosecution, the state or the Federal Government would have the burden of showing that what they are using in the way of evidence in no (Inaudibe) stands from the registration.

Francis X. Beytagh, Jr.:

Yes.

Such as was stated in Murphy, the burden of proof on showing —

Hugo L. Black:

Suppose we were to do that and Congress to come along and pass the law and say we do not want any such relief given and if it’s immunity which was in my judgment be immunity from prosecutions, which one would prevail?

Francis X. Beytagh, Jr.:

Well, Congress —

Hugo L. Black:

Our law or the —

Francis X. Beytagh, Jr.:

Congress could prevail in various ways.

If Congress acted in that manner, it seems to me that that would take the ground out from under a decision such as we suggested which he —

Hugo L. Black:

Yes, I agree to that.

I agree to the kind of immunity.

Francis X. Beytagh, Jr.:

And you would be left with the situation in which the Court presumably since it got to adoption of such a rule, would have found on any other basis the wagering tax scheme violative of the Fifth Amendment and that would be the situation that then would exist.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

It seems to me you mentioned deferral to Congress.

There are several options that are open here.

One is to — if there are serious Fifth Amendment problems, strike down the statute, leave it up to Congress to reenact such a statute and provide effective protection along the lines suggested.

The other, the one that we suggest is to uphold the statute and if you find Fifth Amendment problems to adopt the rule that would protect against —

Hugo L. Black:

Would there be a constitutional rule?

Francis X. Beytagh, Jr.:

I think it would be a constitutional rule just as the rule in Murphy which stated to be a constitutional rule.

Murphy — the Court in Murphy said, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which maybe incriminating under federal law unless the compelled testimony and it’s fruits cannot be used in any manner by federal officials in connection with the criminal prosecution against him.

Continuing, we conclude moreover that an order to implement this constitutional rule and accommodate the interest of the state and federal governments in investigating the prosecuting crime, the Federal Government must be prohibited in making any such use of compelled testimony and its fruits.

Abe Fortas:

You used two words that have interested me, you said that the material cannot be used and then you used a word to indicate that it would have to be excluded that if this disclosure were may — attempted to be used in court on the fruits or our attempt would be use it, would that be excluded?

But there is a difference between those two concepts as if there — that is to say if these incriminatory statements were not to be used, that means that they would not be — nobody would be given access to them.

Francis X. Beytagh, Jr.:

I think that if you adopted the rule like this, it’s clear that the Federal Government can no longer make available any information.

Abe Fortas:

And it’s so —

Francis X. Beytagh, Jr.:

That’s our understanding of how we would comply with it.

Abe Fortas:

Well, we’ve never done that, haven’t we?

Remember they asserted the power and do that or —

Francis X. Beytagh, Jr.:

No.

Abe Fortas:

— and then if that is (Inaudible) —

Francis X. Beytagh, Jr.:

No, I’m just speaking as a practical matter.

Abe Fortas:

Do you think that we would have the power to say that this information cannot be used in the sense that it cannot be furnished to state police forces for purposes of leads or whatnot?

Francis X. Beytagh, Jr.:

For use by the Federal Government.

Abe Fortas:

For use by the federal government.

Francis X. Beytagh, Jr.:

And it seems to me that the decision the other day in the Garrity case, that’s essentially what the Court held.

It had a situation in which he’d found that information that had been compelled had been used in a criminal prosecution reversed on that ground.

It stated that’s the holding.

It said there, could not use that to convict —

Abe Fortas:

So you are deliberately suggesting in — something more than an exclusionary rule which is a rule of nonuse of the — of this information.

It’s more than an exclusionary or evidentiary rule.

That’s what I’m trying to get straight from you.

Francis X. Beytagh, Jr.:

I don’t see any substantial difference in the way that such a rule would work in practice.

Like an exclusionary rule in the Fourth and Fifth Amendment context, the case comes up, the information has been used, it was sought to be excluded, the Court allowed it and the question is whether it was properly allowed or not.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Abe Fortas:

You’re — supposed a state doesn’t introduce any evidence whatever to the effect that the state obtained the main problem, the gambling tax records.

State doesn’t — so there’s no exclusionary problem.

Francis X. Beytagh, Jr.:

You’re right and that —

Abe Fortas:

Are you suggesting something —

Francis X. Beytagh, Jr.:

Yes, yes.

Abe Fortas:

In any event there’d be some kind — we fashion some kind of a nonuse protection here.

That’s what I’m trying to get at.

Francis X. Beytagh, Jr.:

Yes.

Abe Fortas:

You are suggesting that?

Francis X. Beytagh, Jr.:

Yes, so long as the information, the disclosure that was compelled produced a lead that was used in connection with the prosecution.

Abe Fortas:

I don’t know.

Byron R. White:

Well you’re just suggesting Murphy, does Murphy approach, aren’t you that essentially —

Francis X. Beytagh, Jr.:

Yes.

Abe Fortas:

Are you still — leave me without an answer about it, in all fairness and I have to say that to you.

Because I don’t know yet whether you’re saying that we tried to fashion some kind of a rule so that this wagering information should not be made available to anybody?

Francis X. Beytagh, Jr.:

No.

I understand that the point that you’re making Your Honor.

It seems to me that the question of a situation in which you couldn’t show any use of information that had been compelled but you could show that the fact of registration was related to the fact of subsequent prosecution.

That would present a question at that time that’s relevant to the scope of determining the privilege and now — which we would offer.

Abe Fortas:

You’re familiar with the incident with Free — John Lilburne back in the 1640 or whatever it was, aren’t you?

That started the whole — it gave this tremendous impetus to the privilege against self-incrimination.

As I read that, he’s objection was to self-accusation, accusing himself.

That was really the origin of — all that this has led to this troublesome arrest in which we are all struggling.

But unless you can find some way to prevent the use of this registration information, isn’t it — though aren’t you confronted with a sort of a prototype of a preborn John situation in which you’re asking people to accuse themselves and then you’re saying that the fruits of that accusation cannot be used as an evidentiary matter but it may be used for the purpose of starting the investigation by the state policemen to say.

Francis X. Beytagh, Jr.:

No.

It seems to me that’s what the concept of a lead relates to.

And it seems to me they’re difficult question that are hard to talk about except in concrete situation as to — and this Court, I think the doctrines are still evolving and developing concepts of attenuation, independent source and whatever.

But I perceived the point that you make and it seems to me that that situation would not simply be a use situation but it properly characterized as it — as an investigatory lead, than the rule would offer.

Since my time is short I’ll just state with respect to the disposition if Kahriger and Lewis are upheld, we feel that affirmance of the Second Circuit’s decision here is clearly appropriate.

On the other hand, it seems to us a more difficult question is presented.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Francis X. Beytagh, Jr.:

If the Court should disagree with respect to Kahriger and Lewis and adopt the use restriction rule such as we suggest.

We recognized it in Murphy, the Court reversed the contempt convictions and remanded the case in order to provide the individuals with an opportunity to testify.

We think however that there are different circumstances that exist here, it may still even in that event weren’t reversed.

Petitioner certainly wasn’t surprised here that he was required to comply with the federal wagering tax law.

Kahriger and Lewis had been decided, it’s not in the situation of the individual in James where the Court held it wouldn’t be fair to require him to comply with the — in the same case, comply with the change in the law.

It seems to us that it’s relevant to petitioner here upon being arrested, frankly admitted knowledge of the stamp tax requirement, said that nobody buys them, that he pays the amount.

It seems to us that under such circumstances, the petitioner was properly convicted of violations charged and we respectfully submit the judgment of the Court of Appeals should be affirmed.

Earl Warren:

Mr. Zeldes.

Jacob D. Zeldes:

I have just a few comments in reply if Your Honor please.

The Government charges that we’re looking for some sort of protective status from Mr. Marchetti because he’s engaged in the gambling business.

That’s not so.

What this case really boils down to is we’re asking that Mr. Marchetti in Bridgeport, Connecticut, is it required to answer the question, are you engaged in an illegal activity?

And I think that we’re not asking for something of special import.

It is pointed out quite clearly perhaps in a footnote in the Government’s brief.

Footnote 25 — I’m sorry, Footnote 21, page 22 of the Government brief, where the Government says, “We recognize that there is a clear distinction between the matters here involved, registration and filing of a wagering tax return and the filing of an income tax return.”

This is so, because the income tax return permits reporting of the income without specific identification of source.

And we think that distinction which they concede is crucial and undermines their claim that we’re asking for a protective status of any kind.

Potter Stewart:

Is that — I suppose that is true if the Government says so.

But my recollection of the Form 1040 is that that’s not that accurate, is it?

Jacob D. Zeldes:

Well, that —

Potter Stewart:

As a matter of fact.

Jacob D. Zeldes:

I’m not really — that is not — it is — the Government’s concession is correct Your Honor.

For this reason, there are not the collateral penalties involved if you do not fill in all the same information in 1040 as there are if you don’t fill any information here.

That — as I understand, and I maybe wrong in this, if you offer the United States $10,000 in income tax, they’ll take it.

Potter Stewart:

Well I’m sure of that.

Jacob D. Zeldes:

If you offer them $50 to buy a stamp —

Potter Stewart:

It doesn’t matter if it satisfy (Inaudible) —

Jacob D. Zeldes:

— they will not take it though, if you’re unpleased.

If you offer them $50 to buy a stamp, they will not take it anonymously.

That’s — I think an important thing, they’re not out for anonymous collection of income as they are in the income tax situation.

Audio Transcription for Oral Reargument – October 10, 1967 in Marchetti v. United States

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Jacob D. Zeldes:

I think one other point merit some consideration and it relates to inquiries by the Chief Justice and by Mr. Justice Fortas.

The Chief Justice suggested for — that the Government was perhaps proposing some kind of confidentiality as the alternative remedy in this case.

What the Government ignores to comment I think is on Section 6107, which is very important part of the same Act.

In the principle Internal Revenue office in each Internal Revenue district, there shall be kept for public inspection an alphabetical list of names of all persons who had paid special taxes under this subtitle so there’s no concept here of confidentiality.

In fact, there’s a Congressional intent to the opposite.

Hugo L. Black:

What is that subtitle?

Jacob D. Zeldes:

That’s the wagering tax law.

Hugo L. Black:

There’s a special law with reference to that, they’re making it sub —

Jacob D. Zeldes:

Yes.

This Section that I read Your Honor refers to the wagering tax law.

Hugo L. Black:

Only.

Jacob D. Zeldes:

Yes.

It may apply to a few other special taxes but it’s in this Section, its 6107 of Title 26.

If Your Honor please, that brings us to the related issue of this nonuse rule that Mr. Justice Fortas touched upon.

The Government would not quite say, at least if they did say it orally, they were modifying their position in the brief that they were advocating a nonuse rule.

Because by nonuse, I believe Mr. Justice Fortas had in mind an immunity situation and the Government will not concede that in their brief.

They’re very strong to emphasize that they have no objection to Mr. Marchetti being prosecuted but when a state prosecutor introduces evidence A, we then object to the introduction of evidence A and we say the United States must have given you this information, that’s where you got it and therefore it must be excluded.

That’s the only rule the Government would offer us now.

I say Your Honor that is no substitute for the right to remain silent which is really the cornerstone of the Fifth Amendment privilege.

Before these reasons Your Honor, I should add one more thought on this point Your Honor.

Even assuming arguendo that there were some adoption by this Court of the Murphy type rule, which as I said in my main argument, it has no application whatsoever when there’s no state immunity statute at issue and there’s none here.

There would still be no basis to affirm these convictions because the Court just as it did in Murphy should afford an opportunity to have the petitioner know the rule that is now being enacted.

In Murphy for example, the convictions were reversed as the Court announced the new rule.

And the same if Murphy word to be applied to this situation, the same remedy must apply and the convictions under all circumstances must be reversed.

For all of these reasons therefore Your Honor I respectfully request that this Court reverse the Court of Appeals.