United States v. United States Coin & Currency – Oral Reargument – October 20, 1970

Media for United States v. United States Coin & Currency

Audio Transcription for Oral Argument – February 26, 1969 in United States v. United States Coin & Currency
Audio Transcription for Oral Argument – February 25, 1969 in United States v. United States Coin & Currency

Audio Transcription for Oral Reargument – October 20, 1970 in United States v. United States Coin & Currency

Warren E. Burger:

We’ll hear arguments next in number 5, United States against United States Coins and the Currency.

Mr. Ward, you may — excuse me, Mr. Feit, you may proceed whenever you’re ready.

Jerome M. Feit:

Mr. Chief Justice and may it please the Court.

This is a statutory forfeiture case under the internal revenue laws which is here on writ of certiorari issued at the Government’s behest, seeking review of the decision of the Seventh Circuit which it held, forfeiture of property used in violation of the wagering tax laws is precluded by the privilege against self-incrimination under this Court’s decisions in Marchetti and Grosso.

This case was originally argued in the 1968 term, February 1969 and its here on re-argument.

The relevance —

William O. Douglas:

The same brief that you have been or a new brief?

Jerome M. Feit:

No, it’s on the same brief, Your Honor.

The relevant factual background maybe briefly stated.

During August of 1963, investigation by FBI and alcohol tax agents, of a race track in Cicero, Illinois revealed that claimant Angelini and others were engaged in an unlawful bookmaking activities at the track, the surveillance expand a course of some three weeks.

On August 24, 1963, Mr. Angelini and his confederates were arrested at the race track pursuant to an arrest warrant.

A search of this person subsequently revealed that he was in possession of $8,674.00 in currency.

In 1964, Mr. Angelini was criminally convicted of willful failure to register under Section 4412 of Title 26 and to pay the annual $50.00 occupational tax under Section 4411.

He was sentenced to 60 days in prison, fined $2,500.00 and placed on probation for three years.

The Court of Appeals affirmed his conviction in 1965, and this Court denied certiorari.

Meanwhile, an entirely separate proceeding in February 1964 was instituted in libel in rem against the respondent money which had been seized at the race track.

The libel alleged that the money was forfeit to the Government by virtue of its use and its intent for use in violation of the internal revenue laws, Section 7302 which is set forth at page 3 of our brief.

Claimant Angelini intervened, asserting that property belonged to him.

A trial was there after held by the court and in June 1965, approximately 12 federal agents testified to their observations of the 1963 bookmaking operations at the race track, and it was also evidenced that the respondent money was used in the business as ready-cash to pay off bettings.

It was also stipulated at this trial that although claimant Angelini had registered and paid the occupational tax in 1957 and 1958, he had not done so for the period covering 1963.

The District Court found and its findings are set forth at pages 9 and 10 of the appendix, there was no jury trial and none having been demanded in the forfeiture proceeding, that a bookmaking business had been conducted at the race track from August 1 to August 24, 1963 without payment of the required taxes that the respondent money was “integral part of this operation” and it therefore was forfeit to the United States.

The Court of Appeals thereafter affirmed on the basis of Kahriger and Lewis and claimant filed a petition for certiorari.

The case was pending here on that petition when this Court decided Marchetti-Grosso and some five weeks after that decision, remanded this case to the Seventh Circuit for reconsideration in light of the Marchetti-Grosso rulings.

Harry A. Blackmun:

Mr. Feit, do you know what has happened to the other case that were remanded at the same time, the other cases?

Jerome M. Feit:

My understanding of the other cases were several of them were remanded were criminal cases which involved convictions under 7203 for failing to file the appropriate forms.

Those cases were remanded to the Courts of Appeals and my understanding is that they were — the convictions were dismissed.

Harry A. Blackmun:

This is the only forfeiture case in the group?

Jerome M. Feit:

This — no.

The — what happened was this.

There were many forfeiture cases pending in the District Courts at the time.

Jerome M. Feit:

When this case was remanded, they were in the sense frozen.

At the present time, my — excuse me, at the present time, there are 20 forfeiture cases pending on appeal in the Courts of Appeals.

There are some 200 cases pending in the District Courts awaiting decision in this Seventh Circuit case.

There is on certiorari another case, two other cases, the Dean case which involves $300,000.00 and 455 this term which — Sixth Circuit case which the Sixth Circuit affirmed on the authority of its Dean ruling.

I’m also informed that involved in those cases, presently pending, approximately $200 million — excuse me, approximately two and a quarter million dollars primarily automobiles and cash, but those cases have just been awaiting this Court’s decision in Angelini.

There has been no — there has been — well, I shouldn’t say no, there had been perhaps one to two forfeiture proceedings instituted subsequent to the remand of Angelini.

Harry A. Blackmun:

But none of the cases remanded with Angelini under the title of Stone against the United States?

Jerome M. Feit:

That is correct.

Harry A. Blackmun:

That involved forfeiture other than Angelini?

Jerome M. Feit:

That is my understanding.

Harry A. Blackmun:

While I have you interrupted, do I correctly assume that the Seventh Circuit assumed in this case took it for granted the retroactivity of Marchetti-Grosso?

Jerome M. Feit:

I would assume that Seventh Circuit assumed in this case that Marchetti-Grosso was retroactive to the extent that it applied to all cases within its reach pending on appeal when Marchetti-Grosso was decided.

Harry A. Blackmun:

And is it on that comment that you’ve just made that one may resolve any seeming inconsistency with the Seventh Circuit’s decision in Mackey, maybe, they’re not inconsistent.

Jerome M. Feit:

Well, Mackey involved a non-gambling offense which is one basic distinction.

It’s on habeas on 2255 and collateral attack involved a final conviction.

I think the basic thing here was that the Seventh Circuit assumed that Marchetti-Grosso applied to all cases pending on appeal by virtue of Stone and that this case was simply a Marchetti-Grosso case.

And it is our position that the Seventh Circuit erred in that conclusion that neither the letter nor the spirit of the Fifth Amendment privilege, nor its application in Marchetti-Grosso support the determination of the Seventh Circuit in this case.

Harry A. Blackmun:

Just one last question and I’ll stop interrupting you.

I take it you sense no inconsistency between the Seventh Circuit’s respective decisions in this case and in Mackey?

Jerome M. Feit:

Well, —

Harry A. Blackmun:

They’re different panels, except for one judge?

Jerome M. Feit:

That’s right.

They can be distinguished.

I think that there have been inconsistencies primarily and difficulties in Courts of Appeals in applying the principles of Marchetti-Grosso in these myriad of situations because it is not been clear — the issue of retroactivity had not been focused on by this Court in Marchetti and Grosso at all.

The assumption had been by virtue of Grosso and by virtue of Stone that all cases pending on appeal, criminal cases involving Marchetti-Grosso violations was subject to its terms, we think that Mackey can be distinguished from this case in terms of the fact that it’s an income tax case, that is on collateral attack, it’s not within penumbra of the wagering tax scheme and — but, I would like to focus if I may on this particular case which as I say, our starting point is Marchetti and Grosso to determine what it did and what it did not hold for purposes of this case.

In Marchetti-Grosso, this Court determined that if a gambler failed to register and pay the occupational tax, he was subject to criminal prosecution. On the other hand, if he did register, he faced the real danger of the information he had provided which subjected him to prosecution under a network of federal or state provisions making gambling a crime. Marchetti and Grosso as we read the opinion, freed the gambler from this dilemma by holding that the comprehensive scheme could not be employed “to punish criminally a gambler who defends a failure to comply with the assertion of the privilege against self-incrimination.”

Hugo L. Black:

May I ask you, if the Government is filed any brief any later than the brief of January 2, 1969?

Jerome M. Feit:

In this case?

Hugo L. Black:

Yes.

Jerome M. Feit:

No, it is not Your Honor.

Jerome M. Feit:

There — we have filed following this case, there are questions of retroactivity, different in context than the problem focused upon here which will follow in the next three cases —

Hugo L. Black:

Next case.

Jerome M. Feit:

— which the Government has developed in some detail its general positions on the retroactivity question in different context.

Mackey, of course, does involve a conviction, allegedly in violation of Marchetti-Grosso, and that was filed last term.

The next two cases involve a full development in the Fourth Amendment context on the retroactivity issue, but in this case, no further brief have been filed.

It seems to us that in Marchetti and Grosso, the court repeatedly made clear that the wagering tax scheme was being left intact, that neither the occupational nor excise tax provisions were invalid with its civil liability was in anyway being extinguished, that in short as the court pointed out in Mr. Justice Harlan’s opinion, its holding was not meant to prevent either the taxation or regulation by Congress of activities otherwise made unlawful by federal or state law — statutes.

The erosion of the privilege in that setting thus was that the compulsion was directed at individual who if he failed to succumb had to pay the price of criminal punishment.

As Mr. Justice Brennan put it in his concurring opinion in Grosso, that scheme was designed primarily for and utilized to pierce the anonymity of citizens engaged in criminal activities.

We think that the root fallacy of decision of the Seventh Circuit is its equation of statutory forfeiture with the criminal punishment dealt within Marchetti-Grosso.

It misapprehends the continuing existence of the wagering tax scheme and in our judgment overlooks wholly the fact that statutory forfeiture from the time of Blackstone and before was recognized as a remedial measure to enforce a tax still entirely valid.

I think it’s quite important on this aspect of my argument to emphasize that this distinction between criminal or common law forfeiture and statutory forfeiture.

In criminal forfeiture, it is necessary to prove the guilt of the owner in order to forfeit property, whether or not the owner himself is convicted.

In statutory forfeiture, the guilt or innocence of the owner of the property is irrelevant.

It is the illegal use or intent to use — or intention to use the property in violation of law which is the material consideration.

These cases are set out in our brief, Goldsmith, Bryant, the most perhaps best illustration was during the period of prohibition.

Hasn’t the — this is my recollection of the plaintiff’s to argument that I heard you’ve drawn, hasn’t the administration to the statute — hasn’t the Government who remitted these forfeitures or abused to exact them or what — go to participation of the — over the property?

Jerome M. Feit:

You mean in this particular wagering scheme, not —

In this case?

Jerome M. Feit:

No, no.

I know what you mean, within the gambling tax scheme, not that I know of this.

As I had indicated, that is precisely — that’s a remission proceeding which may or may not be available, but as far as I know, the cases have not been remitted.

There has been no remission proceedings and the money was not been turned over presumably to the bettors.

As I had indicated before that the District Court have some 200 cases presently pending, and that there are 20 cases pending on appeal in the area.

Thurgood Marshall:

What about the old liquor case?

Jerome M. Feit:

I’m — excuse me, I’m sorry.

Thurgood Marshall:

The old liquor cases?

Jerome M. Feit:

Ah —

Thurgood Marshall:

Did they —

Jerome M. Feit:

The old liquor cases quite clearly recognized this distinction Your Honor.

Thurgood Marshall:

No, but I mean if a man was eventually acquitted, what did they do with that?

Thurgood Marshall:

I’m not talking about the liquor; I’m talking about the whiskey here.

Jerome M. Feit:

Oh, the whiskey — the whiskey was in a sense contraband that forfeit.

Thurgood Marshall:

How about the money?

Jerome M. Feit:

The money is not contraband in the traditional sense of the term, but we’re dealing with the use in an internal revenue statute.

Thurgood Marshall:

How about an automobile?

Jerome M. Feit:

The automobile was forfeit.

Thurgood Marshall:

Even if the man was found not —

Jerome M. Feit:

Oh, there were two — there were separate provisions, and that’s why I’d like to talk about perhaps the Prohibition Act to give you an illustration of what I meant.

One provision of the Prohibition Act, Section 26 provided for a criminal prosecution and the traditional theory of criminal or common law forfeiture that upon such conviction, the property used would be forfeit.

And there was another provision which was in the revised statutes and which is the predecessor of the instant provision which didn’t focus upon the owner or the — owner, but focused on the use, and the question arose as to whether they were inconsistent as to whether you had to use one or the other provisions.

And this Court made clear in One Ford Coupe, which is at 272 United States that these provisions were not inconsistent, that if the Government used the internal revenue provision rather than these precise criminal forfeiture — criminal provision which entail forfeiture that the innocence or guilt of the owner was wholly irrelevant.

And this seems to me to be the very essence of Boyd upon which claimant relies and upon which the Court of Appeals rested its decision.

Namely, in Boyd, what the Court was dealing with was this criminal forfeiture provision, so that we, of course, do not request this Court to retreat one inch from Boyd in this case.

Our position is as Mr. Justice Brandeis made clear and held them against Mitchell that Boyd is not applicable here and Boyd itself has recognized.

Indeed, the quoting, the supplemental brief filed by the claimant in page 11, quoting from Boyd makes it quite clear that they were talking about punishment of the individual.

That was the essence of criminal forfeiture, the essence of statutory forfeiture, the kind that is here involved is to remove property which has been used in violation of the law.

The basic purpose of that is that the property cannot be so used again.

It is a remedial, traditionally and historically a remedial function.

If there’s any privilege in these circumstances, it is that of a property not that those who would put the property to illegal use.

For example, relevant here I think is this Court’s decision in Campbell Painting Corporation at 392 U.S. where the president of the corporation could not proclaim — complain because he suffered an economic loss or felt compulsion because of his refusal under a claim of privilege to testify before a grand jury which resulted in termination of his corporation’s contract.

His privilege had not entered into the matter of law at all.

So here, neither thus the privilege of Mr. Angelini, nor anyone else engaged in the gambling business.

That protection has already been afforded.

No gamblers as I understand the decisions of this Court could be prosecuted criminally for failing to file the requisite forms.

And as this Court pointed out in Knox, the converse would be true if one filed under the compulsion of the statutory scheme which led to conviction for a gambling offense or led to a prosecution for gambling offense, as this Mr. Justice Harlan pointed out in Knox, then the claim of privilege would be available.

This would be the other side of the coin, and that was the Lookretis case which this Court referred to in the Knox opinion.

It is our alternative position in this respect that even if the privilege of forfeiture be deemed a penalty, it is not every degree of compulsion or every type of penalty which the privilege bars.

Here, the penalty is attenuated and the closest analogy as I’ve noted is the Campbell Painting Corporation case, and also Gardner and Broderick in Uniformed Sanitation Men which are recited in our brief.

In those cases, it was recognized that public employees could be discharged for public — from public employment for failure to provide information to the state relating directly to and narrowly to the performance of their official duties, so long as the discharge was not based upon the invocation of the privilege, and where the invocation could not be used against them in later criminal prosecutions.

Here, it seems to us whatever penalties and I’ve — this is an alternative argument that that even assuming that I’m wrong that these are not penalties, whatever penalties maybe said to — which attach to the gambler or even more remote in collateral, he has the protection of the privilege from criminal prosecution and it seems to us it would be straining Grosso and Marchetti quite clearly beyond its — their holdings if in addition he may retain property which may or may not be his.

Jerome M. Feit:

For example in Buick Sedan, this Court — District Court concluded that the $300,000.00 there seized did not belong to the claimants, and there’s nothing to indicate here except for claim of claimant that the $8,000.00 seized belong to him.

The District Court made no such finding at all.

The gambler, it seems to us should be no preferred position, that privilege should not we think be converted into a license to use property in violation of valid and existing tax provisions.

If the Court is of a view that the principles however of Marchetti and Grosso are applicable in this civil context, then a question of retroactivity emerges.

This takes on perhaps several forms.

First, it seems to us, it would have to be decided that Marchetti and Grosso itself, the straight Marchetti-Grosso situation was fully retroactive.

And then if so, whether this case would fall within those principles, our basic position is that Marchetti and Grosso is not retroactive in the criminal context under the gambling statutes where relief from its terms is sought on post conviction review under the three-pronged standard of purpose, reliance and effect upon the administration of justice.

We would certainly argue that while this case technically is on direct review, but it is also collateral in the sense that we are not here dealing with criminal convictions.

We’re dealing with the issue of an alleged interest in property used in gambling.

With property in fact which was seized in August 1963, two years before this Court decided Albertson I might point out, five years before it decided Marchetti-Grosso.

It is therefore not at all comparable we think to cases on direct appeal in the criminal context.

We think that the purpose and effect upon the administration of justice also counsel persuasively against retroactivity.

The time of the seizure here, Kahriger and Lewis with the law and the seizing officers could legitimately rely on those decisions.

Even more, significant is the disruptive effect upon the administration of justice in applying Marchetti retroactively in this forfeiture context.

I’d indicated the extent of the case is presently pending and the money involved in these various forfeitures.

We are further advised by Internal Revenue Service that since 1951 when these gambling statutes were enacted, and I use their phrase literally thousands of items used in gambling, automobiles and money have been forfeit under the wagering tax statute.

We have set forth some of these figures —

William J. Brennan, Jr.:

Well, I gather Mr. Feit, you carry that you are urging on necessity of retroactivity or prospectivity on these decisions after January 29, 1968.

You’re not urging that on necessity with respect to criminal convictions which haven’t yet become final?

Jerome M. Feit:

Well, the reason I cannot — in the Marchetti-Grosso context.

William J. Brennan, Jr.:

Yes.

Jerome M. Feit:

The reason I think that I cannot urge that is two-fold.

One, this Court dealt with Grosso which involved a claim other than — a claim, an addition to the claim there made, the claim of Marchetti-Grosso and remanded it, the Court in Stone sent — remanded all the cases pending on appeal when Marchetti-Grosso was decided.

And while the Court did not focus upon the reasons for it, is it is plain that the court has concluded that case is pending upon appeal —

William J. Brennan, Jr.:

Yes, but we haven’t said that.

Jerome M. Feit:

Well, you have not said that and as I say, the Court has not spoken on the matter at all.

Byron R. White:

But why would you assume — why would you assume that we’d decided the retroactivity question just by remanding?

It might be that you remanded to have the matter first considered by a Court of Appeals?

Jerome M. Feit:

It might be and if that is true, then it seems to us that it counsels favorably as to retroactivity on collateral attack.

Byron R. White:

Let’s just assume for the moment that you’re wrong in saying that door is closed.

Byron R. White:

What’s the Government’s position on the retroactivity of the Marchetti-Grosso as if it were an open matter?

Jerome M. Feit:

Right.

The Government’s position as if it were an open matter on that supposition is that Marchetti-Grosso should apply prospectively.

Byron R. White:

That is —

Jerome M. Feit:

Under the —

William J. Brennan, Jr.:

— the events — assume the events occur after that decision on —

Jerome M. Feit:

January 29, 1968.

William J. Brennan, Jr.:

The Stovall —

Jerome M. Feit:

The Stovall, and Johnson-Desist approach.

All I was suggesting was the — even if the Court deems that what had done following Marchetti-Grosso doesn’t require it to do the same things the case is pending on collateral attack, but as — in answer to your precise question Mr. Justice White, our view would be prospectivity, if that question is open.

I would like to save what remaining time I have for rebuttal.

Warren E. Burger:

Very well Mr. Feit.

Mrs. Lavin?

Anna R. Lavin:

Lavin.

Warren E. Burger:

Lavin?

Thank you for —

Anna R. Lavin:

Yes sir.

If it please the Court, I don’t — counsel made a factual mistake and I don’t know that it has any real significance, but I think we may as well dispose of it, so we will at least recognize that there is no Fourth Amendment question in this case.

Counsel stated that a search was made of Mr. Angelini’s person at the time of his arrest, it developed that there was some $8,600.00 on this person.

Actually, the money was revealed at the time he went through the ordinary processing at the United States Marshall’s Office on a request to empty his pockets as all persons taken into custody are.

The money was not seized at the race track as counsel indicated.

As I say, I don’t think it’s a matter of great consequence one way or another.

Mr. Justice Blackmun asked about cases remanded at the same time as was this case.

I point out that not one to my knowledge in that one has the Government requested certiorari where the — we had a criminal matter involved.

They however have made a distinction in this case because it concerns forfeiture.

I think that there is no distinction between a criminal conviction and a forfeiture proceeding.

I think that Marchetti and Grosso apply equally to both.

The announced object of this Court in deciding Marchetti and Grosso was the protest or rather the protection of the individual against self-incrimination under the comprehensive system of federal and state prohibitions against wagering activities.

In Malloy versus Hogan, this Court said in part that the Fifth Amendment secures the right of a person to remain silent unless he wishes to speak in the unfettered exercise of his own will and to suffer no penalties.

In Spevack versus Klein, again, this Court emphasized that penalties used in the context of the Malloy case is not restricted to fine or imprisonment; that it means any sanction that makes assertion of the privilege is in the word this Court did costly, and we have the Spevack, disbarment, (Inaudible) loss of job, the young lady who lost her position as a teacher whose name I don’t now remember.

Anna R. Lavin:

So I suggest to the Court, if Marchetti and Grosso have retroactive effect, a question that has not until right now to my knowledge was brought up so far as criminality is concerned, then it has retroactive effect so far as forfeiture proceedings are concerned.

I would like to address myself just in passing to the Mackey case because that was also a product of questioning by the court.

The Seventh Circuit stated that its distinction between Mackey and the earlier case of Lookretis which was remanded by this Court, a criminal gambling prosecution, though under 1952, the distinction it made was that Mackey did not involved gambling offenses, it being an income tax evasion case.

Later, the Second Circuit in — I mean, the Seventh Circuit in even a more recent case decided on September 9, 1970, Zizzo versus the United States in reversing Zizzo said we distinguish this from Mackey because Mackey did not come within the object of the Supreme Court when they said they wanted to protect a privilege against self-incrimination where local and state gambling statutes were concerned.

That’s the distinction the Seventh Circuit makes and I submit to this Court that it’s a valid one.

Now, counsel here has indicated that this Court has recognized in certain instances Boyd is not a deterrent to the — well, to implement error, interpretation of constitutional rights.

I might say that when any — whenever this Court has held — so spoken it has spoken in regard to Sixth Amendment rights and has expressly omitted from consideration any Fifth Amendment rights which it has always considered pervasive.

The Government opines here before this Court that Marchetti-Grosso applies prospectively.

I assume that the Government uses the standards that this Court has set up in its several cases of which I think Linkletter was practically the lead.

As a matter of fact, several times in its submissions to this Court by argument, it has said that there are three governing principles on prospective and retrospective application.

The first principle, it says the purpose to be served by the new constitutional rule, the second purpose, Government reliance on the prior rule, and the third, the effect on the administration of justice.

We suggest to this Court that none of those has any validity in the light of the rationale of the Marchetti-Grosso decision.

This is dictated by a basic consideration.

The basic consideration is that before the utilization of those three standards, the Government reads an insurmountable barrier.

That barrier is that those three standards do not even come into operation where the new constitutional rule so called bears on the integrity of the guilt determining process.

Here, the decision of Marchetti versus Grosso does bear on the guilt determining process.

As a matter of fact, the rule is the heart and soul of the process.

The only act of the claimant here which are contended to have made his property subject to this forfeiture is his refusal to waive his Fifth Amendment rights.

If that aspect is removed from the case as constitutionally unenforceable, there is no basis for a finding of guilt.

Thurgood Marshall:

What I understand that in this hearing, there was evidence put on that he was gambling, and that this money was used in gambling?

Anna R. Lavin:

That’s right sir.

Thurgood Marshall:

This hearing is a forfeiture hearing?

Anna R. Lavin:

Yes sir.

That’s —

Thurgood Marshall:

It has nothing to do with Marchetti-Grosso, does it?

Anna R. Lavin:

I don’t think that has anything to do with the basis for Marchetti and Grosso or how it affects this case, not withstanding whatever I consider as Mr. Angelini’s lawyer long time ago, the infirmities are the proof and we must remember that there is no federal violation in carrying $8,674.00, nor is there any federal violation in using $8,674.00 in gambling activities; maybe a state violation, but not a federal violation.

The only act necessary to the Government’s proof not to the way it puts in its evidence, not to the way it enforces a search warrant, but the thing necessary to its basic proof.

The only act essential to that guilt finding process is first, that 4411, Section 4411 of Title 26, the payment of the $50.00 occupational tax had not been complied with, and second that the registration form, Section 4412 had not been filled out and submitted to the Government.

Now, this Court in Marchetti versus Grosso makes it clear that those two statutes are interdependent because as it found from the decisions in those cases, you couldn’t pay the occupational tax without filing the registration and obviously, if you file the registration, your privilege against self-incrimination had been greatly — well, I — impinged upon.

Yes sir, you’re about to say something?

Thurgood Marshall:

Well I’m just looking at the findings and the judgment of District Court made no mention at all, neither document mentions the wagering tax?

Anna R. Lavin:

Well, yes.

I think if —

Thurgood Marshall:

Was it in the record itself?

Anna R. Lavin:

Oh, yes.

You will find that in the — in the libel, libel for forfeiture.

As a matter of fact, you’ll find in the findings, and if I may refer Your Honor to the appendix, page 9, finding number 3, and also in the first paragraph of the libel at page 5, 4401, 4411, 44 —

Thurgood Marshall:

Is this where the judgment below (Inaudible)

Anna R. Lavin:

Alright, thank you sir.

The thing I’m trying to point out and I hope I’ve done it is the only act that would make this forfeiture valid under federal law is proof of the failure to comply with 4411 and 4412.

The only basis upon which guilt could be found is the refusal to waive constitutional rights under the Fifth Amendment.

So actually, if I suggest to the Court, this new constitutional so called rule goes to the guilt finding process, and the three considerations for which the Government — on which the Government suggests that you waive retroactivity and prospective application do not actually come into play here because this is beyond the consideration or the entertainment of those considerations.

But if this Court disagrees with me and I submit, I don’t see that you can because it is obvious that the only thing that will prove the forfeiture is the failure to waive the Fifth Amendment right.

If you do not agree with me, let us go then to the purpose to be served by this new rule.

I think the lesson to be learned from Marchetti and Grosso is that you may not compel a person to pay a tax and file a return in the manner required by 4411 and 4412 unless you give him full immunity.

The next question urged by the Government is would that immunity, require immunity just from criminal prosecution or also from a civil forfeiture a pure penalty hearing without relation to any $50.00 excise tax.

It seems that the Government’s interpretation of this so called new rule that a congressional grant of pervasive criminal immunity be not extent to these penalty forfeitures.

We submit and we have submitted on the basis of the many immunity acts passed by the Congress that the Congress recognizes that to give full immunity, you must not only give immunity from criminal statutes, but also your immunity must extend to the forfeitures.

Without unduly burdening this Court, I would refer Your Honors to the digest of the wording of immunity grants that we have set out at pages 6 and 7 of our original brief; that’s a brief for the claimant respondent.

Some 7, 8, 10, 15 statutes and all worded substantially the same.

Warren E. Burger:

What page are you on?

Anna R. Lavin:

Page 6, Your Honor, this is not the supplemental brief, but the original one.

“No individual shall be prosecuted or subject to any penalty or forfeiture for an account of any transaction” and everyone of those statutes relating to the giving of immunity and I think, that’s what this Court suggested to cure the infirmity found in 4411 and 4412, incorporate immunity from any forfeiture proceeding.

I say that diligent effort has been extended to this point and we found none that accepted forfeiture from the full scope of the immunity.

Now, the second consideration that has been developed under the Linkletter line of cases concerns the extent of reliance by law enforcement authorities on the old standards which would be the standards under the Kahriger and Lewis.

But this question I submit goes directly to the major prohibition against the application of the Government’s considerations.

For in a situation where limitation has been made to prospective application, it has never been concerned with the guilt kind of finding process.

It’s always been directed to evidentiary blunders.

I would like to refer the Court to a very simple statement made by the amicus in this case, and I think he has developed it well.

He says in his brief if may have been on the books, the Government could have — the police could have obtained warrants.

Anna R. Lavin:

If Miranda had been on the books, the requisite warnings could have been given.

If Griffin had been on the books, prosecutors could have avoided commenting.

If Lee had been on the books, state prosecutors could’ve avoided offering evidence in violation of 605.

Hugo L. Black:

What are you reading from?

Anna R. Lavin:

I’m reading from the brief of the amicus because I thought he detailed these so concisely and understandably.

It’s at page 6 and he continues through waive in Gilbert on the line ups and Duncan and Bloom jury trial for — in contempt cases.

In no instance, if this so called new rule had been applied, would there have been no guilt at all in any of those cases where we’ve had prospective application.

Here, if the new rule is applied, there just is not a basis for guilt.

Now, we come to the Government’s third consideration; that is the effect of the administration of justice.

It isn’t clear to us just how the Government thinks that there’s going to be an affect in the administration of justice.

A rather impressive figure was offered this afternoon of some two and a half million dollars involved here.

Even more impressive figures where suggested in the Government’s brief about some $7 million in money and property having been appropriated.

Now, I suggest that should it be necessary for the Government to give back any of this money or property that the simply expedient of writing a check is the answer to it, and there will be no interference with the administration of justice.

In the meantime, I submit that the Government has been recompensed to the extent of probably 80 to 90% of the money and property it has appropriated.

Counsel has indicated in this argument that this is purely a remedial statute, this statute calling for forfeiture.

When this case was argued the first time, that argument was also made with a special reliance being made on Helvering versus Mitchell.

The essence of that argument was that this forfeiture applying the rationale of the Helvering case did not constitute a penalty.

It did not constitute a penalty in addition to the criminal sanctions, but rather compensated the Government for its actual loss.

As this Court knows that Helvering was a tax assessment case and concerned the 50% fraud penalty.

There, there was a direct relationship to the outstanding tax, here no outstanding tax exists.

I think it should be indicated parenthetically, though it is indicated in the briefs that Mr. Angelini has been assessed for the $50.00 occupational tax, he has been assessed for the amount that the Government assumes that he made — or the 10% under 4401.

These have been paid.

There is no relationship in this forfeiture to the assessment that the Government intended on account of these activities.

So, —

Potter Stewart:

How about his income tax, that’s no where in the record, isn’t it?

Anna R. Lavin:

There is no question about this.

Again, it’s off the record.

Mr. Angelini has paid income taxes for I don’t know how many years.

There has never been any question about the validity of the —

Potter Stewart:

The Mitchell case involved as I remember, the 50% fraud penalty on ordinary income tax case, did it not?

Anna R. Lavin:

Yes sir, Helvering versus Mitchell is — with direct relation to the outstanding tax obligation.

Potter Stewart:

Under the ordinary income tax?

Anna R. Lavin:

Under the ordinary income tax.

That doesn’t enter this case.

We have no ascertainable tax outstanding — well, we just have none outstanding.

Whatever it has been assessed has been paid without application of any of these monies toward alleviating that tax in any manner.

So I say, it’s beyond question of doubt that this constitutes a pure penalty and it’s remedial of nothing.

There was no difficulty of investigation such as we talk about in Helvering in determining how much Mr. Mitchell owed the United States.

Potter Stewart:

Who do — was the money — who did the money belong to in this case?

Anna R. Lavin:

Mr. Angelini made claim upon that money.

I find it surprising that the Government in here says there was no finding that Mr. Angelini was not the owner of that money.

He and he alone made the claim.

It was taken from his person.

The Government did not contest on trial that he was in fact the rightful claimant and rightful owner.

I do believe that’s gone down the drain.

I think I have addressed myself to every question or matter brought up by the Solicitor General.

If there are no other questions, I would respectfully submit this Court affirm this decision.

Warren E. Burger:

I think you’re time is exhausted, Mr. Feit?

Thank you.

The case is submitted.