Petition for Writ of Certiorari — Piccioli v. United States

os : PREM COURT. Us By FILED |

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: eoree e 1 DAVIS, CLERK

Ix THE - Ce

Supreme Court of sagh ited rates ie

OcrosER

No, : -

Y asalascaniniesiuaisbalibilies | re

Car Picciou1, @ Ne :

. Petitioner,

—_—vVv.— ‘

Unirep States or AMERICA, -

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oe ; 7 *

Respondent.

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* PETITION. FOR WRIT OF CERTIORARI TO THE

' UNITED STATES COURT OF APPEALS

= FOR THE SECOND CIRCUIT

Cannes Hawken

Puiu Barorr

cae - > 240 Fairfield Avenue

Sa ates a Bridgeport, Cunmestiont— ;

ALFRED BELINEIE ie,

. <6 1016’ Broad ‘Street

Bridgeport, Connecticut

~ Counsel for Petitioner

| : °.

ee — wanemnene at -

ue me : & aa > paGE

- Opinions of the Court Below» : 7:

: Statement of Jurisdiction isiate SE e , , iam

Questions Presented _ vate soo i - ae

Statutes, Rules, Constitutional Provisions, and Regu.

. lations Involved os - wil ae

Statement of the Case “SARS - iil - 8

Statemént of Facts : icine Sodbniin lee

Reasons for Granting the Writ -................ ee oO. |

Concuustox ss aeiienad | ee “er

“ea: , | : 3 oo ee

TABLE OF AUTHORITIES

Cases: — | awe :

Acklen v. State of Tennessee 267 S. W. 2d 101 (Tenn. R

1954) .... 17

\ Albertson v. Subversive Activities Control Bost or

U8. L. Week 4014 - preemie M4, 1§, 16 |

wt, Z

Bollenbach v. United States, 326 U.S. 607 (1945) .. - : Soa Oo

Brotherhood of Carpenters v. United — 330.0. S, es. « “wy

-— 395 (19 (1946) —........... | ; 19° ' .

,_Hargtove v. United States, 67 F F. 2d 300 (5 Cir. 1933) we 22 | y

; Hoffman v. Uhited States, 341 U.S. 479 hese saptieesnnninn 15 r:

ae ees ata Sw eer | wan

“Ingram v. United States, 360 U. s. 672 1959) es. | 24

‘baek < United States 348 U.S. 419 (1955) .......--.2,13; '&

fos eet ae, nae : ai pi ae 15,18 °

"Malloy v. Hogan, 378 U.S. 1 (968 renin, 15,17

- Marshall v. United’ States; 360 U. S. 310 (1959) ——

_ Murdock v.’ United States, 290 U. S. 389 (1933) ........ 13

Murphy_v- Waterfront Commission of New York, 378

—wS. 52 (1964) .. gene 18

Starr v, United States, 153-U. §. 614 (1893) 2. 21

- State v. ‘Devine, 149 Conn. 640, 183 A. 2d 612. (1962) .... 17

‘State v. McLaughlin, 132 Conn. 8%, 44 A. 2d 116 (1945) 17

Townsend v. Burke, 334 U. 8. 736 (1947) . mr 26

United States v. Calamaro; 354 U. Ss. 351 (1957) ....... a

U.S. v. Fagundes, 340 F. 2d 67 ae! Cir. 1965).-........ 19, 20,22 .

U. S. v. Grassia, —— F.2d —— (1965) 27

United States v. Kahriger, 345 U. 8. 22 (1953) ....2, 13, 14, 15;

18, 25, 27

U.S. v. Kelly, 119 F. Supp. 217 (D. C. D. De) ccggeinee 20

- United States v. Lo Biondo, 135 F. 2d 130 (2 Cir. $943) - 18, -

" United States-v. Martell, 199 F. 2d 670 (3 Cir. 1968) 29

United States v. McGonigal, 214 F. Supp. 621 (1963) »... - 24

. United States v. Mungioli, 233 F. 2d 204 (3 Cir. 1956)... 16

United States v. Murdock, 290 U. 8. 1 nah sje: Si

United States v. Palermo, 259 F. 2d 872 (3 Cir 1958) ... —622 .

'. United States v. Rabinowich, 238 U. S. 78 (1915) ............ 17

United States v. Spies, 317 U. S. 492 (1943) a 5

SS Fs Se a . , 28°

U. 8. Coxstirorion : |

"Fifth Amendment nec eienetien 6 14,28

Sixth Amendment 3 sided 7

Tenth Amendment spnesetnneecennneneomeeenen —- >

Srarurss: ee tias | ,

68A Stat. 525 (1954), 26 U.S. C. § 4401 (1958) 8

684 Stat. 527 (1954), 26 U. S: C. § 4411 (1958) 4, 16, 22

* 68A Stat. 527 (1954), 26 U. S.C. ¢§ 4412 (1958) .........4, 16, 22

' 68A Stat. 732 (1954), 26 U. S. C. § 6011 (1958) 22... 6, 16

. , 68A Stat. 851 (1954), 26 U.S. C. § 7203 (1958) *.:...:::.....5, 22

26 C. FR. § 44.4412-1(B) (2) : i serepeeneynneennsinnsianecly AY

a . ee ee

Connecticut General Statutes, 1958 Rev. =

"Sections 53-271 to’ 63-279 iaciic sid Ms

Sections 53-295 to 53-297 none Fe

Section 54-197 ..... aE. al :

“oN. 1.

Cart Prcocror, ‘

7 . Petitioner,

° —_—vV.——

ane : Usiren States or Amenica, :

gee ao Sere ‘ ‘Respondent.

—~<>—

f

UNITE STATES COURT OF APPEALS

£OR THE ‘SECOND ‘Gaaer

*Petiticner, Carl Piccioli, prays that a weit of dertiorari

- ‘issue to review the judgment of the United States Court

of Appeals for’ the Second care enfered on October we)

1965. “ ‘eet

3 Opinions of the Court Below

The opinion of the Court of Appeals, as yet iniidaeniet\

_ is printed in the Appendix to this Petition (P.A. 1a).

. ‘The opinions in USA. v. Grajtia, Docket No. 29791 in

a Rafrenees a are indicated as follows:

= to the numbered pages of petitioner’s cognate (PA. .

—a

Reference to the numbered pages of the appendix to Court of

_ Appeals (A..—a).

References to the numbered pages of the record (R—).

PETITION FOR WRIT OF CERTIORARI TO THE —

~

i

the Court of Lopecia! U. US v. Costello, Marchetti and.

Gjanci, Docket No. 29524 in the Court of Appeals, U.S.

v. Costello, Doeket No. 29525 in the Court of Appeals, -

U.S. v. Marchettt, Docket No. 29526 in the Court of Ap-

peals, and U.S. v. Gjanci, Docket No. 29527 in the Court :

of Appeals, related cases, also. are — in: the e Appendix ¥

(P.A. 28a, _ 13a). | :

Statement of Jurisdiction

P "The , of the Court ‘of iene was entered on

October 29, 1965: Petitionér’s Petition for rehearing was .

denied on Novémber 26, 1965. This: Petition is filed within -

30 days after the dicen of the. Petition for Rehearing. —

The a of this Court i is -invoked under 28 U.S. C.

: §. —

Questions iereeece

7 Should United States v. Piha 345 U.S. 22 (1953),

and Lewis v. United States, 348 U.S. 419 (1959), upholding ~

the constitutionality of the wagering tax laws here in- .

volved, be reconsidered id this snial in - — of recent ;

.decisions? ;

no

“@.

~

~

2. May petitioner’s refusal to answer questions after his

arrest upon the advice of his lawyer, be questioned by a

judge thereby permitting the jury to draw adverse infer-

ences from his reliance upon his constitutional right to

silence and to the advice of counsel ? —*

8 Is one en of passing $2.00 to a iol ais in a

closed palm, while looking up and down a War, enough evi-

ye

S

yA

denise to infer Cutuies of the tax laws and ‘thereupon oe

— oinisnar ‘willful waren of those laws? | Le aie a

4, Peron, ieaiiles the continued validity of cases

. upholding the constitutionality of the wagering tax laws;

were the statutes applied and enforced against: petitioner.

im an pnconstitutional manner or so as té violate the proper:

standards for the enforcement of: federal criminal law

under this aaa supervisory otis . ee:

- Statutes,: Rules, Constitutions! Provisions, |

“and Regulations Involved |

688 Stat. 525 (1954), 26 US. C. § 4401 (1958) Imposi-

ttonoftar - ~

( a) Wagers—There shail be imposed on wagers, as

_ defined in section 4421, an excise tax equal to 10 nae

of the amount thereof.

(b) Amount. of wager—In Aiiiceataiean the amount of _

. any wager for the purposes-of this subchapter, all -

charges ineident to the placing of such: wager shall be

included; except that if the taxpayer establishes, in

i avcordance with regulations prescribed by the Sécre-

tary or his delegate, that an amount equal to the tax

. imposed by this ‘subchapter has been collected as a sep-—

‘arate charge from the person placing such wager, the

amount so collected shall be excluded.

- (ce) ‘Persons liable. for tax—Each person who is en-

gaged in the business of accepting wagers shall bé

@ liable for and shall pay the tax under this subchapter

"on all wagers placed with him. Each person who con- |

o

- 4

duets any wagering pool or bethiey shall be. liable for.

‘and shall-pay the tax under this subchapter on all

‘wagers placed in such pool or lottery. Any person

required to register under section 4412 who receives

wagers for or on behalf of another ‘person without

having registered under section 4412 the name and”

place of residence of such other person shall be liable

for and shall pay the tax under this subchapter on all

such wagers received by him. i

68A Stat. 527 (1954), 26 US. C. § 4411 (1988): dua

_tonof tan . ) ee 0

a

“There shall be imposed a’ meee tax of $50 per year

to be paid by each person who is liable for tax under

section 4401 or who is engaged in. receiving wagers

for or on behalf, of any person | so liable.

68A Stat. 527 (1908), 3 26 U.8.0. § 4412 (1958): Regis.

tration ~

_ (a) Whiaibesinain— Dea person required to pay a spe-

cial tax under this subchapter shall register with the

official in charge of the internal revenue district—

(1). his name and place of residence; ;

@) if hha is Hable for tax under subchapter A, cach _

place of business where the activity which makes: .

-him so liable is carried on, and the name and

>», Placeof residence of each person who i8 engaged —

in receiving wagers for him or on his behalf;

(3) if he’ is engaged in ‘receiving wagers for or on

-. . behalf of any person liable for tax under sub-

ees ie

"chapter A, the name and lace of residence of

each such person. .

(b) Firm or company—Where. subsstion (a) requires ©

the name and place of residence of a firm or company .

to be registered, the names and places of residence |

of the several persons constituting the firm or company

shall be registered. ' :

(¢) Supplemental: . information—In accordance with

regulations prescribed by the Secretary, he or his dele- :

gate may require from time ‘to ‘time such supplemental

information from any person required to register un-

der this section as may be needful to,the aan

of this chapter...

68A Stat, 851 (1954), 26 U.S.C. $7203 (1958): Willful

failure to file return, supply information or pay tax

Any person required under this title to pay any esti-

mated tax or tax, or required by this title or by regu-

lations made under authority thereof to make a return

(other than a return required under authority of sec-

tion 6015 or section 6016), keep any records, or supply —

_ any information, who willfully fails to pay such esti-

mated tax or tax, make such return, keep such records,

' or supply such information, at the time or timés re-. .

quired by law or regulations, shall, in addition to other

penalties provided by law, be guilty of a misdemeanor. -

and, upon conviction thereof, shall be fined not more

than $10,000, or imprisoned not more than 1-year, or

both, together with the costs of prosecution. ;

6

- 68A Stat. 732. (1954), 26 U.S.C. § 6011 (1958) :, General

requirement of return, statement, or list |

(a) General rule-—When required by regulations pre-

scribed by the Secretary or his delegate any person

\made. liable for any tax imposed by. this title, or for the

ediection thereof, shall make a return or statement |

according ‘to the forms and regulations prescribed by

_ the Secretary or:his delegate. Every person required

to rake a return or statement shall include therein the

information required by such forms or regulations. —

"Amend. V, U.S. Const.: Capital Crimes; Double Jeop- 9. +

ardy; Self-incrimimatton; Due ~~ Just — : %

tion for Property.

_ No person shall be held to- answer for a capital, or

~ otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except: in cases arising

in the land or naval forces, or in the Militia, when i in .

actual service. in time of War or puble danger; nor )

shall any person be subject for the same offence to be "|

twice put in jeopardy of life or limb; ‘hor shall be com-

pelled in any criminal] case to be a witness against : |

himself, nor be deprived of life, liberty, or r_property,————

? ‘without due process of law; nor shall private property. |

—-———be taken for _— use, withoat just compensation. -

cs

a

a VI, U.S. Const. Jury. Teial-for Crimes, and

- Procedural Rights. ec << ‘

In all criminal prosecutions, the actused shall enjoy |

- the right to a speedy and public trial, by an impartial

jury of the State and distriet wherein the crime shall

have been committed, which district: shall have been

previously ascertained by law, and to be informed of

_the nature and*cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining Witnesses in his favor,

-and to have the Assistance of Counsel for his defence. -

Amend. X, U.S. Const.: Reserved Powers to States.

The powers not delegated to the Uniféd States by the

-Constitution, nor prohibited by it to the States, are

reserved to the Btates respectively, or to the people.

26 CFR. § 44.4412-1 (B)(2): Registration. —

(2) Each person engaged in the business of accept-

. ing wagers on his own account shall report on Form -

11-C the name-and-address of each place where such

__—— business will be conducted and the name, address, and —

number appearing on the special (occupational) stamp.

of each agent ot employee who may receive wagers on

- his behalf. Thereafter, a return shall be filed on Form

- 11-C, marked “Supplemental, ” each time an additional — |

employée or agent is engaged to receive wagers. Such -

supplemental. return shall be filed not later than 10

days after the date such additional aia or agent

_ is engaged to receive wagers and shall show the name,

-address, and number appearing on the special : (occu-

pational) stamp of each such. agent or employee. As»

toa aires of — see § 44. vate

a

ee of the Case -

An indiptment was returned against petitioner on Octo-

is ber 6, 1964 and he was arrested on. October 8, 1964 in a

massive raid throughout Bridgeport; Connecticut. On Oc-

tober 8, 1964,.a press release which. had previously ‘been

given to newsmen, announced that approximately forty-five

persons enga zaged-in va arious gambling activities were. ar-

_Tested-in a spectacular thrust at the. extensive gambling

= activities in this area, by seventy-five special agents aided

by fifty State Policemén. Extensive newspaper, radio and

television coverage prevailed i in Bridgeport and elsewhere

in Connecticut. Statements by. the Chief Assistant United

_ States Attorney such as the government “had. broken the

back of gambling” in Bridgeport were aches in the

Bridgeport Post.

On November 30, 1964 approximately forty-seven gam- —

bling cases were. assigned for trial at Bridgeport,.and four —

‘juries including petitioner’s were selected: on November

30th and December 1st from the same‘panel of veniremen.

All four cases involved similar substantive charges of gam-

bling tax violations and the same Internal Revenue Agent

' was the chief government witness in the first three: cases.

Petitioner’s jury was then excused until the trial of Cos-

tello, Marchetti, and Gjanci was completed (P.. A. 3a). On

. December 15, 1964, prior to the commencement of trial peti-

.

; a

. .

_ tioner moved that his jury which was impaneled on Decem-

ber 1, 1964 be dismissed and a new jury be impaneled or the

ease be continued because of prejudicial publicity. ‘The

motion was denied. (P. A. Sai) ;

. The jury returned a verdict of guilty on both counts of a

the indictment.’ Petitioner was senténced to: Imprison- |

ment for one year on Count 1 and a fine of $5,000. Im- ._.

- position of sentence was suspended -on Count 2 with pro-

bation for two years, to start upon date of release from

imprisonment. Execution of sentence stayed 24 hours.

Petitioner filed motions for judgment of acquittal or riew

" trial.” The motion was denied. (A. 7a) On January 12,

1965 petitioner’ s notice of appeal was filed. (A. 7a) The

Second Circuit. Court of Appeals ‘affirmed the judgment _.

(P.A. la) and pétitioner’s motion as ee was denied.

| Pee S. Statement of - Facts | oar

‘The’ sitesi Sides that a special agent of the.

Internal Revenue Service had put wagers in with the

‘petitioner by telephone on numerous occasions and in. per-

_ Son on several other occasions. These activities. occurred |

‘between J uly 27, 1964 and September 16, 1964. The agent

first met petitioner personally on September 3, 1964, and. -

his investigation ended on September: 16, 1964. Petitioner

-was the permittee. and part owner of a restaurant-bar

known as the Pin-Up Restaurant. It was located in the

' biiginess area of Bridgeport and was a successful estab- .

lishment, catering to businessmen, lawyers and police of-

ficers. fed Bi . : .

' Asa result of the agent’s investigation petitioner was .

onmeiad in-a raid at his restaurant on October 8, 1964

for the alleged gambling tax violations. — :

»

During. direct-examination, Agenf7Macolini, in an un-

" responsive answer, testified as follows: (A. 100a)

; - - cotati, de 2 ’

: “Q, Thank you very much. Now after you made your

search of the premises at the Pin-Up Restaurant, what,

. if anything happened at that point? (Italics ours.)

A. Well, before we started our search, I told the .

‘ defendant’s attorney and the defendant I would like

to ask him a few personal history qeattigna. (Italics

ours.)

| Mr. Hanken notified, me that -he had inst@acted his

/ lint not to answer any questions. And I explained

to Mr. Hanken I would need history questions fr@m the

defendant, - and let him examine my questionnaire

sheet. - - :

__ He allowed the defendant to answer those persona! .

history questions that were on the sheet.”

No objection “was raised by Petitioner to the answer .

given by Macolini nor was any reference made to this by

either counsel during the remainder of direct, cross, re-

~ . direct and recross.

_ After’ Macolini concluded ni testimony and over objec-

tion, the trial court Proveeded to question Macolini: a A.

106e-10ta) oe

a. at

| BytheCowt:) =.

Q. And the second thing I wanted to ask you, Mr.

Macolini, after you had executed the arrest warrant,

that is, after you had placed Mr. Piccioli under arrest,

did you attempt to ask him questions?

—

+

ae a

Mr. Hanken: I object, your Honor.

; - By the Court: What I am getting at is this.

_., If Lunderstood your testimony, you said that you.

attempted to conduct an interview with the defen-

dant. His attorney, Mr. Hanken, instructed him not

to answer questions except that, pursuant to Mr. .

Hanken’s permission, you did ask the defendant cer-

tain personal history questions.

(308)

Is that it ina nutshell?

. A. Yes, sir. .

‘Q. But the defendant was tiatrected 3 in your presence

Mr. Hanken: Your Honor--

"By the Court:

(. —by Mr. Hanken, not to answer. any questions

with respect to whether or not’ he was accepting horse

wagers on the premises?

_ A. Yes, sir.

Mr. Hanken:. Your iia? 7 want to object to all

these questions ‘and answers. |

_ I-think the jury. has got an beatthattin that thene i

is no constitutional right here involved.

He had a constitutional right not to answer.

“Mr. Moskoff: Excuse me, your Honor—

“Mr. ‘Hanken: I asserted that right for him.

These types of questions. should not be eset At

this time it is extremely prejudicial.

The Court: I will hear Mr. Moskoff.-

Mr. Moskoff: Your Honor, I would request, your

Honor direct Mr. Hanken, if he.is going to argue,

that he argue in the absence of the jury; that there‘is

a time for speech making and this is not the time.

e

é

~ (909) :

The Court: i. will say to the jury this is tay: re-

sponsibility. I think “I have some responsibility in

presiding, ‘inthe conduet of a criminal case.’°

There were certain questions asked as to the in-

vestigation Mr. Macolini conducted, including -the

. asking of questions or the attempting to ask ques-

tions of the defendant at the time of the arrest. on

_ the premises of the Pin-Up Bar.

7 I simply wanted to get it clear in my'mind, and

I assume the jury did also,'as to precisely what hap-

- pened. .

_ And I think Mr. sisal his Deas th'ghiee te.

“what happened as -he has responded to my ques-

et at te ees... 9

_ Now I will say to the jury that, once the defen-

dant was placed under arrest, it was his privilege ~

under the Constitution not ‘to answer any questions

that might tend to incriminate him under Federal —

law. I assume that advice was given and, pursuant

. to that advice. of his counsel, the defendant exqreited

that privilege.

What brought the aie on my part was, I- was

- not quite sure what was meant. by personal history

“questions, as distinguished from whatever —

- he’ declined to answer.

(310)

' * Now if ‘ieee wish to ask any further questions,

‘as a result of the Court’s questions, you are at liberty

to ask them. ..

Mr. Hanken: I am afraid iis your Hands. I just —

wanted the record to note my objection to all your

' statements and answers argueet They were ex-

ae — préjudicial. ne we Pa 3

_

=.

i

| : rey

13 ae

| ; |

{|

I 4 e

Reasons for Granting the Writ

1. Because’ this Court’s decisions in United States v. .

Kahriger, 345 U.S. 22 (1953) and Lewis v. United. States,

348° U.S. 419 (1955), upholding the constitutionality of the

wagering tax statutes, are in 1 conflict with Jater. decisions -

of this Court. . sr

2. The Court. permitted the jury, by | its:questioning of a

witness, to draw inferences of guilt from petitioner’s consti-

- tutional right to silence upon arrest and upon his reliance

. >, on his right to the advice of counsel, and this fundamental _

breach of petitioner’s constitutional rights warrats review

of his wrongful conviction.

3. The deeision of the Court ieee has rendered mean- |

- ingless the elements of “specific wrongful intent” and “evil

motive” required by Murdock v. United States, 290 U.S. 389

(1933); and Umited States v. Spies, 317 U. S. 492 (1943) with

regard, to Section —_ offenses. ~

4. The. conscio adil of massive » pre-trial publivity

by the governm t combined with the statements of the

district court éreated a situation which only this Court can

correct by exercising its power of supervision. a

‘

* 44

Pati |

“Are you engaged i in the business of accepting wagers

on your own account?”

“Do you receive wagers for or on behalf of some other

person, or persons?” i *

It is for his failure to answer these and more ‘detailed

inquiries contained in Internal Revenue Form 11-C (A. 31a)

that petitioner has been subjected to a one year prison

sentence and a $5,000.00 fine (A. 11a). As Mr. Justice Black

- commented in a dissent a decade ago, if a: a ees Te- -

_ sponse to these’ questions

“" would not violate the Fifth Amendment privilege —

> oui self-incrimination, it is hard to think of any-

Ly

thing that would.” Lewis v.. United States, supra, 348

UU. S. at 425.

In viagaidione petitioner’s contention that the self:inerimn-

" ination clause of the Fifth Amendment protected petitioner,

in the wagering tax context, from having to make any state-

| menté save those that “cannot. possibly have such tendency

to incriminate,” Malloy v. Hogan, 378 U.S. 1, 12 (1964),

the court below relied, squarely upon. Kahriger and Lewis.

While noting, by. reference, in its opinion on rehearing

that. Albertson v. Subversive Actwities Control Board,

supra, may lead'this Court to overrule K. ahriger and-Lewis .

“insofar as these sustained the federal wagering statutes

against attack on the ground -ef self-incrimination,” the |

court felt that the issue was appropriate only for this

.. Court’s determination (P.A. 26a).

og 6 8

. di -

. @

:

‘tiv:

515

What subttinnen urges is a reappraisal of K es and .

Lewis in the light of Malloy and Albertson.

, Significantly, Kahriger and Lewis were decided without

‘mention of the doctrine this Court firmly established in

Hoffman v. United States, 341 U.S. 479; 486 (1951): that

the privilege | against: self-incrimination “not only extends

‘to answers that would in themselves support’ a conviction —

. , but likewise embraces{ffose which would furnish a link

- inachain of evidence needed to proseeute...,” and without -

reference to tlie specific information sought w tHe: ‘Internal

Revenue Service form involved here. Malloy reemphasized

the link-in-the-chain principle ignored in Kahriger’ and

Lewis; Albertson emphasize the questions on the Justice

Department registration form, the LR.S. _ counterpart of

which is involved here and had been ignored ° in Kahriger |

Pe _ and Lewis.

In Kahriger and Lewis, the: wagering in statutes were

ld ‘because the Court felt they operated only prospec-°*

ively and were, therefore, non-compulsery. 345 U.S. .at

32, 33; 348 U.S. at 422. But. by similar reasoning the ~

Albertson registration provisions would have been held

valid, since individual ‘Communist Party members could -

- terminate their membership within 30 days after entry of

a § 786(a) order directed -to the Party, 34 U. S. L. Week at

7 4014, and thus avoid individual registration. ‘Yet this Court

. inval idated the registration provisions in. Albertson and

its "comments in so doing are equally applicable to the

wagering tax statutes and. undermine the rationale of.

<

- Kahriger’ and Lewis: » - Bee

“The risks of incrimination which-the petitioners. take

in registering are obvious. Form IS-52a requires an

admissidh of membership in the Communist’ Party.

é 2 . : PY

os + —

16

Such an admission of niembership may be used to pros-

- ecute the registrant under the membership clause of the

Smith Act ... or under .§ 4(a). of the Subversive Ac-

tivities Centre Act ...., to mention only two federal

criminal statutes. . Ik follows that the requirement

to accomplish vemlanvelion by completing and filing

Form IS-52a is inconsistent with the protection of the

Self-Incrimination Clause.” Albertson v. S. A.C.B.,

supra, 34 U.S.L. Week at 4016.

Here, too, ‘the risks of incrimination are, obvious. For

Petitioner | to pay the tax required by 26 U. S.C. § 4411,

__ thereby. admitting that he was engaged in wagering, he

‘ would also be required, by 26 U.S.C. §§ 4412 and 6011, to

furnish on I. BS. Form 11-C the name and address “where

each such business is “conducted”. and the “name and ad-

dress” of each employee engaged in receiving wagers.?

Disclosure in response .to these questions, if not an out-

. Tight admission of violations of some or all of Conrfecticut’s

anti-wagering laws, §§ 53-271 to 53-279, 53-295 ‘to 53-297

' (Conn. Gen, Stat., 1958 Rev.) or its criminal conspiracy

_ 1These questions and the more detailed inquiries are contained.

on I.R.S. Form 11-C which is both a special tax return and appli-

cation for registry, which petitioner would have had to complete

in order to pay the special tax prescribed by — and avoid

; conviction. By virtue of 26 U.8.C. § 6011(a):

. Every person required to make a return or statement

shall- include therein the sateen required by such forms

or regulations.”.

The Commissioner of Internal heietes refuses to accept recei :

‘of the $50 for the stamp without the information required

Form 11-C. The fact that a defendant tenders payment which 4

refused is no defense to a subsequent prosecution for States

wagers without payment of the $50 special tax. United States v.

en 233 F.2d 204, 205 (3 Cir. _— \

~&

R 17

statute, § 54-197 (Conn. Gen. Stat., 1958 Rev.),? would con-

stitute at the very least a “link in a chain of evidence

_ sufficient to connect” petitioner with such violations. 378 —

US. at 13. ees ; :

Certainly the listing of employees and agents is tanta-

mount to an admission that there has been an agreement, .

with these. persons to be employees or agents in the busi-

ness of wagering.® And disclosure of the place of business ©

in which wagering is-carried on could lead authorities to a

lease, purchase of real estate, or other rental agreement

for the purpose of showing overt acts in furtherance of-the

‘conspiracy. State v. McLaughlin, 132 Conn. 325, 340, 44

A.2d 116, 123 (1945). The overt acts, of course, need not be

successful toward accomplishing the object of the con- -

‘spiracy, State:v. Devine, 149 Conn. 640, 649, 183 A.2d 612,

616 (1962), and need not Be criminal acts in themselves.

United States v. Rabinéwich, 238'U.S. 78, 86 (1915).

If response to the questions asked in Malloy, 378 U.S. at.

13-14, involved the possibility of self-incrimination, com-

pelled compliance with the statutes here involved would

make self-inérimination under Connecticut law a practical

certainty. — Asp * estes Ss

2 In Acklen v. State of Tennessee, 267 8.W.2d 10% (‘Tenh. 1954),

for example, the defendant was convicted of conspiracy to violate

* a state gambling statute solely onthe evidence that he had pur-

chased a tax stamp.

°26 C.F.R. § 44.4412-1(b)(2) requires a person engaging or

about to engage in the business of receiving wagers to: submit the

name of any “employee” or “agent” hired to receive wagers within

10 days after that “employee” is so engaged. The “employer,”

then, is forced: to supply the name of someone who will admittedly

be in a unique position to bear witness against him. And due to_. a

the 10 day delay permitted in the fegistration of such. “employees,” '

the information supplied would relate not only to future criminal

act, but also tf past criminal acts. 2

: Pie . “oH .

To leave Kahriger and Lewis standing in view of the

nature of the self-incriminatory responses called for by _

the statutory scheme involved in the wagering tax laws

is to leave clouded with doubt the proud assertion that the

Fifth Amendment privilege reflects our “most noble aspira-

tions.” Murphy v. Waterfront Commission of New York,

378 US. 52, 55 (1964). tes as

Il.

-

The Court of penne in considering the prejudicial effect

eof the trial court’s questioning of Macolini oand his com-

- ments to the jury, held, inter alia, that. petitioner’ s silence,

“affords no fair ground for relevant inference,” (P.A. 5a)”

and that the judge’s question “was {thus] ill-advised.”

The court also agreed with petitioner that there. was “no

apparent reason” for the question, and finally, the error

-committed was not cured because the trial court’s’ instruc- __

tion was improper. (P.A. 6a)

Yet in the face of these most compelling reasons for re--

versal, it was decided that the trial court’s error.was harm-

less.

The court believed that since Macolini's answer was not

objected to, nothing significant was added is it by the trial

court’s questioning of Macolini. 3

“Yet in United States v. Lo Biondo, 135 F.2d 130 @ Cir, “=

1943), an almost identical issue was involved. The court °

reversed the conviction, .although no objection was taken _

or motion to strike made—to the admission of the officer’s -

testimony. This same Second Circuit Court of. Appeals.

- held that “the requested charge that ‘the jury should not .

- consider it an indication of guilt or innocence’ was equiva-

lent to.a motion to strike” 135 F.2d p. 132.

19

In the case at bar petitioner objected to the trial court’s

questions and Macolini’s answers. However, diréctly on the

heels of these objections, the court proceeded to charge the

‘jury incorreeétly on the law, since petitioner had the right

not to answer any questions under any law and ‘not ‘only

those “that might tend: to incriminate him under Federal

law.” (Italics ours) . |

«Even more serious, ry again ‘paralleling Lo .Biondo, .,

3 is the fact that after the trial, the trial court once more

improperly charged’ the jury by not cautioning them. “that...

_ the evidence was te be disregarded. and no inference drawn

therefrom.” ‘(P.A.6a) }

This “proper instruction” (P. -: Ga). was Sanevek, spe-

cifically included in petitioner’s written requests to charge

and was conspicuous by its absence. ;

. (A. 93, 94a) I chaige you that ‘the fact that the

Defendant exercised this right must not be eonsidered

by you in any way whatever. You must not even refer

to it in your deliberations. “

The trial sourt not only erroneously eliminated the cru-

cial rule of law from its charge but reviewed the prejudicial

incident again in its summary. of the evidence (A. 68a).

“A failure to charge correctly is not harmless since the

~ verdict might have resulted from the incorrect instruc-

tion.” The error is aggravated by the failure to give

_ the correct charge upon request. (Italics ours)

- - Brotherhood of Carpenters v. United eigen 330

U.S. 395, 409 (1946).

a

‘aged 340 KF 2d 673 (1 Cir. 068), it was held that ¢ ‘an

20

arresting officer’s testimony as to a defendant’s desire not

to.answer questions and. to see his lawyer is admissible,.

even if objected to, since the testimony would be descrip-

tive of the arrest. | .

In Fagundes, the Goverfment later tried to impeach him

after he took the stand, by questioning -him as to why he

didn’t protest his innocence instead of refusing to answer

questions and asking to see his lawyer. This subsequent.

‘questioning by the prosecutor was.admitted over specific

objection ; however, the Appellate Court held this question- .

ing to be improper, and that the Government could not

even use: this evidence for impeachment..

Furthermore, the Court’s conclusion that satin signifi-

cant was added to what Macolini nae said (P.A. 6a), is

to i ignore reality. |

This testimony was brought out long before the trial

court questioned Macolini. There was good chance that ~

the jury didfit comprehend. Macolini’s remark or paid little

attention to it. After all, the trial court’s reason for the “ill-

advised” question was that he wanted the jury to get clear

_in its‘mind and iti his own as to precisely what —-

(A. 106a) - ae

~ Petitioner respectfully submits that it is not the func. .

tien of a.trial court to help a jury. determine why a de-

fendant after arrest refuses to answer questions upon ad-

vice of vounsel. —

See U.S. v. Kelly, 119 F. non: 217 (D.C. D.C.).

The question put.to Macolini by the Court was an utter

. distortion of his testimony, since the crucial phrase, “ac-

cepting horse race wagers,” was never mentioned until the

21

trial court injected it. The words of the indictment were

' very. likely rekindled in their minds by the question.

-To worsen matters, the trial court made petitioner’ .

-counsel responsible for this episode in the eyes of the jury.

Lastly, the-mere fact the trial court asked Macolini these

completely irrelevant questions, using such incriminating

phraseology, gives the answers infinitely more importance,

than had the prosecutor done so.

“The influence of the trial judge on ae: jury is heces- |

‘sarily and properly of great weight, Starr v. United

States, 153 U.S. 614, 626, and jurors are ever watchful _

of the words that fall Pe. him.” . (Italics ours.)

_ Bollenbach v. United States, 326 U.S. 607, 612

(1945).

*The trial judge's “... lightest word or intimation is re-

ceived with dcterenee and may prove controlling.” -

Starr v. United States, 153 U.S. 614, 626 rates

Thus, the trial court’s treatment of the lachtent ran. the

gamut from distorted, irrelevant and prejudicial comments.

to failures to. — correctly even after a correct detest ae

was submitted.

-. Petitioner respectfully submits that “ill- advised” com-

_ ments by a judge, which were his responsibility, (A. 106a)

under all the facts of this case should mean prejudicial and

_ not harmless error was committed, and as in Lo Biondo,

a reversal of the wrongful conviction. _

“In the second place we think it reversible error to |

permit a jury to draw any inference adverse to one.

' 99 7

~ accused of crime from his reliance upon his.constitu-

tional right to silence and to the advice of counsel.

The right to silence on arrest is akin to the right to

decline to take the witness stand in one’s own defense.

Hilton y. United States, 221 F.2d 338, 341-342 (C.A. 5,

1955)”. United States v. Fagundes, 340 F.2d at pp. 666,

667. : a

. IL

The Petitioner. was convicted of willfully failing to pur- )

- *chase a $50.00 gambling tax stamp See. 4411 and willfully

failing to Tegister Sec. 4412 both in violation of Sec. 7203.

_ Willfullness is the essential element of the crime pro-

. scribed by See. 7203. -

.

‘ Where the statute simply denounces the doing of an act

as criminal, éspecially in offenses mala prohibita, the law

; imputes intent; but-where’a statute denounces as criminal _

only its “willful” doing, specific wrongful intent, that is,

actual knowledge of the existence of the obligation and a

wrongful intent to evade it, is of the essence. :

The taxpayer must possess an evil motive to defeat’ the

‘payment of the tax which he knows to be due and mere

laxity, careless disregard of the duty imposed by law, or

even gross negligence, meyease by —e motive are not

er of willfullness.

United States V. Murdock, 290 U. 8. 389 (1933) ; :

United States v. Spies, 317 U. S. 492 (1943); ,

Hargrove v. United States, 67 F. 2d 820, 823 (5 Cir.

1933) ;

. United States v. Palermo, 259 F. od 872 (3 Cir.

1958);

"United States v. Martell, 199 F. 2d 670 (3 Cir.

, 1952). ®,

‘

LAO AON Y ee 8 OS ef Re -

| It. is the petitioner’ s contention that there was insuffi-

‘ cient evidence of such willfullness to support his conviction

under Sec. 7203.

The leading case of Ingram v. United States, 360 US..

672 (1959) has often been authority for the proposition; that °

. knowledge of the gambling tax and willful failure to pay it |

may be inferred from evidence of a defendant’s attempts to’ .

conceal the operation of a gambling enterprise. °

A portion of the evidence supporting the decision ‘in

Ingram revealed the Defendants to be entrepreneurg of a

vast and profitable gambling enterprise and that they had

» engaged with numerous others. to operate a numbers game

for three years. The participants used false license plates,’

took ‘evasive routes to “check-up: headquarters”, used false

ar

names on occasions and attempted -to bribe local- law en- |

forcement officers. Massive evidence of a gambling opera- |

tion was uncovered, in addition, one of the Defendants was

alleged to have stated that, “business is saints to about |

. $3,500,096. per day. aff

Viewing the niin presented in the predent case in the

~ light of Ingram, it is apparent that the ‘government, failed

in its proof of “willfulness, 4 .

-

Tn the instant case, there was no direst evidence to show

that the petitioner knew of the gambling tax laws. . The

petitioner took the stand and his testimony revealed that

he was a full-time permittee of a legitimate, thriving res-

taurant-bar business. His other duties included - ‘cooking,

waiting on tables and cleaning up. His age work-week |

- involved between 80 and 85” hours. The.restaurant was

located in the downtown business. area and: professional

men, businessmen and policemen formed the bulk of his

| clientele. (A. 108-9a) As permittee, he was naturally sub-

©

a

‘jected to the rules and regulations of the State sient Com-

* mission, Special Agent Ripa ‘indicated that at.the time

he commenced his investigation, petitioner was not sus-

pected of being involved in gambling violations nor was _*

his restaurant suspected of housing such activities. (A.

95-6a) Petitioner, 46 years of age, had ‘worked all his

‘ life and had a commendable background. No‘criminal rec-

ord, including gambling violations, was introduced against ~

him when he testified. The evidence showed that at least ~

three agents thoroughly and systematically sear¢hed the

premises for approximately two hours after his arrest. Not’.

a single betting slip, tally sheet or similar paraphernalia

was found, and the various sporting publications seized,

bore no markings. (A. 99a, 104a)

There was no showing by the government that the gam-

bling .tax was ever called to petitioner’s attention, even

indirectly, by Agent Ripa or anyone else or that gambling

stamp ——— had ever been published in local news-:

‘papers.

The utter lock of ‘ities of sanenibaiiad of a gambling

operation, as viewed through Ingram, is perhaps best il-

lustrated by the fact that his restaurant was an open, pros-

perous business and not the typical grocery or cigar store -

where clandestine gambling operations flourish under a

false front. - ;

United States v. McGonigal, 214 F. Supp. 621

(1963):

' In short, the critical and substantial acts of concealment

which have supported the slightest inferences of knowledge

and willfaliness in all previous gambling tax cases are

eonspicuously absent in this case. ~

ee .

25

The government*has based its entire case on Agent Ripa’s

testimony that the petitioner gave’ him, on one occasion, * <~

$2.00 from his pocket with a closed ‘palm (A. 95a), which .

testimony -was partially contradicted by the petitioner.

(A. 110a) Presumably, this act is the “evidence of furtive-

’ ness” referred to bythe Court below. (P.A. 2a) The gov-

ernment thus claims to have established, beyond a reason-.

able doubt, that by virtue of this isqlated, vague-ard ittcon-

clusive act the petitioner knew'of the tax and was concealing

a gambling operation.‘ , Ay .

‘The fact: that this act was characterized by the agent

_ to be “secretive” lends no dignity to such utterly indeter- - -

,Minative evidence of guilt: Indged, the insignificance of _

this act is perhaps made even more graphic by the neglect

' of Agent Ripa to everi mention it in his report, although

. numerous other innocuous eventgewere. specifically noted.

(Ex. 28, A.119a) | wi aoe

Petitioner réspectfully, AGbmits that’ a finding of “will-

fulness” in this case would read the ‘essence of ‘the crime

completely out of the statute and render: meaningless the

cases which gave this concept truth and vitality.

> oe

. ' ?

IV. ( ~

The conscious generation of publicity surrounding the

events of October 8 is particularly significant because it

demonstrates that the government was controlling conduct

which the Constitution left to the ‘responsibility of the

states. oes .

Although Kahriger upheld the constitutionality of these

gtatutes as revenue measures, the Court was not confronted .

with vivid evidence, as appears in the instant case, of the

Py

4

" eo :

4

eink 26

_ use of thé-statutes by the government and bythe trial court

- as merely an assault on gambling i in Connecticut.

In United States v. _ Calamaro, 354 U.S. 351, 358 (1957 rs

‘this Court notéd that, “The statute was passed and its con-

stitutionality was upheld, as a revenue measure, and apart —

from.all else in construing it, we would not be justified’ in

“resorting to collateral motives or effects which, standing -

@ apart: from the federal taxing power, might place the con-

stitutionality of the statute in doubt. af

- Compared i in the light of the foregoing is the. vases of

the trial court made prior to imposition of sentence upon

saat Marchetti, Gjanci and Piccioli on J aquary. I 1965.

“While it is true that these are tax cases, prosecu-:

tions authorized by the revenue laws of. the United

: States, it is also a fact, with:respect to which the Court

is not blind; that it is the clear intent of Congress, in

J authorizing such prosecutions, to deal with a vice,

rangi that of gambling”. i A.-6a). |

"This use by the trial. court of improper, ‘itil and ¢

incorrect, criteria a} a basis for sentence was a clear denial .

. .- of due process -of 1 . Townsend v. mae 334.U.S. 736,

741 (1947).

Later, on ‘February 8, before taking up thie criminal cal-

endar, the trial court commented at great length, (A: 17a-

27a) (P.A.:7a) about “what has been accomplished by this —

~~ latest — crackdown upon gambling and organized

crime”

It was J ustice Frankfarter’s opinion that these sfatites

were actually “verbal cellophane” which permitted Congress

97

to “control conduct which the Constitution left to the re-

sponsibility of the states”. 345 U.S. p. 38.

Petitioner submits that this “verbal cellophane” has been

stripped away in the ‘instant case by the fashion in which .

_ the statutes were enforced by the government and by the

_ tial court’s statements “in the prosecutorial area beyond -

his function.” (P.A. 8a)

b - . = —

Practically every phase of the mass atrests was calcu-

4 lated by the government to and did produce ptblicity which

‘saturated the state of Connecticut, which the Court below

characterized as “needless intensification” (P.A. 27a).

ae Prior to the commencement of the Marchetti, Costello ;

and Gjanci‘trials (P.A. 9a) counsel for Grassia, United -. »

States v. Grassia, —— F-. 2d-—— (1965) made the trial

~ court. keenly aware of the prejudicial pre-trial publicity

which had been generated by the government (P.A. 26a) in“

his motion for dismissal.of the indi¢tment.or a continuance. —

Subsequently, before Costello’s trial: began, his’ counsel

moved for a mistrial because: of prejudicial newspaper pub-

icity, which niotion was denied. (P.A. 17a) Later, on De:

_ cember 15, 1964, petitionier’s trial commenced before a jury

which was impanelled and sworn on December 1, 1964, — -

Realizing that the same trial court was familiar with the

'.. pre-trial publicity relating to the events of October-8, 1964

and that the court was not favorably inclined to grant con-

tinuances because of such publicity, petitioner based his - -

_ motion for a new jury panel or a continuance on the preju-

dicial. publicity arising out of enti trial. This ‘nio- |

tion was heard and denied on Beecember 15, 1964, prior to

‘the commencement of petitioner's trial. (A. 3a) Actually, .

under all these circumstances even if petitioner had for-’

mally referred to the publicity. of October 8 as well as the

&

2

28 ha Cai ie

adverse publicity attending the Costello trial, it would not

have caused the trial court to grant petitioner’s request. ‘

In all probability, the request would still have been made

in ‘vain, and specific reference to the events of October 8,

- in his motion might, in that light, be deemed to have: been

“unnecessary. See United States v. Viale, 312 F. 2d 595, 601.

Petitioner was consequently placed in the unique and un-

enviable position of having his jury impaneled and sworn,

read the indictment, and then being released for two weeks, .

during which time ‘his name was prominently mentioned |

on the front page im connection with the same activities

_ he was subsequently to be tried for. (A. ‘116a) The news-

papers even published the fact that petitioner had been

. subpoenaed by the government to testify in the first case

(A. 117-1182) although he was never called upon to testify.

The juty in,his case, having been selected, knowing his

name.and the gravamen of the charges against him could

not help but be attracted to the detailed newspaper accounts’

of another gambling tax case, especially those which re-

ferred to petitioner. With news dissemination being so

sophisticated and all pervading. in our society, it is-com-

‘pletely unreal to believe that at least one or more of the

jurors was not prejudiced against petitioner, by informa-

tion accrued from the news nes or through . fainily. or

friends. _—

rm

Accordingly, i im view of all the foregoing, petitioner sub--

“mits that his conviction should be reversed on the basis that

‘the statutes here involved, have been enforced both prose-

cutorily and judicially so as to control conduct: which the

Constitution has left to the States in violation of the Fifth

and Tenth, Amendments, or since there is every indication. -

29

that the government was the sole producing agent of: the

prejudicial publicity, on the basis of this Court’s exercise of

Its supervisory power to formulate and apply proper stand-

ards for enforcement of .the criminal law,” Marshall vy.

United States, 360 U.S. 310, 313 (1959). 7 ,

°

CONCLUSION

For these reasons, then, ‘this Court should—and peti-

tioner requests that it does—issue its writ of certiorari

_ to review the judgments of the court below.

Respectfully submitted, | | oe

Pur Banorr

240 Fairfield Avenue

Bridgeport, Connecticut

+ 1016 Broad Street

___ Bridgeport, Connecticut _

Counsel for Petitioner ie