# Petition for Writ of Certiorari — Piccioli v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1070%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 202 ## Text os : PREM COURT. Us By FILED | ee SL : 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, - ' , : ‘ vr oe ; 7 * Respondent. > " e ‘ ; : ‘ . ie e ; ; oe: 240 Fairfield Avenue Sa ates a Bridgeport, Cunmestiont— ; ALFRED BELINEIE ie, . 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 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 , 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1070%3A01. Public record. Not legal advice.