Opposition Brief — Angelini v. United States

Sn the Hupreme asin of the Wnited sin :

" OcToBER TERM, 1965

7 No. 377

DonaLD ANGELINI, PETITIONER

v.

UnrtTep StaTEs oF: AMERICA —

ON PETITION FOR A WRIT OF CHRTIORARI TO THE UNITED |

STATES COURT OF APPEALS FOR THE SEVENTH OIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

a

_ OPINION BELOW —~_

‘The opinion of the court of appeals (Pet. App.

la-fa). is not po reported.

JURISDICTION .

"The judgment of the court of appeals was entered

.on May 20, 1965. A petition for rehearing was de- —

nied on June 21, 1965. The petition for a writ of--

certiorari was filed on July 21, 1965. The jurisdic-

tion of this Court is invoked under 28 U.S.C. bene vi

QUESTIONS PRESENTED

1. Whether the occupation tax and registration

provisions of the federal: wagering tax laws violate.

the privilege against self-incrimination. :

‘ (1) |

ee :

* ae Whether willful failure to file a wagering =

return is an offense.. - .

3. Whether wagering ‘eeoridp were properly ad-

mitted into evidence when the person from whom

they had been obtained was not called as a ‘witness.

: 5 a STATEMENT ne

A two-count indictment returned in the N orthern

_ District of Illinois charged petitioner with engaging

in the’ wagering business between August 14, 1963, . -

and August 24, 1963, in violation of section 7203 of

the Internal Revenue Code, 26 U.8.C.. 7203. Count 1

charged: that petitioner willfully \failed to pay the

special $50 tax on engaging in the business of wager-

ing. Count 2 charged that he : :

register and file a wagering tax return (A. 7-8).

‘\ Petitioner: was found. guilty. He was sentenced to -

‘imprisonment for 60 days and fined $2500 on count 1,

and was placed on probation for a period of three -

years on count 2. (A. 47-48.) - )

At. various times in August: 1963, petitioner was

watched by federal agents at a Cicero, Lllinois, race

track. He was observed exchanging money with Joe

““Red”’ Altiere and other named persons (A. 17-18;

21, 23-25, 28) who had accepted wagers on the horse

= Traces (A. 25-27, 29-31), and making notations “_

he talked with these individuals (A. 17-18, 25). nm

one océasion a man handed petitioner $20 and = 3

“$20 on Quarter Chief,”’ and on another occasion a _

man: gave him $15 and said ‘Chapter . Rhythm.”’.

- These were horses which ran in the next races (A.

12-13). Petitioner was nevér seen making a bet at

oe

—

A “ 3

the pari-mutuel windows (A. 14, 20). On August 24,

petitioner and Joe Altiere were arrested.at the track. ~

A search of petitioner’s person at that time revealed _

that he had on his person various papers and $8,674:00

> in currency (A. 15-16). An- expert described the

papers as ‘recap sheets relating to horseracing,’’ list-

' ing the-winnings on horses at:the end of particular:

races (A. 34-35). The recap sheets showed exactly the

same profits and losses for the first five races at the

race track on August 24 as records seized from Al-

tiere at the same’ time (A. 36-38). Petitioner had

not paid the occupation tax or registered or filed the —

‘required return for’ the tax year ending J une “30,

1964 (A. 10). :

1. In Lewis ¥ v. United States, 348 U.S. 419, this

Court .rejectéd the argument that the oceupational

tax and registration provisions of the federal. wager-

ing tax laws violated the privilege agamst self-in-

crimination because petitioner was subject to a fed-

_ eral’ (District of Columbia) statute — wagering ‘

acrime. It stated (pp. 422-423) :

Tf he: does not pay the ssepatian’ tax, pro-

ceeds to accept wagers, and is prosecuted there-

fore, asin this case, he cannot be compelled to

> testify ca may claim his privilege. - The only

* compulsion under the Act is that requiring the

decision which would-be gamblers must make at

the threshold. They may have to givé up gam-

bling, but there is no constitutional right to.

gamble. If they elect to wager, though it’ be.

unlawful,’they must pay the tax. ,

~ pagan

0° 8

- makes no differense that herd patitioner is unio

- not to a District of Columbia, ‘but ‘to other statutes

. making wagering an offense. See, ¢.., United States .

|. v, Zigao, 338 °F. 24577, 580 (C.A. 7).

, 2. Under Count 2, petitioner was aaa with =

eA willfully failing to register and file a wagering tax

_ return. Section 7203 of the. Internal Revenue:

* - Code - -provides that any person who is required to |

- pay a tax or ‘‘by regulations made under authority

thereof. to make a return” and willfully fails to do

so is guilty of a misdemeanor, and section 6011(a)

=, -- provides. that: the Secretary of ‘the Treasury may by

regulation require that any person who is liable for

a tax shall make a return.. Therefore, ‘contrary to

. petitioner’s contention, the Secretary was authorized. —

Ni promulgate a regulation. requiring a wagering tax

return. Such regulation is also consistent with sec-

"tion 4412 ‘of the Code, ‘which ‘provides that every

- person required to pay the wagering — tax

must register. x! |

3. The records seized bins Ie oe Altiere were prop-

erly admitted into’ evidence without his testimony.

-These records corresponded exactly with petitioner’s

recap sheets ; they \showed the same winnings and —

" losses-for the first five races at the race track. This

similarity, plus the fact that petitioner had been ob-.

served dealing with Altiere, provided sufficient founda-

tion for aie introduction. tes , |

5

CONCLUSION

- For the ‘foregoing reasons, it is Seapedttany sub-

mitted that the petition for a writ of certiorari

‘ should be’ denied.

" Ravan S. finite

Acting Solicitor General.

Frep M. Vinson, Jr.)

Assistant Attorney General.

BEATRICE ROSENBERG,

| Siwyey M. GLazer,

Peg , . Attorneys.

August 1965.