Earl Warren: Number 12, Anthony M.Grosso, Petitioner, versus United States. Mr. Beytagh, you may conclude your argument.
Francis X. Beytagh, Jr.: Mr. Chief Justice, may it please the Court. This wagering tax cases have been extensively brief and argued over the last two terms here and I doubt that in a few minutes anymore can be added. I would like to mention that it seems apparent now that the Court and counsel are quite aware of some of the broader implications that underlie the decisions in these cases. It's just not all that simple. At the one extreme, he might say, “well, part of the tax is plenary.” And the Congress can exercise it in anyway that it chooses on any subjects that it chooses. And we don't concern ourselves with Fifth Amendment. But the other he might say, “Well the Fifth Amendment is absolute.” He has the right to remain silent and the Government can't violate that no matter what parts excise on. But we don't think that either of those positions is sound as we read the decisions of this Court. The Court has taken a position of accommodation when flight – when it's face put the clash such as this. And our effort has been to suggest several alternatives that we think would provide a sensible accommodation in these cases. As far as we know, no prior decision of this Court is held a tax invalid on Fifth Amendment grounds. Indeed, as far as we know, the Court is consistently upheld. Excise taxation of businesses whether they are illegal or legal. It's consistently upheld the taxation of income from unlawful as well as lawful sources. We submit therefore that against this back draft of the President of sensible accommodation here is – is a necessary.
Speaker: What is the short of the used restrictions? What other accommodations that the Government suggests?
Francis X. Beytagh, Jr.: The accommodation that we think we've made by the Court in Kahriger and Lewis, Your Honor. That the Congress chooses to tax a business and that tax is an appropriate one. That it's fair to say that when a person decides to enter into that business, he is accepting the tax conditions that have been placed upon that – an engagement.
Speaker: It's a waiver, that's the way --
Francis X. Beytagh, Jr.: That's one way to stay on this.
Speaker: Any other accommodation?
Francis X. Beytagh, Jr.: I think there are different positions that could be developed. Professor Wright mentioned yesterday that we suggested just in passing our brief that perhaps, one of the problems here is the fact that forms prescribed are hardly neutral. How they answer that we gave to the question post by the Court as to whether these forms had to be filled out, filed the presently prescribed forms was, yes. Professor Wright apparently feels and we suggest that this maybe another way to reach this position. It's not a way that seems to me is presently often at the Court because this kind of information seems compelled by the statutes and the regulations. It maybe that if the statutes and the regulations could be amended in appropriate way. This would be another way that the Congress could still tax in system with the Fifth Amendment. I think there are some difficulties with that also but it is another variant. I would like to enclosing -- just go quickly back over what the substance of the contention made here for unconstitutionality. Now, petitioners don't deny that there are gamblers that essential of their position. They don't say that the wager and taxes in a tax measure because they recognized that that was one of the questions presented in the Court in a petition for certiorari and it was not taken on that ground. What they say is that they're excuse from compliance with the wager and tax laws because the business in which they're engage is unlawful. They say therefore, compliance with these laws would require them to incriminate themselves.
Hugo L. Black: Is that exactly what they're saying?
Francis X. Beytagh, Jr.: That's – that's what I think they claim. Yes, Your Honor.
Hugo L. Black: As I understood it, it was not the business they engage in is unlawful. But if the Government is forbidden by the Fifth Amendment to compel him to admit that guilt to the crime, it's a quite difference?
Francis X. Beytagh, Jr.: Well, I take it that if gambling where lawful in Nevada as it is and these people lived in Nevada. They would not be able to make the claim that they --
Hugo L. Black: Had the affair would not ask you to confess a crime. They couldn't pay with the death sentence of the Fifth Amendment, but they are. And that's quite different to say that you can't tax them because their business is unlawful to entirely oppose to one another?
Francis X. Beytagh, Jr.: In my view, it's just another way that's the state the position that they take.
Hugo L. Black: In other words, if your view that when a man speaks the Fifth Amendment which is specific, directly aim statement that the Government if the Government will not decide that make him confess to a crime. You say that he's saying that he can't be attack because his business is unlawful?
Francis X. Beytagh, Jr.: That's – that's what I get out of their claim. If gambling were lawful where they engage in it, I take it if they couldn't make the claim.
Hugo L. Black: Certainly because they wouldn't be ask to confess to his crime. That's all but the two are different. And you're trying to equalize the claim that you can't give them help, admit you are guilt to the crime to acclaim that you can't beat with the crime that they have tax on an unlawful business. And how could no suggests of that kind from anyone of the defendants.
Francis X. Beytagh, Jr.: Well, I don't think they would phrase it that way, Your Honor.
Hugo L. Black: Well --
Francis X. Beytagh, Jr.: It's not in your interest --
Hugo L. Black: Well, that raise -- that raise all is not their claim. That's not their claims?
Francis X. Beytagh, Jr.: As I suggested yesterday that against his background, at least some accommodation is necessary.
Hugo L. Black: Do you mean like accommodation that the Fifth Amendment which was written with the purpose being to make sure that they could not go too far on the necessary in proper turnover to imply things about the defendant. And when they did that, did it with a purpose that matters had been said, of forbidding something that entitles and forbidding the manner in which something else should be done. What they did was to leave that open to the courts to construe the Amendment, so that the man could be made to confess with his crime, if you will use the word accommodation. That's your argument of that the Fifth Amendment?
Francis X. Beytagh, Jr.: No, one of the accommodations we suggest to --
Hugo L. Black: Accommodation. What do you mean by accommodation?You mean knocking it out in that field, don't you?
Francis X. Beytagh, Jr.: No, Your Honor. Accommodation is a term that this Court itself is used then it's a point of --
Hugo L. Black: And you've used in this connection?
Francis X. Beytagh, Jr.: Yes, it has been use in this connection.
Hugo L. Black: In what case?
Francis X. Beytagh, Jr.: In the Murphy case which we rely upon as this authority for the alternative rational we suggest that was indeed the essence of that case. The Court said that in its view, it was necessary to accommodate the State in a federal interest.
Hugo L. Black: That was a case involving State compact, wasn't it?
Francis X. Beytagh, Jr.: State compact?
Hugo L. Black: Yes, state agreement to Waterfront.
Francis X. Beytagh, Jr.: Well, it involved the Waterfront Commission but witnesses were sought to be compelled to testify before that Commission and they resisted the inquiry on the ground that it might incriminate them under federal law. And this Court held that they could be compelled on it, sir. And that the Fifth Amendment didn't prevent that. That their answers couldn't be use against them or their proofs in some subsequent prosecution and if the Government in that prosecution would have the burden of showing that its information and its evidence was from an independent source. And we suggest these cases provide a suitable occasion for similar kind of rule.
Hugo L. Black: If you are right here, why can't you use the same accommodation for the reference to the First Amendment or the reference to freedom of religion, freedom of press, and freedom of speech?
Francis X. Beytagh, Jr.: Well, it seems to me Your Honor that the circumstances in which Fifth Amendment claims arise lend themselves to this kind of resolution. And I don't know that circumstances in which First or other similar claims arise do. That the Court has as you know adopted exclusionary rules in difference circumstances to provide some kind of accommodation between what the Government does and what the individual's interest does. And that's what they did in Murphy and we suggest that that should be done here.
Hugo L. Black: You're suggesting that an amendment passed after the constitutional with the doctrine for the express republished of forbidding the Government to do certain thing. Can be taken out from the protection of the person by use of the word “accommodation”?
Francis X. Beytagh, Jr.: I'm suggesting that the Court has made this kind of accommodation in the past and we suggest that it's appropriate --
Hugo L. Black: But you finally get back to this fact that you make this Fifth Amendment mean less, do you not? And it says to the effect, “That no person should be compelled to be a witness against himself.”
Francis X. Beytagh, Jr.: Well, one way --
Hugo L. Black: Because you are -- you do know that and you would be compelled to be a witness against himself, don't you?
Francis X. Beytagh, Jr.: I don't say that he can be a witness against himself but what he says can't be used against him. If -- if what he says cannot be use to his detriment in subsequent prosecution then I don't know that then he use it --
Hugo L. Black: What does the Fifth Amendment means and that provision over the court and your argument about accommodation? What protection does it give that the Congress cannot take away?
Francis X. Beytagh, Jr.: Well as I understand this Court's decisions that Fifth Amendment --
Hugo L. Black: Do you have protection if the Court cannot take away?
Francis X. Beytagh, Jr.: I think that's right, it does. The Court has to -- has to make a judgment as to --
Hugo L. Black: The Court's judges then it's the same as all the amendment have been written, that there's no person would be compelled to be witness against himself unless the Supreme Court of the United States holds innocent -- in its judgment. You should accommodate that so as to make him be a witness against himself in certain cases.
Francis X. Beytagh, Jr.: Well, your honor, I thought --
Hugo L. Black: Isn't that it?
Francis X. Beytagh, Jr.: -- I thought that one of the functions of this Court was to decide those questions --
Hugo L. Black: Well, do you -- did you think one of its functions is to take away rights that have been granted for the Bill of Rights?
Francis X. Beytagh, Jr.: No, I don't think that's one of its functions, Your Honor.
Hugo L. Black: But it does, doesn't he? You argued with it.
Francis X. Beytagh, Jr.: I don't think our argument goes beyond what presidents exist --
Hugo L. Black: Well, forget the president. What does --
Francis X. Beytagh, Jr.: I can't forget --
Hugo L. Black: What does it do?
Francis X. Beytagh, Jr.: What is -- what the --
Hugo L. Black: I think it does go beyond it unless you accept the broad and elastic concept of due process which has been suggested. Namely, that it's a balancing of the rights of the Bill of Rights against other provisions of the Constitution written before it was written.
Francis X. Beytagh, Jr.: Well I take it when you're suggesting is that the Fifth Amendment does confer right to remain silent. If that's --
Hugo L. Black: To what?
Francis X. Beytagh, Jr.: -- to remain silent.
Hugo L. Black: It shouldn't be.
Francis X. Beytagh, Jr.: -- to say nothing.
Hugo L. Black: It shouldn't be.
Francis X. Beytagh, Jr.: If that's -- that's what it does, then I think your position is correct and ours is wrong. But we don't read what this Court is done in the past when face with these situations. Clash between a claim of the privilege and some other power that there the Congress is seeking to exercise.
Hugo L. Black: Depends on what kind of privilege it is, doesn't it? Whether it's granted in terms that cannot be changed by the Court?
Francis X. Beytagh, Jr.: But that -- that doesn't -- it seems to me doesn't resolve the question of what that language which means and what that term mean.
Hugo L. Black: You can't believe the language and tell what it means, that's what you're saying?
Speaker: And suppose you might be arguing or understand or adjust to it of the Fifth Amendment was taken on to somewhat different content or it could be found in the appendix (Inaudible)?
Francis X. Beytagh, Jr.: Well, it's difficult as I mentioned to make that argument anymore and --
Speaker: A lot of word to understand.
Hugo L. Black: Yes, Your Honor. But the --
Speaker: At least the Fifth Amendment isn't so crystal clear that doesn't run itself with some interpretation that this Court which would worry some?
Hugo L. Black: Yes. And I think Justice Black that he has pointed out yesterday. When you step back and look at the problem that we have in this country today. A large country that's got a large Government and a lot of programs in which self reporting and some disclosure is just essential to the operation of that. If we read the Fifth Amendment, as is sanctioning a complete and total right to remain silent in any circumstances. If some individual feels that he has that right, then I think we're in trouble. And I don't think that the majority of this Court is going along as lines. And we submit that it wouldn't be a desirable thing to do that. In the Schmerber case, the Court pointed out that the privilege doesn't protect the whole complex, the values that it relates to. And that's -- that's all that we --
Hugo L. Black: Do You think there's any provision of the Bill of Rights that this Court cannot accommodate of ballots out of the suggested --
Francis X. Beytagh, Jr.: I think that your honor, what the Court has to do with any provision of the Bill of Rights is determine in the context that the claim is made. What that language means and how it should be applied? And I think that's what the Court is done and it's --
Hugo L. Black: Do you mean that if it says you shall not do anything. The Court got to accommodate that the other provision of the Constitution say it's tender?
Francis X. Beytagh, Jr.: Now, that may not be the conclusion but you have to at least --
Hugo L. Black: You say they can, if the Court has the power to do?
Francis X. Beytagh, Jr.: I think the Court has done that.
Hugo L. Black: Well I'm not asking what Court has done. Is it -- if it shows position and if the consent of the Bill of Rights and anyone part of it, the Government shall not do this that this Court has the right to accommodate that out of existence and say it can do it?
Speaker: Why not you give up these words which are I like to (Inaudible) without accommodation and seriously report the function that you construed in relation to the First -- to the Bill of Rights.
Francis X. Beytagh, Jr.: Well, we're not touch to any kind of --
Speaker: I can't argue whether it is clear --
Francis X. Beytagh, Jr.: Label
Speaker: -- if it is clear hat the Constitution prevents something it's absolute turn to the Court's Bill of Rights and now if you give it --
Francis X. Beytagh, Jr.: No. I'm not sure. I --
Speaker: What you're getting others -- the Court is concern of finding out what the content, what you call the rules of a particular whether the Bill of Rights in this case the Fifth Amendment, is that you're argument?
Francis X. Beytagh, Jr.: Yes, Your Honor. And there are cases Justice Black that I would agree from placing with you, if Congress decides to set up a particular religion? Now, this Court can --
Hugo L. Black: What If you knew from your attack you're making now against the field.
Speaker: I don't know that any or immune -- I don't know that any or immune in the easy straight forward cases, it's -- are difficult to take that position. If Congress decided to set up a particular religion as a national religion, nobody would bother about that? That the language is clear --
Hugo L. Black: So what would you accommodate?
Francis X. Beytagh, Jr.: But you can't do that.
Hugo L. Black: Why not? Because it says that --
Francis X. Beytagh, Jr.: Because it says that. Yes.
Hugo L. Black: But what --
Francis X. Beytagh, Jr.: -- but that doesn't carry --
Hugo L. Black: But what -- what's your crucial language of the Fifth Amendment here? Would you repeat it or read it?
Francis X. Beytagh, Jr.: Well, that the --
Hugo L. Black: Read or repeat here sir. What does it say?
Francis X. Beytagh, Jr.: That -- no. No person shall be a witness against himself.
Hugo L. Black: They compel
Francis X. Beytagh, Jr.: Yeah.
Hugo L. Black: Compulsory?
Francis X. Beytagh, Jr.: Yeah.
Hugo L. Black: And what does this do?
Francis X. Beytagh, Jr.: What is what do?
Hugo L. Black: What does your law do? Does it compel him to be a witness to testify that he's not guilty?
Francis X. Beytagh, Jr.: We don't think that the Murphy rational does that if the Court applies that.
Hugo L. Black: But you're returning to the Murphy Rational. Now, I wonder if that turns to the Constitution. I want you to explain how --
Francis X. Beytagh, Jr.: We think Murphy --
Hugo L. Black: -- how the language --
Francis X. Beytagh, Jr.: For the --
Hugo L. Black: -- that you just quote it, lend itself to have in this Court say, that you can compel him to do it. Although the Constitution says, you cannot?
Francis X. Beytagh, Jr.: That the lang --
Hugo L. Black: -- and say, you're guilty.
Francis X. Beytagh, Jr.: Well, it's difficult to forget Murphy because it seems to me that as lawyers, we have to pay attention to what this Court has done when it's been face with similar circumstances. But in my own terms if that's what you want, it seems to me that when you read that language against the back draft of what we suggest. It's difficult to say that as part of a tax measure, if someone has to provide information to the Government and that information cannot be use against him. Any substance --
Hugo L. Black: But what information? That define the information which you --
Francis X. Beytagh, Jr.: His name and his address and what he does, and --
Hugo L. Black: Answer the question about what? Whether he's been guilty of violating the law? Isn't that the question?
Francis X. Beytagh, Jr.: That's not --
Hugo L. Black: Isn't that the question that's asking the report?
Francis X. Beytagh, Jr.: The question that's asked is how much -- whether he engages in wagering and how much money he makes out of it?
Hugo L. Black: And does that violate the law?
Francis X. Beytagh, Jr.: It violates the law in some places --
Hugo L. Black: It makes him as criminal
Francis X. Beytagh, Jr.: In some places, it doesn't.
Hugo L. Black: It makes him a criminal?
Francis X. Beytagh, Jr.: In some places, it does.
Hugo L. Black: That's all.
Francis X. Beytagh, Jr.: Thank you Mr. Justice Black.
Speaker: Let me ask you this question. I supposed that the same arguments have been made and the provision that it didn't have him a lawyer (Inaudible) and then they decided in the civil law (Inaudible). They still have the problem.
Francis X. Beytagh, Jr.: You would –-
Speaker: (Inaudible)
Francis X. Beytagh, Jr.: -- yeah. Well, they would -- well, first, I suppose they would be contending that I'm lawyer type case should be decided. And I supposed also they'd be asserting that there are federal statutes that relate to the interstate aspects of gambling.
Speaker: Where is that? There is a broad spectrum a federal statutes that requires the Government to decide the problem --
Francis X. Beytagh, Jr.: Yes, Your Honor
Speaker: You have been more it?
Francis X. Beytagh, Jr.: The -- as we point -- we referred to these statutes in our brief. We point out that there you have different elements that go into that crime, those kind of crimes. And also, there maybe some distance between the information provided in the crime itself but then you're right.
Speaker: I'd like to ask you this one more question. This even go nowhere I know but I'm not sure I understand it. How do you enter to the court under the briefs 2150.
Francis X. Beytagh, Jr.: We think that as we reach Shapiro that relates to records that an individual or business maintains. Now I know that the term “Required Records” has been placed on that doctrine and there is a language in that regarding the opinion. We point out on our brief that the kind of records that we're involved there or under the regulation of those records that are customarily kept in that kind of business. It seems to us that that provides a sensible view as to this scope of Shapiro. We think that the -- when the Government requires on the other hand the filing of reports and returns, and things like that to the Government an affirmative coming forth by an individual. But there are different considerations. These reports wouldn't be filed except for the fact that the Government require. I don't know where you start, if you say that those kinds of reports and returns are also within Shapiro. Because if you say that and it seems to me, the Government can require almost any kind of report or return to be made and that information could be use against an individual to prove his guilt of a crime. And since there aren't any sensible stopping places along that line that we can divide. And since -- it seems to us that there is a substantial difference between the kind of thing that we're talking about in Shapiro and the kind of thing involved with reports and returns. We don't feel that the Court has to reach Shapiro here.
Speaker: Do you know of any other case? Do you know that Shapiro have been applied in any States in the Shapiro?
Francis X. Beytagh, Jr.: As far as I know, this Court does not apply Shapiro directly.
Speaker: -- Governments want to pursue as much as that State is confident and I understand to -- I don't know (Inaudible). But if this in the required record something that you put estimates to the fact that would implementation if the Government or in fact, I don't know what is required that would be able to (Inaudible)?
Francis X. Beytagh, Jr.: Well as I said, the way that we reach Shapiro is that if we wage primarily to those kinds of things that are kept by someone incident to doing his business. Now, I take that none of these people would send things into the Government. They don't do it anyhow but they wouldn't send them in just --
Speaker: You mean the require the records and everyone having Shapiro with something that a person the affected the truth anyway from him?
Francis X. Beytagh, Jr.: I don't think it's necessary to go that far. It seems to me that you can say that the kind of record you're talking about is of the nature that it would be expected to be kept by an individual whether the particular person kept in the past that particular kind of record and then the regulation came along and said, “You had to keep it or not, it seems to me is of the necessary test.” It's the nature of the thing, what it is and how it relates to his business and to the regulatory program that's involved? I don't think that that's an easy problem. We took the position as the petition has pointed out in our previous brief. That we didn't think the Shapiro question was presented here. The Court asked about it after considered judgment we took the position we've taken. I think it is a sound one. I share the difficulty that not only you but some of the other members of the Court have it. Thank you.
Earl Warren: Mr. Wright.
Charles Alan Wright: Mr. Chief Justice and may it please the Court. In six hours of real argument, nine briefs these cases have ranged far and we've speculated them in good many interesting things. There is I think one fundamental proposition of constitutional law that is central to the petitioner's case and that I think does help to resolve some difficulties we've had. It's a proposition this Court has stated placed dozen times in different ways to particular formulation. I code this from the Pry v. United States from 195 US. The Court there said, “The taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument.” Now I introduce from that three things. First, that except was the Constitution itself says XY taxes must be uniform and there are other constitutional limitation of course. There is no limit whatever on the taxing power of Congress. In response to the question from Mr. Justice Fortas yesterday I said specifically that I think Congress has the power to tax wagering as such. I think Congress has the power to tax robbery, kidnapping, anything that wants to tax is valid qualified of tax. But the other hand from great proposition is that the taxing power must acknowledge those limits expressly stated from the Constitution. And the limit presently relevant is the privilege against self incrimination of the Fifth Amendment. Congress can tax whatever it wants to tax. But it must device a way of doing so that does not require persons to accuse themselves of crime. I do not think that these are irreconcilable. For over half a century, the most important of our federal taxes, the income tax has been successfully administered even though it is not contended that the person is required to incriminate themselves. The Sullivan Dictum is respected by the service. The taxpayer's private records are not regarded as coming with the Shapiro Principle. Yet we enforced the tax, if we have a reconciling some taxpayers who does not play forward his records. The Government had no difficulty by netork prosecutions in other means in penalizing the violator and collecting the revenue of this due te. I think that there are ways that the wagering tax could be collected without requiring gamblers to come forward and say, “I am person who has done an unlawful act.” We suggest that some of them are in brief in all our argument. I do not think that the Government simply because it needs revenues entitled to say that the person you must be a witness against yourself. I was suggested yesterday that perhaps this case is an aide for certiorari case from Albertson. I submit that it is that waits so far as the Government's attempt to then Kahriger and Lewis concerned. The Government's other argument, its attempt to the use restriction argument phrases different problems. I think perhaps the used restrictions is a constitutional way that this tax can be collected though as I indicated yesterday, I have the gravest doubt as to propriety of the use restriction being imposed by this Court. And I'm not at all sure –-
William J. Brennan, Jr.: Would you mind just – I know you said that yesterday as to that why. Why you have to let it done in Murphy as you suggested that it would not be property with that the same formulation?
Charles Alan Wright: Mr. Justice Brennan, that's a very difficult question for me to answer for this reason. I think from my client's point of view, I want to say, use restriction.
William J. Brennan, Jr.: Should say what?
Charles Alan Wright: I ought to argue for use restriction. I think I have a better chance of reversing Grosso's conviction if I say to you, yes, suppose you use restriction because I still think that requires reversal in my case. But I feel that I have a duty and you also as member of the bar of this Court to present only a position that I find intellectually acceptable. And to me the notion that the Court in this particular statutory context could say that despite no indication from Congress that it wanted to use restriction, indeed every indication the Congress wanted this to be helpful to prosecutors. For the Court now to do that, I think it would be for the Court to be making a law that it is properly if the Congress
William J. Brennan, Jr.: Well, do you think we did when we did it in the Murphy?
Charles Alan Wright: I think as I said Mr. Justice White yesterday, perhaps, he should have let the Congress act there but I think that Murphy is distinguishable that the arguments were referring to Congress they are less strong when they are here. You did not have the Murphy, a congressional statute that didn't so far as it could said to use this stuff.We do have that. I'm --
Speaker: Of course, you don't have that Grosso?
Charles Alan Wright: We don't have this clearly in gross somehow as we do with regards to the occupational tax.
Speaker: -- as far as we do that. If Congress to the whole (Inaudible). Do you have that specific term if the argument (Inaudible).
Charles Alan Wright: That is right. But we do have the Solicitor acknowledged yesterday. We do have the internal revenue service, making the excise tax returns available to prosecuting authorities. They apparently the administrators under the statute think that they are carrying out of congressional purpose when they disclose this information. I'm not sure if the Government is not enlightening me with all the consequences if he used restriction would be in this very case. Eleven form 730 weren't produce in evidence against my client. Form 730 is well by his and his brother-in-law. I don't know whether this would be permissible under the United States view of use restriction. And as I suggested to both in the brief from yesterday, I think there is a terribly serious question whether they used restriction rule but not mean an end to the prosecution of gamblers. It might produce more revenue from the United States but I think it would make the prosecution extraordinarily difficult. Those are the problems of showing independent untainted source. For these reasons and for the reason with regard to the unauthorized communication and the absence of the defendant in this counsel, the petitioner respectfully request that the judgment below be reversed.