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The Supreme Court no longer agrees that the constitutional privilege against self-incrimination is meaningfully waived merely because those "inherently suspect of criminal activities" have been commanded either to cease wagering or to provide information incriminating to themselves, and have ultimately elected to do neither.
Marchetti was convicted for conspiring to evade payment of the occupational tax relating to wagers imposed by 26 U. S. C. § 4411, for evading such payment, and for failing to comply with § 4412, which requires those liable for the occupational tax to register annually with the Internal Revenue Service and to supply detailed information for which a special form is prescribed. Under other provisions of the interrelated statutory system for taxing wagers, registrants must "conspicuously" post at their business places or keep on their persons stamps showing payment of the tax; maintain daily wagering records; and keep their books open for inspection. Payment of the occupational taxes is declared not to exempt persons from federal or state laws which broadly proscribe wagering, and federal tax authorities are required by § 6107 to furnish prosecuting officers lists of those who have paid the occupational tax. Marchetti, whose alleged wagering activities subjected him to possible state or federal prosecution, contended that the statutory requirements to register and to pay the occupational tax violated his privilege against self-incrimination. The Court of Appeals affirmed, relying on United States v. Kahriger, 345 U.S. 22, and Lewis v. United States, 348 U.S. 419, which held the privilege unavailable in a situation like the one here involved.
Could the registration and occupational tax provisions be employed to punish persons who defended a failure to comply with the requirements of such provisions with a proper assertion of the privilege against self-incrimination?
The court reversed and held that, because every portion of the requirements had the direct consequence of incriminating Marchetti, Marchetti’s assertion of the privilege as a defense was proper and should have sufficed to prevent his conviction. In so ruling, the court reversed a prior decision that held that the registration and occupational tax requirements did not infringe upon the privilege because they did not compel self-incrimination but merely forced a prospective registrant to choose whether he wished to commence gambling at the expense of the privilege. The court stressed that the statutes were constitutional but that one asserting the privilege as to their provisions could not be criminally punished for a failure to comply.