collection of the tax and are 'obviously supportable as in aid of a revenue purpose."
'* * * Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.'
The defendant agrees that under the present state of the law, as above set forth, if he desired to accept wagers after September 1, 1952, he would be required to register and would not be able to raise the question of self-incrimination. This is because a revised Form 11-C was issued by the Treasury Department at that time eliminating (1) the requirement that all of the information called for on the return must be completely furnished, otherwise a special tax stamp would not be issued, and (2) the prior privilege under the original form whereby he could apply for the tax stamp on or before the last day of the month in which liability was incurred. The present revised regulations provide that no person shall engage in receiving wagers until he has filed a return and paid the tax. He argues in his case however, under the old regulations, there was no such requirement and that he was entitled to accept wagers as a matter of law on April 1, 1952, and was not required to file until April 30, 1952.
He further reasons that, in view of his admissions on the record, the clear inference is that he was engaged in the gambling business prior to April 1, 1952. Thus if after April 1, 1952, he applied for registry and had to fill out the entire initial form as then required, his answers would tend to incriminate him as to possible additional further offenses. The Court does not believe this is a vital distinction. The Act is wholly prospective. Lewis v. United States, supra.
Defendant concedes that if he filed on April 1, 1952, he could not interpose his present defense as he would then be in the same position as if he filed on September 1, 1952. His answer would have been entirely voluntary and if he desired the tax stamp as stated previously, he would have had to assume the risk of self-incrimination. How then can it be said that if he filed April 2, 1952, or thereafter, any day until the last date, viz. April 30, 1952, he is then excused from filing?
In United States v. Kahriger, 3 Cir., 1954, 210 F.2d 565, 570, the defendant stipulated the identical facts as agreed to here with the exception of the three prior convictions. In that case the defendant admitted that he '* * * on and before November 26, 1951, at Philadelphia, was engaged in the business of accepting wagers, and did accept wagers * * *.' The convictions in the present case are merely cumulative as additional proof of such business activity. The court held that the defendant was not guilty of 'willful failure to pay the tax (and) to register.' Specifically it excluded the consideration of whether the defendant there was guilty of a violation of the present section of the Act under consideration, 3294(a), but said at page 571:
'* * * The offense proscribed by Section 3294(a) is in all probability a lesser one than that defined by Section 3294(c) which, as has been pointed out, relates to willful violations. We do not have to decide this question and the possible application of Rule 31(c), Fed.Rules Cr.Proc., for the case was tried by the United States on the theory of willful violations and so went to the trier of the facts. The record in the trial court is devoid of any suggestion that a penalty should have been imposed for a non-willful failure to pay the tax under Section 3294(a). The issue of possible application of Rule 31(c) was not raised by the parties in this court. We have adverted to it sua sponte to the end that possible future confusion may be avoided. We think it is clear that on the record Kahriger's motions for judgment of acquittal should have been granted. We are also of the opinion that the case is not one in which we should exercise our power, if we possess such, to remand the case so that a sentence under Section 3294(a) might be imposed on him.' (Emphasis supplied.)
It might reasonably be inferred that the court had a case in mind, such as the present one, when writing its concluding sentence.
Furthermore, the Circuit Court in footnote number 1 said at page 567:
'1. In oral argument Kahriger distinguished the circumstances of the prior appeal from those of the case at bar, pointing out that the original appeal was based on a denial of a motion to dismiss on the pleading, no evidence having been received, while the appeal at bar is based on a denial of motions for judgment of acquittal, a stipulation and evidence having been received. He asserts that there is now evidence which indicates that the questions required by the statute and Form 11-C required him to incriminate himself. Kahriger contends that the Supreme Court interpreted the statute without the benefit of having in the record circumstances which showed Kahriger's status as a professional gambler. This is true but the difficulty in supporting his contention is that no facts are to be found in the stipulation and evidence that show that he would have incriminated himself had he filled out the form. He might, perhaps, have made such proof but he did not do so. His contention therefore cannot be sustained.'
Since this Court believes that the prior convictions of Mungiole were merely cumulative of what Kahriger admitted, it would seem that the present defendant's contention cannot be sustained as was indicated in the Kahriger case.
For the above reasons, the defendant's motion for judgment of acquittal is denied.
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