The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
Motion by the defendant for a dismissal of the indictment, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, is denied. The motion for a bill of particulars, pursuant to Rule 7(f) is denied except insofar as consented to by the government.
On March 23, 1965, the grand jury returned an indictment against the defendant, Jeremiah J. Kelley, charging the commission of four substantive offenses.
Count 1 charges that between September 13, 1961 and December 31, 1964, Kelley was engaged in the business of betting and wagering in the Southern District of New York and that he used and caused to be used a telephone for the transmission in interstate commerce, between New York City and five named cities in four other states, of bets and wagers on sporting events and contests, in violation of 18 U.S.C. § 1084.
Count 2 charges that during the same period of time Kelley did use and cause to be used a facility in interstate commerce, to wit, a telephone, between New York City and the five named cities with intent to promote, manage, establish, carry on, and facilitate the promotion, management, establishment and carrying on of an unlawful activity, namely, a business enterprise involving gambling, in violation of Section 986 of the Penal Law of the State of New York, to wit, bookmaking, and did thereafter perform and attempt to perform acts facilitating the promotion, management, establishment and carrying on of said unlawful activity in violation of 18 U.S.C. § 1952.
Count 3 charges that between June 1, 1960 and December 31, 1964, Kelley was in the business of accepting and receiving wagers and that he wilfully failed to pay the special tax imposed by 26 U.S.C. § 4411.
Count 4 charges that during the same period of time Kelley was in the business of accepting and receiving wagers and that he wilfully failed to register with the Internal Revenue Service as required by law. 26 U.S.C. § 4412.
Considering first the motion to dismiss, the defendant's multi-pronged attack on the indictment consists of the following contentions: (1) the interrelationship of the statutes upon which the indictment is predicated represents a "statutory scheme", the implementation of which is violative of the self-incrimination and due process clauses of the fifth amendment to the Constitution of the United States; (2) the counts of the indictment lack sufficient specificity to adequately apprise the defendant of the offense charged, in violation of the provisions of Rule 7(c) of the Federal Rules of Criminal Procedure, and the requirements of the fifth and sixth amendments to the Constitution of the United States; (3) Count 1 is defective in that it is in conflict with the first amendment. The count, and the statute upon which it is predicated, 18 U.S.C. § 1084, insofar as it seeks to make it a federal crime to transmit in interstate commerce "information assisting in the placing of bets or wagers", seeks to punish the utterance of speech which does not create a clear and present danger of bringing about a substantive evil which Congress may constitutionally punish; (4) Count 1 is defective in that it alleges that the defendant did "cause to be used a wire communication facility * * *", but fails to allege that the person thus caused to use the facility was engaged in the business of betting or wagering; (5) Count 2 is defective in that it fails to allege any facts showing (a) that the alleged "unlawful activity" was in violation of Section 986 of the Penal Law of the State of New York, McKinney's Consol. Laws, c. 40, or (b) that acts performed by defendant violated or facilitated the violation of Section 986; (6) Counts 1 and 2 are further defective in that these counts and the statutes upon which they are predicated, 18 U.S.C. §§ 1084 and 1952 respectively, seek to proscribe and punish conduct which is beyond the scope of the "commerce clause"; (7) Counts 3 and 4 are defective in that they are predicated upon statutory provisions, 26 U.S.C. §§ 4411 and 4412 respectively, which are beyond the scope of the taxing power conferred upon the Congress by the United States Constitution.
Addressing attention to the defendant's argument that the $50 tax and registration provisions of Sections 4411 and 4412 are violative of the self-incrimination clause of the fifth amendment, that contention was considered and rejected by the Supreme Court in United States v. Kahriger, 345 U.S. 22, 73 S. Ct. 510, 97 L. Ed. 754 (1953) and Lewis v. United States, 348 U.S. 419, 75 S. Ct. 415, 99 L. Ed. 475 (1955). The government contends that Kahriger and Lewis represent dispositive authority. The defendant maintains that the rationale of these cases is no longer applicable to sustain the validity of count 3 of the present indictment, which is predicated upon Section 4411. Nor are the holdings in Kahriger and Lewis sufficient to support count 4 which charges a violation of Section 4412. Three reasons are given for the inapplicability of these decisions to the issues at bar:
(1) The recent decision of the Supreme Court in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964), overruled the prior rule allowing the federal government to compel disclosure of information which may tend to incriminate under state law. Had the defendant herein done that which counts 3 and 4 allege that he wilfully failed to do, and which Sections 4411 and 4412 purport to require, the defendant would have been compelled to incriminate himself under the laws of the State of New York;
(2) The enactment in 1961 of 18 U.S.C. §§ 1084 and 1952, which are the bases of counts 1 and 2 of the instant indictment, made compliance with 26 U.S.C. §§ 4411 and 4412 self-incriminatory under federal law;
(3) The form promulgated by the Treasury Department for compliance with 26 U.S.C. §§ 4411 and 4412 requires the furnishing of information which would tend to incriminate the taxpayer in relation to past unlawful acts.
The Murphy decision's extension of the scope of the privilege against self-incrimination does not alter that privilege's essential character. It is axiomatic that the privilege against self-incrimination has relation only to past acts, not to acts that may or may not be committed in the future. ...