The opinion of the court was delivered by: TYLER
The United States has instituted this libel action pursuant to 26 U.S.C. § 7302 (1964) to forfeit $125,882 in United States currency, allegedly used in violation of the provisions of the internal revenue laws. The money was said to have been used by Emilio Pizzarello, the sole claimant here, and two others in their conduct of the business of accepting wagers. The illegality was alleged to stem from their failure to pay the special gamblers' occupation tax imposed by 26 U.S.C. § 4411 (1964) or to register as required by 26 U.S.C. § 4412 (1964).
In the wake of two recent Supreme Court decisions, claimant has brought on a motion for summary judgment in this proceeding. Finding no material facts in dispute, I grant the motion, albeit with considerable reluctance, for reasons which will be set forth hereinafter.
Claimant is the proprietor of a stationery store-luncheonette in Mount Vernon, New York. He held the same position on April 15, 1965 when he was arrested in the back room of the store by federal agents. He was searched incident to the arrest, and cash in the total sum of $425 was removed from his person. Later that day, the agents caused a safe in the storage room of Pizzarello's store to be opened and they took therefrom $123,017. The remaining $2,440 was subsequently found by the agents elsewhere in the storage room.
In due course an information was filed alleging that Pizzarello had failed to pay the special wagering taxes and register in accordance with 26 U.S.C. §§ 4401, 4411-12 (1964). At about the same time, this libel was filed, praying for the forfeiture of all the currency seized.
Notwithstanding an assertion by Pizzarello that compliance with the statutes would have violated his privilege against self-incrimination, the information resulted in a conviction which was affirmed by the Second Circuit. This affirmance was vacated by the Supreme Court on March 4, 1968 and the case remanded in light of Marchetti v. United States, 390 U.S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968) and Grosso v. United States, 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709 (1968).
Marchetti held that the occupational tax and registration provisions of the Internal Revenue Code, 26 U.S.C. §§ 4411-12 "may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination." Id. at 42. The Court reasoned that since wagering was "an area permeated with criminal statutes", the obligation to register with the federal government and pay the requisite occupational tax created a "real and appreciable" hazard of self-incrimination for gamblers.
Grosso extended the reasoning of Marchetti to emasculate the gamblers' excise tax, 26 U.S.C. § 4401 (1964) and the conspiracy law, 18 U.S.C. § 371 (1964), insofar as it may be applied to wagering tax violations. Notwithstanding Grosso's failure to raise his privilege against self-incrimination in opposition to two counts of his indictment, the Supreme Court reversed the conviction in its entirety. A remand on these counts was deemed unnecessary, since there was no evidence in the record of a waiver of the privilege. Without such a waiver, reversal was said to be "inevitable" in light of Marchetti.
The government contends that neither Marchetti nor Grosso compels a decision for the claimant in this action. It is argued that the Supreme Court did not hold the gambling tax statutes void, but rather unenforceable in obtaining criminal convictions against those who have asserted their privilege. The government emphasizes the Court's statement that the taxes themselves are constitutionally permissible. United States v. Grosso, supra at 69 n. 7. Since the gambling tax statutes remain on the books, and in this case the taxes were not paid, it is urged that property used in violation of the statutes may still be forfeited. In addition, the government notes that Grosso and Marchetti talked only of a proscription on criminal punishment and forfeiture proceedings are civil in nature.
These arguments were among those rebutted by the Seventh Circuit in its recent decision holding that Marchetti and Grosso require the remission of forfeitures based on violations of the wagering tax statutes. United States v. United States Coin and Currency, 393 F.2d 499 (7th Cir. 1968) (per curiam). In its initial ruling, the Seventh Circuit had upheld the forfeiture, 379 F.2d 946 (7th Cir. 1967), but that decision was vacated by the Supreme Court in light of Marchetti and Grosso. Piccioli v. United States, 390 U.S. 202, 19 L. Ed. 2d 1034, 88 S. Ct. 899 (1968).
On remand, the Seventh Circuit reasoned that compliance with the wagering tax provisions to avoid forfeiture under section 7302 of the code subjects a person to precisely the same hazards of self-incrimination as those which threatened Marchetti and Grosso. The only difference between the two situations, therefore, is the penalty imposed on noncompliance. See United States v. Blank, 261 F. Supp. 180 (N.D. Ohio 1966). Yet a forfeiture of property was deemed by the court to be an impermissible penalty to impose on the assertion of the Fifth Amendment privilege. In reliance upon Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886) and Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), the Seventh Circuit ruled that requiring a person to choose between incriminating himself by complying with the wagering tax statutes and having $8,000 of his money forfeited represents a constitutionally impermissible choice. Cf. Nieves v. United States, 280 F. Supp. 994 (S.D.N.Y. 1968). Boyd is particularly relevant, since there the Supreme Court ruled that a claimant in a forfeiture proceeding could not be made to choose between producing a possibly incriminating document and forfeiting his property. See also Spevack v. Klein, 385 U.S. 511, 17 L. Ed. 2d 574, 87 S. Ct. 625 (1967).
Although this court may not be bound by the Seventh Circuit's opinion, I find its reasoning persuasive and therefore follow it. While the Supreme Court affirmed Congress' power to lay and collect the wagering tax, the law seems unenforceable until such time as Congress provides that these special taxpayers and registrants cannot be prosecuted by either federal or state authorities on the basis of the information compelled by the taxing statute. See United States v. Marchetti, supra at 58-60.
The government raises a number of issues in its papers which were not expressly ruled upon by the Seventh Circuit. The first of these is whether Marchetti and Grosso can be applied to a forfeiture proceeding which was commenced prior to the Supreme Court's ruling that the tax statutes were unenforceable. In reliance upon Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967), the government urges this court to rule that, at most, Marchetti and Grosso apply only to forfeiture proceedings commenced by seizure after January 29, 1968, the date of the gambling tax opinions.
Stovall, however, like Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966), Tehan v. Shott, 382 U.S. 406, 15 L. Ed. 2d 453, 86 S. Ct. 459 (1966), and Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965), related to the retrospective application of new constitutional rules of criminal procedure. Marchetti and Grosso affected a change in the substantive law. The rules they promulgated have no general applicability to all criminal proceedings. The decisions would seem to act in the nature of an abatement of pending wagering tax proceedings. See Application of Boyd, 189 F. Supp. 113 (M.D. Tenn. ...