United States of America, Plaintiff-appellee, v. Dominick Scalfaro, Defendant-appellant, 391 F.2d 255 (7th Cir. 1968)

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U.S. Court of Appeals for the Seventh Circuit - 391 F.2d 255 (7th Cir. 1968) Feb. 5, 1968

Edward V. Hanrahan, U.S. Atty., Chicago, Ill., for appellee.

Daniel C. Ahern, Chicago, Ill., for appellant.

Before KILEY, SWYGERT and FAIRCHILD, Circuit Judges.


The defendant was indicted on June 30, 1966 in two counts charging him (1) with wilfully failing to pay the special occupational tax on wagering (26 U.S.C. § 4411) and (2) with wilfully failing to file a special tax return and application for registry-wagering (26 U.S.C. § 4412), in violation of 26 U.S.C. § 7203. Before trial defendant moved to dismiss the indictment because the statutes involved infringe upon his fifth amendment right against self-incrimination. The motion was denied and the defendant was found guilty and sentenced. He appealed.

The appeal was briefed and argued and taken under advisement. While it was under advisement in the court, the Supreme Court has decided that the proper assertion of the privilege against self-incrimination provides a complete defense to prosecution for failure to comply with 26 U.S.C. §§ 4411 and 4412. Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889. Since defendant here did assert such privilege,

It is ordered that the judgment be reversed, and the cause remanded with directions to dismiss the indictment.