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United States v. Mungiole

UNITED STATES COURT OF APPEALS THIRD CIRCUIT.


decided: May 10, 1956.

UNITED STATES OF AMERICA
v.
ARTHUR MUNGIOLE, APPELLANT.

Author: Biggs

Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.

BIGGS, Chief Judge.

The defendant, Mungiole, was charged in an information with violation of Title 26, U.S.C. § 3294(a) for having accepted wagers without having paid the special occupational tax imposed on wagering by Title 26, U.S.C. § 3290, "due and owing to the United States on or before 30th day of April, 1952."*fn1

The case was tried on a stipulation of facts. It was agreed that Mungiole "on or about April 1, 1952 * * * [accepted] wagers as defined in Title 26 U.S.C. Section 3285, and that he did not pay the special occupational tax imposed by Section 3290 that was due to the United States * * * on or before the 30th day of April, 1952." The parties further stipulated that "the reason the defendant did not pay the tax was because the then Collector of Internal Revenue would not accept payment for this tax unless the defendant furnished completely the information as required, which defendant refused to do on the ground it would tend to incriminate him in a federal offense." It will be observed that the stipulation of facts as to Mungiole's gambling activities parallels the statement in the information, each matching the other as to the date on which he first accepted wagers, each employing the phrase, "on or about April 1, 1952, [Mungiole] accepted wagers."

There is not an iota of evidence in the record as to when Mungiole attempted to pay the tax, or as to the amount of money, if any, he tendered to the Collector for the payment of the tax.

Mungiole was tried to the court, found guilty, and sentenced. See also, D.C. 1955, 131 F.Supp. 150. He has appealed.

Mungiole asserts as his defense that he could not furnish the information required by Form 11-C without incriminating himself in a federal offense. But the registration requirements of the special occupational tax on wagering are prospective. The statute contemplates the filing of the required information and the payment of the special occupational tax before the gambler commences business. United States v. Kahriger, 1953, 345 U.S. 22, 73 S. Ct. 510, 97 L. Ed. 754. In Kahriger the Supreme Court said: "Nor do we find the registration requirements of the wagering tax offensive. All that is required is the filing of names, addresses, and places of business."*fn2 Id. 342 U.S. at page 31, 73 S. Ct. at page 515.

In the instant case Mungiole may have tendered payment of the tax before accepting wagers, in which event his claim of the privilege against self-incrimination would be totally lacking in substance. We cannot assume in the absence of any evidence that Mungiole followed a contrary course of action. He has not brought forward facts by which his claim of self-incrimination can be supported.

The judgment of conviction will be affirmed.


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