“ Although the Court of Appeals suggested that petitioner's argument that he had not waived the Fifth Amendment claim by his failure to raise it at trial was open to question, 411 F.2d, at 506-507, it specifically held that Marchetti and Grosso would not be applied retroactively to upset a pre-Marchetti conviction for evading payment of income tax simply because the wagering excise tax returns filed pursuant to 26 U.S.C. § 4401 were introduced in evidence at trial. ”

“ Until Marchetti and Grosso, then, the registration and gambling tax provisions had the express approval of this Court; the Fifth Amendment provided no defense to a criminal prosecution for failure to comply. But as of January 29, 1968, the privilege was expanded to excuse noncompliance. The statutory requirement to register and file gambling tax returns was held to compel self-incrimination and the privilege became a complete defense to a criminal prosecution for failure to register and pay the related taxes. ”

“ A summary exhibit prepared from these returns and petitioner's income tax returns were also introduced, and an Internal Revenue Service technical advisor testified that for the years in question the totals of the gross amount of wagers reported on the wagering tax returns, less the expenses of running petitioner's 'policy wheel' operation as reported on his annual income tax returns, exceeded the net profits from gambling reported on the petitioner's income tax returns. ”