United States of America, Plaintiff-appellee, v. Anthony Menolascino, Defendant-appellant, 391 F.2d 259 (7th Cir. 1968)

ORDER

The defendant was indicted 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 infringed upon his fifth amendment right against self-incrimination. The motion was denied and the defendant was found guilty and sentenced. He appealed.

Since the appeal was filed, 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, has moved for reversal, and the government has conceded that this case is controlled by our decision in United States v. Scalfaro, 391 F.2d 255, order entered February 5, 1968,

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