United States of America, Plaintiff-appellee, v. Robert Goldberg, Defendant-appellant, 426 F.2d 285 (5th Cir. 1970)

Pursuant to our Rule 18 we decide this case on the record, the brief of appellant and a statement by the United States of its position that the conviction should be set aside.

Appellant was convicted under Count 2 of the indictment of acquiring marijuana without having paid the transfer tax required by 26 U.S.C. § 4741 (a), in violation of 26 U.S.C. § 4744(a). The Fifth Amendment privilege against self-incrimination is a good defense to such a charge. Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); United States v. Scardino, 414 F.2d 925 (5th Cir. 1969). Since appellant's conviction was not yet final at the time Leary was decided, Leary commands reversal of the conviction under Count 2 of the indictment. Thompson v. United States, 421 F.2d 174 [5th Cir., 1970]; United States v. Scardino, supra.

As to Count 2 we reverse. Because we are unable to determine from the record what disposition was made of the other counts of the indictment, we remand to the District Court for such further action as may be appropriate.