Raul v. Castano v. United States

425 F.2d 1331

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 7, 1970
• Docket: 26381_1
• Status: Published

Opinions

PER CURIAM:

Raul V. Castaño was convicted, on his guilty plea, of violating 26 U.S.C. § 4755(a) (1) which prohibits certain activity by unregistered dealers in marihuana. He moved the district court to vacate the resulting sentence pursuant to 28 U.S.C. § 2255. In support of his motion, Castaño contended that § 4755(a) (1) as well as the underlying taxing and registration provisions of 26 U.S.C. §§ 4751-4753 were unconstitutional in light of the Supreme Court’s decisions in Marchetti v. United States,¹ Grosso v. United States,² and Haynes v. United States.³ In denying relief, the district court relied on the decisions of this court and particularly our decision in Leary v. United States.⁴ Castaño appeals from this denial.

Since the decision by the district court, the Supreme Court has reversed Leary 5 While the Court did not directly consider the “occupational tax” provisions of §§ 4751-4753 or § 4755(a) (1), its determination that a timely assertion of the privilege against self-incrimination is a complete defense to prosecution under 26 U.S.C. § 4744(a) (2) may support Castano’s argument. If so, it remains to be determined whether the present 2255 motion constitutes a timely assertion of the privilege on the facts of the instant case.⁶ Apart from Leary, there have been other recent decisions touching on the question presented by Castano's motion.⁷

The order of the district court is reversed and the case remanded for consideration in light of these recent decisions.

Reversed and remanded.

1 . 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968).

2 . 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

3 . 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).

4 . 383 F.2d 851 (5th Cir. 1967), rehearing denied, 392 F.2d 220 (1968).

5 . 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed. 2d 57 (1969).

6 . The district court made no findings regarding waiver. The government contends that the instant 2255 motion is to be distinguished from the direct appeal in Leary. It urges that Castano’s guilty plea was an intelligent compromise following a mistrial on an indictment charging violation of 21 U.S.C. § 176a, as well as 26 U.S.C. § 4755(a) (1). We consider it proper for the district court to make the initial determination after the facts have been fully developed. If review is then necessary, it may be had with the facts of the case clearly presented. See Grant v. United States, 424 F.2d 273 (5th Cir.) [1970],

7 . Cf. Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v. Lucia, 416 F.2d 920 (5th Cir. 1969), modified, 423 F.2d 697 [1970].