United States v. Stephen Allen Kleinman

Fifth Circuit

United States v. Stephen Allen Kleinman

425 F.2d 316, 1970 U.S. App. LEXIS 9442

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 1, 1970

Docket26040

StatusPublished

Cited by1 cases

This text of 425 F.2d 316 (United States v. Stephen Allen Kleinman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Stephen Allen Kleinman, 425 F.2d 316, 1970 U.S. App. LEXIS 9442 (5th Cir. 1970).

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Opinion

PER CURIAM:

Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I.

Kleinman was indicted in a single count for failing to pay the transfer tax on two pounds of marihuana in violation of Title 26, U.S.C., Section 4744(a) (1). His motion to suppress the evidence was denied, and thereafter during the progress of a non-jury trial he withdrew his plea of not guilty and entered a plea of guilty. He was sentenced 1 to five years confinement under Title 18, U.S.C., Section 4208(a) (2).

Upon appeal by new counsel appointed by the court, the Leary declared Fifth Amendment right against self-incrimination was asserted for the first time. His appeal was pending in this Court at the time of the Leary decision.

We held in United States v. Scardino, 5 Cir. 1969, 414 F.2d 925, that Leary is to be applied only prospectively, but that it would be applied to Scardino whose sentence for violation of Section 4744(a) was not yet final because it was the subject of that direct appeal. We reversed and remanded for dismissal of the indictment even though Scardino did not assert the self-incrimination defense pri- or to pleading guilty, but did so just prior to being sentenced in December 1968, after revocation of probation. Scardino applies here. The judgment below is reversed and remanded with directions to dismiss the indictment.

Reversed and remanded.

1

. On January 12, 1968, prior to the decision of the Supreme Court in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.

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PER CURIAM:

Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I.

Kleinman was indicted in a single count for failing to pay the transfer tax on two pounds of marihuana in violation of Title 26, U.S.C., Section 4744(a) (1). His motion to suppress the evidence was denied, and thereafter during the progress of a non-jury trial he withdrew his plea of not guilty and entered a plea of guilty. He was sentenced 1 to five years confinement under Title 18, U.S.C., Section 4208(a) (2).

Upon appeal by new counsel appointed by the court, the Leary declared Fifth Amendment right against self-incrimination was asserted for the first time. His appeal was pending in this Court at the time of the Leary decision.

We held in United States v. Scardino, 5 Cir. 1969, 414 F.2d 925, that Leary is to be applied only prospectively, but that it would be applied to Scardino whose sentence for violation of Section 4744(a) was not yet final because it was the subject of that direct appeal. We reversed and remanded for dismissal of the indictment even though Scardino did not assert the self-incrimination defense pri- or to pleading guilty, but did so just prior to being sentenced in December 1968, after revocation of probation. Scardino applies here. The judgment below is reversed and remanded with directions to dismiss the indictment.

Reversed and remanded.

1

. On January 12, 1968, prior to the decision of the Supreme Court in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.

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425 F.2d 316, 1970 U.S. App. LEXIS 9442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stephen-allen-kleinman-ca5-1970.

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