United States v. Falbo , 391 F.2d 264 ( 1968 )

ORDER

The defendants were indicted in two counts charging them (1) with wilfully failing to pay the special occupational tax on wagering (26 U.S.C. sec. 4411) and (2) with wilfully failing to file a special tax return and application for registry-wagering (26 U.S.C. sec. 4412), in violation of 26 U.S.C. sec. 7203. Before trial defendants moved to dismiss the indictments because the statutes involved infringed upon their fifth amendment right against self-incrimination. The motion was denied and defendants were found guilty and sentenced. They appealed.

Since these appeals were 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. secs. 4411 and 4412. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889. Since defendants here did assert such privilege, have moved for reversal, and the government has conceded that these cases are controlled by our decision in United States v. Scalfaro, 391 F.2d 255, order entered February 5, 1968,

It is ordered that the judgments be reversed and the causes remanded with directions to dismiss the indictments.