421 F2d 695 United States v. Rogers

421 F.2d 695

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Francis Vincent ROGERS and James Garcia, Defendants-Appellants.

No. 28466 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

January 28, 1970.

W. F. Leigh, Pecos, Tex. (Ct. Apptd.), David H. Rosenberg, Dallas, Tex., for appellants.

Seagal V. Wheatley, U. S. Atty., El Paso, Tex., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

PER CURIAM:

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1

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.

2

Upon motion of the government, the judgments of conviction entered on an indictment charging violations of 21 U.S.C.A. § 176a, are reversed. Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. Our case of Scardino v. United States, 5 Cir., 1969, 414 F.2d 925, did not involve the constitutionality of the presumption which arises under 21 U.S.C.A. § 176a, and thus does not require dismissal of the indictment or prevent retrial. In point of fact, Leary is contrary to the contention of appellants in this regard. 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d at 92.

3

Reversed and remanded for further proceedings not inconsistent herewith.