(dissenting):
I dissent.
In holding Haynes to have retroactive application, this court stated in Meadows v. United States, 420 F.2d 795, 799 (9th Cir. 1969):
“[T]he defect in the conviction * * goes to the very center of the legal justification for the punishment imposed. To be valid, a punishment following upon the determination that a certain set of facts exists must necessarily presuppose that that set of facts constitutes an offense, see H.L.A. Hart, Punishment and Responsibility 5. The decision in Haynes negates precisely that presupposition by holding that, as against a plea of the privilege of self-incrimination, § 5851 creates no offense. A punishment in disregard of Haynes hence cannot stand.”
Against an assertion of the privilege of self-incrimination the set of facts here presented constituted no offense at all under United States v. Sher, 421 F.2d 784 (9th Cir. 1970).
Failure of counsel to assert his client’s privilege, whether through lack of knowledge or lack of prescience, seems to me to constitute a plain defect in the trial with the result that an otherwise innocent man stands convicted of an offense which otherwise did not exist under the law.
I would reverse under Rule 52(b) Fed. R.Crim.P.