425 F.2d 720
Edward Eugene QUALEN, Appellant,
v.
UNITED STATES of America, Appellee.
No. 22772.
United States Court of Appeals, Ninth Circuit.
March 13, 1970.
As Modified on Denial of Rehearing.
Hecsh, Hegner & Philbin, San Diego, Cal., for appellant.
Shelby Gott, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before BARNES and ELY, Circuit Judges, and PREGERSON,* District Judge.
PER CURIAM:
The previous opinion in this case, dated February 19, 1969, is withdrawn. In that opinion we affirmed the judgment of conviction, emphasizing the presumption prescribed in 21 U.S.C. § 176a, recently held to be improper. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
Qualen was convicted in a trial without jury. In introducing his analysis of the evidence, the analysis leading to the determination of guilt, the district judge commented, "It's a close case." We cannot assume that the now invalid presumption was ignored, inasmuch as the District Court was required to apply it, as were we, until the recent declaration of its invalidity. Our court, sitting en banc, has now declared that Leary is to be given full retroactive application. United States v. Scott, 425 F.2d 55 (9th Cir., March 6, 1970).
The judgment is reversed and the cause is remanded for a new trial. Compare United States v. Cepelis, 426 F.2d 134 (9th Cir. 1970).
Notes:
Honorable Harry Pregerson, United States District Judge, Central District of California, sitting by designation