Biggs, Van Dusen and Rosenn, Circuit Judges.
On July 1, 1964, the appellant Hooks was found guilty by a jury on an indictment charging him in one count for the unlawful transfer of marihuana in violation of 26 U.S.C. § 4742(a), in two counts for the transporting and concealing of marihuana without paying tax in violation of 26 U.S.C. § 4744(a) (2), in two counts for the unlawful sale of heroin not from the original stamped package in violation of 26 U.S.C. § 4704(a) and in two counts for the unlawful sale of heroin without the prescribed order form in violation of 26 U.S.C. § 4705(a).*fn1,*fn2
At trial, Hooks admitted that he had committed the acts charged in these counts of the indictment*fn3 but alleged as his defense that he was in substance acting as a kind of de facto agent of the United States aiding Emrich, the federal narcotics agent who was in charge of the Pittsburgh office.*fn4 If Hooks' story had been accepted by the jury, an interesting question would have arisen as to whether or not conceivably he would have been within the exception authorizing non-registration of "(7) certain public officials" referred to in Leary v. United States, 395 U.S. 6, 17, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). See note 19 cited to the text, at 18. See, e.g., 35 P.S. §§ 780-2(g), 780-4(q), and Bannister v. United States, 446 F.2d 1250 (3rd Cir. 1971). But the jury found Hooks guilty on each of the seven counts and he received substantial concurrent sentences on each. The judgments of conviction were affirmed by this court, 359 F.2d 584 (3 Cir. 1966). Hooks then brought this proceeding based on 28 U.S.C. § 2255, alleging that the judgments of conviction on Counts II and VIII, the marihuana counts, were void because the statutes on which they were based are "unconstitutional" and praying that the case be remanded to the district court with directions to grant him a new trial on the remaining five heroin or cocaine counts, viz., Counts I, III, IV, V and VI. Hooks takes the position that these five remaining counts are "inseparable" from Counts II and VIII and therefore are, so to speak, tainted by his allegedly illegal convictions on Counts I and VIII. Cf. note 2, supra. We do not perceive the force of this argument.
There are four statutes involved here, the constitutionality of which cannot now be successfully attacked. They are, in the order of the indictment, Sections 4742(a), 4704(a), 4705(a) and 4744(a)(2), 26 U.S.C. The application of one of these sections, 4704(a), was before this court in United States v. Clark, 425 F.2d 827, 829-830 (1970), and was held constitutional, as was Section 4705(a) in respect to heroin by Minor v. United States, 396 U.S. 87, 90 S. Ct. 284, 24 L. Ed. 2d 283 (1969). Section 4744(a)(2) prohibits the transfer or sale of marihuana without payment of the tax and provides that possession, combined with failure to produce the order form required by Section 4742(a)(2), is presumptive evidence of guilt. For the reasons stated in the opinion of the present writer in Bannister v. United States, supra, 446 F.2d at 1250, we hold that Leary is applicable to the conviction of Hooks on Counts II and VIII. In view of the testimony of Hooks that he was acting as a de facto United States narcotics agent, we remand the case to the district court to determine whether he waived knowingly his right to assert his complete defense to prosecution based on his privilege against self-incrimination, see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); cf. Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).
Other points raised by Hooks do not require discussion.
The judgments of conviction on Counts I, III, IV, V, and VI will be affirmed, and the case will be remanded to the district court for further proceedings as to Counts II and VIII in accordance with this opinion.
We thank our court-appointed counsel for his vigorous prosecution of ...