Edward Eugene Qualen v. United States

PER CURIAM: The previous opinion in this case, dated February 19, 1969, is withdrawn.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).