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United States v. Covington, 395 U.S. 57 (1969)

United States v. Covington

No. 366

Argued December 12, 1968

Decided May 19, 1969

395 U.S. 57


In this companion case to Leary v. United States, ante, p. 395 U. S. 6, appellee was charged in a one-count indictment in the Southern District of Ohio with having violated a provision of the Marihuana Tax Act by having obtained a quantity of marihuana without having paid the transfer tax imposed by the Act. Appellee, asserting that his possession of marihuana was illegal under Ohio law and that he would have substantially risked incrimination had he complied with the Act, moved to dismiss the indictment under the authority of Marchetti v. United States, 390 U. S. 39, Grosso v. United States, 390 U. S. 62, and Haynes v. United States, 390 U. S. 85. The District Court upheld the motion to dismiss on the ground that the Fifth Amendment privilege against self-incrimination provided a complete defense to prosecution, and, alternatively, that, if (as the Government contended) appellee was not required to pay the tax, there could be no basis for the indictment.


1. The decision was one which might be appealed directly to this Court under 18 U.S.C. § 3731: if the dismissal of the indictment rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one "sustaining a plea in bar"; if the dismissal was based on acceptance of the Government's interpretation of the Marihuana Tax Act, then the decision necessarily was "based upon [a] construction of the statute upon which the indictment was founded." P. 395 U. S. 59.

2. The Marihuana Tax Act requires persons like appellee to prepay the transfer tax. Leary v. United States, supra. P. 395 U. S. 59.

3. The Fifth Amendment privilege provides a complete defense to prosecution under that Act if the defendant's plea of self-incrimination is timely, the defendant confronts a substantial risk of self-incrimination by complying with the Act's terms, and he has not waived his privilege. Ibid. Pp. 395 U. S. 59-61.

282 F.Supp. 886, affirmed.

Page 395 U. S. 58

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