
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. LUCIA, Defendant-Appellant (2 cases).
    Nos. 26316, 26317.
    United States Court of Appeals, Fifth Circuit.
    March 30, 1970.
    Charles Alan Wright, Austin, Tex., Marvin K. Collie, Harry M. Reasoner, Travis C. Broesche, Frank F. Smith, Jr., Vinson, Elkins, Searls & Connally, Houston, Tex., for defendant-appellant Joseph P. Lucia.
    Morton L. Susman, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for the United States.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN and CLARK, Circuit Judges.
   PER CURIAM:

I.

The Court en banc is unanimously of the opinion that the panel, 416 F.2d 920, correctly decided that Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 should be applied retroactively. See Meadows v. United States, 9 Cir. 1969, 420 F.2d 795 (citing Lucia with approval); United States v. Miller, 4 Cir. 1969, 406 F.2d 1100. The Court therefore affirms the judgment of the panel.

The Court also finds that there is no necessary conflict between Lucia and United States v. Scardino, 5 Cir. 1969, 414 F.2d 925.

II.

A majority of the Court concludes that because of the holding on the retroactive effect of Marehetti and Grosso there is no need to discuss waiver. Section I of the panel’s decision is therefore withdrawn.

Judge Wisdom takes the position that the Court must dispose of the question of waiver before reaching the question of the retroactivity of Marehetti and Grosso. He adheres to the view the panel expressed: Ordinarily a plea of guilty waives defenses and privileges; there was no waiver in this case, for Lucia could not understandingly waive his privilege against self-incrimination in a prosecution for violation of the federal laws taxing illegal wagers, since at the time he pleaded guilty the Supreme Court had not decided Marehetti and Grosso.  