433 F2d 349 United States v. Lowe

433 F.2d 349

UNITED STATES of America, Plaintiff-Appellee,
v.
Roosevelt Nick LOWE, Jr., Defendant-Appellant.

No. 29810 Summary Calendar.*
*Rule 18, 5th Cir.; See Isbell Enterprises, Inc
v.
Citizens Casualty Co. of New York et al., 5th Cir., 1970,

431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

Oct. 16, 1970.

William H. F. Wiltshire, Pensacola, Fla. (court appointed), for appellant.

William Stafford, U.S. Atty., C. W. Eggart, Jr., Asst. U.S. Atty., Pensacola, Fla., for appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

PER CURIAM:

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1

The opinion and judgment of the Court dated October 6, 1970 is withdrawn and the following is substituted therefor:

2

A defendant charged with the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. 2312 (1970) appeals from the denial of a pre-trial motion to suppress evidence. Under Rule 5, F.R.A.P., and 28 U.S.C.A. 1292(b) (1966), the court has certified that this preliminary evidentiary order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate determination of the litigation. The district court's order also allowed an immediate appeal and stayed further proceedings in that court pending the disposition of such an appeal.

3

28 U.S.C.A. 1292(b) pertains only to civil actions. It clearly follows that neither party in a criminal action may proceed under it.

4

Appeal dismissed.