459 F2d 1390 United States v. B Resnick

459 F.2d 1390

UNITED STATES of America, Plaintiff-Appellee,
v.
Errol B. RESNICK et al., Defendants-Appellants.

No. 29706.

United States Court of Appeals,
Fifth Circuit.

June 2, 1972.

James M. Russ, Orlando, Fla., for Resnick and Carlton.

Robert W. Duckworth (Court Appointed) Orlando, Fla., for Davis.

John L. Briggs, U. S. Atty., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

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1

The petition for rehearing of appellant Carlton is denied.

2

With respect to the search and seizure at Kennedy Airport, our opinion, 455 F. 2d 1127, concluded that the motion to suppress was properly denied. The government now concedes that if the government seeks a retrial of those defendants whose convictions are reversed, the trial court should consider whether the search and seizure at Kennedy was tainted by any illegal search in Florida. In view of this concession, with which we agree after reexamination of the record, our opinion is modified accordingly.1 In all other respects the petitions for rehearing of appellants Resnick and Simpson are denied.

3

No member of this panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, FRAP; Local Fifth Circuit Rule 12) all petitions for rehearing en banc are denied.

1

Appellant Davis did not file a petition for rehearing. However, in the event of his retrial he should be extended the benefit of the government's concession