461 F2d 779 United States of America v. Ernest William Bruceet al.

461 F.2d 779

UNITED STATES of America, Appellant,
v.
Ernest William BRUCEet al.

Nos. 71-1957 and 71-1959.

United States Court of Appeals,
Third Circuit.

Argued Feb. 17, 1972.
Decided April 12, 1972.

S. John Cottone, U. S. Atty., Scranton, Pa., for appellant.

Richard S. Friedman, Cooper, Friedman & Friedman, Harrisburg, Pa., for appellee Bruce.

Smith B. Gephart, Killian & Gephart, Harrisburg, Pa., for appellee Combs.

Gilbert E. Petrina, Harrisburg, Pa., for appellee Vaught.

Before ADAMS, GIBBONS, and JAMES ROSEN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

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1

The United States appeals in this case from an order of the district court suppressing identification testimony of prosecution witnesses.

2

One month after the defendants were arrested, and one day before counsel was appointed, Government witnesses were shown photographic displays which included pictures of the defendants. Although the suppression order does not so indicate, the trial court must have considered United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), to be the applicable law. Because this court en banc recently overruled certain portions of Zeiler in United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972), we will vacate the district court's order, and remand for further consideration in light of our decision in Reed.