476 F2d 1281 Gallegos v. United States

476 F.2d 1281

Herminio H. GALLEGOS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 72-1851.

United States Court of Appeals,
Fifth Circuit.

May 24, 1973.
Rehearing Denied June 19, 1973.

John Hugh Buck, Houston, Tex., (Court-appointed), for petitioner-appellant.

William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODGOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

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1

The Government has confessed error in the use of the supplemental information filed in the district court based upon a violation of 26 U.S.C.A. Sec. 2593(a) in view of the privilege against self-incrimination.

2

The opinion of a panel of this Court published September 14, 1972, 466 F.2d 740, is therefore withdrawn and the cause is remanded to the district court for such further proceedings as may be appropriate.

3

GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, joins, specially concurring:

4

Without any semblance of reluctance, I concur in the remand of this case for the reasons set forth in the per curiam opinion of the en banc court.1 I would only add, without intimating any necessity therefor, that my concurrence is predicated upon the proposition that the per curiam opinion neither confirms nor repudiates the original panel opinion reported at 466 F.2d 740.

1

The en banc court thus remands at this time only on the third of the three grounds on which the original panel remanded the case. See 466 F.2d at 742