481 F2d 896 United States v. M Martinez

481 F.2d 896

UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro M. MARTINEZ et al., Defendants-Appellants.

No. 71-1673.

United States Court of Appeals,
Fifth Circuit.

Aug. 6, 1973.

Appeals from the United States District Court for the Southern District of Florida; C. Clyde Atkins, Judge.

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1

William G. Earle, Miami, Fla., for defendant-appellant Martinez.

2

George D. Gold, Miami, Fla., court-appointed, for defendant-appellant Walters.

3

Joseph A. Varon, Hollywood, Fla., John W. Prunty, Miami, Fla., Edward M. Kay, Hollywood, Fla., for defendant-appellant Berman.

4

Robert W. Rust, U. S. Atty., Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

ON PETITION FOR REHEARING

5

(Opinion Sept. 11, 1972, 5 Cir. 1972, 466 F.2d 679).

6

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

7

Pedro M. Martinez asserts in his Petition that this Court was in error in finding that Teresa's testimony was introduced by the Government for the sole purpose of showing intent and knowledge on the part of Berman and that the testimony was thus limited by the Court.

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8

The record demonstrates that the District Court did so instruct the jury:

9

"[S]ince the other defendants were not present and had no participation in those conversations, are admitted against Mr. Berman alone and they are not to be considered by you as evidence against either of the other two defendants, Mr. Martinez and Mr. Walters."

10

Since the District Court limited the use of Teresa's testimony to the case against Berman, it is a matter of no concern to Martinez.

11

Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 [1973], has now resolved against the appellant the argument for rehearing based on United States v. Cameron, 460 F.2d 1394 (5th Cir. 1972).

12

It is ordered that the petition for rehearing filed on behalf of Pedro M. Martinez in the above entitled and numbered cause be and the same hereby is denied.

13

On Petition for Rehearing and Petition for Rehearing En Banc

14

Berman reasserts in his Petition for Rehearing and Petition for Rehearing En Banc his contention that Teresa's testimony should not be admitted at all, but we have previously decided that this evidence was properly admitted against him.

15

Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 [1973], has now resolved against the appellant the argument for rehearing based on United States v. Cameron, 460 F.2d 1394 (5th Cir. 1972).

16

The Petition for Rehearing filed on behalf of Bernard Berman is denied and 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 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.