533 F2d 310 Vardy v. United States U S

533 F.2d 310

Oliver L. VARDY, Petitioner-Appellant,
v.
UNITED STATES of America, and Donald Forscht, U. S. Marshal
in and for the Southern District of Fla.,
Respondents-Appellees.

No. 75-2180.

United States Court of Appeals,
Fifth Circuit.

June 9, 1976.

Donald I. Bierman, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U. S. Atty., William Northcutt, Asst. U. S. Atty., Miami, Fla., B. Franklin Taylor, Act. Chief, Gov.Reg.Sec., James P. Morris, Murray R. Stein, John L. Murphy, Attys., Washington, D. C., for respondents-appellees.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion March 26, 1976, 5 Cir., 1976, 529 F.2d 404).

Before WISDOM, COLEMAN and GEE, Circuit Judges.

PER CURIAM:

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1

In response to petitioner's spirited assertion that the panel opinion improperly departs from In re Chan Kam-Shu, 477 F.2d 333 (5th Cir.), cert. denied, 414 U.S. 847, 94 S.Ct. 112, 38 L.Ed.2d 94 (1973), we observe that our opinion is not at variance with Chan Kam-Shu, which is not applicable here because of critical factual differences. In Chan Kam-Shu, the only reason supported by the record for Chan's presence in the United States at the time of the extradition request was the fact that he was being held in jail by federal officials. Here, in contrast, Vardy was in the United States because he chose to remain here rather than complete the journey from Panama to Canada. Federal officials had no role in his entrance into the United States, and their only role in detaining him in this country was to effectuate his own desire.

2

The Petition for Rehearing 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.