594 F2d 1084 United States v. S Smith

594 F.2d 1084

UNITED STATES of America, Plaintiff-Appellee,
Samuel S. SMITH and Grover Lamar Lee, a/k/a Poss,

No. 77-5387.

United States Court of Appeals,
Fifth Circuit.

May 9, 1979.

Eugene Loftin, Jacksonville, Fla. (Court-appointed) for Lee.

James L. Harrison, Jacksonville, Fla., for Smith.

John J. Daley, Jr., U. S. Atty., Curtis S. Fallgatter, Asst. U. S. Attys., Jacksonville, Fla., for plaintiff-appellee.


(Opinion January 17, 1979, 5 Cir., 1979, 588 F.2d 111)

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.


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The Government has filed a petition for rehearing in this case, insisting that the Court based its reversal of appellant Lee's conviction on errors of law and fact. In response to one of the points raised in the petition, we add clarifying language to the first sentence of the second full paragraph on page 1191 so that it reads:


The Court should have explained that in order to secure the conviction of a particular defendant, the Government had to prove two distinct things: (1) that a conspiracy began in late July (and continued through November 16, 1976) and (2) that as part of the common scheme, that defendant knowingly became part of and participated in the conspiracy.


As modified, our opinion stands; the petition for rehearing is DENIED.