622 F2d 917 United States v. Clark

622 F.2d 917

UNITED STATES of America, Plaintiff-Appellee,
v.
Hollis CLARK, Defendant-Appellant.

No. 79-5102.

United States Court of Appeals, Fifth Circuit.

July 31, 1980.

Appeal from the United States District Court, Northern District of Georgia; Newell Edenfield, District Judge.

Thomas C. Bianco, Atlanta, Ga., for defendant-appellant.

Craig A. Gillen, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before COLEMAN, Chief Judge, and BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges.*

PER CURIAM:

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1

The order granting a rehearing en banc, 608 F.2d 238, is vacated as having been improvidently granted on the record before us, and the panel opinion, 598 F.2d 994, is reinstated.

2

GEE, Circuit Judge, with whom BROWN, CHARLES CLARK, TJOFLAT, FAY, REAVLEY, POLITZ, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges, join, specially concurring.

3

I concur in the court's order because no proffer was made of evidence tending to show advances in the state of polygraph art since the seminal opinion in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), upon which our authorities are based, or the competence of polygraphic operators. Had one been made, in my view these authorities would properly be subject to reconsideration.

*

Judge Jerre S. Williams did not participate in this decision