United States v. David J. Barte

878 F.2d 829, 1989 U.S. App. LEXIS 11417, 1989 WL 78548

Opinion

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Before GEE, HIGGINBOTHAM and DUHE, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor judge in regular service on the Court having requested that the Court be polled on rehearing en banc, (Fed.R.App.Pro. and Local Rule 35) the suggestion for Rehearing En Banc is DENIED.

In his application for rehearing, appellee correctly points out that the panel discussed only the district court’s holding as to the suppression of the physical evidence, but reversed the district court. This had the effect of reversing the district court’s holding that the act of production of that evidence was suppressed. It was our intention to affirm the holding of the district court suppressing the act of production and to reverse the district court’s holding suppressing the physical evidence.

Accordingly, the word “REVERSED” is deleted from the end of the panel opinion and the following is substituted therefor:

“The government acknowledged in oral argument that the district court was correct in suppressing the act of production of the physical evidence. That portion of its ruling is, therefore, AFFIRMED. Accordingly, the decision of the district court is AFFIRMED IN PART and REVERSED IN PART and the matter is REMANDED to the district court.”