United States of America, Plaintiff-appellee, v. Ralph T. Miller & Joan Miller, Defendants,in Re Subpoena Duces Tecum of James M. Russ, Appellant, 675 F.2d 711 (5th Cir. 1982)

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U.S. Court of Appeals for the Fifth Circuit - 675 F.2d 711 (5th Cir. 1982) Unit B*May 13, 1982

James M. Russ, pro se.

Don E. Christopher, Asst. U. S. Atty., Orlando, Fla., M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, R. Russell Mather, Tax Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before HILL, FAY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:


The court having been polled at the request of one of the members of the Court and a majority of the circuit judges who are in regular active federal service not having voted in favor of it (Rule 31, Fed. R. App. P. ; Local Fifth Circuit Rule 16), the Petition for Rehearing En Banc is DENIED.

Treating appellant's petition for rehearing en banc as a petition for panel rehearing, we modify our previous opinion, 660 F.2d 563 in one particular. We strike and delete from the original opinion one sentence which appeared at 660 F.2d at 571. The deleted sentence read as follows:

Appellant has failed to include those proceedings as part of the record on appeal, and accordingly we cannot say that there is no evidence to support the finding.

We insert, in lieu of the deleted sentence, the following sentence:

We have reviewed those proceedings; we find therein some support for the district court's findings in this case, and we find therein no support for appellant's challenge to the findings of the court below.

As thus modified, our previous panel opinion is reconfirmed, and appellant's petition for rehearing is denied.

The suggestion for rehearing en banc is DENIED.

The petition for panel rehearing is DENIED.

 *

Former Fifth Circuit case, Section 9(3) of Public Law 96-452-October 14, 1980