551 F.2d 687 (5th Cir. 1977), 76-1543, United States v. Levine
|Citation:||551 F.2d 687|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Sidney LEVINE and MPD Film Productions, Inc., Defendants-Appellants.|
|Case Date:||May 02, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Joel Hirschhorn, Miami, Fla., Ralph J. Schwarz, Jr., New York City, Herald Price Fahringer, Buffalo, N. Y., for defendants-appellants.
Robert W. Rust, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
ON PETITION FOR REHEARING
(Opinion February 7, 1977, 5 Cir., 1977. 546 F.2d 658)
Before TUTTLE, CLARK and RONEY, Circuit Judges.
Attached to its petition for rehearing, the government exhibited a document indicating that "S. Levine" gave a verbal order to a film processor for one sample reel from the eight-reel film "Valley of the Nymphs" which was produced by Harvard for Abrams. This document was not a part of the record on appeal although it had been introduced at the trial at some time before a judgment of acquittal was entered for Abrams. The government did not refer to this document in the trial court in response to defendants' rule 8(b) motion for severance. Prior to its mention of this document at oral argument in response to the court's questioning, the government had relied upon an erroneous legal theory of conspiracy to support joinder of Abrams and Levine in a single criminal prosecution. Cf. Minute Maid Corp. v. United Foods, Inc., 291 F.2d 577, 585-86...
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