Appendix — Newton v. United States

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

James Morrow ROPER, Christian Matthew

Newton, John Jackson Miller

Truxell, Defendants-Appellants.

No. 80-7880.

United States Court of Appeals,

Eleventh Circuit.

Aug. 5, 1982.

Before GODBOLD, Chief Judge,

MERRITT*, and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

The appellants, James Morrow Roper,

Christian Matthew Newton and John

Jackson Miller Truxell, along with co-

defendants, Jerry Lee Harvey, Tyrus

Ramond Cobb and Geraldine Kelleher

Martin, were charged by a federal grand

jury in the Southern District of Alabama

with conspiracy to possess and

distribute approximately 100,000

A1

methaquaalone tablets and the

substantive offense of possession and

distribution of the drugs. 21 U.S.C.

§§846, 841(a) (1). Before the trial, the

district court granted Harvey's motion

for a severance from the other

defendants and at the conclusion of the

government's case-in-chief judgments of

acquittal were entered for codefendants

Martin and Roper as to the substantive

charge. The jury then found all of the

defendants guilty of conspiracy and

Truxell, Newton and Cobb guilty of

possession with intent to distribute.

Cobb and Martin are not parties to this

appeal.

Frank Acuian, a cooperating informant

for the Drug Enforcement Administration

(DEA), was approached by Ty Cobb, who

was soliciting potential buyers for

large amounts of quaaludes. Convinced

A®

that Cobb was capable of producing the

drugs, Acuian contacted the Baton Rouge

Police Department, which in turn

notified the DEA. Acuian met with DEA

agents and agreed to assist in making a

drug bust. He then began negotiating

for the sale of a large amount of

quaaludes. An undercover Louisiana

state trooper was introduced to Cobb as

the "money man" and, as a gesture of

good faith, Cobb was shown $200,000.00

in cash, The parties then decided on

Mobile, Alabama as the site of the

sale. Cobb and Martin, his girlfriend,

then checked into the Howard Johnson's

Motor Lodge (Howard Johnson's) in Mobile

and were soon joined by Harvey, who was

to assume an increasingly important role

in the negotiations. After a series of

meetings at which the price and method

of exchange were settled, Harvey made

airline reservations for “Jack Wilson"

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to fly from Atlanta to Mobile.

"Wilson", it was explained, was to

transport the purchase money to Atlanta

after the exchange. Harvey drove to the

airport to pick up "Wilson", who turned

out to be the appellant Roper. On the

way back to the hotel, Harvey made a

phone call in Roper's presence to Newton

and Truxell - Harvey's "Florida

connection" - who were staying in a

Travelodge in Ocala, Florida. The next

day, when the deal was ready to be

consummated, a call was placed to the

Travelodge in Ocala to request delivery

of the pills. Newton and Truxell then

checked out of the Travelodge and drove

to Mobile. Upon their arrival at the

Howard Johnson's, four sealed cartons

were quickly transferred to Acuian's

car. Newton and Truxell then conferred

with Cobb for a few minutes before

returning to Florida, They were

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arrested on the highway and a road map

was seized from Truxell's person,

Meanwhile, back at the Howard Johnson's,

teams of agents began arresting the

other conspirators. The sealed boxes

which Newton and Truxell had delivered

contained 105,300 methaquaalone

tablets. Roper now attacks his arrest

and the subsequent seizure of evidence

used against him. All three appellants

claim that the independent evidence of

conspiracy was not sufficient to permit

the use of co-conspirators' hearsay

statements and that the evidence failed

to sustain the jury verdicts. The

appellants additionally challenge the

procedure employed by the trial judge in

determining their sentences.

Roper contends that the district

court's refusal to suppress airline

tickets and a pistol found in his motel

AS

room violated his constitutional rights

because his arrest and subsequent search

were made without first procuring

warrants. Armed with the knowledge that

Roper, then using the alias "Jack

Wilson", was the man who flew to Mobile

to transport the purchase money back to

Atlanta, the agents had probable cause

to make the arrest. The arrest,

however, was effectuated in a somewhat

unusual manner. Acting without a

warrant, Agent Gustafson telephoned

Roper's room and advised him that “there

were armed agents outside of his room

and for his own safety and for everyone

else's to step outside into the hall,

and that he was under arrest." Record,

Vol. II at 23. Roper stepped into the

hallway with his hands up, was briefly

“patted down" for weapons, handcuffed,

and immediately escorted back inside the

room. Before warning Roper of his

A6

rights in accordance with Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), Gustafson asked him

if he had any weapons. Roper replied

that a handgun was in an unlocked metal

brief case on top of the dresser. A

loaded pistol was taken from the metal

container and Roper was then advised of

his Miranda rights. At that point, the

agents asked Roper if he had any

identification. He replied that his

identification was inside a zippered

shoulder bag lying on a table and told

the agent to "go ahead" when asked for

permission to open the bag. Record,

Vol. II at 34. Inside the shoulder bag

were airline tickets which had been used

for the flight from Atlanta to Mobile

issued to "J. Wilson." Roper's

statement concerning the pistol, the

weapon itself and the airline tickets

were all introduced as evidence against

A'?

him at trial.1/ Record vol. III at 499,

500, 504, 505. Roper assigns as error a

Miranda violation, improper seizure of

the pistol and an invalid search of the

1/ in denying Roper's motion to

suppress, the district court addressed

only the issue of probable cause and the

legality of the warrantless arrest. The

court concluded that probable cause had

been shown and that the warrantless

arrest was proper because it occurred in

a public place (the hallway). Record

Vol. II at 194; United States v. Watson,

423 U.S.411, 96 S.Ct. ° L.Ed.

598 (1976). It is now clear that

warrantless arrests in a suspect's home

may be effected only under exigent

circumstances, Payton v.New York, 445

U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980), and that Roper's use of his

motel room strictly for lodging insures

the same expectation of privacy as if it

were his home. United States v. Bulman,

667 F.2d 1374 (llth Cir. 1982). Here,

the Payton rationale cannot be avoided

by an Fattcaction that the defendant is

surrounded by armed agents and should

come out of his room "for his own

safety." The record reveals, however,

that the simultaneous multiple arrests

at the conclusion of the drug

transaction and the legitimate fear that

Roper would escape, Record, Vol. II at

31, 32, create sufficient exigent

circumstances to make the warrantless

arrest proper even under Payton.

~A8

shoulder bag. There is no necessity to

address the purported infringement of

Roper's fourth and fifth amendment

rights because we find that the search

of the briefcase and shoulder bag were

incident to his arrest and even if the

search was tainted,2/ the evidence is

admissible under the “inevitable

discovery" exception to the "fruit of

the poisonous tree" doctrine,

In Wong Sun v. United States,

2/ Because of our disposition of this

issue, we do not consider the propriety

of Roper's consent, given at gunpoint,

to search the shoulder bag. See United

States v. Phillips, 664 F.2d 971 ormer

5th Cir. 1981). Nor must we Rectan if

an inquiry of the suspect concerning a

nearby weapon qualifies as an

"interrogation" so as to implicate

Miranda safeguards. See Rhode Island v,

Innis, 446 U.S. 291, 301, 100 S.Ct.

1682, 1689, 64 L.Ed.2d 297 (1980)

(defining “interrogation” as “any words

or actions on the part of the police

(other than those normally attendant to

arrest and custody) that the police

should know are reasonably likely to

elicit an incriminating response from

the suspect." (Footnotes omitted.) )

A939

371 U.S. 471, 485, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963), the Supreme Court

held that the exclusionary rule requires

suppression of “fruits” obtained "as a

direct result” of an illegal search or

an invalid interrogation. The Court

noted, however, that evidence is not

"fruit of the poisonous tree" if it is

not obtained "by exploitation of the

illegality” but is come at "instead by

means sufficiently distinguishable to be

purged of the primary taint." Wong Sun,

371 U.S. at 488,83 S.Ct. at 417.

Recognizing that the purpose behind the

exclusionary rule is to deter police

misconduct and bar untrustworthy

evidence, e.g. Michigan v. Tucker, 417

U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974), the former Fifth Circuit Court

cf Appeals acknowledged that neither

function would be served by excluding

evidence which would have been

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discovered regardless of any alleged

unconstitutionality. United States yv,

Brookins, 614 F.2d 1037 (5th Cir.

1980). The Brookins Court noted that

this "inevitable discovery" exception is

misnamed in that it is not only

applicable where discovery was

"inevitable", but also where there was a

“reason ble probability” that the

evidence would have been discovered by

legal means. Brookins, 614 F.2d at

1048. We have no doubt that the

evidence seized here would have been

discovered independently of any alleged

unconstitutional questioning or

search. It is obvious from the

circumstances that DEA agents were

initially preoccupied with ascertaining

Roper's true identity and if he was

armed, The agents knew that other

conspirators were in possession of

weapons, Record, Vol. III at 473, and

Ai1

that Roper was the “money man" whose

assignment was to transport $185,000.00

in cash. It is unreasonable to think

that the agents would not have conducted

a search of Roper and the area within

his control immediately after the

arrest. See Chimel v. California, 395

7.8. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969). This conclusion gives rise to

the next problem - the constitutionality

of such a search.

Police officers may search an

arrested person and" the area into which

{he] might reach in order to grab a

weapon or evidentiary items," Chimel v,

California, 395 U.S. 752, 763, 89 S.Ct.

2034, 23 L.Ed.2d 685 (1969), and may

open containers found within that

area. New York v. Belton, 453 U.S. 454,

101 S.Ct. 2860, 69 L.Ed.2d 768 (1981);

United States v. Robinson, 414 U.S. 218,

94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

A1z2

Here, however, the arrest occurred in

the hall and the items seized were in

close proximity to Roper after he was

escorted back into his room. Record,

Vol. III at 499, 504. In Vale v.

Louisiana, 399 U.S. 30, 90 S.Ct. 1969,

26 L.Ed.2d 409 (1970), the Supreme Court

held that officers could not conduct a

lawful search incident to arrest of a

suspect's house when the arrest took

place on the front steps. In reaching

its decision, the Court declined "to

hold that an arrest on the street can

provide its own ‘exigent circumstances'

so as to justify a warrantless search of

the arrestee's house." Vale, 399 U.S.

at 35, 90 S.Ct. at 1972. Here, exigent

circumstances other than the mere arrest

caused the agents to escort Roper back

into his room. Roper, Martin, Harvey

and Cobb, all staying in rooms on the

same hall, were apprehended

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simultaneously by teams of police

officers. Record, Vol. II at 24,Vol.

III at 494, Because the hailway had not

been secured, staff members and other

guests were in the immediate area.

Record, Vol. II at 35, Vol. III at 494,

496. The obvious peril created by

attempting to arrest a suspected drug

dealer in a hallway where other arrests

are taking place while bystanders looked

on sufficiently established exigent

circumstances to justify returning Roper

to his room.2/ tn this situation, the

officers were authorized to search the

3/ Roper asserts that the police should

have taken him into a surveillance room

"directly across the hall.” Brief of

Appellant at 26. The record shows,

however, that this room was four doors

away. Record, Vol. II at 41. In any

case, the arrest transpired quickly and

"the existence of alternative approaches

does not imply that what actually

occurred was unreasonable." United

States v. Mason, 523 F.2d 1122, 1126

(D.C. Cir. 1975).

Al14

area within his control for weapons and

evidence. See Washington v.

Chrisman, _—sSYUW«WS. ___, 102 S.Ch. 812,

70 L.Ed.2d 778 (1982). Because such a

search would have materialized had not

the police learned of the location of

the weapon and Roper's identification by

other means, the district court

correctly refused to suppress the pistol

and airline tickets.4/

Finding that the seized

physical evidence was properly admitted

does not, however, dispose of the

question of the admissibility of Roper's

4/ as the District of Columbia Circuit

observed, "Of course, Chimel does not

permit the arresting officers to lead

the accused from place to place and use

his presence in each location to justify

a ‘search incident to arrest.'" United

States v. Mason, 523 F.2d 1122, 1126

(D.C. Cir.1975). We are not faced with

this type of extreme conduct in this

case. The district court explicitly

found that the arresting agents acted in

good faith. Record, Vol. II at 194.

A15S

statement concerning the weapon which

was arguably admitted in violation of

Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.2/ We need not belabor this

point. Roper's statement that a weapon

was in the briefcase was only proof of

his possession of the weapon - a fact

that was not in dispute at trial and

which, in light of the overwhelming

circumstances surrounding the pistol's

discovery, could not have been in

controversy. Under these facts, if the

admission of Roper's statement violated

the precepts of the Miranda decision,

such an error was harmless beyond a

reasonable doubt. See Germany v.

Estelle, 639 F.2d 1301 (5th Cir.), cert.

denied U.S. , 102 S.Ct. 290, 70

5/ As previously stated, we do not

inquire into the propriety of asking a

suspect whether he is armed without

first informing him of his

constitutional rights.

A16

L.Ed.2d 140 (981); Harryman v. Estelle,

616 F.2d 870 (Sth Cir.) (en banc), cert,

denied, 449 U.S. 860, 101 S.Ct. 161, 66

L.Ed.2d 76 (1980).

All the appellants contend

that the trial court erred in admitting

co-conspirators’ hearsay statements

against them and claim that the evidence

produced at trial was insufficient to

uphold their convictions. It is settled

law that a trial court can only admit

co-conspirators' hearsay statements if

it finds substantial evidence, indepen-

dent of the statements sought to be

introduced, showing that the defendant

was a member of the conspiracy and that

the statements were made in furtherance

of the conspiracy. E.g. United States

v. Bulman, 667 F.2d 1374 (llth Cir.

1982); United States v. Mesa, 660 F.2d

1070 (former 5th Cir. 1981); United

States v.James, 590 F.2d 575 (5th Cir.)

Ati?

(en banc), cert, denied, 442 U.S. 917,

99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

The district court's assessment of the

James issue is a finding of fact which

will be overturned only if it is clearly

erroneous,£/ E.g., United States

v.Bulman, supra; United States v.

Hawkins, 661 F.2d 436 (former 5th Cir.

1981). In determining whether the

jury's verdict is supported by the

evidence, we look to see whether the

evidence, viewed in the light most

favorable to the government, Glasser v,

United States, 315 U.S. 60, 62 S.Ct.

&/ Roper also complains that the

district court did not reconsider its

initial James determination at the close

of all the evidence, The second Jame

inquiry is required only "on appropriate

motion." United States v. James, 590

F.2d at 582, Because Roper made no such

motion at the trial, he cannot now

object to the trial court's failure to

reconsider its initial ruling sua

sponte. United States v. Bulman, 667

7 3d 1374 (llth Cir. 1 ).

A18

457, 86 L.Ed.2d 680 (1942), would permit

a reasonable jury to find guilt beyond a

reasonable doubt. United States v.

Bell, 678 F.2d 547 (former 5th Cir,

1982) (en banc). Since hearsay evidence

was admitted against Roper, we first

consider if the non-hearsay evidence

comported with the James standard and if

so, whether all of the evidence, hearsay

and non-hearsay, was sufficient to

sustain his conviction. See United

States v. Mesa, supra. On the other

hand, the government's case-in-chief

against Newton and Truxell relied

exclusively on circumstantial evi-

dence. We view the evidence against

them only in an effort to ascertain the

validity of their convictions.

We begin by noting the

importance to this case of a shadowy

figure using the alias "Steve." Steve

was apparently never apprehended and his

A19

role in the conspiracy can only be

gleaned from telephone records, messages

and one-half of a telephone conver-

sation. Harvey remained in constant

contact with Steve by telephone.

Harvey's half of one such conversation

was overheard by an undercover agent and

it was clear that the purpose of the

call was to report on the progress of

the negotiations. Record, Vol. II at

116. Cobb received messages to call

Steve and Roper also called him from his

hotel rooms in Atlanta and Mobile. The

map seized from Truxell disclosed a

handwritten notation listing "Steve's"

telephone numbers as the same two

numbers used by Harvey to reach the

mysterious associate, The fact that all

of the conspirators except Martin, who

played a minor role, remained in

constant contact with a third party who

obviously knew of the conspiracy and

A 20

apparently directed its execution is

damaging circumstantial evidence

indicating complicity by all in the

illegal enterprise.

Other evidence adduced during

the pretrial James hearing revealed that

Cobb made reservations for Roper, using

the alias “Jack Wilson," to fly to

Mobile the day before the consummation

of the illegal transaction. The

confidential informant, acting under

Cobb's instructions, rented a room for

Roper under the name "Wilson" at the

Howard Johnson's, the site of the drug

sale negotiations. When arrested, Roper

had in his possession airline tickets in

the name of "J. Wilson." He was armed

with a handgun and attended a meeting

with Harvey and Cobb in Harvey's room.

He was also present when Harvey placed a

phone call to Newton and Truxell, who

were then staying at the Travelodge in

A R21

Ocala. In view of these facts, there

was adequate independent evidence to

authorize the admission of coconspi-

rators' hearsay statements against

Roper. See United States v. Bulman,

Supra. According to the hearsay

testimony, it was Roper's responsibility

to transport the money generated by the

sale to Atlanta. Record, Vol. III at

387. The evidence sufficiently estab-

lished his guilt.

In addition to the map

containing the phone numbers for

"Steve," there was evidence that Newton

and Truxell, while still in the Ocala

Travelodge, stayed in constant contact

wth the other members of the party in

Mobile. Gov't Exhibits l, 3, 4, 5,

23. They also called the Atlanta Hilton

while Roper was registered there,

Record, Vol. II at 218. On the day of

the sale, they checked out of their

A 22

Ocala motel room and drove to the Mobile

Howard Johnson's carrying sealed cartons

containing more than 100,000 pills which

were quickly transferred to another

vehicle. The pair then met with Cobb

for a few minutes before heading in the

direction of Florida. Truxell's map

also contained the names of other

conspirators and a notation of Cobb's

room number and the Howard Johnson's

phone number. While there was no direct

evidence that Newton and Truxell knew of

the contents of the sealed cartons,

their guilt may, of course, be demon-

strated by circumstantial evidence and

it is for the jury to make or reject

inferences supported by proof. E.g.,

United States v. Mesa, supra. We

recognize that it is not enough for the

government "merely to establish a

Climate of activity that reeks of

something foul." United States v.

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Wieschenberg, 604 F.2d 326, 332 (5th

Cir. 1979). Here, though, the jury

could properly have found that the

evidence established not only a stench,

but also that Newton and Truxell helped

to create the odor by their knowing

participation in the conspiracy. Their

reliance on United States v. Littrell,

574 F.2d 828 (5th Cir. 1978) and United

States v. Aguiar, 610 F.2d 1296 (5th

Cir.), cert. denied, 449 U.S. 827, 101

S.Ct. 91, 66 L.Ed.2d 31 (1980) is

misplaced. In Littrell, it was equally

reasonable to infer from the evidence

that the defendant, who drove a car from

which drugs were removed after his

departure, was unaware not only of the

conspiracy or that he was delivering

drugs, but also that he was delivering

anything at all. In Aguiar there was no

basis for the defendant's complicity

other than his presence in a house which

A 24

was used in the conspiracy. The

evidence here goes far beyond that

presented in those cases and was suffi-

cient to allow a reasonable jury to find

guilt beyond a reasonable doubt. See

United States v. Richards, 638 F.2d 765

(Sth Cir.) cert. denied, U.S. P

102 S.Ct. 669, 70 L.Ed.2d 638 (1981).

Finally, Newton, Truxell and

Roper challenge the severity of their

sentences and the sentencing procedure

employed by the trial court in assessing

their penalties. They claim that the

sentences were not "individualized" and

therefore the judge did not properly

exercise his sentencing discretion.

It is well settled that the

district court has broad discretion in

prescribing sentence. United States v.

Small, 636 F.2d 126 (5th Cir. 1981);

United States v. Hartford, 489 F.2d 652

(5th Cir. 1974). Consequently, the

A 25

severity of a sentence imposed within

the statutory limits is insulated from

appellate review. United States v.

Clements, 634 F.2d 183 (5th Cir. 1981);

Herron v. United States, 551 F.2d 62

(5th Cir. 1977). See also United States

v. Tobias, 662 F.2d 381 (5th Cir.

1981). Nevertheless, the judicial

process by which a sentence is deter-

mined is subject to appellate

scrutiny. Clements, 634 F.2d at 186;

Hartford, 489 F.2d at 654. See also

Dorszynski v. United States, 418 U.S.

424, 443, 94 S.Ct. 3042, 3052, 41

L.Ed.2d 855, 868-69 (1974); Tobias, 662

F.2d at 388-89, United States v. Cimino,

659 F.2d 535 (5th Cir. 1981). There is

a duty to exercise this discretion in

every case and to give "individual"

consideration to each particular defen-

dant. See Williams v. New York, 337

U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337

A 26

(1949); Hartford, 489 F.2d at 654.

Reduced to practical terms, this means

that the judge must consider the

mitigating and aggravating circumstances

of every case and then exercise his

judgment to "fit the sentence to the

crime and to the defendant." Hartford,

489 F.2d at 656, quoting Stevens v.

Warden, 382 F.2d 429, 433 (4th Cir.

1967). See Williams v. Oklahoma, 358

U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516

(1959). Thus, appellate courts have

disapproved of rigid and mechanical

sentencing procedures by which the

district court bypasses the defendant's

individual circumstances and metes out a

sentence based on the category of

crime. See Clements, 634 F.2d at 186-

88; United States v. Cavazos, 530 F.2d

4, 6 (5th Cir. 1976); Hartford, 489 F.2d

at 655. It is against this background

of case law that the appellants make

A 2?

their allegations of impropriety.

Newton, Truxell and Roper

received the maximum sentence allowed by

the statute. See 21 U.S.C. §§841(b) (1)

(B), 846. At the sentencing hearing,

the judge indicated that he would

entertain a motion for a reduction of

the sentences if the appellants’ appeals

were affirmed. He went on to state that

he felt the maximum was appropriate at

that time because in the event the cases

were reversed on appeal, the next trial

judge would have the freedom to impose

whatever sentence he felt necessaary,

Record, Vol. IV, at 785, 793-94. These

statements, considered in the context of

the entire record, do not suggest the

use of a rigid or mechanical sentencing

policy as those terms are generally

understood. Pre-sentence reports were

ordered and compiled on each defen-

dant. The judge read the reports and,

A 28

at the sentencing hearing, questioned

the defendants and their attorneys on

the contents. He gave each defendant a

chance to clear up any problems or

inaccuracies reflected in the report.

There is no suggestion or even allega-

tion that the district court stated that

he “routinely” meted out maximum

sentences in drug cases. Nor is there

any hint of such a consistent disposi-

tion in similar cases.

While our review of the

sentencing hearing reveals no predis-

position on the part of the district

judge toward maximum sentences for this

type of offense, or evidence of a

"mechanical" sentencing approach, we

cannot reconcile the court's announced

purpose with the principles enunciated

in North Carolina v. Pearce, 395 U.S.

711, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969). In Pearce, the Court adopted

A 29

the rule that a judge may not impose a

more severe sentence after a retrial

unless the record discloses "objective

information concerning identifiable

conduct on the part of the defendant

occurring after the time of the original

sentencing proceedings.” 395 U.S. at

726, 89 S.Ct. at 2081, 23 L.Ed.2d at

670. In this instance it is obvious

that the sentencing judge exacted the

maximum punishment, at least in part,

out of a desire to protect another

judge's sentencing prerogative in the

event of a reversal and retrial. Thus,

the second judge would be free to invoke

any penalty up to the maximum without

following the requirements of Pearce.

This declared intention of the district

court had the practical effect of

avoiding the consequences of the Pearce

mandate and is not consonant with the

policy, espoused by the Supreme Court.

A sO

Also, we are not persuaded by the

court's offer to reconsider the

sentences in a Rule 35 proceeding if the

convictions were affirmed on appeal.

This statement of the judge amounts to

nothing more than a conditional

sentence, reserving the final judgment

until after the appellate results were

known. In this posture, the case must

be remanded to enable the district court

to exercise his sentencing discretion.

For the foregoing reasons, the

judgments of conviction are AFFIRMED,

and the case REMANDED for resentencing.

A 31

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 80-7680.

UNITED STATES of America,

Plaintiff-Appellee,

versus

CHRISTIAN MATTHEW NEWTON and

JOHN JACKSON MILLER TRUXELL,

Defendants~-Appellants.

Appeal from the United States

District Court for the

Southern District of Alabama

ON PETITION FOR REHEARING

(October 19, 19

Before GODBOLD, Chief Judge, MERRITT*,

and HENDERSON, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled

and numbered cause be and the same is

hereby denied,

ENTERED FOR THE COURT:

[Sf ALBERT J. HENDERSON

Unite tates Circuit Judge

*Honorable Gilbert S. Merritt, U.S.

Circuit Judge for the Sixth Circuit,

sitting by designation.

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