# Appendix — Newton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1207

## Text

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"

A3

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

A4

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

A 10

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

A13

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.

A 23

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.

A32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0146%3A2. Public record. Not legal advice.