334 F2d 759 Merritt v. United States

334 F.2d 759

Condor MERRITT, Appellant,
v.
UNITED STATES of America, Appellee.

No. 19603.

United States Court of Appeals Fifth Circuit.

June 12, 1964.

Sam E. Murrell and Robert G. Murrell, Orlando, Fla., for appellant.

Thomas J. Hanlon, III, Asst. U. S. Atty., Tampa, Fla., for appellee.

Before RIVES and JONES, Circuit Judges, and DAWKINS, Jr., District Judge.

PER CURIAM.

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1

This Court's opinion concluded with the statement that, "Accordingly, the judgment is reversed and the cause remanded." The judgment of this Court was

2

"* * * that the judgment of the said District Court in this cause be, and the same is hereby, reversed; and that this cause be, and it is hereby remanded to the said District Court for further proceedings in accordance with the opinion of this Court."

3

The appellee moves that the opinion be clarified, that a new trial be ordered, and that the mandate be recalled and reissued accordingly.

4

Under the cases relied on by appellee1 and under 28 U.S.C.A. § 2106, this Court, upon reversal of a conviction for insufficiency of the evidence, may order a new trial, but it is not required to do so. It may leave to the district court the decision of what further proceedings should be had consistent with the opinion of this Court. That includes the ordering of a new trial if the United States convinces the district court of its ability to supply the deficiency in proof. In the present case, the question of what further proceedings should be had is best left for the decision of the district court. With the opinion thus clarified, the motion is otherwise

5

Denied.

Notes:

1

Brandt v. United States, 6 Cir. 1958, 256 F.2d 79; United States v. Ratke, 6 Cir. 1963, 316 F.2d 225; Bryan v. United States, 1950, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335. See also United States v. Tateo, 84 S.Ct. 1587