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575 F2d 1151 United States v. Blalock

575 F.2d 1151

UNITED STATES of America, Plaintiff-Appellee,
v.
Cary Glenn BLALOCK and Michael Eugene Fiedler, Defendants-Appellants.

No. 76-2412.

United States Court of Appeals,
Fifth Circuit.

June 30, 1978.

H. Eugene Burkett, (Court-Appointed), Conyers, Ga., for Cary Glenn Blalock.

Eugene A. Medori, Jr., Decatur, Ga., for Michael Engene Fiedler.

William L. Harper, U. S. Atty., Jeffrey B. Bogart, Sherman D. Johnson, Asst. U. S. Attys., Atlanta, Ga., for the United States.

Before JONES, GODBOLD and GEE, Circuit Judges.

PER CURIAM:

1

By opinion of December 22, 1977, 564 F.2d 1180, this court conditionally affirmed the convictions of appellants with a provision, as follows:

2

The convictions of Fiedler and Blalock are AFFIRMED subject to consideration by the district court of motions for new trial by both appellants on the grounds of newly discovered evidence. While this case was on appeal the government discovered in its files information which it concludes should have been furnished to defendants under the Jencks Act but was not furnished. We retain jurisdiction of the appeal but remand for the limited purpose of the defendants' promptly filing motions for new trial, if they desire, on the basis of this new evidence. If such motions are filed the rulings of the district court thereon shall be certified to this court as a part of this appeal.

3

Pursuant to the limited remand appellants filed motions for new trial, the district court conducted an evidentiary hearing and has granted the motions. Subsequently the United States has notified this court that it has elected not to retry the appellants and has dismissed the indictments against them.

4

The mandate conditionally affirming the judgments of conviction is VACATED, and the judgments of conviction are VACATED and the appeal is DISMISSED.