694 F2d 233 United States v. F Barnes

694 F.2d 233

UNITED STATES of America, Plaintiff-Appellee,
v.
William F. BARNES and John Allen Riddle, Defendants-Appellants.

No. 80-5894.

United States Court of Appeals,
Eleventh Circuit.

Dec. 20, 1982.

Robert T. Hedrick, Raleigh, N.C., for Barnes.

Archibald J. Thomas, III, Asst. Federal Public Defender, Jacksonville, Fla., for Riddle.

Bernard S. McLendon, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

(Opinion July 29, 1982, 11 Cir., 1982, 681 F.2d 717)

ON PETITION FOR REHEARING

Before VANCE, KRAVITCH and CLARK, Circuit Judges.

PER CURIAM:

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1

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby DENIED. However, in reviewing our opinion in this case, we note that the standard of review set forth in 681 F.2d 717, 722 is inconsistent with that set out in U.S. v. Bell, 678 F.2d 547 (1982). Consequently, we withdraw the paragraph on page 722 of our original opinion under the heading "Conspiracy" and substitute the following language:

2

The appellants contend that the evidence was insufficient to support their convictions on the conspiracy counts. In assessing the sufficiency of the evidence supporting a criminal conviction, the standard of review is: "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence." Viewing the evidence presented in this case and the inferences that may be drawn from it in the light most favorable to the government, see, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we conclude that it was sufficient to sustain the convictions.