United States of America, Appellee, v. Joshua Arriaga, Defendant-appellant, 101 F.3d 229 (2d Cir. 1995)

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U.S. Court of Appeals for the Second Circuit - 101 F.3d 229 (2d Cir. 1995) Dec. 10, 1995


It has come to the attention of this court that the record on appeal in this case may have been incomplete or inaccurate as to certain facts upon which the opinion of this court was based, specifically whether the district court imposed sentence upon the defendant in open court and in the defendant's presence.

Accordingly, it is hereby ordered:

1. That the opinion filed on November 27, 1996 is withdrawn and the judgment based thereon is vacated and that the mandate in this case not issue or, if issued by the clerk's office, be recalled.

2. That pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure, the district court is directed to determine whether there was an omission or other error in the record on appeal, to correct any such error or omission and to certify and transmit a supplemental record to the court of appeals.

3. That, as we have already indicated, all issues argued by appellant on this appeal are without merit, and the only issue remaining for consideration by us is whether sentence was pronounced orally in the presence of the defendant. This panel retains jurisdiction to consider the issue on the basis of a correct, supplemented record.