U.S. v. Schmuck, 84-1317

• Decision Date: 27 February 1986
• Docket Number: No. 84-1317,84-1317
• Citation: 784 F.2d 846
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne T. SCHMUCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 846

784 F.2d 846

UNITED STATES of America, Plaintiff-Appellee, v.Wayne T. SCHMUCK, Defendant-Appellant.

No. 84-1317.

United States Court of Appeals Seventh Circuit.

Feb. 27, 1986.

Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

ORDER

On consideration of the petition for rehearing and suggestion for rehearing en banc filed in the above-entitled cause by plaintiff-appellee, a vote of the active members of the Court was requested, and a majority of the active members of the Court have voted to grant a rehearing en banc.Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing en banc be, and the same is hereby, GRANTED.

IT IS FURTHER ORDERED that the judgment and opinion entered in this case on November 12, 1985, 776 F.2d 1368 be, and are hereby, VACATED.This case will be reheard en banc at the convenience of the Court.

The parties are requested to file supplemental briefs on two questions:

1) Whether the inquiry into legislative intent that informs the decision to allow consecutive punishments, seeGarrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 85 L.Ed.2d 764(1985);United States v. Woodward, --- U.S. ----, 105 S.Ct. 611, 83 L.Ed.2d 518(1985);Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275(1981); should be used to determine whether one offense is a lesser included or necessarily included offense of another for purposes of Fed.R.Crim.P. 31(c), and if adopted, whether this inquiry has implications to our ...