United States v. Wayne T. Schmuck

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, see Garrett 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 holding in United States v. Cova, 755 F.2d 595 (7th Cir.1985).

2) Whether, if this inquiry is employed, odometer tampering (in violation of 15 U.S.C. § 1984 ) is a necessarily included offense of mail fraud (in violation of 18 U.S.C. § 1341 ).