Summary
noting that the appellate court must review “the evidence taken as a whole, including that offered by the defendant”
Summary of this case from Schools v. United StatesOpinion
December 31, 1987.
Rodney S. Webb, U.S. Atty., Dennis D. Fisher, Norman G. Anderson and Lynn E. Crooks, Asst. U.S. Attys., Fargo, N.D., for appellee.
ON PETITION FOR REHEARING EN BANC
The petition of the United States for a rehearing en banc as to the panel's finding of prejudicial misjoinder under Fed.R.Crim.P. 8(b), 828 F.2d 1286, is hereby granted. The portions of the court's opinion designated as III, IIIA, and IIIB are vacated. The remainder of the panel's opinion and judgment on all other issues shall remain in effect; the mandate as to each of the appellants not affected by the misjoinder ruling shall issue forthwith.
The panel's opinion relating to prejudicial misjoinder under Fed.R.Crim.P. 8(b) as to:
Jesse Cavanaugh
Leonard Fox
Loren Grey Bear
Richard LaFuente
John Perez
is vacated; the issue of misjoinder as to the above-named appellants shall be reargued and submitted to the court en banc on February 12, 1988, in St. Paul, Minnesota, at 9:00 a.m. in the United States Court of Appeals Courtroom No. 1, 584 Federal Courts Building, 316 North Robert Street.
The parties are directed to rebrief the misjoinder issue. The appellants shall file a joint brief on the issue of misjoinder and alleged prejudice within 20 days of the date of this order, said brief not to exceed 20 pages; each appellant may file a separate brief as to any alleged individual prejudice arising from misjoinder not otherwise mentioned in the joint brief, said briefs not to exceed 10 pages; the United States shall file its brief, not to exceed 25 pages, within 15 days of the date of the filing of the appellants' briefs; the appellants may thereafter file a joint reply brief not to exceed 10 pages, said brief to be filed within 7 days of the date of the filing of the appellee's brief. Oral argument shall be divided as follows:
John Perez — 10 minutes
Richard LaFuente — 10 minutes
Jesse Cavanaugh — 5 minutes
Leonard Fox — 5 minutes
Loren Grey Bear — 5 minutes
United States — 30 minutes
Appellant Rebuttal (joint) — 5 minutes
The attorneys are encouraged to consolidate their argument and if possible have one lawyer argue the main issue concerning misjoinder and the alleged resulting prejudice. This statement is without prejudice to the right of each counsel to argue within the time allotted as to each appellant on any alleged individual prejudice arising from the misjoinder.
All other issues decided by the panel affecting the above five defendants are declared to be the law of the case.
The parties are instructed that all other issues raised by these five appellants but not decided by the panel shall be considered submitted on the original briefs and will, if necessary, be considered by the court. In the briefs filed by all parties, counsel may refer to the factual record set forth in the original briefs. The original briefs shall be circulated to the full court.