United States v. Dray

Order OF COURT Appellee petitions for rehearing, pointing out that, after oral argument in this matter, the Supreme Court, having previously denied the defendant's petition for certiorari in United States v. Salamone, 869 F.2d 221 (3d Cir.), cert. denied, 493 U.S. 895, 110 S. Ct. 246, 107 L. Ed. 2d 196 (1989), granted the government's petition for certiorari therein, 493 U.S. 1038, 110 S. Ct. 830, 107 L. Ed. 2d 826 (1990), vacated the judgment, and remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). Appellee does not suggest that the result of our opinion will be affected (the government, after all, prevailed before us), but suggests that it was unnecessary for us to give any credence to the Third Circuit's Salamone opinion; and further suggests that any endorsement of Salamone, express or implied, may in the future prove mischievous. The government is seeing ghosts where none exist. Although our panel opinion discussed Salamone, see Slip Op. at 13-15, we merely distinguished it from the case before us and ventured no opinion as to whether Salamone was or was not correctly decided by the Third Circuit. And, we fully considered the effect of the Court's opinion in Dowling on the case before us. See, e.g., Slip Op. at 8-9, 10-11, 18. Hence, rehearing or modification of our panel opinion is unnecessary.