579 F.2d 971 | 5th Cir. | 1978
UNITED STATES of America, Plaintiff-Appellee,
v.
Cornelius J. KEHOE and Ray K. Bullock, Defendants-Appellants.
No. 76-4346.
United States Court of Appeals,
Fifth Circuit.
Sept. 5, 1978.
Appeals from the United States District Court for the Southern District of Texas, SEALS, J.
James J. Hippard, Houston, Tex., for Cornelius Kehoe.
Randy Schaffer, Houston, Tex., for Ray K. Bullock.
J. A. Canales, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for United States.
On Petition for Rehearing and Petition for Rehearing En Banc.
(Opinion May 22, 1978, 5 Cir., 1978, 373 F.2d 335)
Before GOLDBERG and MORGAN, Circuit Judges, and WYZANSKI, District Judge.*
PER CURIAM.
In United States v. Kehoe, 573 F.2d 335 (5th Cir. 1978), we reviewed several alleged errors including defendants' claim that their conviction under 18 U.S.C. § 657 violated double jeopardy. While rejecting the defendants' other contentions, we relied on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975) to hold that the § 657 conviction abridged the Double Jeopardy Clause. Subsequently, the Supreme Court expressly overruled Jenkins in United States v. Scott, --- U.S. ----, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The portion of our opinion relying on Jenkins, 573 F.2d at 340-346, must be vacated in light of Scott. We now hold that the defendants' conviction did not violate double jeopardy and we therefore affirm the judgment of the district court.
Senior Judge for the District of Massachusetts, sitting by designation