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United States Court of Appeals,Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Edward L. MIMS and Cleveland J. McDade, Defendants-Appellants.

Nos. 95-2582, 95-2620.

Decided: November 25, 1996

Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges. Ranley R. Killian, Jr. (argued), Office of the U.S. Attorney, Criminal Division, Fairview Heights, IL, for U.S. in Nos. 95-2582 and 95-2620. Thomas Edward Leggans, Office of the U.S. Attorney, Criminal Division, Fairview Heights, IL, for U.S. in No. 95-2620. David M. Williams, Fairfield, IL, for Edward L. Mims. John J. O'Gara, Jr. (argued), Trentman & O'Gara, Belleville, IL, for Edwin L. Mims, and Cleveland J. McDade.

A petition for rehearing has been filed in this case;  the relevant facts are reported at 92 F.3d 461.   In that opinion, we reversed the convictions of Mr. McDade and Mr. Mims on the conspiracy count (Count I) because of plain error in the jury instructions.   In their petition for rehearing, the defendants claim that their convictions on the firearms count should also be reversed because the jury was instructed that the government had to prove that the alleged use and carrying of a firearm took place during and in relation to the drug trafficking crime charged in Count I of the indictment.   Count I was the conspiracy charge, with respect to which the convictions were reversed.   The firearms charge was not linked in the indictment to the substantive drug count, with respect to which the convictions were affirmed.

After the government failed to file an answer to the petition for rehearing, our inquiry disclosed that the government for some reason had not received our request to it for an answer.   We then issued an order requesting the government either to file an answer or to file a statement indicating that it declined to file an answer.   The government then filed a statement declining to file an answer to the petition.1  Although the defendants may have waived their argument on rehearing because they failed to raise it earlier, any waiver by the defendants has now been waived by the government.

Therefore, the petition for rehearing is granted and the firearms counts with respect to both defendants (Counts 5 and 6) are reversed since both counts are referenced to the conspiracy count, which has been reversed.   See, United States v. Willoughby, 27 F.3d 263 (7th Cir.1994).

This court is concerned by the failure of the government to file an answer in this matter or to indicate why it has not filed an answer.   Criminal justice cannot be administered fairly and intelligently unless both prosecution and defense fulfill their respective obligations to keep this court informed of their positions on important issues in the case.   The government has complied strictly and literally with our order either to file an answer or to state that it would not do so.   However, the government's course of action has not been helpful to this court and leaves a great deal to be desired.

The cause is remanded for resentencing and for other proceedings not inconsistent with this opinion.


1.   The government's response stated, “The United States respectfully declines the Court's invitation to submit a response to defendants' motion.”


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