United States v. Jerry M. Solimine , 551 F.2d 124 ( 1977 )

551 F.2d 124

UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry M. SOLIMINE, Defendant-Appellant.

No. 75-1867.

United States Court of Appeals,
Sixth Circuit.

March 18, 1977.

Henry E. Sheldon, Cincinnati, Ohio, for defendant-appellant.

William W. Milligan, U. S. Atty., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

PER CURIAM.

1

This case is before the court upon an order of remand entered by the Supreme Court on December 6, 1976, in Solimine v. United States, --- U.S. ----, 97 S. Ct. 517, 50 L. Ed. 2d 603.

2

On June 18, 1976, this court rendered an opinion in three consolidated cases, affirming the conviction of Jerry Michael Solimine. United States v. Solimine, 536 F.2d 703 (6th Cir. 1976).

3

Another appellant in the consolidated cases, Samuel A. Sclafani, raised the question that he could not be convicted of both stealing and possessing the same goods. This court vacated the judgment of the District Court with respect to the conviction and sentence of Sclafani for receipt and possession of goods stolen from the interstate shipment, and affirmed the judgment of the district court in all other respects.

4

Solimine did not raise this issue in the District Court or on his appeal to this court. On July 19, 1976, Solimine filed a petition for writ of certiorari in the Supreme Court, asserting, among other things, that he was convicted of both a theft and possession of the same goods alleged to have been stolen in the theft, and that he and Sclafani were charged in identical counts, at least insofar as the theft and possession of stolen goods was concerned. The remand order of the Supreme Court is as follows:

5

"On Consideration Whereof, it is ordered and adjudged by this Court that the judgment of the said United States Court of Appeals in this cause be, and the same is hereby, vacated; and that this cause be, and the same is hereby, remanded to the United States Court of Appeals for the Sixth Circuit for consideration of petitioner's claim that his convictions and concurrent sentences for theft and receiving the same property must be dealt with as were the similar convictions and sentences of co-defendant Sclafani."

6

Accordingly, the judgment of the District Court with respect to the conviction and sentence of Solimine for receipt and possession of goods stolen from an interstate shipment is vacated. In all other respects, the judgment of the District Court is affirmed.