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U.S. v. MARTINEZ de ORTIZ

No. 88-1760.

907 F.2d 629 (1990)

UNITED STATES of America, Plaintiff-Appellee, v. Margarita MARTINEZ DE ORTIZ, Defendant-Appellant.

United States Court of Appeals, Seventh Circuit.

Decided August 16, 1989.

Reargued May 30, 1990.

Decided July 16, 1990.

Attorney(s) appearing for the Case

Eric J. Klumb, R. Jeffrey Wagner, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

John Landa, Kenosha, Wis., Andrew Mishlove, Milwaukee, Wis., for defendant-appellant.

David R. Freeman, Federal Public Defender, St. Louis, Mo., Terence MacCarthy, Federal Public Defender, Carol A. Brook, Office of the Federal Public Defender, Chicago, Ill., for Federal Defenders of the Northern, Cent. and Southern Districts of Illinois, amicus curiae.

Before BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

Reargued In Banc May 30, 1990.

EASTERBROOK, Circuit Judge.

We granted rehearing in banc to decide whether a portion of § 5.11 of this circuit's pattern jury instructions, Federal Criminal Jury Instructions of the Seventh Circuit § 5.11 (1980), is consistent with Fed.R.Evid. 104 and Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). We conclude that it is not.

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