            Case: 12-1104      Document: 48           Filed: 06/14/2013      Pages: 2




             United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                          June 14, 2013

                                             Before

                              WILLIAM J. BAUER, Circuit Judge

                              DAVID F. HAMILTON, Circuit Judge

                              ROBERT L. MILLER, JR., District Judge*

No. 12-1104

UNITED STATES OF AMERICA,                             Appeal from the United States District
          Plaintiff-Appellee,                         Court for the Northern District of
                                                      Illinois, Eastern Division.
       v.
                                                      No. 1:10-cr-01055-1
NICOLAS GOMEZ,
          Defendant-Appellant.                        William J. Hibbler,
                                                      Judge.

                                           ORDER

      The Petition for Rehearing En Banc is GRANTED. The panel’s opinion and judgment
are VACATED. The parties shall file new briefs addressing the following matters:

       1.       Whether the four-part test for Rule 404(b) evidence in our case law is useful, or
                whether the court should adopt a different test, such as one that asks: (a)
                whether the proposed evidence is relevant to any specifically identifiable and
                disputed non-propensity issue(s), and if so, how the evidence is relevant to such
                issue(s) without relying on propensity inferences; and (b) whether, under Rule
                403, the evidence would be unduly prejudicial?


      *
       The Honorable Robert L. Miller, Jr., of the Northern District of Indiana, sitting by
designation.
              Case: 12-1104                Document: 48                        Filed: 06/14/2013                  Pages: 2



No. 12-1104                                                                                                                         Page 2




         2.         Whether admission of evidence under Rule 404(b) should require the use of jury
                    instructions that identify the specific permissible use(s) of the evidence, such as
                    language along the lines of Instruction No. 3.11 in the 2012 version of this
                    court’s Criminal Pattern Jury Instructions?

         IT IS FURTHER ORDERED that supplemental briefing shall proceed as follows:

         1.         The opening supplemental brief of defendant-appellant Gomez is due on or
                    before July 12, 2013.

         2.         The responsive brief of plaintiff-appellee United States is due on or before
                    August 9, 2013.

         3.         Appellant may file a supplemental reply brief no later than August 23, 2013.

        Counsel shall submit thirty-five (35) copies of all briefs and appendices and any
citations of additional authority.

         By separate order at a later date, the court will schedule oral argument en banc.


Important Scheduling Notice !

         Notices of hearing for particular appeals are mailed shortly before the date of oral argument. Criminal appeals are scheduled
         shortly after the filing of the appellant's main brief; civil appeals after the filing of the appellee's brief. If you foresee that you
         will be unavailable during a period in which your particular appeal might be scheduled, please write the clerk advising him
         of the time period and the reason for such unavailability.                                      Session data is located at
         http://www.ca7.uscourts.gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date, it is very difficult
         to have the setting changed. See Circuit Rule 34(e).
