UNITED STATES of America, Appellee, v. Heriberto PACHECO-RUIZ, Appellant, 549 F.2d 1204

After considering appellee’s petition for rehearing with suggestion for rehearing en banc (filed December 10, 1975) and appellant’s objection thereto (filed February 17, 1976), Judges Hufstedler and Goodwin voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc; Judge Carter voted to allow the petition for rehearing and recommended that the case be heard en banc. The full court was advised of the suggestion for rehearing en banc.

An active judge of the court requested en banc consideration, and a majority of the active judges of the court voted to take the case en banc unless the panel modified its opinion. The panel modified its opinion and circulated it to the entire court; thereafter, upon a vote of the active judges, the request for en banc failed of a majority. The opinion filed October 23,1975, is withdrawn. The attached amended opinion is filed herewith, together with Judge Carter’s dissenting opinion. The petition for rehearing is denied, and the suggestion for en banc rehearing is rejected.

Judges Chambers’ and Trask’s opinions dissenting to the rejection are filed herewith. See Appendix.