Omer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30513 v.  D.C. No.

TIMOTHY W. OMER, CR-03-00009-DWM

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 03-30544 Plaintiff-Appellant, v.  D.C. No.

CR-03-00009-DWM

TIMOTHY W. OMER,

ORDER

Defendant-Appellee.  Filed October 31, 2005

Before: Michael Daly Hawkins, Sidney R. Thomas, and M. Margaret McKeown, Circuit Judges.

Order; Dissent by Judge Graber

ORDER

The panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc, but the request failed to receive a majority of votes of the non- recused active judges in favor of en banc rehearing. 14863 14864 UNITED STATES v. OMER The petition for panel rehearing and the petition for rehear- ing en banc are DENIED.

GRABER, Circuit Judge, with whom KOZINSKI, O’SCANNLAIN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en…