United States v. Timothy W. Omer, United States of America v. Timothy W. Omer

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 nonre-cused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

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

I respectfully dissent from the court’s decision not to take this case en banc. We should take this opportunity to reconsider the rule that our prior precedent required the three-judge panel to apply: automatic reversal of any conviction in which the defendant timely, and correctly, objected that an element of the crime was missing from the indictment. See United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999) (holding that such a deficiency is not subject to harmless error review). An absolute rule makes no sense. When the defendant has actual notice of the missing element in advance of trial, evidence of the missing element is introduced, the jury is properly instructed about the element, and the finder of fact finds the element beyond a reasonable doubt, the defendant may not have been prejudiced by the omission; reversal should not be compelled. We ought not cling to a rule that drains judicial resources when we can review — indeed, have reviewed, in very similar circumstances— the prejudice caused by the omission of an element from an…

429 F.3d 835 UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. OMER, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Timothy W. OMER, Defendant-Appellee. No. 03-30513. No. 03-30544. United States Court of Appeals, Ninth Circuit. October 31, 2005. Kris A. McLean, Esq., USMI-Office of the U.S. Attorney, Missoula, MT, Michael A. Rotker, U.S. Dept. of Justice, Criminal Div., Appellate Section, Washington, DC, for Plaintiff-Appellee. Michael J. Sherwood, Esq., Missoula, MT, for Defendant-Appellant. Before HAWKINS, THOMAS, and McKEOWN, Circuit Judges. ORDER 1 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 nonrecused active judges in favor of en banc rehearing. 2 The petition for panel rehearing and the petition for rehearing en banc are DENIED. 3 GRABER, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc. 4 I respectfully dissent from the court's decision not to take this…