United States of America, Plaintiff-Appellant/cross-Appellee v. Ahmed Ressam, Also Known as Benni Antoine Noris, Defendant-Appellee/cross-Appellant

491 F.3d 997 UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Ahmed RESSAM, also known as Benni Antoine Noris, Defendant-Appellee/Cross-Appellant. No. 05-30422. No. 05-30441. United States Court of Appeals, Ninth Circuit. Filed June 6, 2007. Mark N. Bartlett, Esq., Helen J. Brunner, Esq., John McKay, Esq., Office of the U.S. Attorney, Seattle, WA, for Plaintiff-Appellant/Cross-Appellee. Jo Ann Louise Oliver, Esq., Michael Filipovic, Esq., Thomas W. Hillier, II, Esq., Federal Public Defender's Office, Western District of Washington, Seattle, WA, for Defendant-Appellee/Cross-Appellant. Appealed from the District Court for the Western District of Washington. D.C. No. CR-99-00666-001-JCC. Before: ARTHUR L. ALARCÓN, PAMELA ANN RYMER, and MARSHA S. BERZON, Circuit Judges. 1 Order; Dissent by Judge O'SCANNLAIN. ORDER 2 A majority of the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Alarcon would grant the petition for rehearing and accept the suggestion for rehearing en banc. 3 The full court has been advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to…

Order; Dissent by

ORDER

A majority of the panel has voted to deny the petition for rehearing and to *998 reject the suggestion for rehearing en banc. Judge Alarcon would grant the petition for rehearing and accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. However, the matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

dissenting from the denial of rehearing en banc, joined by

With all due respect to my colleagues, this high-profile case, involving an individual trained in Afghanistan by al-Qaeda and convicted of conspiring to detonate explosives at Los Angeles International Airport as part of a terrorist attack, is an ideal candidate for rehearing en banc. In United States v. Ressam, 474 F.3d 597 (9th Cir.2007), a panel majority concluded that a conviction under 18 U.S.C. § 844 (h)(2) requires that explosives be carried not only during a felony, as the statute says, but also in relation to that felony, which the statute does not say. The panel thus reversed one count of conviction of “Mille-nium Bomber” Ahmed Ressam. I dissent from the denial of rehearing en banc because United States v. Stewart, 779 F.2d 538, 539-40 (9th Cir.1985), the two-decade old decision of our court upon which the panel relied, does not compel the result reached, and, further, by extending Stewart and reading the “in relation to” language into § 844(h)(2), we have not only usurped the congressional function, but have also created a split of authority with every other United States Court of Appeals that has addressed…