FILED FOR PUBLICATION JUN 02 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10303 Plaintiff - Appellee, D.C. No. 2:09-cr-00015-EJG-1 v. ORDER JERRY ARBERT POOL, Defendant - Appellant.

KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.