FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 10-10038 Plaintiff-Appellant, D.C. No. v.  3:08-cr-00237- DAVID NOSAL, MHP-1 Defendant-Appellee.  ORDER Filed October 27, 2011

ORDER 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.

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