                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-4397
                                  ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Robert Lee Weaselhead, Jr.              *
                                        *       [PUBLISHED]
            Appellant.                  *

                                  ___________

                             Submitted: January 11, 1999
                                 Filed: January 29, 1999
                                  ___________

Before BOWMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, FAGG,
      WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
      MURPHY, En Banc.


                                  ___________

PER CURIAM.

       Chief Judge Bowman, Judge Richard S. Arnold, Judge Fagg, Judge Morris S.
Arnold, and Judge Murphy would affirm the order of the district court rejecting
Weaselhead’s claim of double jeopardy and denying his motion to dismiss Count III
of the superseding indictment. Judge McMillian, Judge Wollman, Judge Beam, Judge
Loken, and Judge Hansen would reverse that order.
      By the vote of an equally divided Court, the order of the district court is
affirmed.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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