                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 04-55838
               Plaintiff-Appellant,
               v.                             D.C. No.
                                           CV-03-06706-CBM
RAYMOND P. NOVAK,
                                               ORDER
              Defendant-Appellee.
                                       
                       Filed August 1, 2006

           Before: Mary M. Schroeder, Chief Judge.


                              ORDER

   Upon the vote of a majority of nonrecused regular active
judges of this court,1 it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.




  1
   Judge Fisher is recused.

                               8905
                               PRINTED FOR
                     ADMINISTRATIVE OFFICE—U.S. COURTS
                      BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                              © 2006 Thomson/West.
