
    UNITED STATES of America, Petitioner, v. Honorable Warren J. FERGUSON, United States District Judge, Respondent.
    Nos. 26633, 26638.
    United States Court of Appeals, Ninth Circuit.
    Aug. 20, 1971.
    On Rehearing and Suggestion for Rehearing In Banc Aug. 30, 1971.
    No. 26633
    David R. Nissen, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Arnold G. Regardie, Asst. U. S. Atty., Los Angeles, Cal., for appellant.
    Joseph A. Ball (argued), Long Beach, Cal., J. E. Simpson, Los Angeles, Cal., Robert L. Humphries, Costa Mesa, Cal., for real party in interest, Peter C. Tornay, Costa Mesa, Cal., for appellee.
    No. 26638
    David R. Nissen, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Tom G. Kontos, Asst. U. S. Atty., Los Angeles, Cal., for appellant.
    Volney V. Brown (argued), Beverly Hills, Cal., Marcus O. Tucker, Santa Monica, Cal., for real party in interest, Joseph A. Ball, Long Beach, Cal., J. E. Simpson, Los Angeles, Cal., for appellee.
    Before MERRILL, DUNIWAY and KILKENNY, Circuit Judges.
   PER CURIAM:

Although the facts are distinguishable, the issues here presented are fundamentally the same as those this day resolved in United States of America v. The Honorable William P. Gray, United States District Judge.

Consequently, in each of these cases, the writ shall issue requiring the respondent to vacate and set aside the plea of guilty and the order dismissing the indictment, with directions to reinstate the indictment and proceed to trial in each case in accordance with established practice and procedure.

This opinion supersedes the opinion filed February 23,1971.

It is so ordered.

On Petition for Rehearing and Suggestion for Rehearing In Banc

ORDER

CHAMBERS, Chief Judge.

A judge in regular active service having requested that the court be polled on the question of the appropriateness of the suggestion for an in banc hearing, the poll was taken. A majority of the court’s judges in active service has determined that a rehearing in banc shall not be granted, and it is so ordered. Two of the judges in active service, Judges Ely and Hufstedler, have directed that it be noted that they would have heard the cause in banc.  