
    UNITED STATES of America, Plaintiff, v. Santo VOLPE, Defendant.
    No. CR. 92-0034-FMS.
    United States District Court, N.D. California.
    Sept. 18, 1996.
   ORDER VACATING ORDER OF SEPTEMBER 6, 1994

FERN M. SMITH, District Judge.

The Court makes the following findings of fact and conclusions of law:

1. On January 18, 1994, a federal grand jury returned a Second Superseding Indictment charging defendant Santo Volpe with violations of False ERISA Statements (18 U.S.C. § 1027) and Mail Fraud (18 U.S.C. § 1341).

2. On September 6, 1994, then United States District Court Judge Barbara Caul-field, in a written Order, granted defendant Volpe’s motion to dismiss the ERISA counts but denied defendant’s motion to dismiss the Mail Fraud counts.

3. On October 14,1994, the United States timely filed a Motion for Reconsideration of the Court’s Order. The government motion is presently pending.

4. Upon the resignation of Judge Caul-field, the case was reassigned to this Court.

5. On May 27, 1996, defendants Santo Volpe and American Beverage Company executed plea agreements before this Court. As part of the plea agreement, the defendants and the government stipulated to the applicability of the ERISA statute to ^the instant criminal proceedings (the issue addressed in the September 6, 1994 Order). In addition, the parties have jointly moved this Court to vacate the September 6, 1994 Order of Dismissal (which is the subject of a pending Motion for Reconsideration filed by the United States).

THEREFORE, for good cause shown and upon the joint motion of the parties, the Court ORDERS that the September 6, 1994 Order of Dismissal is VACATED.  