Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted Oct. 8, 1992.
Appeal from the United States District Court for the Southern District of California No. CR-89-435-E; William B. Enright, District Judge, Presiding
S.D.Cal., [On remand from, 967 F.2d 294]
REVERSED AND REMANDED.
Before REINHARDT and LEAVY, Circuit Judges, and KING, District Judge.
The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
An en banc panel remanded this appeal for us to consider whether the error in this case with respect to the jury instruction was harmless. We hold that it was not and reverse appellant's convictions.
The Court, sitting en banc, held that the permissive inference instruction given by the trial judge was deficient. United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir.1992). This panel previously reached the same conclusion under different reasoning, and further determined that the error was not harmless. United States v. Rubio-Villareal, 927 F.2d 1495 (9th Cir.1991), vacated in part, 967 F.2d 294 (9th Cir.1992).
We see no reason to depart from our prior determination that the deficient instruction did not constitute harmless error. Appellant's convictions are reversed and the case is remanded for dismissal of Counts 1 and 3 as provided in our previous opinion, and for a new trial or other proceedings consistent with this memorandum and our prior opinions as to Counts 2 and 4. The mandate shall issue forthwith.
REVERSED AND REMANDED.