Opinion
No. 96-10344
Argued and Submitted June 11, 1997 — San Francisco, California
Filed April 8, 1998
ORDER
The Slip Opinion filed December 2, 1997 is amended as follows:
Slip Op. Page 14141, second paragraph, lines 4-6, delete "The case was calendared in Prescott initially, and transferred on the government's motion to Phoenix." Insert in its place the following: "The case was scheduled to be tried in Prescott. The trial was continued for a week because of the illness of the prosecutor. The district court sua sponte moved the case to Phoenix because the Prescott courtroom was not available at the time of the continued trial date. Etsitty asked that the trial be retransferred to Prescott."
Page 14143, last paragraph, lines 6-9, delete: "We cannot reach the issue here because the rule was not applied in Etsitty's case; his trial was scheduled to be held in Prescott before Judge McNamee transferred it for reasons other than rule 1.1(c)." Insert in its place: "Nothing in the record suggests that Rule 1.1(c) was relied on as the reason for the transfer in this case. In fact, the prosecutor's illness and the consequent loss of use of the suitable courtroom in Prescott are the only reasons apparent on the record, making this case an unsuitable vehicle to confront the constitutionality of Rule 1.1(c)."
With the above changes the panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35.
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.