United States of America, Plaintiff-appellee, v. Juan Rubio-villareal, Defendant-appellant, 977 F.2d 594 (9th Cir. 1992)

Before REINHARDT and LEAVY, Circuit Judges, and KING,^*  District Judge.

MEMORANDUM^** 

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.