United States v. $405,089.23 U.S. Currency, Charles Arlt, James Wren, Payback Mines, Claimants-Appellants

ORDER

The opinion filed September 6, 1994, 33 F.3d 1210, is amended as follows:

On 33 F.3d at 1220, please add the following footnote at the end of the text and renumber the footnotes accordingly:

Our adoption of this categorical approach is also compelled by the Supreme Court’s recent decision in Department of Revenue of Montana v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). There, the Supreme Court applied Austin’s categorical approach for determining when punishment has been imposed in a Double Jeopardy case arising pursuant to a state statute that taxed drug monies. Id. at -, 114 S.Ct. at 1948.

All of the panel members have voted to deny the petition for rehearing.

Judge Poole and Judge Reinhardt have voted to reject the suggestion for rehearing en banc and Judge Tanner has so recommended.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote as to whether to take the case en banc, and a vote was taken. The request failed to secure the affirmative vote of a majority of the active non-recused members of the court.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.