David M. Heller (argued), Phoenix, Ariz., for appellant.

Kenneth L. Fields (argued), Phoenix, Ariz., for appellee.

Before BARNES and CHOY, Circuit Judges, and LYDICK,* District Judge.

It appearing that the Supreme Court of the United States having on October 2, 1978, granted the petition to it for a Writ of Certiorari on behalf of the appellant, Benson Joseph Donoho (--- U.S. ----, 99 S. Ct. 68, 58 L. Ed. 2d 102); and

It appearing that the Supreme Court vacated the judgment of this Court in the above entitled matter, and remanded the cause to this Court:

"(f)or further consideration in light of the position presently asserted by the Solicitor General in his memorandum filed September 5, 1978" ; and

It appearing that the Solicitor General in said memorandum stated:

"(t)he case should be remanded to (the Court of Appeals) (1) either for consideration in the light now taken by the United States, or (2) with instructions that the district court's judgment be vacated and the case be remanded to that court for a new trial."NOW, THEREFOR, it is the Judgment and Order of this Court (1) that the previous mandate of this Court issued by this Court on June 5, 1978, is vacated; (2) that the cause is remanded to the district court, with instructions that its judgment of conviction be vacated, and that the case is remanded to the district court for a new trial in accordance with the remand to this Court by the Supreme Court of the United States.