(dissenting).
This is a petition for leave to file out of time a supplemental petition for rehearing en banc. The matter is complicated by the fact that petitioner has applied for certiorari in the Supreme Court.
The instant petition alleges that the issue whether appellant’s confession was voluntary was improperly submitted to the jury. This claim, it is further alleged was not argued on appeal because it was not supported by then-existing law, and was not argued in the earlier petition for rehearing en banc because counsel was not then aware of the Supreme Court decisions in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 1028 (1964); and Muschette v. United States, 378 U.S. 569, 84 S.Ct. 1927, 12 L.Ed.2d 1039 (1964). Petitioner’s claim appears to have substantial merit.1 Moreover, I consider that the pendency of the application for certiorari does not divest us of jurisdiction. I therefore vote to grant leave to file this petition and to grant rehearing en banc.
. See Remmer v. United States, 348 U.S. 904, 75 S.Ct. 288, 99 L.Ed. 710 (1955); United States v. Killian, 246 F.2d 77, 82 (7th Cir. 1957).