MEMORANDUM ON PETITION FOR REHEARING
The dissent cites Bates v. Wilson, 385 F.2d 771 (9 Cir. 1967) and Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21 (1968) vacating the judgment in Bates v. Wilson, and remanding the case to the court of appeals. The dissent states that the case was remanded for further consideration in the light of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Actually the case was remanded “for further consideration in the light of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100.” The issue common to Bates v. Nelson and the three cases cited in it — Burgett, Bruton, and Roberts, concerned cautionary instructions. But the case at bar has no such link.
We suggest that the Supreme Court in Bates was simply telling this court to reexamine our conclusion that a limiting instruction fully protected the accused; for that proposition we had relied upon Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, a case expressly overruled on that point in Bruton, Burgett, Bruton and Roberts provided helpful guidelines as to the efficacy or lack of efficacy of such instructions. See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (June 2, 1969) also involving Bruton.
KOELSCH, Circuit Judge, concurs.
ROGER D. FOLEY, District Judge, stands on his dissent.