dissents.
PER CURIAM.Judge Lumbard and Judge Breiten-stein are of. the view that there is no good reason to delay action on the motions for rehearing, and that there is every reason why the questions raised in this case should be settled without further delay.
On three occasions the active circuit judges of the Seventh Circuit, other than Otto Kerner, have recused themselves from any participation in this case. It seems to us that this has left to the court specially designated the task of deciding any issues raised on *1168appeal; this includes the proper and appropriate application of any rule of law.
Initially, after the filing of a petition for writ of mandamus by the petitioner Kerner on August 4, 1972, all the then active judges of the Seventh Circuit, other than Kerner, recused themselves. This action was communicated to the Chief Justice by Chief Judge Swygert in a letter dated August 9, 1972. Thereafter the Chief Justice, by telegram dated September 19, designated the three judges of this panel to hear and determine all matters arising from the prosecution of the indictment against the defendants.
The trial of Isaacs and Kerner commenced on January 3, 1973. During that trial, two of the active circuit judges of the Seventh Circuit, Chief Judge Swy-gert and Judge Kiley, testified as character witnesses on behalf of Kerner. After the defendants were convicted on February 19, 1973, and after Kerner filed a notice of appeal on April 26, 1973, all the active circuit judges again re-cused themselves. Chief Judge Swygert notified the Chief Justice by letter dated April 26, 1973 that it was “the view of the active circuit judges of this court that they should not act upon these appeals.” Accordingly, Chief Judge Swy-gert requested the designation of three judges from outside the Seventh Circuit. As the Chief Justice had already designated the members of this panel, we continued to act pursuant to the designation of September 19, 1972.
We heard argument of the appeals on October 23 and 24, 1973 and reserved decision. In their briefs filed September 4, 1973, and on oral argument, Isaacs and Kerner urged that it was improper to try the perjury charge against Kerner with the other counts of the indictment, and that it was error to deny severance of the perjury count.
While the panel was considering this appeal, argument was heard on December 5, 1973, in United States v. Pacente, before a panel consisting of Chief Judge Swygert, Circuit Judge Sprecher and District Judge Poos. On December 28, 1973, that panel filed its opinion, written by Chief Judge Swygert, which reversed Pacente’s conviction. That opinion purported to establish the principle that a defendant could not be tried on substantive counts and a count charging perjury relating to the substantive charges, at the same trial. Counsel for the appellants immediately called our attention to the Pacente opinion and we gave it such attention as we thought it deserved in our opinion filed February 19, 1974 which affirmed the convictions on all but three counts.
Judge Johnsen wrote, regarding the Pacente case, in his separate concurring and dissenting opinion: “The panel is in agreement that the holding in the case is bad law and that we cannot conscientiously follow it.”
Meanwhile, the United States had filed a petition for rehearing and rehearing en banc in United States v. Pacente, and on February 19, 1974 the active circuit judges of the Seventh Circuit granted rehearing en banc.
Thereafter on March 5, 1974, the appellants filed their petitions for rehearing and rehearing en banc. On the same day the clerk entered an order made by six active circuit judges of the Seventh Circuit, listed as Chief Judge Swygert and Circuit Judges Fairchild, Cummings, Pell, Stevens, and Sprecher, reading:
Both defendants-appellants in these .appeals have filed a suggestion for a rehearing en banc. Each of the judges in regular active service has disqualified himself from consideration of the suggestions for rehearing en banc.
Thus, for a third time, the active circuit judges of the Seventh Circuit, excepting Kerner, have disqualified themselves.
Isaacs and Kerner have now requested that we delay our disposition of their petitions until after the en banc rehearing of Pacente which is scheduled for April 10, 1974. We see no need to do so. This panel is under no obligation *1169to follow any opinions of the Seventh Circuit, whether by a panel or by the court en banc, filed in any cases or matters subsequent to its constitution by the Chief Justice on September 19, 1972. Consequently, having already given lengthy and thorough consideration to all the points raised on the appeal, and on the petitions for rehearing, the petitions for rehearing are denied.
In the event either appellant wishes to file a petition for certiorari within the time allowed, the issuance of the mandate will be stayed subject to the provisions of Rule 41(b) of the Federal Rules of Appellate Procedure.
The petitions for rehearing are severally denied.