ORDER
The opinion filed on January 13, 2003, is ordered amended. The Clerk is instructed to file the amended opinion. Judge Ber-zon’s dissent from the order denying rehearing en banc shall also be filed.
The panel has voted unanimously to deny the petition for rehearing. Judge O’Scannlain has voted to deny the petition *963for rehearing en banc, and Judge Staple-ton and Judge Fernandez so recommended.
The full court was advised of the petition for rehearing en banc and an active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.