United States v. Ricardo Cornelius Beale

ON PETITION FOR REHEARING

The petition of the United States for rehearing is granted. The *978court recedes from its opinion insofar as it held that the underlying rationale of Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) required that we hold that entry secured by deception and without use of force is governed by 18 U.S.C. § 3109.

Before Sabbath it was recognized that entry obtained by ruse or deception was not a violation of § 3109, because no “breaking” was involved. Smith v. United States, 357 F.2d 486, 488 n. 1 (5th Cir. 1966) (ruse, no force, entry stated to be…