The opinion
ORDER
Pursuant to Rule 35 of the Federal Rules of Appellate Procedure and Sixth Circuit Rule 35, a majority of the active judges of this court voted to grant en banc review of this case. Following arguments by counsel and a conference among the judges, it was determined that the en banc court is equally divided in this case. Five members favor affirmance of the judgment of the district court, and five favor reversal. Pursuant to our decision in Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir.1996), the judgment of the district court is affirmed by an equally divided vote.
The mandate will not issue for fourteen (14) days from the date of this order. Members of the court may file separate opinions if they wish. *
Judge GILMAN (pp. 447-448) filed a separate concurring opinion, in which Judges BAT-CHELDER, GIBBONS, and ROGERS joined. Judge COLE (pp. 448-449) filed a separate dissenting opinion, in which Judges DAUGH-TREY, MOORE, and CLAY joined.