In Thompson v. Calderon, (1997), 120 F.3d 1045, 97 Cal. Daily Op. Serv. 6442, the government argued different motive theories in the separate trials of two defendants charged with the same murder. The first defendant was convicted and sentenced on the theory that he raped the victim and then killed her to cover up his crime. Id. The second defendant was convicted and sentenced on the theory that he killed the victim, his ex-girlfriend, because he perceived her as obstacle to reconciling with his ex-wife. In finding a due process violation, the court determined that the "prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at one trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at the other trial." Id., at 1057. After the first defendant's state appeals from the rape and murder convictions and death sentence were unsuccessful, and after his federal habeas corpus petition resulted in his rape conviction being set aside but in a denial of his challenge to the murder conviction and death sentence, and after the court of appeals reversed the district court's grant of habeas relief, and after the United States Supreme Court denied a petition for writ of certiorari, and after the panel denied a motion to recall mandate and stay execution, the Ninth Circuit Court of Appeals reconsidered en banc whether to recall the mandate. The court, inter alia, remanded the first degree murder conviction for further consideration.