United States v. Donald Lee Ferebe

344 F.3d 437, 2003 U.S. App. LEXIS 19267, 2003 WL 22136798

Opinions

NIEMEYER, Circuit Judge,

in explanation of not requesting a poll on the petition for rehearing en banc:

The issue presented in this case— whether 18 U.S.C. § 3593(a) creates an immediately appealable substantive right not to stand trial in a capital case — is an important one that already is changing pretrial proceedings in capital cases in a significant way. See, e.g., United States v. Hatten, No. Crim.A.3:02-00232-02, 2003 WL 21946458 (S.D.W.Va. Aug. 14, 2003) (granting before trial defendant’s motion to bar the government from seeking the death penalty, based on the holding of this case). Even when a defendant’s motion to bar the government from seeking the death penalty is denied because the notice was timely given, see United States v. Breeden, No. Cr. 3:02-00013, 2003 WL 22019060 (W.D.Va. Aug. 22, 2003), the proceedings are at risk of substantial delay because the ruling is subject to an immediate appeal by virtue of our holding. In my judgment, the issue raised by this case readily satisfies our requirements for en banc review.

But the history of this case suggests that immediate review by the Supreme Court would be a more efficient resolution of the debate. Six judges of this court have now heard argument and reviewed this case. The first panel split in such a manner that it could not resolve the case. Two judges voted that the court had jurisdiction and the third concluded otherwise, declining to review the merits. This left only two judges to decide the merits, and they split. This panel has likewise split, but with a different grouping. The prospect that this court’s indecisiveness would continue en banc on a grander scale is accordingly very real, and the cost in judicial resources would hardly seem to justify the process.

For this reason, I do not request a poll of the court to rehear this case en banc, nor do I vote for rehearing.