Petition for Writ of Certiorari — Smith v. United States

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xB 6-693 [- Seemtur ts”

In The | OCT 24 1986

JOSEPH F. SPANIOL, JR,

Supreme Court of the United States

October Term, 1986

WILLIAM T. SMITH, JR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

JOHN ROGERS CARROLL

CARROLL & CARROLL

Attorneys for Petitioner

Suite 1206

615 Chestnut Street

Philadelphia, Pennsylvania 19106

(215) 925-4100

4276

tz *NJ (201) 257-6850eNY (212) 840-9494°PA (215) 563-5587 )

. 7 MA (617) 542-1114°DC (202) 783-7288°USA (800) 5 APPEAL +

\\ \\ '

QUESTION PRESENTED

Whether the Court of Appeals erred in its interpretation of

the standard for defining a ‘‘substantial question’”’ under 18 U.S.C.

§ 3143(b)(2), the Bail Reform Act of 1984, requiring that the

appellate issue be ‘‘fairly debatable’’ in addition to being novel,

not governed by controlling precedent, or fairly doubtful, contrary

to every other court of appeals to consider this question, and

further erred in its application of the standard to the issue raised

on appeal.

li

LIST OF PARTIES

The parties to the proceeding in the United States Court of

Appeals for the Third Circuit whose opinion is being sought to

be reviewed are as follows:

United States of America, appellant

William T. Smith, Jr., appellee

iti

TABLE OF CONTENTS

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Statement of the Case eile Up Tage oP GAP Eey

Reasons for Granting the Writ..............ccccccceee

I. The Court of Appeals’ interpretation of the meaning

of ‘‘substantial question’’ as used in 18 U.S.C.

§ 3143(b) improperly requires a defendant to show

that the issue to be raised on appeal is ‘‘fairly

debatable’’ in addition to being either novel, not

decided by controlling precedent, or fairly doubtful,

imposing an unduly burdensome standard upon

petitioner, and rendering the Third Circuit in conflict

with every other Circuit Court of Appeals that has

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Barefoot v. Estelle, 463 U.S. 880 (1983) ............... 6

Patton v. United States, 281 U.S. 276 (1938) ........... 9

United States v. Gambino, 598 F. Supp. 646 (D.N.J. 1984),

ig Se 2 oe Fg eS Ae | ee 8

United States v. Giancola, 754 F. 2d 898 (11th Cir. 1985)

United States v. Handy, 761 F. 2d 1279 (9th Cir. 1985).... 6, 8

United States v. Miller, 753 F. 2d 19 (3d Cir. 1985)....5, 6, 7, 8

United States v. Scalzitti, 758 F. 2d 507 (3d Cir. 1978)... 9

United States v. Smith, 789 F. 2d 196 (3d Cir. 1986).... 8

United States v. Stratton, 779 F. 2d 820 (2d Cir. 1985)

AS Oy PRR ere ge bape a py eames @ hrm ere 8

Williams v. Florida, 399 U.S. 78 (1970) .............. 6, 8, 9

Statutes Cited:

NE SG as Se gine ab oN wae ee es PEERS 2, 3, 4

ROS 8 RR Bs Ee rr i, 5, 6, 7, 10

Contents

Page

ge OR: I rE ey rane yee herent e 9

Sr TARE 05's nC De cha KW ES GS bane Oe 2

Rules Cited:

Federal Rules of Criminal Procedure:

SSS rere Tr rrr eT 7 Tere TORT Leer TT Tree 4

RE Hick ss dad sheen densidniensecenesaeus 5, 8,9

APPENDIX

Appendix A—Opinion of the United States Court of Appeals .

for the Third Circuit Filed June 13, 1986 .......... la

Appendix B—Opinion of the United States District Court

for the Middle District of Pennsylvania Filed July

oe Se Sas ree ree eee ee ee 20a

Appendix C—Order of the United States Court of Appeals

for the Third Circuit Affirming Judgment Filed June

ED CR ane oc eCnwh kaa naes bccn canon asker aka 22a

Appendix D—Order of the United States Court of Appeals

for the Third Circuit Denying Appellee’s Petition for

Rehearing Filed July 29, 1986 .................... 24a

Appendix E—Order of the United States Court of Appeals

for the Third Circuit Denying Appellant’s Petition

for Rehearing Filled August 27, 1986 .............. 26a

os

No.

In The

Supreme Court of the United States

~

October Term, 1986

WILLIAM T. SMITH, JR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Petitioner, William T. Smith, Jr., prays that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Third Circuit which reversed an order permitting

his release on bail pending appeal.

OPINIONS BELOW

The panel opinion of the United States Court of Appeals

for the Third Circuit is reported at 793 F. 2d 85, and also appears

as Appendix A (la) to this petition. The opinion of the United

States District Court for the Middle District of Pennsylvania, is

unreported and appears as Appendix B (20a) to this petition.

STATEMENT OF JURISDICTION

The petitioner, William T. Smith, Jr., seeks a writ of certiorari

_ to review the judgment (Appendix C, 22a) rendered in accordance

with an opinion (Appendix A, la) of the United States Court

of Appeals for the Third Circuit on June 13, 1986. The judgment

reversed an order permitting petitioner’s release on bail pending

appeal entered in the United States District Court for the Middle

District of Pennsylvania following petitioner’s criminal conviction

in a jury trial.

Petitions for rehearing and suggestion for rehearing en banc

filed by both the petitioner and the government were denied by

the United States Court of Appeals for the Third Circuit on July

2, 1986 (Appendix D, 24a) and August 27, 1986 (Appendix E,

26a) respectively.

The Supreme Court has jurisdiction to review the judgment

below by writ of certiorari pursuant to 28 U.S.C. § 1254(1).

STATUTE AND RULE INVOLVED

18 U.S.C. § 3143. Release or detention of a

defendant pending sentence or appeal

(a) Release or detention pending sentence.—

The judicial officer shall order that a person who

has been found guilty of an offense and who is

waiting imposition or execution of sentence, be

detained, unless the judicial officer finds by clear

and convincing evidence that the person is not

likely to flee or pose a danger to the safety of any

other person or the community if released pursuant

to section 3142(b) or (c). If the judicial officer

makes such a finding, he shall order the release

of the person in accordance with the provisions

of section 3142(b) or (c).

(b) Release or detention pending appeal by

the defendant.—The judicial officer shall order

that a person who has been found guilty of an

offense and sentenced to a term of imprisonment,

and who has filed an appeal or a petition for a

writ of certiorari, be detained, unless the judicial

officer finds—

(1) by clear and convincing evidence that

the person is not likely to flee or pose a danger

to the safety of any other person or the

community if released pursuant to section

3142(b) or (c); and

(2) that the appeal is not for purpose of

delay and raises a substantial question of law

or fact likely to result in reversal or an order

for a new trial.

If the judicial officer makes such findings, he shall

order the release of the person in accordance with

the provisions of section 3142(b) or (c).

(c) Release or detention pending appeal by

the government.-~-The judicial officer shall treat

a defendant in a case in which an appeal has been

taken by the United States pursuant to the

provisions of section 3731 of this title, in

accordance with the provisions of section 3142,

unless the defendant is otherwise subject to a

release or detention order.

(Added Publ. L. 98-473, Title II, § 203(a), Oct. 12, 1984, 98 Stat.

1981.)

FEDERAL RULE OF CRIMINAL PROCEDURE 23

TRIAL BY JURY OR BY THE COURT

(a) Trial by Jury. Cases required to be tried

by jury shall be so tried unless the defendant waives

a jury trial in writing with the approval of the court

and the consent of the government.

(b) Jury of Less Than Twelve. Juries shall be

of 12 but at any time before verdict the parties

may stipulate in writing with the approval of the

court that the jury shall consist of any number

less than 12 or that a valid verdt may be returned

by a jury of less than 12 should the court find it

necessary to excuse one or more jurors for any

just cause after trial commences. Even absent such

stipulation, if the court finds it necessary to excuse

a juror for just cause after the jury has retired to

consider its verdict, in the discretion of the court

a valid verdict may be returned by the remaining

11 jurors.

(c) Trial Without a Jury. In a case tried

without a jury the court shall make a general

finding and shall in addition, on request made

before the general finding, find the facts specially.

Such findings may be oral. If an opinion or

memorandum of decision is filed, it will be

sufficient if the findings of fact appear therein.

STATEMENT OF THE CASE

During deliberations of a 12 person jury at the conclusion

of a federal mail fraud trial in the Middle District of Pennsylvania,

one juror was disabled from further participation by injuries

suffered in an automobile accident. Over defendants’ objection,

the trial court invoked the 1986 amendment to Rule 23(b) of the

Rules of Criminal Procedure and proceeded with 11 jurors who

eventually returned verdicts involving some convictions from which

the defendants appealed. Petitioner sought release on bail pursuant

to 18 U.S.C. § 3143(b)(2):

That the appeal is not for the purpose of delay

and raises a substantial question of law or fact

likely to result in reversal or an order for a new

trial.

The trial judge, applying the Third Circuit’s previously

established guidelines set out in United States v. Miller, 753 F.

2d 19 (3d Cir. 1985), held that the issue of the constitutionality

of the 1983 amendment to Rule 23(b) was a substantial question

of law because it was not governed by controlling precedent. -

The Miller definition of ‘‘substantial question’’ required that

the issue on appeal be a significant question which is either novel

or which has not been decided by controlling precedent or which

is fairly doubtful.

The district court in this case expressed the belief that the

question was not fairly doubtful. The court said:

I don’t think there’s any doubt about this at all.

I think the chances are 100 to 1 that the Supreme

Court, when and if this matter ever gets to it, will

hold that an 11 men jury in the circumstances we

had in this case, is perfectly valid.

The Court of Appeals held that its intention in Miller was

to hold that the question on appeal need be significant in addition

to being novel, not governed by controlling precedent or fairly

doubtful. The Third Circuit noted that the Eleventh Circuit in

United States v. Giancola, 754 F. 2d 898 (11th Cir. 1985), had

modified its Miller decision by describing a substantial question

as ‘‘a ‘close’ question or one that could well be decided the other

way.’’ (8a) (quoting Giancola, 754 F. 2d at 901). Six other Circuits

have accepted this Giancola emendation upon Miller.

The Third Circuit joins the Ninth [United States v. Handy,

761 F. 2d 1279 (9th Cir. 1985)] in rejecting Giancola and instead

adopting an interpretation of the word “‘significant’’ which is

couched in the phrase, ‘‘fairly debatable’’. The Third Circuit found

the ‘‘fairly debatable’’ language more akin to this Court’s recent

statements in Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)

and having more historical basis. So stating, the Third Circuit held:

We reject the Giancola modification to the

Miller substantial question definition and adopt

the historical approach of the Handy court. (10a).

The Third Circuit has thus clearly stated what constitutes a Circuit

split on the issue of the definition of substantial question in 18

U.S.C. § 1343(b)(2).

Applying this definition, the Third Circuit mistakenly uses

Williams v. Florida, 399 U.S. 78 (1970), which involved Florida’s

right to try a criminal case with a six-person jury from beginning

to end and which has nothing to do with the issue posed by this

case; namely, diminishing the jury after commencement of

deliberations in a federal criminal trial, and held that the issue

was because of Williams, not ‘“‘debatable among jurists’ or

adequate to deserve encouragement to proceed further.’’ (10a).

REASONS FOR GRANTING THE WRIT

I.

The Court of Appeals’ interpretation of the meaning of

‘substantial question’’ as used in 18 U.S.C. § 3143(b) improperly

requires 2 defendant to show that the issue to be raised on appeal

is “‘fairty debatable’’ in addition to being either novel, not decided

by controlling precedent, or fairly doubtful, imposing an unduly

burdensome standard upon petitioner, and rendering the Third

Circuit in conflict with every other Circuit Court of Appeals that

has considered the issue.

To date, practically every court of appeals has had something

to say on the meaning of substantial question in § 3143(b). Most

of them have adopted the basic Miller position which separates

likelihood of reversal or new trial from the issue of substantial

question and all of them emphasize the negation of judicial

bookmaking on the probability of reversal as a standard for

determining whether the substantial question is presented. All of

the courts of appeals likewise agree that the test Congress intended

to establish is more stringent than the previous ‘‘frivolous

question’’ test.

Miller sought to establish sharply defined criteria for

determining substantial question and used the words ‘‘novel’’,

**not governed by controlling precedent’’ and ‘‘fairly doubtful’’.

Miller, 753 F. 2d at 23.

The Miller court has now rejected the gioss placed upon its

opinion by the Eleventh Circuit and adopted by the First, Second,

Fifth, Sixth, Seventh and Tenth as well. And while we do not

urge the Giancola formulation in this petition, we do suggest that

the Third Circuit has simply added to the judicial confusion, rather

than clarifying the appellate bail standard it had previously

established in Miller.

By defining the term ‘‘significant’’ to incorporate the Ninth

Circuit’s ‘‘fairly debatable’’ test, we find that the Third Circuit

now requires an appellate issue to be fairly debatable and in

addition novel, not governed by controlling precedent, or fairly

doubtful. The Ninth Circuit at least had the merit of not

multiplying qualifiers which the Third Circuit now seems to have

done. Though the Third Circuit purports to adopt the Handy

test, upon analysis it appears to adopt the ‘‘fairly debatable’’

language as a definition of significant while retaining the further

requirements of Miller, thus doubling presumably the obligation

of the appellant in showing a substantia! question.

At the time of petitioner’s application for bail, the only extant

judicial statement concerning the amendment to Rule 23(b) was

the district court opinion in United States v. Gambino, 598 F.

Supp. 646 (D.N.J. 1984), aff’d, 788 F. 2d 938 (3d Cir. 1986),

in which the district court simply observed that the issue of the

constitutionality of Rule 23(b) had not been raised in that case.

While the case was pending on appeal, the Second Circuit in United

States v. Stratton, 779 F. 2d 820 (2d Cir. 1985) without analysis

upheld the amendment as did the Third Circuit ultimately in this

case. See United States v. Smith, 789 F. 2d 196 (3d Cir. 1986).

In his argument on the issue of substantial question in the

Court of Appeals, the petitioner observed that the drafting

committee with respect to Rule 23(b) had placed undue reliance

on Williams v. Florida, 399 U.S. 78 (1970), which sanctioned a

unanimous verdict of six jurors in a Florida criminal case, but

did not speak to the issue of a verdict of 11 jurors out of 12

in a federal criminal case. We were at pains to point out that

Williams simply sanctioned a smaller number of jurors from

beginning to end without any difference between the number who

voted on the verdict and the number who heard the evidence.

As we perceived the issue this deals with mere number which this

Court has said is not talismanic as distinguished from unanimity

which is a right under the Constitution. Patton v. United States,

281 U.S. 276 (1938); United States v. Scalzitti, 578 F. 2d 507 (3d

Cir. 1978).

We argued this issue was fairly debatable on a number of

grounds; namely, the questionable practice of diminishing the

voting membership of a jury after commencement of deliberations

as a proper subject matter of rule-making under 18 U.S.C. § 3771,

and the further question whether Congress could have

accomplished this by legislation had it chosen to do so. However,

under the unduly stringent standard employed by the Court of

_ Appeals, requiring that the issue be fairly debatable in addition

to novel, not governed by controlling precedent, or fairly doubtful,

and its misplaced reliance upon Williams as controlling, the court

found ‘‘no basis to suggest that the Rule 23(b) issue fulfills the

requirement of significance’’ and reversed the order of the district

court. (10a)

The issue of the constitutionality of the 1983 amendment to

Rule 23(b) was clearly not governed by controlling precedent at

the time of petitioner’s trial. Thus, the case necessarily turned

on whether the issue was ‘‘significant’’. Because the Court of

Appeals erroneously required that significance depended upon

the necessity that it be ‘‘fairly debatable’, an additional factor

was added to the equation for determining whether a ‘‘substantial

question’’ was raised. We are left to speculate on how the other

Circuits would analyze this issue under the various definitions

abounding of ‘‘substantial question’’, but uniform results seem

unlikely in view of the diverse analyses employed.

10

Petitioner suggests that certiorari should be granted to resolve

the Circuit split on the ‘‘substantial question’’ requirement of

18 U.S.C. § 3143(b)(2) and to provide clearer guidance to the

lower courts on this recurring issue of great importance.

CONCLUSION

For the foregoing reasons, petitioner respectfully submits that

this Court should issue a writ of certiorari to the Court of Appeals

for the Third Circuit to review the instant decision.

Respectfully submitted,

JOHN ROGERS CARROLL

CARROLL & CARROLL

Attorneys for Petitioner

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT FILED

JUNE 13, 1986

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 85-5557

UNITED STATES OF AMERICA

vs.

WILLIAM T. SMITH, JR.

Uniced States of America,

Appellant

’ On Appeal from the United States

District Court for the

Middle District of Pennsyivania

(D.C. CR. 84-00156-04)

Argued March 18. 1986

BEFORE: HUNTER and MANSMANN, Circuit Judges

and POLLAK* District Judge

(Filed June 13, 1986)

James J. West (Argued)

U.S. Attorney

P. O. Box 11754

Harrisburg, PA 17108

Attorney for Appellant

John Rogers Carroll (Argued)

Carroll & Carroll

Suite 1206. 615 Chestnut Street

Philadelphia. PA 19106

Attorney for Appellee

* The Honorable Louis H. Pollak. United States District Court for

the Eastern District of Pennsylvania, sitting by designation.

2a

Appendix A

OPINION ANNOUNCING THE JUDGMENT OF THE

COURT,

in which Judges Hunter and Pollak agree

as to parts I.. II. and IIl..

Judge Hunter also joins as to part VI..

Judge Pollak also joins parts [V.(B) and (C)

MANSMANN. Circuit Judge.

We review the district court's application of the

substantial question requirement contained in the

section of the Bail Reform Act of 1984 governing the

release of a convicted defendant pending appeal. 18

U.S.C. § 3143(b). The district court interpreted our

decision in United States v. Miller. 753 F.2d 19 (3d

Cir. 1985). as requiring that the defendant be released

where the issue presented on appeal is not governed by

controlling precedent. no matter how improbable a

reversal of the conviction. The district court found that

under this standard the defendant had raised a

substantial question and granted the defendant's

motion for bail pending appeal. We reverse.

I.

The defendant was indicted for crimes relating to

his participation in a scheme to bribe public officials in

Pennsylvania in order to secure the award of Federal

Insurance Contribution Act (“FICA”) recovery cor.iracts

from state and local entities. After jury deliberations

commenced, one of the jurors was injured in an

automobile accident while returning to the

courthouse. The district court. finding that the juror’s

injuries precluded her from continuing deliberations.

invoked Federal Rule of Criminal Procedure 23(b)' and

ks Federal Rule of Criminal Procedure 23(b) provides:

Juries shall be of 12 but at any time before verdict the

3a

Appendix A

permitted the remaining eleven jurors to continue

deliberations. The jury ‘ound the defendant guilty of

conspiracy. 18 U.S.C. § 371 (1982), four counts of mail

fraud, 18 U.S.C. § 1341 (1982), and four counts of

violating the Interstate Transportation in Aid of

Racketeering Statute, 18 U.S.C. § 1952(a)(3) (1982)

(“I.T.A.R.”). The defendant was sentenced to a total of

twelve years imprisonment and fined S63.000. The

defendant appealed. challenging. inter alia. the

constitutionality of Rule 23(b).?

The district court granted the defendant's motion

for bail pending appeal pursuant to 18 U.S.C.

§ 3143(b). The government appeals.

II.

“[Blecause of the crucial nature of the defendant's

liberty interest and the ‘clear public interést’ that is at

Stake.” we are required to “independently determine”

whether the defendant is entitled to bail pending

appeal. United States v. Strong. 775 F.2d 504. 505 (3d

parties may stipulate in writing with the approval of the

court that the jury shall consist of anv number less than 12

or that a valid verdict may be returned by a jury of less than

12 should the court find it necessary to excuse one or more

jurors for any just cause after trial commences. Even

absent such stipulation. if the court finds it necessary to

excuse a juror for just cause alter the jury has retired to

consider its verdict. in the discretion of the court a valid

verdict may be returned by the remaining |] jurors.

2. The defendant appeaied from his conviction. United States

v. Smith. No. 85-5532. and from the denial of his post-trial

motions. United States v. Smith. No. 85-5714. In addition. Mr.

Smith's co-defendant. Alan Stoneman. appealed from the

denial of his post-trial motions. United States v. Stoneman. No.

85-5702. All three of these appeals were consolidated with the

governments appeal of the order granting defendant Smith

bail which we consider here. We address the defendants’ three

appeals in a separate opinion.

4a

Appendix A

Cir. 1985) (quoting United States v. Delker, 757 F.2d

1390, 1399-1400 (3d Cir. 1985) and S.Rep. No.

98-225, 98th Cong., 2d Sess. at 30 (1983), reprinted in )

1984 U.S. Code Cong. & Ad. News 3182, 3213). We

must, however, accord some deference to the district

court's reasoning.

[Alppellate courts give the reasons articulated by

trial judges respectful consideration. but if. after

careful assessment of the trial judge's reasoning,

together with such papers. affidavits. and

portions of the record as the parties present, the

court of appeals independently reaches a

conclusion different from that of the trial judge

the court of appeals has the power to amend or

reverse a detention or release decision.

Delker. 757 F.2d at 1400 (citations omitted).

III.

The 1984 Bail Act provides in relevant part that a

defendant shall be released on bail pending appeal only

if the court finds:

(1) by clear and convincing evidence that

the person is not likely to flee or pose a danger to

the safety of any person or the community if

released pursuant to section 3142(b) or (c): and

(2) that the appeal is not for purpose of )

delay and raises a substantial question of law or

fact likely to result in reversal or an order for a

new trial.

18 U.S.C. § 3143(b). The government does not

challenge the district court’s finding that the

defendant had satisfied his burden of proof with

respect to the first portion of these requirements. The

government does contest the district court's

application of the second half of these criteria.

Ee ae ee RE ee eT eT

Sa

Appendix A

In Miller we found that Congress intended that the

section 3143(b)(2) requirements would place a burden

on the defendant to demonstrate “that the appeal

raises a substantial question of law or fact” and “that if

that substantial question is determined favorably to

defendant on appeal. that decision is likely to result in

reversal or an order for a new trial of all counts on

which imprisonment has been imposed.” Miller. 753

F.2d at 24. We said that the substantial question

prerequisite requires the defendant to prove “that the

significant question at issue is one which is either

novel. which has not been decided by controlling

precedent. or which is fairly doubtful.” Id. at 23. We

noted:

This [requirement] represents a marked change

in the inquiry into the merits in the context of a

bail determination. since the 1966 act only

required the court to determine whether the

issue was “frivolous.” see 18 U.S.C. 8 3148

(repealed by 1984 Act).

Id. We rejected anv interpretation of the statutory

phrase “likely to result in reversal or an order for a new

trial” which would require the federal courts to act as

**bookmakers’ who trade on the probability of ultimate

outcome.” Id. We said that the statute “cannnot

reasonably be construed to require the district court to

predict the probability of reversal.” Id.

The trial court here found that the defendant's

challenge to the constitutionalitv of the provision of

Federal Rule of Criminal Procedure 23(b) for

continuing deliberations with an 11-member jury

where one juror can no longer participate constitutes a

substantial question under the Miller guidelines.” The

court explained:

J. The court found that “[t/he only substantial question of law

to be raised by the detendant on appeal which has been called

6a

Appendix A

We have no doubt that the 11l-person jury

provided for in Rule 23 of the Rules of Criminal

Procedure is constitutional and will be so )

determined by the U.S. Supreme Court if and

when this question reaches that court. However,

there is no controlling precedent with respect to

the 1l-person jury. Thus, the question falls

within the definition of a “substantial question”

under U.S. v. Miller.

The court stressed. however. its belief that the

resolution of the Rule 23(b) question was not “fairly

doubtful”:

I don't think there is any doubt about this at all. |

think the chances are one hundred to one that

the Supreme Court. when and if this matter ever

gets to it. will hold that an eleven man jury in the

circumstances we had in this case. is perfectly

valid. I don't think there is any doubt about it. or

the doubt is minimal.

The trial court emphasized its reluctance to find a

substantial question but concluded that it. was

required to do so by our opinion in Miller. Reasoning

to our attention by defense counse! up to the present time is the

question of the constitutionality of the 11-person jury used in

this case.’ The defendant asserts on appeal that three )

additional issues are also “substantial questions: |) whether

the defendant was prejudiced by an impermissible variance

between the crime for which he was indicted and the proof at

trial coupled with the court's instructions to the jury: 2)

whether the supplemental jury instructions erroneously’

permitted the jury to consider the multiple censpiracies

separately: and 3) whether the district court erred in refusing

to permit the defendant to subpoena alcoholism records of two

of the government's witnesses. We find that none of these

issues raises a substantial question within the meaning of 18

U.S.C. § 3143.

7a

Appendix A

that if the Rule 23(b) question were determined

favorably to the defendant. a new trial would be

required on all counts for which imprisonment was

imposed. the district court ordered the defendant

released pending appeal.

IV.(A)

We find that Miller does not compel the result

reached by the district court. We clearly acknowledged

in Miller that Congress intended the 1984 Bail Act to

replace the “frivolous” test with a more stringent

prerequisite to bail pending appeal. Contrary to the

assertion of the United States Court of Appeais for the

Eighth Circuit in United States v. Powell. 761 F.2d

1227. 1232 (8th Cir. 1985). we believe the Miller

definition is consistent with Congress’ intent. Our

definition of a substantial question requires that the

issue on appeal be significant in addition to being

novel. not governed by controlling precedent or fairly

doubtful. The district court focused solely on the

absence of controlling precedent and. in so doing.

failed to determime whether the Rule 23(b) issue

constituted a significant question.

IV.(B)

We are aware that a number of courts of appeals

view our Miller definition as incomplete. In United

States v. Giancola. 754 F.2d 898 (11th Cir. 1985). the

United States Court of Appeals for the Eleventh Circuit

adopted the Miller articulation of the section 3143(b)

requirements. The Giancola court observed. however.

that the suggestion that a substantial question can be

one that has not been decided by controlling precedent

fails to exclude some cases which are not substantial.

The Giancola court explained:

We note that an issue may be without controlling

precedent largely because that issue is so

8a

Appendix A

patently without merit that it has not been

found necessary for it to have been resolved.

Thus, an issue could well be insubstantial even

though one could not point to controlling

precedent. Similarly, there might be no

precedent in this circuit, but there may also be

no real reason to believe that this circuit would

depart from unanimous resolution of the issue

by other circuits.

Id. at 901. The Giancola court concluded that a

substantial question is “a ‘close question or one that

very well could be decided the other way.” Id. The

Giancola modification of Miller has been adopted by a

number of the courts of appeals. See. e.g.. United

States v. Pollard. 778 F.2d 1177. 1182 (6th Cir. 1985):

United States v. Bayko. 774 F.2d 516. 523 (1st Cir.

1985); United States v. Bilanzich. 771 F.2d 292.

298-99 (7th Cir. 1985): United States v. Affleck. 765

F.2d 944, 952 (10th Cir. 1985): Powell. 761 F.2d at

1231-32: United States v. Valera-Elizondo. 761 F.2d

1020, 1024 (5th Cir. 1985): United States v. Randell.

761 F.2d 122. 125 (2d Cir.). cert. denied. 106 S.Ct.

533 (1985).

IV.(C)

We believe the Giancola court's objections can be

satisfied by reference to the requirement that a

question which is not governed by controlling

precedent nonetheless must be significant. Clearly. an

issue that is “patently without merit” cannot qualify as

significant. An issue which has been unanimously

decided by the other circuits may or may not be

significant. Where there is any doubt as to

significance. we believe it is preferable to resort to the

historical approach outlined in United States uv.

Handy. 761 F.2d 1279. 1281-82 (9th Cir. 1985).

rather than to the “close” question concept advocated

9a

Appendix A

by the Giancola court. To accept the Giancola

modification would be to resort to the judicial

bookmaking condemned in Miller.

The Hardy court noted that several observations

made in Giancola were accurate, i.e., that “a

‘substantial question’ is one of more substance than

would be necessary to a finding that it was not

frivolous,” that “there are no blanket categories for

what questions do or do not constitute ‘substantial’

ones.” and that “|wjhether a question is ‘substantial

must be determined on a case-by-case basis.”

Giancola, 754 F.2d at 901 (quoted in Handy, 761 F.2d

at 1282 n.2). We agree. The Handy court also

suggested that the Miller definition of substantial

question “might not be sufficient to separate

substantial from non-substantial questions.” Handy.

761 F.2d at 1282 n.2 (citing Giancola. 754 F.2d at

901). The court rejected. however. the “close question”

analysis adopted in Giancola. Instead. the Handy

court emphasized its support of the historically-based

“fairly debatable” interpretation of the term

“substantial”. We find this approach consistent with

that traditionally taken by the courts. For example. the

Supreme Court of the United States. in a different

context. recently affirmed that:

“In requiring a ‘question of some substance’. or a

‘substantial showing of the denial of [a] federal

right.’ obviously the petitioner need not show

that he should prevail on the merits. He has

already failed in that endeavor. Rather. he must

demonstrate that the issues are debatable

among jurists of reason: that a court could

resolve the issues [in a different manner]: or that

the questions are ‘adequate to deserve

encouragement to proceed further.’” Gordon v.

Willis. 516 F.Supp. 911. 913 (ND Ga. 1980)

10a

Appendix A

(quoting United States ex rel. Jones v.

Richmond, 245 F.2d 234 (CA2): cert. denied.

355 U.S. 846 (1957)).

Barefoot v. Estelle. 463 U.S. 880. 893 n.4 (1983)

(emphasis in original). We reject the Giancola

modification to the Miller substantial question

definition and adopt the historical approach of the

Handy court.

V.

Because we find that the district court applied the

incorrect standard. we must determine whether the

Rule 23(b) issue constitutes a substantial question.

Given the absence of controlling precedent. Miller

requires us to decide whether a significant question is

posed. The pertinent issue involves the defendant's

chajlenge. to the constitutionality of continuing jury

deliberations with eleven jurors when one juror can no

longer participate. Precedent clearly establishes that

twelve jurors are not required for a conviction. See

Williams v. Florida. 399 U.S. 78 (1970). It is also clear

that the district court acted in accordance with Federal

Rule of Criminal Procedure 23(b) and that the

defendant was convicted by the unanimous verdict of

the eleven remaining jurors.

We find that the defendant's challenge to Rule

23(b) is not a significant question. The defendant has

not shown that the issue is “debatable among jurists.”

nor do we believe that the question is “adequate to

deserve encouragement to proceed further.” See

Barefoot v. Estelle. 463 U.S. at 893 n.4 (citations

omitted). Because we find no basis to suggest that the

Rule 23(b) issue fulfills the requirement of

significance, we conclude that the defendant should

not have been released pending appeal.

lla

Appendix A

VI.

We will reverse the order of the district court

permitting the defendant's release on bail pending

appeal.

HUNTER. Circuit Judge Concurring:

1. Both the defendant. William T. Smith. and the

government acknowledge that the two-part test in

United States v. Miller. 753 F.2d 19 (3d Cir. 1985). is

to be used in making a decision on whether to grant

bail pending appeal under the Bail Reform Act of 1984.

18 U.S.C. § 3143(b\2). They differ. however. on the

definition of a “substantial question.” On the subject of

what constitutes a substantial question the Miller

court stated: “{ulmder the new act. a court must

determine that the question raised on appeal is a

‘substantial one. (e.. it must find that the significant

question at issue is one which is either novel. which

has not been decided by controlling precedent. or

which is fairly doubtful.” 753 F.2d at 23. Although this

statement was meant to suggest factors that could be

considered in determining whether an issue is

“substantial.” the presence of any one of these factors

is not absolutely dispositive of substantialitv. Other

circuits have examined the question at greater length

and I find their comments very helpful.

2. The next circuit to consider § 3143(b)(2) after

Miller. the Eleventh Circuit. pointed out that an issue

might not have been decided by controlling precedent

“largely because that issue is so patently without merit

that it has not been found necessary for it to have been

resolved. .. . Similarly there might be no precedent in

this circuit. but there may also be no real reason to

believe that this circuit would depart from unanimous

12a

Appendix A

resolution of the issue by other circuits.” United States

vu. Giancola, 754 F.2d 898, 901 (11th Cir. 1985). The

Giancola court defined a substantial question as “one

of more substance than would be necessary to a finding

that it was not frivolous. It is a ‘close’ question or one

that very well could be decided the other way. Further.

there are no blanket categories for what questions do

or do not constitute ‘substantial’ ones.” Id. at 901. All

but one of the circuits that have considered what

constitutes a substantial question subsequent to the

Miller and Giancola decisions have adopted the

Giancola definition of a substantial question as a

“close” one.'

3. I agree with the Giancola court that a court

should assess substantiality on a case-by-case basis

and that an issue on appeal must present a close

question if it is to be considered a substantial one. Just

because a question is “one which is either novel. which

has not been decided by controlling precedent. or

which is fairly doubtful.” Miller. 753 F.2d at 23. does

not automatically. without reference to other factors

demonstrating merit or the lack of it. make it a

substantial question. In promulgating 18 U.S.C.

§ 3143 to replace former § 3148. Congress explicitly

stated that it intended to eliminate the presumption in

favor of post-conviction bail by requiring that a

defendant raise a substantial question rather than one

1. See United States v. Pollard. 778 F.2d 1177. 1182 (6th

Cir. 1985): United States v. Bayko. 774 F.2d 516. 523 (ist Cir.

1985): United States v. Bilzanich. 771 F.2d 292. 298 (7th Cir.

1985): United States v. Affleck. 765 F.2d 944. 952 (10th Cir.

1985): United States v. Powell. 761 F.2d 1227. 1232 (8th Cir.

1985): United States v. Valera-Elizondo. 761 F.2d 1020. 1024 (Sth

Cir. 1985): United States v. Randell. 761 F.2d 122. 125 (2d Cir.).

cert. denied. 106 S.Ct. 533 (1985): but see. United States v.

Handy. 761 F.2d 1279. 1282 n.2 (9th Cir. 1985) (a substantial

question is not a close one but one which is “fairly debatable. °)

13a

Appendix A

that was merely not frivolous. It would be pointless and

contrary to the legislative intent in passing the Bail

Reform Act of 1984 to agree with Smith that any

question of first impression in this circuit, no matter

how frivolous, is substantial.

4. Smith maintains that we will erode Miller if we

join the courts that have followed Giancola and permit

courts to consider the merit of an issue in deciding

whether it is substantial. He argues that allowing a

judge to determine whether an issue presents a close

question involves the same problems that we sought to

avoid in Miller. In Miller, we found that judges could

not be expected to determine whether their own

findings were so erroneous that they would resuit in

reversal on appeal. | believe trial court judges can

consider the merit of an issue to decide whether it is a

close question. Such a determination does not involve

the guesswork that would be involved if a judge had to

assess the likelihood of being reversed.

5. I cannot agree with Judges Mansmann and

Pollak that the Handy court was correct in defining a

substantial question as one that is “fairly debatable.”

761 F.2d at 1282 n.2. Like the Powell court. “I believe

Giancola is more responsive to the announced

purpose of Congress. which was. bluntly, that fewer

convicted persons remain at large while pursuing their

appeals.” 761 F.2d at 1232. The Handy test simply

“does not work enough of a change from the prior

standard that a question not be ‘frivolous. Bayko.

774 F.2d at 523. Congress intended that the 1984 Bail

Reform Act make the standard for granting bail

pending appeal more stringent. See Affleck. 765 F.2d

at 952. It sought to remove the presumption in favor of

release and place the burden of showing the merit of

the appeal on the defendant. This was done to give

“recognition to the basic principle that a conviction is

presumed to be correct.” S. Rep. No. 98-225. 98th

l4a

Appendix A

Cong.. lst Sess. 27 (1983), reprinted in 1984 U.S.

Code Cong. & Admin. News 3182, 3210.

6. I find Judge Mansmann’s reliance on

definitions of a “substantial question” from comtexts

other than bail are inappropriate. Barefoot v. Estelle.

463 U.S. 880 (1983), used the “fairly debatable”

language to define a substantial question im the

context of a habeas corpus proceeding. Id. at 893 n.4.

In such a proceeding “doubts should be resolved in

favor of the petitioner.” Gordon v. Willis. 516 F. Supp.

911, 912 (N.D. Ga. 1980). Congress clearly intended

that no such presumption be accorded to defendants

seeking bail pending appeal. See S. Rep. No. 98-225.

supra, at 26. reprinted in 1984. U.S. Code Cong. &

Admin.. 3182. 3209. In formulating its definition of a

“substantial question.” the Handy court relied on

cases predating the Bail Reform Act of 1984. when bail

was the rule rather than the exception. See Powell.

761 F.2d at 1232. Judge Mansmann correctly notes

that the Handy approach is “consistent with that

traditionally, taken by the courts” and is “the historical

approach.” This fact convinces me. however. that the

Handy approach is inappropriate. given Congress's

clearly expressed desire that courts use a new approach

appiving a stricter standard lor bail.

7. I do not believe that the constitutionality of

Rule 23(b) is a close question and |. therefore. agree

with Judge Mansmann that no substantial question

has been raised.

POLLAK. District Judge. dissenting.

L.

This court. in United States v. Miller. 753 F.2d 19

(3d Cir. 1985) led the way in parsing the mandate of

the Bail Reform Act of 1984 that bail pending appeal be

conditional on a finding. inter alia. “that the appeal ...

~- -- — —??>

15a

Appendix A

raises a substantial question of law.” 18 U.S.C.

§ 3143(b). Following the decision in Miller, a number

of other courts of appeal have sought to shed additional

light on the delphic statutory language. I concur in

Judge Mansmann’'s demonstration that. as an

explication of “substantial question of law,” the “fairly

debatabie”™ standard adopted by the Ninth Circuit in

United States v. Handy, 761 F.2d 1279. 1282 (9th Cir.

1985). is a sounder guide than the “‘close’ question”

standard advanced by the Eleventh Circuit in United

States v. Giancola. 754 F.2d 898. 901 (llth Cir. 1985).

Handy’s “fairly debatable” seems to me to comport

better with the language of the statute and with-the

salutary approach to the statutory language taken by

this court in Miller.

II.

Although I concur in Judge Mansmann's

conclusion that a question of law is “substantial” for

purposes of the Bail Reform Act if it is “fairly

debatable.” | do not agree with Judge Mansmann’s

companion conclusion: namely. that defendant

Smith's constitutional challenge to the second

sentence of Federal Rule of Criminal Procedure 23(b) --

the 1983 amendment which provides that “if the court

finds it necessary to excuse a juror for just cause after

the jury has retired to consider its verdict. in the

discretion of the court a valid verdict may be returned

by the remaining 11 jurors” -- did not raise an issue

properly characterizable as “fairly debatable.” The

substance of Smith's claim was that a verdict rendered

by a jury of fewer than twelve persons is

constitutionally defective (unless. of course. a

defendant stipulates. pursuant to the first sentence of

Rule 23(b). to such a diminished jury).

As of the date (July 23. 1985) the district court

determined that Smith was entitled to bail pending

appeal. there appears to have been only one reported

16a

Appendix A

opinion discussing the then recently adopted

amendment to Rule 23(b). That was the opinion of the

district court in United States v. Gambino, 598 F.

Supp. 646 (D.N.J. 1984). affirmed. 788 F.2d 938 (3d

1986). The Gambino district court opinion describes

the “just cause” which in that instance necessitated

discharging a juror after deliberations had begun. and

then explains why the court decided to proceed with

eleven jurors rather than substitute one of the two

sequestered alternates. All the opinion says about the

validity of amended Rule 23(b) is the following:

Finally. counsel for the defendants. in urging

that this court proceed to substitute an alternate.

did not attack Rule 23(b). Thus. the record is

barren of any argument that somehow Rule 23(b)

was flawed or faulted. Certainly. it cannot now be

contended that there is any imperfection.

constitutional or otherwise. in the procedure

permitted under Rule 23(b).

598 F. Supp. at 661.' Thus it may fairly be stated that.

at the time the court below concluded that defendant

Smith should be at large pending appeal. that court did

not have at its disposal any case law commenting in

other than conclusory terms on the validity of the

second sentence of Rule 23(b)."

1 This court affirmed the district court on April 18. 1986.

United States v. Gambino. 788 F.2d 938 (3d Cir. 1986). The

opinion notes that “Appellants concede that they have no

constitutional right to a twelve-person jury. see Williams v.

Florida, 399 U.S. 78. 103 (1970).” Id. at _.

2 Subsequently, two courts have addressed the question. Onc

is the Second Circuit. which sustained the amended Rule 23(b) in

United States v. Stratton. 779 F.2d 820 (2d Cir. 1985). The other is

this court, in the opinion rejecting the appeals of defendant Smith

and his co-defendant Stoneman. United States v. Smith. Nos.

85-5532. 85-5702. 85-5714 (3d Cir. April 28. 1986). Compare.

United States v. Gambino. supra. note |.

17a

Appendix A

The case for the validity of the second sentence of

Rule 23(b) rests on the Supreme Court's opinion in

Williams v. Florida. 399 U.S. 78 (1970). Williams v.

Florida was decided in 1970, thirteen years before the

Court. in its rule-making capacity. amended Rule 23(b)

to add the language challenged by Smith. In Williams

v. Florida. the question presented was whether a

state's constitutional obligation to provide a jury in a

criminal case -- an obligation which the Court. in

1968, had found implicit in the Fourteenth

Amendment’ -- was satisfied by a jury of six persons. A

divided Court answered that question in the

affirmative. En route to its decision. the Court

determined that the Sixth Amendment, while in haec

verba mandating a “jury” in a federal criminal trial.

did not require that the “jury” be composed of twelve

persons.

Unquestionably. the 1983 amendment to Rule

23(b) gains strong support from the Court's

pronouncement in Williams v. Florida. That favoring

constitutional wind is enhanced by the presumption of

validity which properly attaches to a rule‘of procedure

promulgated by the Supreme Court pursuant to its

statutorily delegated rule-making authority.’ And if the

second sentence of Rule 23(b) has such impressive

credentials. how can its validity be characterized as

“fairly debatable”?

The doubt with respect to amended Rule 23(b)'s

validity inheres in the Court's own language in

Williams v. Florida. The Court was plainly aware that

its latitudinarian description of what a federal criminal

jury might look like reflected a sharp departure (and

one which. it may be noted. commanded the support of

3 Duncan v. Loutsiana, 391 U.S. 145 (1968). Justices

Harlan and Stewart dissented.

4 180U.S.C. 8 3771.

18a

Appendix A

only five of the Justices*) from what had theretofore

appeared to be a settled constitutional understanding

that the word “jury” as used in the Sixth Amendment

connoted “a jury of twelve persons.’® Against that

background, the Court was careful to make clear that

its new reading of the Sixth Amendment would not of

its own force confer on federal trial judges any warrant

to empanel juries of fewer than twelve: “Our holding

does no more than leave the considerations to

Congress ... unrestrained by an interpretation of the

Sixth Amendment that would forever dictate the

precise number that can constitute a jury.” 399 U.S. at

103.

In the light of this language. it would seem well

within the range of reasonable argument that the five

Justices comprising the Williams v. Florida majority

contemplated that implementation of the

path-breaking constitutional latitude there announced

would entail affirmative legislation by Congress. not

merely Congressional non-objection to a “rule of

procedure’ promulgated by the Court in its

non-adjudicative capacity.’

III.

The challenge to Rule 23(b) summarized above is not

5 Justice White wrote for the Court in Williams v. Florida.

On the jury issue (the case also presented a notice-of-alibi issue not

pertinent here} Justices Harian. Stewart and Marshall dissented

from the Court's pronouncement that a federal criminal jury could

number fewer than twelve. Justice Blackmun did not participate.

6 Thompson v. Utah. 170 U.S. 343. 355 (1898): accord.

Patton v. United States. 281 U.S. 276. 288 (1938).

7 With respect to a change in “procedure” which did not

involve modilfving long-accepted constitutional architecture. see

Justice Roberts’ opinion for the Court and Justice Frankfurter’s

dissent in Sibbach v. Wilson. 312 U.S. | (1941).

19a

Appendix A

one which, ultimately, | am persuaded by. Indeed. |

have already joined in concluding that the district

court was on sound constitutional ground in

exercising the discretionary authority conferred by the

second sentence of Rule 23(b)." But I have no difficulty

in characterizing the issue of the amended Rule's

validity as “fairly debatable” at the time the district

court admitted Smith to bail pending appeal.

Therefore. I respectfully dissent from the judgment of

this court reversing the order of the district court. :

8 See United States v. Smith. supra. note 2.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Jor the Third Circuit

20a

APPENDIX B—OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA FILED JULY 24, 1985

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Criminal No. 84-00156-04

(Judge Muir)

UNITED STATES OF AMERICA

vs.

WILLIAM T. SMITH

ORDER #1

The Court hereby finds by clear and convincing evidence

pursuant to 18 U.S.C. § 3143(b) that the appeal is not for the

purpose of delay and that the Defendant is not likely to flee or

pose a danger to the safety of any person or the community if

released on the same conditions which have prevailed from the

time of conviction to the present.

Section 3143(b) also requires that the Defendant be detained

pending appeal unless the court finds that ‘‘the appeal raises a

substantial question of law or fact likely to result in reversal or

an order for a new trial.’’ In our view, the language of the statute

is clear, reversal or an order for a new trial is unlikely, and the

express language of the statute would require detention of the

Defendant pending appeal. Nevertheless, the Court of Appeals

has interpreted the statutory language differently and we are bound

by that interpretation. United States vs. Miller, 753 F.2d 19 (3d

Cir. 1985),

2la

Appendix B

The only substantial question of law to be raised by the

Defendant on appeal which has been called to our attention by

defense counsel up to the present time is the question of the

constitutionality of the 11-person jury used in this case. We have

no doubt that the 11-person jury provided for in Rule 23 of the

Rules of Criminal Procedure is constitutional and will be so

determined by the U.S. Supreme Court if and when this question

reaches that court. However, there is no controlling precedent

with respect to the 11-person jury. Thus, the question falls within

the definition of a ‘‘substantial question’’ under U.S. vs. Miller.

If that question were to be determined favorably to the Defendant

on Appeal, a reversal or a new trial on all counts on which

imprisonment has been imposed would be required. Consequently,

the Court is obliged to and hereby orders the Defendant released

pending appeal on the same conditions that prevailed from the

time of conviction to the present.

s/ Muir

MUIR, U.S. District Judge

MM::cs

22a

APPENDIX C—ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT AFFIRMING

JUDGMENT FILED JUNE 13, 1986

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-5557

UNITED STATES OF AMERICA

Appellant

vs.

SMITH, WILLIAM T., JR.

(D.C. CR. 84-00156-04)

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Present: HUNTER and MANSMANN, Circuit Judges and

POLLAK*, District Judge

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the Middle District of Pennsylvania and

was argued by counsel March 18, 1986.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

23a

Appendix C

Court entered July 24, 1985, releasing the defendant pending

appeal, be, and the same is hereby reversed.

ATTEST:

s/ Sally Mrvos

Clerk

June 13, 1986

24a

APPENDIX D—ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT DENYING

APPELLEE’S PETITION FOR REHEARING FILED JULY 239,

1986

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-5557

UNITED STATES OF AMERICA

vs.

WILLIAM T. SMITH, JR.

United States of America,

Appellant

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS,

HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER,

BECKER, STAPLETON, MANSMANN, Circuit Judges and

POLLAK, District Judge

The petition for rehearing filed by appellee in the above

entitled case having been submitted to the judges who participated

in the decision of this court and to all the other available circuit

judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a

* The Honorable Louis H. Pollak, United States District Court for the

Eastern District of Pennsylvania, sitting by designation.

25a

Appendix D

majority of the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in banc, the petition

for rehearing is denied. ;

BY THE COURT,

s/ Carol Los Mansmann

Circuit Judge

Date: July 29, 1986

26a

APPENDIX E—ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT DENYING

APPELLANT’S PETITION FOR REHEARING FILED

AUGUST 27, 1986

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-5557

UNITED STATES OF AMERICA

vs.

WILLIAM T. SMITH, JR.

United States of America,

Appellant

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS,

HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER,

BECKER, STAPLETON, MANSMANN, Circuit Judges and

POLLAK, District Judge*

The petition for rehearing filed by appellant in the above

entitled case having been submitted to the judges who participated

in the decision of this court and to all the other available circuit

judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a

* The Honorable Louis H. Pollak, United States District Court for the

Eastern District of Pennsylvania, sitting by designation.

27a

Appendix E

majority of the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in banc, the petition

for rehearing is denied.

BY THE COURT,

s/ Carol Los Mansmann

Circuit Judge

Date: August 27, 1986