                United States Court of Appeals
                                 For the First Circuit

No. 04-6001

                                UNITED STATES OF AMERICA,
                                         Appellee,

                                                 v.

                                     GARY LEE SAMPSON,
                                      Defendant, Appellant.



                                             Before
                                     Boudin, Chief Judge,
                                    Torruella, Circuit Judge,
                                  Selya, Senior Circuit Judge,
                           Lynch, Lipez, and Howard*, Circuit Judges.


                                      ORDER OF COURT
                                     Entered: July 27, 2007



       Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en

banc has also been treated as a petition for rehearing before the original panel. The petition for

rehearing having been denied by the panel of judges who decided the case and the petition for

rehearing en banc having been submitted to the active judges of this court and a majority of the

judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing

and petition for rehearing en banc be denied.




       *
               Judge Howard is recused and did not participate in consideration of this matter.
                TORRUELLA, Circuit Judge, dissenting from the denial of rehearing en banc.

Fed. R. App. P. 35(a) provides that en banc rehearings are not favored unless "the proceeding

involves a question of exceptional importance." This Court has now denied en banc review in a case

that not only involves a legal question of exceptional importance -- this is the first case in the history

of the First Circuit to have interpreted the Federal Death Penalty Act -- but a moral question of

exceptional importance: what process is necessary to deprive a man not only of his liberty and

pursuit of happiness, but of his life.

                This might simply be a difference in opinion as to what "exceptional importance"

means. However, the recent history of this Circuit convinces me that it is not. This Circuit has

recently granted en banc review to examine a credibility determination, see Castañeda-Castillo v.

Gonzales, 488 F.3d 17 (1st Cir. 2007) (en banc), the reasonableness of one defendant's eight year

sentence, United States v. Scherrer, 444 F.3d 91 (1st Cir. 2006) (en banc), a dispute within this court

over the interpretation of the Wiretap Act, United States v. Councilman, 418 F.3d 67 (1st Cir. 2005)

(en banc), and sundry other cases involving questions that are surely less important than one where

a man's life is in the balance.1 This is not to suggest that it was improper for this Court to take those

cases en banc -- surely, it was not -- but to point out that by comparison, this case is sufficiently

important to rehear.




        1
         See, e.g., United States v. Padilla, 415 F.3d 211 (1st Cir. 2005) (en banc) (whether a court
must specify the number of drug tests to which a defendant on supervised release will be subject);
Savard v. Rhode Island, 338 F.3d 23 (1st Cir. 2003) (en banc) (whether a municipal defendant would
be entitled to qualified immunity for strip searches of people arrested for non-violent, non-drug
related minor offenses); JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 59 (1st Cir. 1999) (en banc)
(deciding a question that "was never briefed or argued, either below or on appeal").

                                                  -2-
               Indeed, it is not only imperative for the Court to take this case en banc to answer the

ultimate moral question posed by this case, but also the many subsidiary legal questions. Our

decision to not take this case en banc has deprived the full court the opportunity to decide such

important questions as the following. When, if ever, may a court deprive a member of a religious

order the ability and privilege of serving on a death penalty jury simply because the court believes

that the religious order might be unhappy with the member for having done so? May a jury impose

the death penalty based on the "vulnerability" of a victim even if the defendant was unaware of such

vulnerability? Should a jury vested with the awesome task of imposing the death penalty be asked

to parse instructions on burdens of proof which are, by all accounts, confusing?

               I do not mean to imply with these questions that I have prematurely concluded that

the death penalty should not apply here. We may have well decided that Sampson was eligible for

the death penalty after reviewing the evidence and hearing argument on these issues. However, this

Court has decided that these issues are insufficiently important, and thus has deprived not only

Sampson, but future death penalty litigants of the benefit of our collective judgment. I would have

reheard this case en banc, and accordingly, I must dissent.




                                                -3-
               LIPEZ, Circuit Judge, dissenting from the denial of en banc review. I was a

member of the panel in this case. With the one qualification noted in the opinion, I fully support the

decision that the panel reached. Nevertheless, I regret the denial of rehearing en banc. This case is

unlike any other our circuit has considered. Despite my confidence in the panel's judgment, I believe

that the issues raised by the imposition of the death penalty are so important and challenging that our

decision here -- and future decisions -- should be informed by the views of colleagues who wish to

contribute to the circuit's developing jurisprudence in this area. I therefore respectfully dissent from

denial of the petition for en banc review.

                                                       By the Court:
                                                       Richard Cushing Donovan, Clerk


                                                       ____/s/________________________________
                                                       By: Margaret Carter, Chief Deputy Clerk




[Certified copies to Hon. Mark L. Wolf and Ms. Sarah Thornton, Clerk, United States District Court
for Massachusetts. Copies to Mr. Ruhnke, Mr. Vien, Mr. Dratel, Ms. Chaitowitz and Mr. Lane.]


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