     06-2882-cr
     United States v. Fell
     06-2882-cr
     United States v. Fell

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Daniel Patrick Moynihan
 3   United States Courthouse, 500 Pearl Street, in the City of
 4   New York, on the 17 th day of June, two thousand nine.
 5
 6   - - - - - - - - - - - - - - - - - - - -x
 7
 8   UNITED STATES OF AMERICA,
 9
10                   Appellee,
11
12            - v.-                                06-2882-cr
13
14   DONALD FELL,
15
16                   Defendant-Appellant.
17
18   - - - - - - - - - - - - - - - - - - - -x
19
20   FOR APPELLEE:               WILLIAM B. DARROW, Assistant United
21                               States Attorney, Burlington VT.
22
23   FOR APPELLANT:              JOHN BLUME, Cornell Law School
24                               (Christopher Seeds, Sheri Lynn
25                               Johnson, on the brief), Ithaca, NY;
26                               Alexander Bunin, Federal Public
27                               Defender, Albany, NY.
28
29
30                                   ORDER
31
32        Defendant-Appellant Donald Fell, having filed a
33   petition for panel rehearing or, in the alternative, for
34   rehearing en banc, and the panel that determined the appeal
35   having considered the request for panel rehearing, and the
36   active members 1 of the Court having considered the request
37   for rehearing en banc, IT IS HEREBY ORDERED that the


         1
          Judge Hall is recused from consideration of the
     petition for rehearing en banc.
 1   petition is DENIED.   See Fed. R. App. P. 35(a).
 2
 3        Pursuant to Second Circuit Local Rule 0.28(7)(d), an
 4   automatic stay of execution of the sentence of death has
 5   been in place as of the date of the filing of the notice of
 6   appeal from the judgment of conviction, and remains in
 7   effect (unless vacated or modified) until the expiration of
 8   all proceedings available to the Defendant-Appellant
 9   (including review by the United States Supreme Court) as
10   part of the direct review of the judgment of conviction.
11
12        Accordingly, the issuance of the mandate is held until
13   the expiration of all proceedings available to the
14   Defendant-Appellant (including review by the United States
15   Supreme Court) as part of the direct review of the judgment
16   of conviction.
17
18        With this Order, Judge Raggi is filing a concurring
19   opinion, in which Chief Judge Jacobs and Judges Cabranes,
20   B.D. Parker, Wesley, and Livingston join; Judge Calabresi is
21   filing a dissenting opinion; Judge Pooler is filing a
22   dissenting opinion; and Judge Sack is filing a dissenting
23   opinion.
24
25
26                               FOR THE COURT:
27                               CATHERINE O’HAGAN WOLFE
28
29
30                               By:___________________________




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