                                           FILED:   September 15, 2003


                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT
                         _____________________

                               No. 01-22
                             (CR-97-329-L)
                         _____________________



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus

DONALD LEE FEREBE,

                                                 Defendant - Appellant.



                      __________________________

         On Petition for Rehearing and Rehearing En Banc
                    __________________________


     The government’s petition for rehearing and rehearing en

banc and the appellant’s response to the petition were submitted

to this Court.     As no member of this Court or the panel requested

a poll on the petition for rehearing en banc, and

     As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

     IT IS ORDERED that the petition for rehearing and rehearing

en banc is denied.
Entered at the direction of Judge Luttig for the Court.

                         For the Court


                         /s/ Patricia S. Connor
                                    Clerk




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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. 3:02-

00232, 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. 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



                                   3
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.




                                 4
LUTTIG, Circuit Judge, concurring in the denial of rehearing and

denial of rehearing en banc:

     I concur, of course, in the denial of panel rehearing, and

in the full court’s decision not to grant rehearing en banc.    To

be sure, our resolution of the deceptively and exceedingly

difficult issue presented by this case may change the way in

which the plea negotiations between the government and the

defendant in some capital cases, and even the pretrial

proceedings in those cases, will unfold.   For example, as Judge

Niemeyer implies, it may well be that the government will no

longer be able to hold the prospect of prosecutorial pursuit of

the death penalty over the defendant during plea negotiations

(which is not a concern of the statute) and, then, when plea

efforts fail, force the defendant to trial for capital murder in

a shorter time than would reasonably be required to prepare for

such a trial (which is the concern of the statute).   Rather, the

government simply may have to serve notice earlier and then

negotiate from that posture of what I would think would be

relatively greater strength, even if such does require more of

the government and does confer more entitlement upon the

defendant, pretrial.

     I suspect that the instances in which the United States

deliberately and for strategic advantage structures negotiations




                                5
so as to deprive the defendant of reasonable preparation time

before his capital trial are few in number.   But to the extent

that I am mistaken as to the frequency of this occurrence (or to

the extent that defendants are denied a reasonable time between

notice and trial by no design of the prosecution whatsoever), I

am untroubled by the consequences of the court’s opinion, for

they are nothing more than the inescapable ones that follow upon

faithful application of the statute that the Congress of the

United States enacted.

     Nor do I agree with the further implication that might be

drawn from Judge Niemeyer’s opinion today, that our decision will

otherwise significantly disrupt capital prosecutions.   Beyond

what I suspect are the relatively few cases (if any) predating

issuance of our opinion in which unreasonably short notice had

already been provided, I doubt that our court’s opinion will have

much effect at all.   That it will not, I believe, is already

beginning to be borne out by the two cases that have been decided

under our opinion.    See United States v. Breeden, No. 3:03-00013,

2003 WL 22019060 (W.D. Va. Aug. 22, 2003)(denying before trial

defendant’s motion to bar the government from seeking the death

penalty, based on the holding of this case, where defendant was

given six to seven months in which to prepare for capital trial);

United States v. Hatten, No. 3:02-00232, 2003 WL 21946458 (S.D.




                                  6
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, where defendant was given thirty-six days

in which to prepare for capital trial).

     Not only are these two cases excellent examples, in and of

themselves, of the relative clarity and workability of the rule

embodied in the statute Congress enacted; but, with these

examples of the application of the rule now extant, it should be

apparent that the appeals that might be taken from these and like

cases can be disposed of easily and on an expedited basis, if not

also without oral argument, thereby necessitating little delay.

But, as is true with respect to the changes that may be worked in

the plea negotiation process, to the extent that more complicated

questions arise and delay does become unavoidable on occasion,

such must be accepted (or at least indulged) as a cost of our

more important insistence upon the rule of law.   It is not ours

to assess the consequences of various interpretations of a

statute and then select that interpretation that we deem to yield

the most palatable results, even if it is increasingly common, if

not commonplace, to so proceed.   Rather, we interpret the statute

as enacted by the legislature and, if the results of that

interpretation prove unpalatable, then the legislature may amend

the statute accordingly.




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