Seitz, Chief Judge, Aldisert, Adams, Gibbons, Rosenn, Hunter, Joseph F. Weis Jr. and Garth, Circuit Judges. Judge Adams and Judge Gibbons would grant the petition for rehearing. Adams, Circuit Judge, dissenting. Judge Gibbons joins in this dissent.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellants 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 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.
Judge Adams and Judge Gibbons would grant the petition for rehearing.
By The court, JOSEPH F. WEIS, JR. Judge OPINION SUR DENIAL OF REHEARING EN BANC
Defendants were convicted under a three count indictment charging conspiracy to violate the Travel Act, 18 U.S.C. § 1952, and substantive offenses under that statute. After argument and briefing, the district court in a detailed opinion denied motions for judgments of acquittal and for a new trial. On a prior appeal to this Court, defendants contended that the government had committed a Brady violation in failing to disclose the existence of a witness named James Silver and communications made by him to the prosecution.
We affirmed the convictions on one count, vacated another, and reversed the third, United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). We concluded that it was inappropriate for us to resolve the Brady claim in the first instance, and suggested that the defendants' allegations should first be presented to the district court on an appropriate Rule 33, Fed. R. Crim. P., motion. Defendants' petition for certiorari was denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748, 45 U.S.L.W. 3463 (1977).
Returning to the district court, defendants filed motions for a new trial under Rule 33 alleging the Brady violation; for a reduction of sentences; and for disqualification of the trial judge. After argument, the motions were denied in an extensive opinion. Defendants' motions for bail pending appeal were also denied, the district court having concluded that any appeal would be frivolous and taken only for delay. The defendants were directed to begin serving their sentences.
An appeal was again taken to this Court, and a panel denied defendants' motions for bail pending disposition. Defendants have petitioned for a rehearing en banc on the bail request, and the government has delayed defendants' incarceration until the Court rules on that petition.*fn1
The issue presented is which standards govern the granting of bail pending appeal. The government contends Fed. R. App. P. 23(d)*fn2 controls, and the defendants insist 18 U.S.C. § 3146 furnishes the appropriate guidelines.*fn3 Essentially the government's position is that the district court's order should stand absent "special reasons." On the other hand, the defendants assert that the government must prove the appeal is frivolous or taken for delay.
Fed. R. Crim. P. 33 provides that motions for a new trial must be made within seven days after verdict or such further time as the court may fix within that seven-day period. The same time limitations apply to statements of grounds for a new trial. United States v. Newman, 456 F.2d 668 (3d Cir. 1972). The Brady and disqualification claims presently asserted by the defendants were not submitted to the district court within the seven-day period, and, therefore are cognizable in a motion for a new trial only under the "newly discovered evidence" clause of Rule 33. The time limitation in that instance is two years after final judgment.
The defendants had another alternative -filing a habeas corpus petition under 28 U.S.C. § 2255. See Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3d Cir. 1975). If that course had been followed, Fed. R. App. P. 23 would have governed bail eligibility.
The difference between the two standards is understandable. Although bail on appeal is not a matter of right, a liberal approach serves to prevent incarcerating the small percentage of defendants whose convictions are reversed on direct appeal. But when the appeal is from the denial of a collateral attack, after review by a court of appeals on direct appeal and possibly a denial of certiorari by the Supreme Court, considerations of finality are much stronger. Allowing bail freely on appeals from collateral attacks would encourage such litigation regardless of its intrinsic merit.
A "newly discovered evidence" motion for a new trial under Fed. R. Crim P 33 is more akin to a 28 U.S.C. § 2255 petition than to a motion filed within seven days of verdict. See 2 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 552. Therefore, we conclude that the standards under Fed. R. App. P. 23 should be used when appellate review on direct appeal has been completed and the proceedings under consideration are collateral in nature. Rule 23 is not ...