United States v. James Martorano, 620 F.2d 912

United States v. James Martorano

620 F.2d 912

1st Cir.

1980

Check Treatment

*1 912 477, 1977), Hospital, harsh. In Butz v. Glo- 554 F.2d 483 imposed

tion is too Co., 182, the law can be proclivity 93 but a to violate ver 411 U.S. Livestock Com’n proved persistent “when a record discloses (1973), 1455, 142 S.Ct. Su- attempts legislatively pro to interfere with preme appropriate delineated the Court v. rights tected . . . .” NLRB Union standard for review of administrative sanc- 1, Nacional de 540 F.2d Trabajadores, tions. denied, 1039, cert. 429 U.S. judicial standard of re applicable The 736, (1977). 97 S.Ct. 50 L.Ed.2d 750 review of the required view in such cases according to the “fun Secretary’s order 1, regulatory The ban effective June . that where principle 1978, damental . . appellants did not deter from continu- an administrative Congress ing has entrusted their option program under another responsibility name, of select agency though with the they even doubts as to its achieving statutory ing the means of legality. Appellants’ plea mitigation remedy policy ring. is has a hollow policy ‘the relation One of the factors ending for administrative peculiarly program a matter was that it was not ” competence.’ profitable. profitability picture American Power Co. v. But SEC, that, change. Having could no assurance 67 S.Ct. Thus, without desist (1946). imposition L.Ed. of a cease and Secretary’s penalties order with its attendant for viola- choice of sanction to be over tion, adopt the same appellants would not Appeals might turned unless the Court of yet another game plan option for an .under find it “unwarranted in law or . name, in im- justified Commission justification without in fact . . . .” 146; posing cease and desist order. 112-113, Id. at Phelps S.Ct. Dodge Corp. NLRB, 177, 194, v. 313 U.S. Affirmed. 845, 852, (1941); 85 L.Ed. 1271 Industries, FTC, Moog Inc. v.

411, 413-414, 377, 379-380, 78 S.Ct. (1958);

L.Ed.2d 370 FTC v. Universal- 244, 250,

Rundle Corp., 387 U.S. (1967); 18 L.Ed.2d 749 4 K. Davis, 30.10, Administrative Law pp. § America, Appellee, UNITED STATES 250-251 Id. at 185-86. MARTORANO, Defendant, James The sanction here is neither Appellant. “unwarranted in law justifi without [n]or No. 78-1445. cation in Appellants fact.” argue that the order justified was not they volun Appeals, United Court of States tarily program. discontinued their LRF A First Circuit. cease justified and desist order is when the Reargued Feb. 1980. party who statutory transgressions commits May Decided is likely persist contumacy future, solitary unless restrained. A infrac

tion may be insufficient support a cease order,

and desist see NLRB v. Beth Israel ulate, comply price any commodity any or shall be with such order involves of- conjunction paragraph (a) (b) fense within or of section issued with an order is- title, person against respondent guilty 13 of this such sued under shall be such section 9 and, felony thereof, upon day during conviction of this title. which such shall Each subject penalties paragraph obey comply of said or failure refusal or (b): Provided, (a) any sepa- or That such cease and such order deemed a continues shall be against respondent desist order rate offense. of, manipulation manip- attempt case of or *2 Boston, Harrington, Atty., U. F. S. ward Jr., Davies, Atty., U. S. Mass., Joseph S. C., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍were D. Justice, Washington, Dept, of brief, appellee. COFFIN, Judge, CAMP- Chief Before *3 BOWNES, Judges. Circuit BELL and CAMPBELL, Judge. Circuit H. LEVIN judg- from the appeals Martorano James court, F.Supp. 803 457 of the district ment for new his motion denying (D.Mass.1978), assistance of ineffective ground the trial on His joint representation.1 due to of counsel panel decided originally was appeal court, remanded for reversed and which holding government a new trial after Martorano had not demonstrated trial failure of the by the prejudiced required in inquiry to conduct court 1, (1st Foster, 469 F.2d v. 1972). then moved Appellee Cir. banc, having that motion rehearing and en majority of this of a allowed vote court, was vacated judgment panel’s held, resulting in hearing an en banc 46(c); 28 U.S.C. present oрinion. § See 35(a); IV infra. Fed.R.App.P. Part fully more set forth The facts are refer, we shall Unit opinion, to which panel (1st Martorano, 610 F.2d Cir. ed v. States 1979). See also United States denied, No. 76- (1st Cir.), reh. 557 F.2d 1 23, 1977) (unpub.) and May Cir. denied, cert. 561 F.2d 406 L.Ed.2d 515 conviction on (1978) (affirming appellant’s we opinion, appeal). present In the direct necessary to our only as repeat the facts the issues. analysis of Boston, Mass., with Egbert, Richard M. Vita, Dorchester, Mass.,

whom Richard J. brief, defendant, appellant.

was on I. v. Fos Dept, of decision in United States Livingston, Atty., U. Our Wade S. 1972), requires the ter, (1st Justice, C., whom Ed- 469 F.2d 1 Washington, D. with poses Martorano’s mo- Rule and treated trial on the Martorano moved for a new under “newly to vacate his sentence ground more tion instead as one evidence” discovered verdict, days whether this 2255. As § see Fed.R. 28 U.S.C. than seven after appeal previously contending to us on direct or collateral he had not case comes Crim.P. outcome, page prejudice joint representation text at affect the see learned of the would not infra, express opinion allegedly ruled we on the caused him. The district court dis- ruling. counsel could not ineffective assistance of trict court’s newly pur- constitute discovered evidence for grant rehearing of this circuit to warn decision to en banc courts every record who defendant indicates based.4 Foster said the failure he contemplates being jointly represented trial adequate inquiry court to make repre- at trial of the risks inherent in such goverñment shift the burden sentation, so that the can court be assured proving any prejudice the unlikelihood of right that his waiver of separate arising from joint representation. While knowing voluntary. counsel is 469 F.2d government’s we described the burden in case, present at 5. appellant In the Marto- according ways somewhat different rano warning received no direct appeal whether issue arose on direct or court, although in response to instructions attack, on collateral 469 F.2d at we did magistrate, from the attorneys provided his not mean announce as between the two certain orally writing, advice any significant situations difference secured to a letter to signature persuasion. Rather we ultimate burden of court, they prepared, which stating *4 merely that case recognized of a joint he was aware of risks of representation but nonetheless wished to appeal appellate direct an court’s focus retain the same law represented firm which perforce be on would the trial record alone. his co-defendant Brian Halloran.2 We Where, here, hearing as evidentiary has agree the panel opinion with that this let- held, whether in connection with a ter, it, advice preceding did not trial, for a motion new motion to vaсate government relieve the from the conse- sentence, like, hearing may or the such a be quences of the court’s failure to record, a supplement” “useful to the trial comply materially (or all) at indeed with the Donahue, see v. F.2d Foster provision rule. We no in Fos- made 1039, 1977),providing further ter for an direct in inquiry alternative to insight into the actuality of conflict open court, and are not inclined to establish between interests of various defendants one now. prepared signed Letters out- and illuminating degree to which the side the purview court’s are not a substitute of strategy may choice trial have been in- for the in-court colloquy by mandated Fos- by conflicting fluenced concerns. Still the ter.3 question

ultimate is the same in either con- II. text, namely, government whether the has of it showing carried its burden is principal We thus turn to issue more upon in prejudice this case and the one which our likely than not that stemmed suffice, developed hearing itself, by 2. new Evidence at the trial out-of-court advice ever letter, along disprove prejudice established this with another in a to case such as this. Joseph purporting ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍showing to be to from S. Oteri his The made here fell short of that stan- therefore, warning general Prejudice, client Martorano in terms of dard. must be ascertained joint representation, prepared largely the risks of was of here in terms whether there was an by Weinberg, attorney Martin of for record actual conflict of interest which was Still, partner. Brian Halloran and Oteri’s law See have subverted defense. in prejudice 610 F.2d at 40-11. our overall assessment of the caused by give warning, the court’s failure to a Foster proper 3. The aim ultimate of the Foster rule —a we think it reasonable to take into account n warning could, theory, be man, attained full college-educated a — not attorney’s and careful disclosure in an office or totally lacking warning advance some elsewhere, pur- but the more rule’s immediate pitfalls joint pres- representation, was he nor pose prevent uncеrtainty that arises joint accepting representation. —to into sured Cf. post-conviction when defendants make claims Donahue, (attorneys at 1041-42 560 F.2d hired ignorance or misadvice —would still be frus- the insistence older co-defendant trated. Thus while in United States v. Dona- allegedly strategy whose benefit defense tai- hue, 560 F.2d lored). giving said that the of out-of-court advice Appellant challenges relevant ultimate of whether a has raised a number of prejudiced by authority grant rehearing defendant was the district court’s to our an en banc Foster, only noncompliance compelling points a case. will discussed in this These complete showing opinion. most and effective IV of Part here, “Where, as an alternative strate- representation. We have not joint from plainly reversal, gy its ultimate compare of per a rule se adopted merit — —whatever strategy existed, where in- such Arkansas, 475, 489, 98 Holloway v. 435 U.S. defendants, volved, joint as between the (au (1978) S.Ct. interest, we for conflict of potential some was com reversal where defendant tomatic potential say for sure that cannot objection, accept joint pelled, over his the choices not did influence conflict standard strin nor is our representation), defend- representing both made those gent beyond as the “harmless reasonable ants.” where errors of consti doubt” rule followed very dif- language applying present, compare magnitude tutional case, panel present ferent facts California, 18, 24, v. 386 U.S. Chapman necessary to es- key derived two elements 17 L.Ed.2d 705 Here (1) existence of an prejudice: tablish dealing with a court’s unconsti we are (2) strategy, defense alternative separate represen refusal to tutional allow between conflict of interest potential Arkansas, tation, Holloway see panel The then found that the defendants. (1978), 55 L.Ed.2d 426 plainly strategy ex- at least one alternative provide with its a de but failure isted, namely having “Bugsy” Pallot- procedure re auxiliary fendant with an ta, witness prosecution thе chief brother of supervisory this circuit under our quired Pallotta, testify appellant’s behalf. Peter powers, making is which aimed at absolute for conflict panel potential found a The also ly certain the defendant understands all the use Louis Pallot- that the decision not to *5 pitfalls joint of While we representation. may as been influenced ta a witness have our assuredly encourage do violations of damage would by possibility Louis rule, States v. Wald supervisory see United by Halloran appellant’s co-defendant Brian man, 579 F.2d there reputa- testimony as giving to Halloran’s undoubtedly which such situations tion character. preju cause or no material violations little element, may As panel for the first defendants; must take dice to care not calling well correct that Louis Pallotta to be defendant, a windfall to a who provide to existing regarded should be as testify crime, of a guilty has been found serious strategy though even alternative defense of hypothe some attenuated simply court, for rather substantial rea- counsel prejudice by woven after con sis of sons, overwhelming found that Louis had all, representation, may after Joint viction. It as a defense witness. was disabilities quite beneficial to a be defend sometimes Pallotta, represented that Louis the brother be may at other times of little ant and witness, would prosecution of the have chief adequacy of a consequence to the defend account that Peter Pallotta’s testified v. Ar representation. Holloway ant’s See loan was a fabrication. Peter transaction 482-83, kansas, S.Ct. himself had testified Louis Pallotta 426; 1177-78, 55 L.Ed.2d Glasser v. United allegedly present was when extortion- States, 457, 475, Louis, it is negotiated: ate loan was assert- J., (1942) (Frankfurter, L.Ed. 680 dissent ed, have would corroborated ing). To overturn a defendant’s conviction event, confirming that version of this of a rule supervisory for violation where it rather than to loan was made Louis conflicting in is more than not that Peter it back Louis paid and that pursuit hamper terests did not counsel’s of allegеd of extortionate prior to the time defense be potentially effective would hoped-for testimo- collection efforts. Louis’ pointless. both wasteful and thus, face, very ny on its have panel problem finding prejudice, opinion to Martorano. The favorable he following language in Unit- was that potential focused on Louis as a witness Donahue, contradictory statement previously given 560 F.2d ed States v. (which, on its con- 1977): depending FBI tents, ing “holdup” him in the might gone night- have some distance to of Pallotta’a Halloran, This for Martorano’s as well Louis’ club.5 concern destroy as own so the argument goes, credibility). history impossible Louis also had a made it for coun- give sel to to the value very problems. proper serious mental these consideration Under Martorano, circumstances, calling Louis on behalf of the district court felt Louis whom Louis would a valuable corrobora- would have been worse than useless—and so, tive witness. themselves, according to did the defense hand, attorneys. On the other after-the- is that to argument A central flaw in this attorney fact reconstruction of what an testimony the extent would have Louis’ might have done had he been completely also, helped virtually it would free from sense of loyalties divided is a measure, equal helped have Halloran—so sense, therefore, difficult feat. It makes inducеd the that whatever considerations assume, purposes argument, least attorneys not to call Louis cut across both calling to the stand was a con- though, clients’ cases. This is so even ceivable alternative then strategy, and observes, Louis would not have the dissent proceed key to the issue—which is whether “directly” about Halloran. testified See there fact such conflict of inter- jury 921 infra. If the had credited page est between might the two defendants as (and Martorano’s) Louis’ thus version of have led separate attorneys to make a dif- events, rejected have necessarily it would ferent choice in Martorano’s case than in testimony and contrary Peter Pallotta’s regard Halloran’s case with found that there had never would have calling Louis Pallotta to the stand. $2,000 indeed, that been a loan to Peter — episode. the entire Peter had fabricated is, course, The foregoing key jury would such a belief Not question in any warnings case where Foster acquittal for both defendants on have led have been omitted. The mere existence of directly con- those counts of the indictment alternative strategies is not itself de $2,000 (counts with the loan one to cerned prejudice long monstrative of so as there three), totally it would have so discredited was no inherent conflict between the con his remaining Peter Pallоtta as to undercut *6 weighed siderations that upon rejection or alleged testimony regarding Halloran’s col- acceptance of the strategies in both defend direction—of inter- lection—at Martorano’s ants’ cases. (count four). In payments gunpoint est Appellant Pallotta, contends that his attor short, helpful if at all to Louis neys putting balked at witness, Louis Pallotta on necessarily the would as a part stand at least in Halloran, far degree Pallotta and to a helped have might given have testimony on Halloran from cross-exami to exceeding any detriment nation which By would have blackened Hallo- the same testimony. reputation Louis’ reputation. ran’s token, Louis, the having Since evidence once taken if witness, against weak, Halloran was relatively stand, as a it is was discredited argued, attorneys were at least as consequences concerned to would have fallen prevent any corroboration of on Halloran. Peter Pallot Martorano as heavily on testimony primarily ta’s identifying testimony Halloran as dealt expected a Louis’ “loan shark” and “enforcer” and in which Martorano was a implicat- with transactions granted testify possibility We shall he would hurt take for that because of the Louis Pallotta would, fact, given reputation testimony in We will as have on cross-examination. Halloran Halloran, sume, although point present purposes, adverse to that Louis would is not for entirely Attorney testimony Joseph given clear. that it would such and Oteri testified have any possibility. pursuant that was he unaware of such to 18 admissible U.S.C. have been Attorney Weinberg 894(c). Martin 892(c), stated that he was States v. Bow See United §§ “danger” might place, dach, (5th aware of the take F.2d 225-26 & n.7 having denied, but could not recall discussed this risk cert. with Martorano. Martorano testified that Weinberg ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍told him Louis Pallotta should not disadvantageous it to his client considered and about which Martora- participant

direct unless he testimony such admitted If was shown to to have no himself Louis testified. somehow, notwith- contradiсtory persuaded made statement was that prior have a parts he FBI, if on cross-examination all those standing problems, or or made a Martorano changed testimony, corroborating if he testimony his Louis’ impression, poor as credi- conspicuously through jury come to would stated, as a would be would credibility event, own witness which as ble—in defendants, jeopardy. not both useful for be a witness We conclude that just for Martorano.6 Similarly, danger Louis would impact of possible between difference admit on that he knew cross-examination on Hal- on Martorano and testimony Louis’ reputation to be that of Brian Halloran to create speculative lorаn is too small and of an activities sharking “enforcer” for loan measure, large meaningful a conflict. represent conflicting did interest deciding weighed to be the factors between Martorano the two defendants. were the as witness whether call Louis no bringing had more interest in out such They boiled down in both cases. same did, testimony Halloran for the evi- than he credibility Louis’ pros and cons of dence clearly showed that Halloran and —if benefit; not, he credible, if would was both that, associates, Martorano were close a case This is not better left uncalled. believed, if Peter were to be Hallo- Pallotta have might benefits where certain clear ran wаs a “collector” Martorano. From creating available to one defendant trial, evidence at it was uncontradicted Compare the other. of detriment to a risk apparent Halloran Martorano had Donahue, F.2d together often been seen at Martorano’s Here, benefits restaurant; 1977). whatever (1st Cir. that Halloran on occasion took testimony confer Martorano; could Louis Pallotta’s telephone that Hallo- calls defendants; accrue to both ran Martorano visited Peter Pallotta’s were might nightclub testimony together on October whatever risks Pallotta’s night alleged “holdup” before the endangered each defendant. create likewise club and an associ- separate Halloran unidentified infer We see reason ate; sufficiently and that Martorano was differently counsel have calculated familiar with Halloran Peter Pallotta testimony. pluses of Louis’ and minuses to know ill that there was will between the indicating appellant Coupled with evidence two an oc- stemming from incident that joint represen- aware his choice prison. jury curred federal Were the conflict, of some might a risk tation raise doubt as made to whether Martorano had over- evidence of and the absence extortionate loan Peter Pallotta —as others, supra, note 3 reaching by see opposed friendly, to a loan to no-interest discharge sufficient to showing think this *7 himself, testimony from a de- Louis Louis— disproving of that government’s the burden witness, fense man Marto- that a to whom from the court’s failure resulted prejudice closely reputed rano was this tied was a at procedures. follow Foster As stated to “enforcer” of extortionate could have loans outset, required government the the is not the tipped scales. beyond show the error harmless a reason- doubt, likely that it is than

An inter- able more attorney representing only the prejudice of no as plainly ests James Martorano would have not that material occurred believing calling regаrded him have re- It is if counsel that would true that Halloran’s in a defense effective and Martorano’s sulted different outcome. If on the other as as 70% hand, say, likely, only, possibly 20%, might as more defense counsel a decision be seems by independent made viewed without counsel for Martorano to Martorano’s situation as not hope, potentially in their call call even a witness on as to whether or not to disastrous decision essentially theory guided by long Louis would the that a shot was better than a have been loss. same clear But if that des- the considerations as in Halloran’s case— Martorano was in namely, posture, findings perate evaluation of the district whethеr or not court’s give be a believable Louis’ as a witness us little defects basis witness.

919 moved to have the dis Appellant a noncompliance prophy- of with result the pursuant himself requires. judge now recuse this circuit trict court procedure lactic 455(a) judge the standard has been met. 28 both This U.S.C. § compro might trial be had presided prejudice Appellant’s other assertions errors, on own asserted mised his passing in with long. agree We the need not detain us by the remarks made and because certain the decision have panel’s conclusion assertedly indicated judge at another trial his testify Martorano on own behalf was against appellant. personal he hаd a bias strength govern- compelled by the Cowden, v. As we stated against him. tape-recorded ment’s evidence (1st cert. de 545 265 Cir. F.2d event, testimony, if In Martorano’s nied, it hurt Halloran more than hurt anything, a by which such (1977), the standard him, direct since Martorano testified on ex- is, judged motion is had amination both that Halloran been charge impartiali- of lack “whether (corroborating Peter Pallotta on that prison create ty is on facts that would grounded feared point) physi- that Peter Pallotta concerning judge’s a doubt reasonable violence Introduction of cal from Halloran. judge not mind of impartiality, impeach- criminal record for necessarily in the mind of himself or even merеly Peter purposes ment confirmed Pal- filing the motion under litigant testimony suggesting on Pal- lotta’s direct 455, but in the mind of U.S.C. rather § might accompany feared lotta violence the reasonable man.” nonrepayment of a debt owed to Martorano because Martorano had been standard, convicted as think mere we Applying this accessory after the fact to murder. In judge fact entertains motion testimony other respects, Martorano’s presided case which he new trial in a over both exculpatory as to himself Hallo- ques- call reasonably does not into initially Indeed, ran. Brian as a Calling Halloran witness we tion have indi- impartiality. his plainly not a viable alternative defense advantageous cated often to have may it strategy for Martorano. Even Marto- be- judge continue a case original counsel, represented separate rano been familiarity pro- cause with earlier of his compelled could he not have Halloran to States, v. United ceedings. O’Shea See his forego right fifth amendment 1974); not to Halliday F.2d cf. testify if Halloran’s States, interests dictated that United F.2d he remain silent. Martorano could not 1967) have (contrasting hearing on motion for prejudiced by either these tactical previ- new on facts trial second trial decisions. court). ously found Having thoroughly reviewed the rec

III. ord, here that wе see indication case, light by personal of its resolution of the was influenced judge original panel original appellant’s did consider at the trial or animus or bias either argument further appellant’s the district court collateral attack considering in denying appellant’s reviewing erred motion Although to re- court thereon. cuse. We inclined to believe inclined to find that Foster issue was effectively moot, issue is now appellant right since have separate had waived his significant not relied to any extent on the despite counsel absence an on-the- findings court, of the district warning, since it record went con court on to *8 pointless would plainly whether, tо remand carefully assuming this sider a viola hearing Foster, case for a a new before different tion the ade government of However, judge. thought lest it be the disproved prejudice. that we As for quately ignoring possible made at another ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍appearance of im- remarks the district court in propriety handling matter, intimating of this we trial that unnamed individuals the following might offer if his comments. cause harm to Peter Pallotta 920 judges regular of the three circuit open majority in whereabouts were revealed

usual court, grant rehearing disa- sufficiently we think the court of have voted to this court re- these banc, this, vowed connection between is all that opinion, en in our and aрpellant marks and at Compare Zahn v. In- requires. the statute trial, so that no opening of Martorano’s 1033, Co., 469 F.2d 1040 Paper ternational they believe indi- person reasonable could 291, aff’d, (2d 414 94 S.Ct. U.S. against appellant. We thus dis- cated bias (1973) (four 511 members of court’s denial of cern no error in the district members are not having eight active court to recuse. the motion banc). grant rehearing en empowered that, argues assum Appellant next IV. present at of ing comprised the court is conclusion, briefly appel- turn we are barred from judges, three active authority to hear this challenge lant’s to our rehearing banc because one granting an en power en banc. The of this court to appeal is not authorized to over three-judge panel governed by entertain cases en banc is placed largely is on rule another. Reliance of the Federal 46(c) by U.S.C. Rule 35 § proposed in a 1941 amendment provision a Appellate Rules of Procedure. Section 46(c) provides: enacted —that to the Judicial Code—never hearings “in would have authorized en banc

“Cases heard and controversies shall be than three a circuit where there are more by panel a court or of determined Pacific Rail judges, hearing judges.” more than three unless a circuit See Western rehearing Case, 247, 251, or in banc is before court road U.S. S.Ct. majority ordered of the circuit (1953). proposal That this 97 L.Ed. judges regular of the circuit who are in Senate, and that passed never active A court in banc shall con- service. language of very" instead the different judges regular sist of all circuit active enacted, should in present 46(c) section service.” appellant’s argument. itself suffice to rebut 35(a) provides, Moreover, Rule the en banc pertinent part: policies behind procedure, particularly desirability judges “A circuit majority who are providing judges “that the active circuit regular active service may order appeal proceeding major or other doctrinal trends be heаrd or shall determine appeals court," reheard the court of in banc.” American- of the future for their Foreign Steamship, 363 at U.S. Appellant argues 1339, apply as much to this circuit as to presently First Circuit is authorized to have When, occurs, panels often any other. judges, majority four circuit the required judges more who are not contain one or three, hearing order an en banc is even court, regular the same members though newly created seat remains unf that uni danger exists here as elsewhere disagree. illed.7 We The statute plainly precedent will suf formity stability provides required majority must to no authority fer. We have been directed among judges exist regular “in active the First Circuit was intend indicating that judge appoint service.” who is to be yet A provisions ed to be excluded from the judge regular ed is not a active service. 46(c) Rule see no section and we American-Foreign Cf. United States v. Co., 685, 688, employing refrain from the device reason to Steamship 1336, 1388, rehearing appropri en where it is L.Ed.2d 1491 As we banc stated in our order of January ate. Presently vacancy hearing original panel there on had the consisted of the is one the circuit. matter, nor, original regular judges, practical judge panel deciding The three as a three regular judges case included of this en had the two two circuit would an banc have been plus Obviously regular original panel judge. judges been in a third outside there agreement. would have been rio for an occasion en banc *9 Accordingly, for the reasons stated contentions relate here-

Appellant’s other in, and, insofar as we have specifically procedures by primarily to the internal them, adopted the reasons stated in the grant of en regulates the court which panel opinion, the decision of Supreme The Court has hearings. banc court is affirmed. “largely to be questions stated that such by determination each left to intramural BOWNES, Judge (dissenting). Circuit American-Foreign Appeals,” the Courts of at 1339. Steamship, parts opinion, 363 U.S. at 80 S.Ct. I concur in I and III of the parts provide respectfully Rule 15 but dissent as to II and Rule 35 and First Circuit IV. litigants process of the sufficient notice the mandate of the satisfy

we follow to My brethren draw different conclusions such Western Pacific Railroad Case that I agree than I from the same facts. do not procedures “clearly explained.” be “that to the extent Louis Pallotta’s testimo- Comment, at In 666. See ny helped would have it would Banc Procedures virtually equal helped also in measure have Appeals, Courts of 43 Fordham L.Rev. Majority Halloran.” Opinion at 917. My Appellant’s procedural conten view of the record is that Louis Pallotta tions are thus without merit. given any testimony could not have directly wоuld have benefited Halloran be- finally appellant, We note [H] personal knowledge cause con- he had no pointing requirement of Fed.R. involvement cerning alleged Halloran’s App.P. 35(a) that an en hearing banc “ordi- scheme. It seems clear to me extortion narily” granted only where the issue is that one of the reasons Louis Pallotta was “exceptional importance” or where there called, Attorney Weinberg not admitted is disuniformity in the decisions of the cir- hearing, at the was because it was feared cuit, has questioned whether this case is an that on cross-examination he would make appropriate one for en banc considerаtion. damaging repu- statements as to Halloran’s As the word “ordinarily” suggests, my opinion, tation character. question hold, of when to or when not to Camp- by my standard annunciated brother «hold, hearing an en banc within Donahue, is the dis- bell in United States v. F.2d so, cretion of this court. Even our decision was met. An demonstrably rehear en banc was in con- existed which strategy plainly alternative ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍formity potential with the standards of Rule involved “some for conflict of in- 35. As brethren, indicated, terest.” I “cannot already rehearing my Id. Unlike serves to conflict did say potential for sure that uniformity policy. maintain of circuit The made those influence the choices view, panel opinion, in our construed Dona- Id. representing both defendants.” hue to impose proving a burden of lack of prejudice on the government so severe as to agree my While I brethren that a approach imposition per of a rule of se regular judges of the three circuit majority joint prejudice representation cases whether there shall be an in determines warnings giv- where Foster have not been hearing, agree banc I do not the re- opinion today en. clarify Our serves to quirements 35(a) of FRAP were met in this prejudice standard which the issue of disagreement no between us case. There is -type evaluated, Foster cases should be controlling as to the cases. The diffеr- regard we as of considerable im- ap- ence is whether the Donahue standard this, portance, in the context of a case like plies. judgment call. All purely This is controversy.8 hearing produced and of evident the in has is a banc Finally, appellant permission we note that moved to to file a brief of his own. Such government’s supplemental permission having granted, appellant strike the brief on rehearing brief, having possible en banc as not authorized harm filed his see by specific pérmission appellant. Federal Rules or His motion to strike is denied. alternative, appellant requested court. In the *10 secured or It has not result. different in this of decisions uniformity

maintained obviously impossible is

area, something that approach case-by-case our

under And while representation. of dual

problem exceptional im- obviously of is not rise to it does

portance far as circuit that level as

anywhere near gloss new has is concerned. No

precedent Donahue. The case is on Foster or put reasonable illustration

just another background, essentially the same

men of can differ in their experience

training facts.

assessment America, Appellee,

UNITED STATES WERNER, Appellant.

No. Docket 79-1252. Appeals,

United Court of States

Second Circuit.

Argued Oct. 1979.

Decided Feb.