U.S. v. Desimone
| Decision Date | 13 April 1998 |
| Docket Number | Docket 96-1023. |
| Parties | UNITED STATES of America, Appellee, v. Frank DESIMONE, Sr.; Thomas Gagliardi, aka "Tommy"; Louis Esa, aka "A.J. Duhe," aka "John McQuire," aka "Louis"; Felix Nunez; Earl Reynolds, aka "Robert Reynolds," aka "Bob," aka "Boo-Boo"; Carl Rogasta, aka "Carmen Vignola," aka "Carlo"; Robert Santora, aka "Robert Amato"; Richard Sinde, aka "Richie," Defendants, Pablo Fernandez, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeremy G. Epstein, Shearman & Sterling, New York City (Harmeet K. Dhillon, of counsel), for Defendant-Appellant.
Allen D. Applbaum, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Craig A. Stewart, Assistant United States Attorney, of counsel), for Appellee.
Before: WINTER, Chief Judge, CARDAMONE, Circuit Judge, and RESTANI,* Judge.
This is a petition for rehearing. Familiarity with our decision is assumed. United States v. Desimone, 119 F.3d 217 (2d Cir. 1997). In that decision, a two-judge panel affirmed Fernandez's sentence of 121 months imprisonment following his conviction for conspiracy to distribute and possess with intent to distribute cocaine. The original panel consisted of Judges Cardamone and Mahoney of this court, and Judge Restani of the Court of International Trade, sitting by designation. After oral argument, Judge Mahoney passed away, and the decision was issued by a panel consisting of Judges Cardamone and Restani.
Fernandez's petition for rehearing contends that the panel's decision violated 28 U.S.C. § 46(b) because it was rendered by two judges, only one of whom was a judge of this court. Under Section 46(b), courts of appeals "may authorize the hearing and determination of cases ... by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court." This Section, however, "was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate." Murray v. National Broadcasting Co., 35 F.3d 45, 47 (2d Cir.1994); see also 28 U.S.C. § 46(d) (). Similarly, our local rules provide that where, inter alia, a judge of the original three-judge panel dies, "the two remaining judges will determine the matter if they are in agreement and neither requests the designation of a third judge." 2d Cir. R. § 0.14(b).
Fernandez's petition does not question the authority generally of two judges to render a decision in circumstances in which a member of the authorized panel is unable to participate. Rather, he contends that Section 46(b)'s requirement that a majority of a panel be members of the court applies to such two-judge decisions, i.e., both judges must be members of the court. Believing that it would not be appropriate for a two-judge panel with only one member of this court to resolve this particular claim, a member of the panel requested the Chief Judge to designate a judge of the court to sit as a member of the panel hearing the petition for rehearing. I thereafter designated myself.
We deny the petition. As noted, Section 46(d) provides that a majority of judges of an authorized three-judge panel or court in banc shall constitute a quorum. Section 46(d) embodies no requirement that the quorum contain a majority of judges who are members of the court; it requires only that it be a majority of a...
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