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 for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 17 th day of June, two thousand nine.

6 - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, 10 Appellee, 12 - v.- 06-2882-cr DONALD FELL, 16 Defendant-Appellant.

18 - - - - - - - - - - - - - - - - - - - -x FOR APPELLEE: WILLIAM B. DARROW, Assistant United 21 States Attorney, Burlington VT. 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.

30 ORDER 32 Defendant-Appellant Donald Fell, having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel rehearing, and the active members 1 of the Court having considered the request for rehearing en banc, IT IS HEREBY ORDERED that the

Judge Hall is recused from consideration of the petition for rehearing en banc.

1 petition is DENIED. See Fed. R. App. P. 35(a).

3 Pursuant to Second Circuit Local Rule 0.28(7)(d), an automatic stay of execution of the sentence of death has been in place as of the date of the filing of the notice of appeal from the judgment of conviction, and remains in effect (unless vacated or modified) until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

12 Accordingly, the issuance of the mandate is held until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

18 With this Order, Judge Raggi is filing a concurring opinion, in which Chief Judge Jacobs and Judges Cabranes, B.D. Parker, Wesley, and Livingston join; Judge Calabresi is filing a dissenting opinion; Judge Pooler is filing a dissenting opinion; and Judge Sack is filing a dissenting opinion.

26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE 30 By:___________________________