USCA4 Appeal: 22-4369 Doc: 29 Filed: 09/07/2022 Pg: 1 of 4

FILED: September 7, 2022 PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4369 (1:19-cr-00449-LO-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH WENDELL RAVENELL,

Defendant - Appellant.

ORDER

The court denies appellant’s petition for en banc reconsideration of this court’s

denial of his motion for bail and stay of sentence pending appeal.

A requested poll of the court failed to produce a majority of judges in regular active

service and not disqualified who voted in favor of reconsideration en banc. Chief Judge

Gregory, Judge Motz, Judge King, Judge Wynn, and Judge Thacker voted to grant

reconsideration en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Diaz, USCA4 Appeal: 22-4369 Doc: 29 Filed: 09/07/2022 Pg: 2 of 4

Judge Harris, Judge Richardson, Judge Quattlebaum, Judge Rushing, and Judge Heytens

voted to deny reconsideration en banc.

Judge Wynn wrote a dissenting opinion, in which Judges Motz, King, and Thacker

joined.

Entered at the direction of Judge Agee.

For the Court

/s/ Patricia S. Connor, Clerk

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WYNN, Circuit Judge, with whom Judges MOTZ, KING and THACKER join, dissenting

from the denial of rehearing en banc:

The Court today refuses to consider a trial judge’s order denying the motion of

Kenneth Ravenell—a prominent African American attorney in Baltimore—for bail or

release pending appeal. 1 What puzzles me is that this same Court had no problem with

granting the former Governor of Virginia, Robert McDonnell, the very same relief that

Ravenell seeks even though there is no relevant factual difference between the two

defendants’ motions.

Like Governor McDonnell, the trial judge denied Ravenell bail. Like Governor

McDonnell, Ravenell appealed to this Court for relief. Like Governor McDonnell, it is

undisputed that Ravenell is not likely to flee or pose a danger to the safety of any other

person or the community if released. 2 So, like Governor McDonnell, the only question here

is whether Ravenell’s appeal raises “a substantial question of law or fact likely to result in

. . . an order for a new trial.”

(b)(1)(B). A “substantial question” is defined

as “a close question that could be decided either way.” United States v. Steinhorn,

(4th Cir. 1991) (per curiam).

Herein lies the rub. The issue of whether a substantial question is present is far more

evident in Ravenell’s case than it was in Governor McDonnell’s case. Ravenell points to

1 On appeal to this Court, a divided panel, inexplicably, declined to reverse the trial court’s order. Ravenell now asks us to vacate that panel determination, consider his motion en banc, and reverse the trial court’s order. 2 Nor is there any contention that his appeal is brought “for the purpose of delay.”

(b)(1)(B).

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an extraordinarily close question of whether the trial judge should have instructed the jury

on the statute of limitations on the basis of significant evidence that the statute of

limitations bars all of the conduct related to Ravenell’s offense from criminal prosecution.

And, as in Governor McDonnell’s case, “‘if decided in favor of the accused[,]’ [this issue]

is ‘important enough’ to warrant reversal or a new trial.” Order Granting Release Pending

Appeal at 2, U.S. v. McDonnell, No. 15-4019 (4th Cir. Jan. 26, 2015) (quoting Steinhorn,

).

Try as one might, one can point to no discernible difference that justifies granting

release pending appeal to Governor McDonnell and denying it to Ravenell. It is an

inconsistency that my good colleagues decline to confront. That’s not fair.

I dissent.

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