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United States v. Baynes

filed: February 1, 1977; As Corrected, As Modified February 14, 1977.

UNITED STATES OF AMERICA
v.
EUGENE BAYNES, A/K/A BO, JAMES FOX, EUGENE HEARN, RUSSELL BARNES, BARTHANIEL THORNTON, WILLIAM JEFFERSON A/K/A SKINNY, TERRY, FERRIS FOSTER, GREGORY TRICE RUSSELL BARNES, APPELLANT



(D.C. Crim. No. 74-523)

Van Dusen, Biggs and Aldisert, Circuit Judges.

Author: Per Curiam

SUR PETITION FOR REHEARING

Russell Barnes has petitioned for rehearing in this case. On this appeal, the petitioner's conviction for multiple counts of a single indictment was affirmed by judgment order. In the petition for rehearing, the petitioner contends that our affirmance by judgment order without an opinion constituted a denial of due process of law.*fn1 Because no previous opinion of this court has discussed the use of judgment orders to affirm the judgments of the district courts, we will briefly discuss the authority for the use of this procedure in determining this appeal.

The judgment order was filed under the terms of F.R.A.P. 36 and the Third Circuit Internal Operating Procedures, ยง D-1. Rule 36 provides:

"ENTRY OF JUDGMENT

"The notation of a judgment in the docket constitutes entry of the judgment. The clerk shall prepare, sign and enter the judgment following receipt of the opinion of the court unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement by the court. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruction from the court. The clerk shall, on the date judgment is entered, mail to all parties a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment."

(Emphasis supplied.)

Section D-1 provides in pertinent part:

"A case may be terminated in this Court by a judgment order:

"1. Panel unanimity. (a) When the panel unanimously determines that a judgment of the district court or a decision of the United States Tax Court or a decision or order of an administrative agency should be affirmed or enforced and that this Court's decision has no precedential or institutional value; and (b) any one or more of the following circumstances exist and is dispositive of a matter submitted for decision:

"(1) That a judgment of the district court is based on findings of fact which are not clearly erroneous;

"(2) That sufficient evidence supports a jury verdict;

"(6) That the appeal is a criminal case that does not require, for this Court, (a) a new interpretation of a federal statute, a Federal Rule of Criminal Procedure, or a rule or statute in evidence, or (b) a new interpretation of a rule of constitutional law ...


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