United States v. Opio Moore , 110 F.3d 99 ( 1997 )

ORDER

On Appellee’s Suggestion for Rehearing En Banc

PER CURIAM.

Appellee’s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is

ORDERED, by the Court, that the suggestion be denied.

Circuit Judges SILBERMAN, WILLIAMS, and RANDOLPH would grant the suggestion.

Separate statement filed by Circuit Judge SENTELLE, concurring in the denial of rehearing en banc.

Separate statement filed by Circuit Judge SILBERMAN, dissenting from the denial of rehearing en banc.

SENTELLE, Circuit Judge, concurring in the denial of rehearing in banc:

Although my exchanges with my dissenting colleague are dangerously approaching the point of shedding more heat than light on the subject of this case, I feel prompted to reply briefly to his call for in banc review. Because of the demands that an in banc proceeding places on the limited resources of the judiciary, by rule

such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration of the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

Fed.R.App.P. 35.

I have generally construed this to mean that we should not waste the assets of the court on an in banc proceeding unless the panel decision at least (a) is erroneous and (b) establishes or maintains a precedent of some importance. Since this case fits neither of those criteria, it is particularly ill-suited for in banc review.

As for the errors asserted by my dissenting colleague, he relies first on the “holding[ ] ... that a defendant is ‘in custody’ for purposes of the Fifth Amendment when he is merely ‘not free to leave.’ ” While the language alluded to by the dissenter is surely in the opinion, it is at most a strong dicta and not a holding. In so saying, I do not concede that the dicta would be wrong were it a holding. But the actual holding is our affir-mance (104 F.3d 377 at 384-85) of the District Court’s ruling at the time of the prosecutor’s comment on the defendant’s silence that the comment referred to post-arrest silence. As the government did not challenge the District Court’s ruling, either then or before us, our more general statement on indicia of custody later in the opinion is not a holding in that it was not essential to our decision. Thus, while not conceding any error, if we made one, it was in either a very fact-specific holding affirming the District Judge on this case or in dicta, neither of which rises to the level of importance supporting an in banc review.

Secondly, my colleague rehashes the Miranda-based issue from our opinion. He somehow finds it “patently illogical,” to distinguish between speech and silence in an in-custody situation. If he were correct, an arrested but not Miranda-ized defendant would be faced with two courses of conduct: he could make a voluntary utterance, which could be used against him; or he could stand silent, which could be used against him. I fail to see the patent illogie in rejecting that proposition. For the reasons set forth in the panel opinion, neither of the Supreme Court decisions cited by my dissenting colleague is to the contrary and indeed they support my position. To the extent that United States v. Rivera, 944 F.2d 1563, 1568 & n. 11 (11th Cir.1991), is in conflict, that conflict amounts to a single sentence, supplying no reasoning, and resting on a citation to Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). For the reasons set forth in the original opinion, our ruling in this case is not in conflict with Fletcher v. Weir. Insofar as the Eleventh Circuit disagrees, it is misconstruing that Supreme Court opinion.

Finally, the dissent asserts that the panel opinion “reaches well beyond the arguments presented by defense counsel.” However, in so asserting the dissent admits that the defendant devoted a page and a half of his brief to the silence question in which he asserted that the silence was “postarrest.” I certainly agree with my colleague that “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). However, I do not read Carducci or any other precedent as compelling us to decide only those issues which are argued for more than a page and a half or in which the parties’ discussion of an essential aspect of the issue is extensive. See Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 n. 34 (D.C.Cir.1982) (per curiam) (collecting authorities). If we made such a rule, it might commend counsel to write better briefs, or it might place a counter productive tax on brevity.

In short, I have rarely if ever seen the United States file a petition for in banc review with less justification than is present here.