dissenting:
I respectfully dissent from the denial of the petition for rehearing in this matter because I believe that under the special circumstances of this case important questions regarding the construction of the Bail Reform Act and Rule 23 are presented to this Court. Such questions, in my view, should be dealt with only after full argument and full consideration.
The defendants who are appealing here were tried and convicted for violation of the Travel Act. Thereafter, they filed an appeal to this Court, contending inter alia that the federal prosecutor had violated their constitutional rights when, despite persistent requests, he failed to disclose pertinent information regarding a critical witness. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In ruling on that appeal, a panel of this Court rejected the defendants’ other arguments but did not reach the Brady contention. As to the Brady issue, the panel indicated to these appellants that the appropriate procedure would be for them to return to the district court and file a new trial motion under Rule 33. The panel made it clear that if the appellants’ allegations were true, they would be “relevant to the establishment of cause for a new trial.” 537 F.2d at 65.
Pursuant to the panel’s directive, the appellants filed a motion for a new trial. They also moved to disqualify the district judge on the ground that he had engaged in ex parte communications with the prosecution regarding the materials allegedly withheld, and therefore might be prejudiced on this issue.1 The district judge denied the motion to disqualify. He also refused to conduct any hearing and, without the development of facts adverted to by the panel, denied the motion for a new trial. The district judge then revoked bail, although the appellants made it clear that they planned to take a prompt appeal to this Court on the Brady question.
After filing their appeal, the appellants immediately moved for bail pending appeal. Without oral argument or opinion, a panel of this Court denied the motion for bail. The appellants promptly filed the petition for rehearing.2
*488It is the policy of this nation, as enunciated in the Bail Reform Act, that absent reason to believe that one convicted of a crime will “flee or pose a danger to any other person or to the community” he is entitled to bail while appealing his conviction, unless the appeal is found to be a frivolous one. 18 U.S.C. §§ 3146, 3148.
There has been no determination that these defendants will flee or pose a danger to any other person or to the community; indeed, the facts would not appear to support any such determination. And this Court, in its previous opinion, specifically declined to rule that the Brady claims asserted by the appellants are frivolous. On the contrary, the panel set forth in some detail the path to be followed by the defendants in pressing these claims.
The course prescribed by this Court has been pursued by the appellants, and the Brady question still has not been definitively resolved. Yet the trial court has revoked bail, an action that will require these defendants to begin their incarceration immediately.
The principal ground for the majority’s conclusion regarding the bail question appears to be that the appellants — albeit at the suggestion of a previous panel — pursued their Brady claims in a manner which might technically be subject to the provisions of 28 U.S.C. § 2255. In my judgment, the applicability of § 2255 is far from clear inasmuch as the defendants are currently free on bail and their Brady contention is still unresolved by this Court.
I recognize the concern expressed by the majority: that after a defendant has been convicted, his appeal from the conviction denied, and he has been incarcerated for a period of time, the mere fact of filing a petition for habeas relief under § 2255 should be used sparingly as a predicate for release on bail. But as the above facts suggest, the contours of this case are considerably different from the more usual circumstances which arouse the majority’s apprehension. No case has been brought to our attention holding that, under a factual configuration similar to that presented here, bail should be denied without a showing that the appellant might flee or be a danger to other persons or to the community-
In any event, the petition for rehearing raises important questions regarding the interpretation of the Bail Reform Act, as well as Rule 23 — questions which have constitutional overtones. For the Court to adjudicate the important issue involved- — not whether the petition for rehearing should be granted but what guidelines should apply under these circumstances — and make that resolution the law of this Circuit without oral argument and full deliberation appears to be a somewhat questionable procedure. And it is one in which I cannot concur.
Rather, I would set this matter down for rehearing and full briefing so that the significant and novel questions can be definitively decided by the Court.
Judge GIBBONS joins in this dissent.
. Defendants’ grounds are contained in paragraphs 1 to 4 of their motion for disqualification reproduced at pages 1042A-1043A of the appendix.
. The appellants are currently at large because the prosecution agreed not to press for incarceration until after a definitive decision by this Court.