dissenting.
I dissent both from the majority’s treatment of the bond issue and from its denial of reconsideration of the jury-nullification issue.
I.
After a decision on the merits affirming defendant’s conviction but before our mandate issued, the magistrate below revoked defendant Krzyske’s bond on appeal on the ground that he would not raise in his petition for certiorari in the Supreme Court a “substantial” ground for reversal or new trial within the meaning of 18 U.S.C. § 3143(b)(2). I would treat defendant’s emergency pro se motion for an “order staying bond” as a petition for mandamus, hold that the magistrate’s order was void as taken without jurisdiction, and order defendant’s bond on appeal reinstated until the issuance of the mandate of our merits decision.
The defendant was convicted of three counts of failing to file a tax return and one count of tax evasion. Following his conviction, the District Court imposed several conditions upon his release pending appeal, including restrictions on his speech (other than to his attorney) and requirements that he pay the taxes owed. Acting upon pre-argument motions by the defendant to modify the conditions of his release and by the Government to revoke his bond, on July 10, 1987 we issued an order that eliminated the conditions as constituting a prior restraint on his speech and as more appropriate as conditions of release pending appeal. In that same order, we overruled the Government’s motion for revocation of bond, finding that there was “at least one substantial and serious issue raised on this appeal” and ordering the *1093defendant released under the bond set by the District Court “pending our further decision on the merits of this appeal.”
On January 5, 1988, by a 2-1 vote we affirmed the District Court’s judgment of conviction; I dissented on the issue of jury nullification. See United States v. Krzyske, 836 F.2d 1013 (6th Cir.1988). On March 9, 1988, defendant’s petition for rehearing en banc was denied. On April 1, we granted his subsequent motion to stay the mandate for 60 days. On April 6, the Government moved in the District Court to revoke defendant’s bond on the sole ground that his grounds for appeal no longer met the statutory criterion that “the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143(b)(2). Relying on United States v. Sullivan, 631 F.Supp. 1539 (E.D.Pa.1986), and two appellate cases from other circuits cited therein, Magistrate Pepe concluded on April 29 that, although this Court had stayed the mandate, the District Court nevertheless retained jurisdiction “over bond conditions” and that this Court’s previous ruling on the “sub-stantiality test” of § 3143(b) was superseded by the “relevant intervening factors” of the Sixth Circuit’s actions on the merits and on the petition for rehearing en bane. The magistrate then independently concluded that there was not a “substantial likelihood that the Supreme Court would grant certiorari” and revoked defendant’s bond. The District Court later affirmed, holding that “[a]t no point has the Sixth Circuit stated, explicitly or implicitly, that it was assuming jurisdiction over the bond matter.”
It is settled law that the filing of a timely and sufficient notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to any matters involved in the appeal (except “in aid of the appeal” or to correct clerical errors under Fed.R.Civ.P. 60(a)) until the district court receives the mandate of the court of appeals. See In re Thorp, 655 F.2d 997 (9th Cir.1981); Jago v. United States District Court, 570 F.2d 618 (6th Cir.1978); United States v. Black, 543 F.2d 35 (7th Cir.1976); see generally 9 Moore’s Federal Practice § 203.11.
It is also true that the District Court is empowered in the first instance to set the conditions of release on appeal and that during appeal that court retains jurisdiction to review or alter those conditions in view of changed circumstances. See United States v. Black, 543 F.2d at 37.
Whatever distinctions may be drawn about whether a given matter is a matter involved in the appeal or in aid of the appeal, see Jago, 570 F.2d at 622-23, 625-26, it is clear in this case that the matter of Krzyske’s bond had been specifically ruled on during the pendency of this appeal and for the duration of our appellate jurisdiction. By contrast, in Sullivan, upon which the magistrate erroneously relied, there was no issue of bond on appeal and the district court’s holding was:
My reading of the law is that unless the defendant is specifically appealing a detention order, I retain jurisdiction of the case, so far as release or detention issues are concerned.
631 F.Supp. at 1546 (emphasis added). The magistrate, district court, and a majority of this court obviously overlook the emphasized language.
By the terms of our previous orders on July 10, 1987 and April 1, 1988, our jurisdiction over the bond issue persists until the mandate issues. Accordingly, the magistrate’s action was without jurisdiction and therefore void until issuance of the mandate 60 days following April 1. The defendant’s previous bond should have been ordered reinstated. I do not agree with the interpretation of “substantial question” in § 3143(b) adopted in United States v. Pollard, 778 F.2d 1177 (6th Cir.1985), but it is stare decisis in this Circuit. Accordingly, I do not dissent on this ground but limit my dissent on the bond issue to the jurisdictional question. However, in either area, we should not be so cavalier about detention, even when the liberty in question is that of a convicted defendant. The 1984 Bail Reform Act certainly indicated a Congressional inclination to toughen standards *1094for bond; it is not a license to abandon the rule of law.
II.
Defendant also seeks to have us reconsider our earlier decision in light of an affidavit he submits that was obtained after trial from one of the jurors.
At trial, the District Court permitted Krzyske to mention in his closing argument to the jury that the doctrine of jury nullification should apply. The jury subsequently interrupted its deliberations to ask the Court, “What is jury nullification?” The trial court responded:
There is no such thing as valid jury nullification. Your obligation is to follow the instructions of the Court as to the law given to you. You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case. (Emphasis added).
The majority of our Court affirmed, distinguishing between the nullification power a jury “may ... have ... to ignore the law,” which it recognized, and the duty of the jury to apply the law declared applicable by the judge. Thus, the majority concluded that the jury had no right to an instruction on its power, even upon request. I believed then and I believe now that the majority’s affirmance of the trial judge’s action is contrary to one of the most cherished principles embedded in our system of justice.
There is little doubt that juries have the power to “nullify” the law by returning an acquittal “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920) (Holmes, J.) (dictum). Although there was a period in the late 19th century when it appeared that the Supreme Court had departed from this ancient principle of our common-law heritage, see Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), in this century virtually all courts seem to have returned to the traditional view. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968) (“commonsense judgment of a jury” and “community participation in the determination of guilt or innocence” are “defense against arbitrary law enforcement”); United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972) (both majority and dissent agreeing that jury has nullification power); see generally Kadish & Radish, Discretion to Disobey (1973); H. Kalven & H. Zeisel, The American Jury (1966). As the most recent exhaustive review of this subject concludes: “The only real issue concerning jury nullification is whether or not the jury should be honestly instructed as to its authority. The value of nullification to the legal system no longer appears to be a matter of dispute.” Scheflin & Van Dyke, Jury Nullification: The Contours of a Controversy, 43 L. & Contemp.Probs. 51, 113 n. 55 (1980) (hereinafter Jury Nullification).
This is not a case in which it is necessary to decide the broad question of whether a jury, before it retires, should invariably be told of its nullification power, or should be told only in selected instances. This case rather presents the question whether a deliberating jury, itself contemplating the exercise of that power, upon inquiry about its power can be told that to “willfully” use that power would “violate ... the law.”
At the point this issue arose, the power to acquit had passed into the hands of the jury. Even if one were to concede that a jury should not routinely be instructed on nullification before retirement, a different situation altogether is presented when a deliberating jury (or for that matter, a jury at any point) makes a positive inquiry as to its power.
Moreover, in this case the actual instruction given conveyed a sense of threat to the jurors that a nullification verdict “willfully” taken would “violate ... the law” and, by implication, invite sanctions.
That threat was contrary to the venerable rule to the contrary established in the London prosecution of William Penn more than three centuries ago. After several months of incarceration, the jurors who had refused to follow a judge’s instruction that they convict Penn were vindicated. *1095See Bushell’s Case, 124 Eng.Rep. 1006 (C.P.1670); Penn & Mead’s Case, 6 Howell’s State Trials 951 (London 1816) (1st ed. London 1783). British efforts to avoid colonial juries thereby emboldened constituted one of the grievances that led to the Declaration of Independence. See Jury Nullification, 43 L. & Contem.Probs. at 56-58.
The sworn affidavit of a juror submitted to us now by defendant Krzyske reports the jurors’ reaction to the warning given them by the district judge:
2. On June 25, 1985 we jurors asked the trial judge, Charles W. Joiner, during the first day of deliberations and before any verdicts were returned, the following question:
“WHAT IS JURY NULLIFICATION?”
3. This question was in the form of a note to the judge, and it was asked because we were very inquisitive as to its meaning.
4. When the trial judge responded by saying "There is no such thing as valid jury nullification”, we were left very confused.
5. After the trial was over. I learned what jury nullification was because I was still in doubt over its meaning as the trial was concluding.
6. If we were told the truth about jury nullification a different outcome would have resulted in favor of the defendant, Kevin Elwood Krzyske, because I (for one) would have voted for “acquittal” on all counts of the indictment.
In these circumstances, I am reinforced in my belief that the instruction given to the jury deprived the defendant of his Sixth Amendment right to trial by jury. I dissent.