United States Court of Appeals
For the First Circuit
No. 03-1383
UNITED STATES OF AMERICA,
Appellant,
v.
BRADFORD C. COUNCILMAN,
Defendant, Appellee.
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
Torruella, Selya, Lynch, Lipez and Howard Circuit Judges.
Order of Court
Entered: October 5, 2004
A majority of the judges of this court in active service have
voted to rehear this matter en banc. Thus, the petition for
rehearing en banc is granted, and the petition for panel rehearing
is denied as moot. In accordance with customary practice, the
panel opinion and dissent released on June 29, 2004 are withdrawn,
and the judgment entered June 29, 2004 is vacated.
The parties shall simultaneously submit within 30 days of the
date of this order supplemental briefs not exceeding 30 pages per
side. In preparing these briefs, counsel should be aware that the
en banc court will have copies of all prior briefs and copies of
the petition for rehearing en banc. Although the parties can
address other issues in their supplemental submissions, and the en
banc court is free to consider all of the issues presented, the
court specifically requests that the parties address the following
questions:
1. Whether the conduct at issue in this case could have
been additionally, or alternatively, prosecuted under the
Stored Communications Act?
2. Whether the rule of lenity precludes prosecution in this
case?
Oral argument is scheduled for 3:00 p.m. on December 8, 2004
in the en banc courtroom in the John Joseph Moakley United States
Courthouse.
The court welcomes timely motions to file amicus briefs
concerning any of the issues in this appeal.
By the Court:
__/s/___________________
Richard Cushing Donovan,
Clerk of Court
[Certified copy to Hon. Michael A. Ponsor and Mr. Tony Anastas, Clerk, United States District
Court for Massachusetts. Copies to Mr. Katzmann, Ms. Chaitowitz, Mr. Levenson, Mr. Salgado,
Mr. Kerr, Mr. Swire and Mr. Good.]
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