United States v. Warner, Lawrence E. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3517 & 06-3528
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE E. WARNER AND
GEORGE H. RYAN, SR.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02-CR-506-1, 4—Rebecca R. Pallmeyer, Judge.
____________
ON MOTION FOR A STAY OF THE MANDATE
AND CONTINUATION OF BAIL.
____________
SUBMITTED OCTOBER 26, 2007—DECIDED OCTOBER 31, 2007Œ
OPINION PUBLISHED NOVEMBER 7, 2007
____________
Before WOOD, Circuit Judge (in chambers).
In these appeals, appellants Lawrence E. Warner and
George H. Ryan, Sr., challenged their convictions under
the Racketeer Influenced and Corrupt Organizations
Œ
This Opinion was originally released in typescript on October
31, 2007.
2 Nos. 06-3517 & 06-3528
Act (RICO), 18 U.S.C. § 1962, and the mail fraud statute,
18 U.S.C. § 1341. In an opinion issued on August 21, 2007,
this court affirmed those convictions. United States v.
Warner, 498 F.3d 666 (7th Cir. 2007). Appellants then filed
a petition for rehearing and rehearing en banc, which,
after a vote, the full court denied by a 6-3 vote on October
25, 2007. The next day, defendants Warner and Ryan filed
an “Emergency Motion To Stay the Mandate and Con-
tinue Bail Pending Certiorari, and, in the Alternative,
Motion En Banc Seeking the Same Relief.” Pursuant to
our earlier order of August 21, 2007, the appellants’ grant
of bail was extended until the issuance of our mandate. If,
therefore, the mandate is allowed to issue, then bail will
automatically end, unless the court orders otherwise.
For the reasons that follow, I deny the motion for the stay
of the mandate. Bail will terminate upon the issuance of
the mandate, in accordance with the order of August 21,
2007, and the panel’s decision, by separate order issued
today, not to reconsider that order.
Before addressing the merits of the motion, I must
address the question whether this is properly handled
as a single-judge matter, a panel matter, or before the
full en banc court. It is easy to reject the last of those
possibilities. The en banc court has voted formally not to
take up this matter. It therefore remains before the panel,
to be dealt with as any similar case before a panel would
be handled. Appellants cite as authority for bringing
their motion before the en banc court the case of Hope
Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc).
While it is true that the motion for a stay of the mandate
pending certiorari was decided by the full court there, that
was for the simple reason that the motion followed a
merits decision by the en banc court. See Hope Clinic v.
Ryan, 195 F.3d 857 (7th Cir. 1999). Hope Clinic therefore
does not support the proposition that a motion in a case
Nos. 06-3517 & 06-3528 3
that the en banc court has decided not to hear should
nevertheless be heard by the full court.
That leaves the question whether this motion is prop-
erly decided by the full panel, or by only the authoring
judge. Under Internal Operating Procedure 1(a)(1), a
motion to stay or recall the mandate is not listed as one
of the actions that must be handled by two or three judges.
That section reads as follows, in pertinent part:
(1) Ordinary Practice. At least two judges shall act
on requests for bail, denials of certificates of ap-
pealability, and denials of leave to proceed on appeal
in forma pauperis. Ordinarily three judges shall act
to dismiss or otherwise finally determine an appeal
or other proceeding, unless the dismissal is by stipula-
tion or is for procedural reasons. Three judges shall
also act to deny a motion to expedite an appeal when
the denial may result in the mooting of the appeal. All
other motions shall be entertained by a single judge in
accordance with the practice set forth in paragraph (c).
Seventh Circuit IOP 1(a)(1) (emphasis added). While a
motion to stay or recall the mandate is considered
“nonroutine” under our procedures, that designation
simply means that the responsible staff attorney for the
court is not authorized to prepare an order (in accordance
with prior instructions of the court) on behalf of the court.
Instead, the staff attorney must immediately take the
motion to either the motions judge or, “if necessary,” the
motions panel. IOP 1(c)(3).
An examination of the topics that require more than one
judge shows that a stay of the mandate is not among them.
For that reason, such a motion is one of the “other”
motions that “shall be entertained by a single judge.”
Published opinions illustrate that this is the way this
court construes that rule. See, e.g., Boim v. Quranic
Literacy Inst., 297 F.3d 542 (7th Cir. 2002) (Rovner, J., in
4 Nos. 06-3517 & 06-3528
chambers); Books v. City of Elkhart, 239 F.3d 826 (7th
Cir. 2001) (Ripple, J., in chambers). But, appellants may
argue, they have asked not only for a stay of the mandate,
but also for a continuation of bail pending their petition
for a writ of certiorari. Requests for bail, under IOP
1(a)(1), must be ruled on by at least two judges.
That requirement has already been met, twice, in this
case. First, in an order issued on November 28, 2006, a
panel consisting of Chief Judge Easterbrook, Judge Evans,
and Judge Sykes ruled that appellant Ryan was entitled
to bail pending the disposition of his appeal in this court.
That order provided, however, that “[i]f the judgment is
affirmed, the grant of bail pending appeal will end auto-
matically, without waiting for this court to issue its
mandate.” After the panel affirmed both Ryan’s and
Warner’s convictions, the two appellants renewed their
request for bail pending appeal. In an order dated
August 21, 2007, the merits panel, consisting of Judges
Manion, Kanne, and Wood, ordered that the motion was
granted “only to the extent that appellants’ grant of bail
is extended until this court issues its mandate.” The only
action that this chambers opinion addresses is the re-
quested stay of the issuance of the mandate. I am not
taking any action as a single judge with respect to
the order concerning bail that this court has already
adopted. By separate order issued today, as I noted at
the outset, the panel (by a 2-1 vote) has decided not to
reconsider the latter decision.
In his chambers opinion in Books v. City of Elkhart,
supra, Judge Ripple reviewed the standards that should
govern the disposition of a motion like the one before me:
When a party asks this court to stay its mandate
pending the filing of a petition for a writ of certiorari,
that party must show that the petition will present a
substantial question and that there is good cause for
Nos. 06-3517 & 06-3528 5
a stay. See Fed. R. App. P. 41(d)(2)(A). The grant of
a motion to stay the mandate “is far from a foregone
conclusion.” 16A Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and
Procedure § 3987.1 (3d ed. 1999). Instead, the inquiry
must focus on whether the applicant has a reasonable
probability of succeeding on the merits and whether
the applicant will suffer irreparable injury.
239 F.3d at 827. In order to demonstrate a reasonable
probability of succeeding on the merits, the applicant
must show both a reasonable probability that four Justices
will vote to grant certiorari and a reasonable possibility
that five Justices will vote to reverse the judgment of
this court. Id. at 828. This standard is similar to the one
that the Justices themselves use, when they are ruling
on applications in chambers in their capacity as Circuit
Justices. See, e.g., Barnes v. E-Systems, Inc. Group Hosp.
Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J.); Rostker
v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J.).
Appellants here have shown neither a reasonable
probability that the Court will grant certiorari nor a
reasonable possibility that this court’s decision will be
reversed. Most of the arguments presented in the
dissent to the panel’s opinion were not preserved in the
district court, and none of the arguments in the dissent
to the order denying rehearing en banc has ever been
advanced by the appellants. Before it could reach these
questions, the Supreme Court would have to disregard a
series of forfeitures. It is unlikely that the Court would
do so, especially given the strength of the government’s
case.
The voluminous record here demonstrates that the
appellants were guilty of the crimes with which they were
charged. Although they would undoubtedly like to post-
pone the day of reckoning as long as they can, they have
6 Nos. 06-3517 & 06-3528
come to the end of the line as far as this court is con-
cerned. Two different panels of this court have already
decided that bail ends with the issuance of the mandate.
Because we are affirming the district court’s judgment,
the district court’s receipt of the mandate will not re-
quire that court to take any new action on the case.
The motion to stay the mandate is therefore DENIED. By
separate order, we also have denied the motion insofar
as it seeks reconsideration of the decision to terminate
bail with the issuance of the mandate.
It is so ordered.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-7-07