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.
On Motion for a Stay of the Mandate and Continuation of Bail.
SUBMITTED OCTOBER 26, 2007 — DECIDED OCTOBER 31, 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 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
*
This Opinion is being released in typescript. A printed
version will follow.
2 Nos. 06-3517, 06-3528
Motion To Stay the Mandate and Continue 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 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 properly
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 appealability,
Nos. 06-3517, 06-3528 3
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 stipulation 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 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,
4 Nos. 06-3517, 06-3528
the grant of bail pending appeal will end automatically,
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 requested 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 f o r 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
Nos. 06-3517, 06-3528 5
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 postpone
the day of reckoning as long as they can, they have come to
the end of the line as far as this court is concerned. 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 require 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.