United States Court of Appeals
For the First Circuit
No. 11-1775
UNITED STATES OF AMERICA,
Appellee,
v.
JASON W. PLEAU
Defendant, Appellant.
__________
LINCOLN D. CHAFEE, in his capacity as
Governor of the State of Rhode Island,
Intervenor.
No. 11-1782
IN RE: JASON WAYNE PLEAU,
Petitioner.
__________
LINCOLN D. CHAFEE, in his capacity as
Governor of the State of Rhode Island,
Intervenor.
____________________
Before
Lynch, Chief Judge,
Torruella, Boudin, Howard and Thompson, Circuit Judges.
ORDER OF COURT
Entered: May 21, 2012
Our decision in this case was released on May 7, 2012.
The Clerk's Office advises that, in the ordinary course, the
mandate would issue on May 29, 2012.1 The government has moved to
expedite issuance of the mandate; defendant-appellant Pleau and
intervenor Governor Chafee have moved for a stay pending
certiorari. Although the government has legitimate reasons for its
motion, the date for issuance will remain May 29, 2012; but we see
no basis for delaying issuance beyond that date.
A petition for rehearing would plainly be fruitless since
the matter has now been twice fully briefed and the issues in both
rounds were the same. As for any request for a stay of mandate
pending certiorari, the customary criteria are not met: even
assuming a certiorari petition would present a non-frivolous
question, there is no "good cause" for a stay, see Fed. R. App. P.
41(d)(2)(A), and there is a reasonable risk that the federal
prosecution of Pleau will be prejudiced by any further delay in the
proceedings.
The federal offenses of which Pleau is accused occurred
on September 14, 2010. Although the charged crimes occurred almost
two years ago, and the indictment followed less than three months
later, Pleau has not yet even been arraigned in federal district
court because Rhode Island, which holds Pleau as a state prisoner,
has refused to deliver Pleau into federal custody to answer the
1
The procedural posture is unusual because the case was
reheard by the court en banc, and the underlying proceedings
comprised both an original request to this court for a writ of
prohibition and an appeal from a district court order of debatable
finality.
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federal charges. The district judge ultimately issued a writ of
habeas corpus expressly authorized by federal statute requiring
that Pleau be brought to federal court, 28 U.S.C. § 2241(c)(5), but
that writ was in turn stayed by a majority of the original panel as
a result of appellate proceedings described in our decision.
Whether a non-frivolous issue could be presented by a
certiorari petition might be debated. As the en banc majority
decision reads United States v. Mauro, 436 U.S. 340 (1978), the
state's ability to resist the writ depends entirely on a question
to which the Supremacy Clause provides a plain negative answer, id.
at 363, and no previous governor appears to have defied the writ in
like circumstances. On the other hand, two dissenting members of
the en banc court dispute the majority's reading of Mauro.
However, as to "good cause," Pleau's arraignment and
initial proceedings looking toward an eventual trial should move
forward immediately.2 As time passes, necessary witnesses and
other evidence may be lost, and Congress has underscored the strong
public interest in the expeditious commencement of criminal trials.
18 U.S.C. §§ 3161 et seq. Indeed, the government says in its
opposition that at least one of the witnesses is elderly, and
others "live in marginal circumstances"; it also points out that
the case against Pleau's co-defendant (Santiago) has effectively
2
Proceedings could be protracted in a case such as this one
when the Attorney General is required to decide whether to seek the
death penalty. See United States v. Lopez-Matias, 522 F.3d 150,
155 (1st Cir. 2008).
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been put on hold pending resolution of Pleau's custody issues, and
if the stay is granted the government may have to move forward with
the case against Santiago, possibly resulting in the inefficiency
and expense of two major trials.
No threat exists of irreversible prejudice to Pleau or
Rhode Island. A trial of Pleau is unlikely to occur before the
Supreme Court could consider a certiorari petition, and were
certiorari granted the Court could itself grant a stay of
proceedings. Anyway, even if a trial occurred and Pleau and Chafee
thereafter prevailed on their position, objections based on the
detainer statute would not be mooted, see Mauro, 436 U.S. at 347-
48, 365, and Pleau could be returned promptly to state custody.
Accordingly, the motion to expedite issuance of the
mandate is denied insofar as it may seek issuance prior to May 29,
2012; but, for the reasons stated, a stay of mandate beyond that
date is denied.
TORRUELLA, Circuit Judge, with whom THOMPSON, Circuit
Judge, joins, dissenting. I respectfully dissent from the denial
of the motion to stay the issuance of the mandate in this case.
Federal Rule of Appellate Procedure 41(d)(2)(A) permits this Court
to stay a mandate pending the filing of a petition for certiorari
if the petition would "present a substantial question" and if there
is "good cause for a stay." The inquiry contemplated by this rule
"focuses on whether the applicant has a reasonable probability of
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succeeding on the merits and whether the applicant will suffer
irreparable injury." McBride v. CSX Transp., Inc., 611 F.3d 316,
317 (7th Cir. 2010) (internal quotation marks omitted). See also
20A James W. Moore et. al., Moore's Federal Practice, § 341.14[2]
(Matthew Bender 3d ed. 2012). Both of these requirements are
clearly satisfied here.
"To demonstrate a reasonable probability of success on
the merits, the applicant must show 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
[the Court of Appeals]." McBride, 611 F.3d at 317. Under Supreme
Court Rule 10(a), the Court will consider granting certiorari if a
court of appeals "has entered a decision in conflict with another
United States court of appeals on the same important matter." In
addition, under Supreme Court Rule 10(c), the Court will consider
granting certiorari when a federal Court of Appeals "has decided an
important question of federal law that has not been, but should be,
settled by [the] Court, or has decided an important federal
question in a way that conflicts with relevant decisions of [the]
Court." Here, these factors weigh in favor of a grant of
certiorari.
There can be no doubt that this case presents an
"important question of federal law": the proper balance of power
between the states and the federal government in the context of
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custody over prisoners. Questions of federalism and the
interaction between federal government and state government
authority are some of the most important legal issues that the
Supreme Court must resolve. The potential impact of this case on
the rights of states is significant enough that the National
Governors Association and the Council of State Governments,
organizations representing the governors and elected and appointed
officials of all 50 states, participated in this case as amici
curiae. This case also has important implications for the rights
of criminal defendants, as evidenced by the appearance as amici
curiae of various organizations representing criminal defense
lawyers.
Resolution of this question of federal law turns in large
part on the proper interpretation of a Supreme Court case, United
States v. Mauro, 436 U.S. 340 (1978). A dispute regarding the
proper interpretation of a Supreme Court case is clearly one that
is best settled by the Supreme Court. In addition, as explained by
the dissent from the en banc decision, it can be argued that the en
banc decision conflicts with Mauro, a relevant decision of the
Supreme Court. See United States v. Pleau, No. 11-1775, slip op.
at 15 (1st Cir. May 7, 2012) (Torruella, J., dissenting). Moreover,
there is a split of authority among the circuits regarding the
proper reading of Mauro. Compare United States v. Trafny, 311 F.
App'x. 92, 95-96 (10th Cir. 2009), United States v. Graham, 622
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F.2d 57, 59-60 (3d Cir. 1980), cert. denied, 449 U.S. 904 (1980),
and United States v. Bryant, 612 F.2d 799, 802 (4th Cir. 1979),
with United States v. Scheer, 729 F.2d 164, 170 (2d Cir. 1984).
Furthermore, if the Court does grant certiorari, there is
a reasonable possibility that five Justices will vote to overturn
the en banc majority's decision. Reasonable jurists can disagree
regarding the proper interpretation of Mauro, as illustrated both
by the debate within this Court and by the split in authority
between the Circuits. It is by no means certain that the Supreme
Court would agree with the en banc majority's decision.
There is also good cause to delay the issuance of the
mandate. The majority argues that the mandate must be issued
according to the normal schedule because the federal prosecution of
Pleau must be allowed to resume as soon as possible. However, it
is difficult to see what will be lost by allowing the Supreme Court
time to decide whether or not to grant certiorari in this case. On
the other hand, Rhode Island's interests could be irreparably
harmed by Pleau's transfer to federal custody.
The State of Rhode Island has a public policy against the
death penalty. In furtherance of this public policy, the State has
an interest in preventing its citizens from being exposed to a
prosecution that might result in the death penalty. Rhode Island
also has an interest in upholding its sovereign right to refuse a
request for a prisoner transfer, a right guaranteed by the express
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language of the Interstate Agreement on Detainers. Both of these
interests could be irreparably harmed if Pleau is transferred
before the Supreme Court has an opportunity to decide whether or
not to grant certiorari. The transfer of Pleau to federal custody
could moot this case entirely. In addition, as the en banc
majority opinion recognized, "the governor could hardly obtain
meaningful relief following a federal conviction of Pleau." Pleau,
slip op. at 6.
Given the importance of the issues presented in this case
and the risk of irreparable harm to Rhode Island's interests, I see
no reason for the majority's haste to issue the mandate. The
Supreme Court may yet decide to uphold the en banc majority's
opinion, but it may also decide to reinstate the original panel's
decision. The most prudent course of action for this Court seems
to be to leave the status quo in place while the Supreme Court
decides what it wants to do. Therefore, I respectfully dissent.
By the Court:
/s/ Margaret Carter, Clerk.
cc: Hon. William E. Smith, Mr. David DiMarzio, Clerk, United States
District Court for the District of Rhode Island, Mr. Goldstein, Ms.
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Richards, Mr. Hoose, Mr. Lockhart, Mr. Mann. Mr. Behr, Mr.
Cavanaugh, Mr. Fabisch, Mr. Haskell, Mr. Marx, Mr. Mirenda & Mr.
Ferland.
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