United States v. Lane, Vincent ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-4084
UNITED STATES of America,
Plaintiff-Appellee,
v.
VINCENT LANE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-CR-657--Charles R. Norgle, Sr., Judge.
February 15, 2002
Before Coffey, Kanne, and Rovner, Circuit
Judges.
Per Curiam. The following are before
this court:
1. DEFENDANT’S EMERGENCY MOTION FOR
RELEASE PENDING APPEAL, filed on January
22, 2002, by counsel for the appellant.
2. MEMORANDUM IN SUPPORT OF DEFENDANT’S
EMERGENCY MOTION FOR RELEASE PENDING
APPEAL, filed on January 22, 2002, by
counsel for the appellant.
3. DEFENDANT’S MOTION TO RECONSIDERORDER
GRANTING THE GOVERNMENT’S MOTION TO
EXTEND THE FILING OF ITS RESPONSE BRIEF,
filed on January 22, 2002, by counsel for
the appellant.
4. MOTION FOR LEAVE TO FILE SUPPLEMENTAL
MEMORANDUM IN SUPPORT OF EMERGENCY MOTION
FOR RELEASE PENDING APPEAL, filed on
January 30, 2002, by counsel for
appellant.
5. SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
EMERGENCY MOTION FOR RELEASE PENDING
APPEAL, filed on January 30, 2002, by
counsel for appellant.
6. GOVERNMENT’S RESPONSE TO DEFENDANT’S
EMERGENCY MOTION FOR RELEASE PENDING
APPEAL, filed on February 1, 2002, by
counsel for appellee.
IT IS ORDERED that the motion for
release pending appeal is DENIED. It is
further ordered that the motion to
reconsider order granting the
government’s motion to extend the filing
of its response brief is GRANTED to the
extent that briefing shall proceed as
follows:
1. The government’s brief shall be due on
March 1, 2002.
2. The appellant’s reply brief, if any,
shall be due on March 15, 2002.
The parties are advised that the briefs
must be received in the clerk’s office by
the specified dates and that no
extensions of time shall be granted.
Rovner, Circuit Judge, dissenting. The
defendant’s appeal presents a question of
first impression in this circuit as to
which our sister circuits are divided.
This qualifies as a "substantial question
of law" that could well be decided in the
appellant’s favor. Because I would grant
the appellant’s motion for release
pending appeal, I dissent from the major
ity’s order.
A person may be released pending appeal
if the court finds: (1) that the person
is not likely to flee or pose a danger to
the community if released; (2) that the
appeal was not filed for the purposes of
delay; and (3) that the appeal raises a
"substantial question" of law or fact
likely to result in reversal, an order
for a new trial, a sentence that does not
include a term of imprisonment, or a
reduced sentence to a term of
imprisonment less than the expected
duration of the appeal process. See 18
U.S.C. sec.sec. 3143(b)(1)(A), (B).
All agree that Lane satisfies the first
two elements. The only dispute here
involves the third element, whether Lane
has raised a "substantial question" on
appeal. This court has defined a
"substantial question" as one that is a
"close" question or one that "very well
could be decided the other way." See
United States v. Eaken, 995 F.2d 740, 741
(7th Cir. 1993); United States v.
Greenberg, 772 F.2d 340, 341 (7th Cir.
1985). At this stage, the court is not
required to predict the outcome of the
appeal, nor does a preliminary
determination on a motion for release
pending appeal bind the subsequent panel
that considers the merits fully. United
States v. Hattermann, 853 F.2d 555, 557
(7th Cir. 1988).
The loss-calculation issue Lane raises
on appeal is a "substantial question"
sufficient to warrant his release. The
issue is clearly a complicated one, as
the parties and probation officer all
reached differing loss calculations. Our
court has not directly addressed this
issue, but some of our case law appears
to support Lane’s "net loss" argument.
See United States v. Lauer, 148 F.3d 766,
768 (7th Cir. 1998); United States v.
Holiusa, 13 F.3d 1043, 1047 (7th Cir.
1994); United States v. Chevalier, 1 F.3d
581, 586 (7th Cir. 1993); United States
v. Miller, 962 F.2d 739, 747-49 (7th Cir.
1992) (Flaum, J., concurring); United
States v. Schneider, 930 F.2d 555 (7th
Cir. 1991). Other circuits are divided.
Some support the district court’s
calculation. See, e.g., United States v.
Janusz, 135 F.3d 1319, 1324 (10th Cir.
1998); United States v. Wolfe, 71 F.3d
611, 616-17 (6th Cir. 1995); United
States v. Wilson, 980 F.2d 259, 261-62
(4th Cir. 1992). However, others support
Lane’s "net loss" argument. See, e.g.,
United States v. Wells, 127 F.3d 739,
748-49 (8th Cir. 1997); United States v.
Wright, 60 F.3d 240, 242 (6th Cir. 1995);
United States v. Gallegos, 975 F.2d 710,
712-13 (10th Cir. 1992); United States v.
Kopp, 951 F.2d 521, 535-36 (3d Cir.
1992).
It may well be that after a full hearing
on the merits, this court will affirm the
district court’s loss calculation, but at
this juncture, it is our task to assess
whether he has raised a "close" question.
The division of existing authority makes
it plain that he has done so. If this
court ultimately agrees with Lane that
his victims’ actual losses were zero, his
sentence would likely be substantially
reduced from 30 months to a 0-6 month
range. It is therefore entirely possible
that, by the time this appeal is
resolved, Lane would have already served
far more than the maximum sentence while
awaiting this court’s decision. See 18
U.S.C. sec. 3143(b). For those reasons, I
would grant Lane’s motion for release
pending appeal.