In re: Roger Stone, Jr. ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided October 22, 2019
No. 19-3054
IN RE: ROGER JASON STONE, JR., ET AL.,
PETITIONERS
On Petition For Writ of Mandamus
(1:19-cr-00018)
Bruce Rogow and Robert C. Bushcel were on the petition
for writ of mandamus and the reply.
Jessie K. Liu, U.S. Attorney, Elizabeth Trosman and David
B. Goodhand, Assistant U.S. Attorneys, and Adam C. Jed,
Special Assistant U.S. Attorney, were on the opposition to the
petition for a writ of mandamus.
Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Roger Stone and members of his
family petition this Court for a writ of mandamus vacating the
District Court’s orders modifying Stone’s conditions of
release, arguing that the orders infringe on their First
Amendment right to free speech. Where a mandamus
petitioner has an adequate alternative remedy, however, we
lack jurisdiction to grant the petition. In re Asemani, 455 F.3d
2
296, 299-301 (D.C. Cir. 2006) (dismissing mandamus petition
for lack of jurisdiction). Here, because Stone and his family
members failed to avail themselves of adequate alternative
remedies, we dismiss their petition.
I.
Roger Stone is a political consultant who has worked in
U.S. politics for decades. During the 2016 presidential
campaign, Stone served as an official for then-candidate
Donald J. Trump’s campaign. On January 24, 2019, a grand
jury returned a seven-count indictment charging Stone with:
one count of obstruction of proceedings, in violation of 18
U.S.C. §§ 1505 and 2; five counts of false statements, in
violation of 18 U.S.C. §§ 1001(a)(2) and 2; and one count of
witness tampering, in violation of 18 U.S.C. § 1512(b)(1). The
indictment, signed by Special Counsel Robert Mueller, alleges
that Stone obstructed investigations by Congress and the FBI
into foreign interference in the 2016 presidential election.
Specifically, the indictment alleges that Stone tried to block
inquiries into his communications with an organization that
published files stolen by Russian hackers from the Democratic
National Committee’s computer system. Federal agents
arrested Stone, and Stone pleaded not guilty to the charges on
January 29, 2019. He was released on personal recognizance,
subject to limited conditions, including travel restrictions and a
prohibition on communicating with witnesses disclosed by the
government.
During the initial status conference, the District Court
explained that the case had received “considerable publicity,
fueled in large part by extrajudicial statements of the defendant
himself.” A.41. As such, the Court advised the attorneys that
it was considering issuing an order under Local Criminal Rule
57.7(c), which governs special orders restricting, among other
3
things, “extrajudicial statements by parties, witnesses and
attorneys likely to interfere with the rights of the accused to a
fair trial by an impartial jury.” D.D.C. LCrR 57.7(c). The
Court directed the parties to file submissions on the appropriate
scope of such an order.
On February 15, 2019, after receiving input from the
parties, the Court entered the Rule 57.7(c) order. In its order,
the Court explained its obligation to prevent improper
influence on the jury pool and the possibility that “public
pronouncements” may “inflame” the large and “vociferous[]”
crowds that had been attending the proceedings. A.52. To that
end, the Court first ordered that “Counsel for the parties and
the witnesses must refrain from making statements to the media
or in public settings that pose a substantial likelihood of
material prejudice to this case.” A.53. This part of the order
applied only to the attorneys. The second part of the order
applied to all participants in the case, but it applied only to
statements made in or around the courthouse:
[A]ll interested participants in the matter,
including the parties, any potential witnesses,
and counsel for the parties and the witnesses,
must refrain, when they are entering or exiting
the courthouse, or they are within the immediate
vicinity of the courthouse, from making
statements to the media or to the public that
pose a substantial likelihood of material
prejudice to this case or are intended to
influence any juror, potential juror, judge,
witness or court officer or interfere with the
administration of justice.
A.53-54. The order imposed no conditions on Stone’s public
remarks beyond the immediate vicinity of the courthouse, but
4
clarified that the order “may be amended . . . if necessary.”
A.54. The order also advised that, in deciding whether to grant
“any future request for relief based on pretrial publicity,” the
Court would consider “the extent to which the publicity was
engendered by the defendant himself.” Id.Three days later, on February 18, 2019, Stone posted an
image on his Instagram account depicting the District Court
judge in this case with crosshairs next to her head, alongside
inflammatory commentary in which he accused her of bias.
That same day, he removed the post and filed a “Notice of
Apology,” apologizing to the Court for “the improper
photograph and comment posted on Instagram today.” A.55.
Stone himself signed the filing, but later admitted that he did
not write it and had “signed it on the advice of counsel.” A.57,
75. Even after taking the post down, however, Stone did a
media interview later the same day in which he continued to
accuse the judge of bias. The day after the post went up and
came down, the District Court ordered Stone to show cause
why its February 15, 2019 order and/or Stone’s conditions of
release should not be modified or revoked in light of his
Instagram post, and set a hearing on the matter for February 21,
2019.
At the hearing, Stone apologized directly to the Court,
recognizing that he had “abused the latitude” the Court gave
him and blaming his “stupid lapse of judgment” on “emotional
stress.” A.69, 87. Stone stated he could “offer no excuse for
[the post].” A.69. When the Court asked Stone whether he
understood “that the posting could be viewed as a threat to the
Court,” Stone replied, “I now realize that. That was not my
intention.” A.70. Stone explained that he believed that the
crosshairs were actually a “Celtic cross” or a “Celtic occult
symbol,” the same explanation he had provided to media
reporters shortly after posting the image. A.70, 74, 85. Stone
5
also testified that, while he posted the image, he “did not select
the image.” A.69, 77-78. According to Stone, one of the “five
or six” people who “volunteer” for him selected the image, and
Stone decided to post it. A.78-79, 88. However, when pressed
for the name of this volunteer, Stone could not remember who
had sent him the image.
At the conclusion of the hearing, the Court declared that it
“d[id] not find any of [Stone’s] evolving and contradictory
explanations credible” and that Stone had made “deliberate
choices” to “express himself in a manner that can incite others
who may feel less constrained,” which “posed a very real risk
that others with extreme views and violent inclinations would
be inflamed.” A.102. In addition, the Court noted that its
initial order imposed no restrictions on Stone’s speech beyond
the courthouse and that it took Stone just “three days” to abuse
that trust. A.104-05. The Court found that Stone’s post had
“the effect and very likely the intent” to “denigrate th[e
judicial] process and taint the jury pool.” A.109. The Court
further found that Stone’s apology “r[ang] quite hollow,” given
that he “continued to adamantly defend the post, even after he
took it down, thereby enhancing the risk that it would appeal to
and stoke the passions of an angry crowd[.]” A.104.
Consistent with these findings, the Court decided to
modify the conditions of Stone’s pretrial release. Before doing
so, it asked counsel for Stone how to “craft an order that [Stone]
would find clear enough to follow[.]” A.98. Counsel for Stone
suggested an order that Stone not “talk[] about this Court” or
the special prosecutor and that he not “impugn[] the integrity
of the Court” or the government. A.98-99.
The District Court modified the conditions of Stone’s
pretrial release in a minute order the same day:
6
[T]he conditions of defendant’s pretrial release
are hereby modified to include the condition
that, and the February 15, 2019 media
communications order is hereby modified to
provide that, the defendant is prohibited from
making statements to the media or in public
settings about the Special Counsel’s
investigation or this case or any of the
participants in the investigation or the case. The
prohibition includes, but is not limited to,
statements made about the case through the
following means: radio broadcasts; interviews
on television, on the radio, with print reporters,
or on internet based media; press releases or
press conferences; blogs or letters to the editor;
and posts on Facebook, Twitter, Instagram, or
any other form of social media. Furthermore,
the defendant may not comment publicly about
the case indirectly by having statements made
publicly on his behalf by surrogates, family
members, spokespersons, representatives, or
volunteers.
A.107-08, 114-15 (“February 21, 2019 order”).
The gist of the February 21, 2019 order was that, beyond
soliciting funds for his legal defense or maintaining his general
innocence, Stone was not to discuss the case in any way. As
the District Court explained, Stone could “send out as many
emails, Tweets, posts as [he] choose[s] that say, [‘]Please
donate to the Roger Stone defense fund to help me defend
myself against these charges[’]” and could add that he is
“innocent of the charges.” A.108. The Court made clear,
however, that Stone was permitted to speak publicly about “any
other matter of public interest,” so long as he refrained from
7
any specific discussion about the case or the people involved
in it. Id. The Court declared that, under the Bail Reform Act,
18 U.S.C. § 3142(c)(1) and (3), and Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991), these conditions were
necessary and were the least restrictive means available to
prevent “material prejudice to the case and the due
administration of justice.” A.105-09. The Court also advised
Stone that “any violation of this order will be a basis for
revoking [his] bond and detaining [him] pending trial.” A.109.
Neither Stone nor any of his family members challenged
the February 21, 2019 order in the District Court in any way or
sought direct review of it from this Court.
About four months later, the Court learned that Stone had
violated the February 21, 2019 order in various ways. On June
20, 2019, the government moved for an order to show cause
why the Court should not modify further the conditions of
Stone’s release, citing numerous examples of Stone’s
communications it believed violated the February 21, 2019
order. These communications include, among others, an
Instagram post on March 3, 2019, with the title “who framed
Roger Stone,” A.125, 192-93; an Instagram post on April 4,
2019 featuring a headline about Stone’s arrest, with
commentary from Stone asking what “could [the FBI] possibly
be hiding,” A153 n.1, 162; an Instagram post on May 16, 2019
stating that Stone had “challenged the entire ‘Russians hacked
the DNC/CrowdStrike’ claim by the Special Counsel,” A.153
n.1, 164; and a text message in late February from Stone to
Buzzfeed News stating that – contrary to testimony before
Congress by President Trump’s former attorney Michael
Cohen (a potential witness in the case against Stone) – Stone
had not told then-candidate Trump about his communications
with anyone seeking to interfere in the election on Trump’s
8
behalf, see A190-92. The government did not ask the Court to
hold Stone in contempt or to revoke his bond.
Stone responded to the motion, calling it a
“disproportionate reaction” to his exercise of First Amendment
rights and claiming that the government sought to “deprive
[him] of the narrow latitude the Court left him[.]” A.170.
Stone argued that the examples cited by the government either
involved Stone’s reposting articles or graphics originally
produced by others, which did not constitute statements by
Stone himself, or were mere “rhetorical question[s]” that were
not “statements” about the case. A.170-75.
The District Court held argument on the motion at a
hearing on July 16, 2019 and ultimately concluded that Stone
had violated its clear instructions not to publicly discuss his
case in any way. The Court found that “[i]t didn’t take a week”
after the February 21, 2019 order for Stone to contact a news
outlet to “call[] a witness in this investigation a liar.” A.218.
The Court also found that, while some of the social media posts
“were initially statements made by other people,” Stone
“posted and disseminated them himself again on his own
Instagram feed, under his own name, to his own followers,”
thereby “spreading it with his imprimatur.” A.220-21. Stone’s
“obvious purpose,” the Court found, was “to gin up more
public comment and controversy about the legitimacy of the
Mueller investigation and the House investigation to get people
to question the legitimacy of this prosecution.” A.222. Based
on these clear violations, the Court explained that it was
“obvious” that Stone was either unable to “differentiate
between the very broad range of speech” he was entitled to and
speech that was prohibited under his conditions of release, or
he was simply refusing to comply with them. A.223.
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Because Stone had shown himself “unwilling to stop
talking about the investigation” despite the Court having “twice
given [him] the benefit of the doubt,” the District Court
recognized the need to “make the restriction even more clear
so that it calls for no interpretation on [Stone’s] part
whatsoever.” A.223-24. To avoid generating even “more
pretrial publicity and more concerning articles for the jury to
read,” the Court deferred initiating contempt proceedings.
A.222-23. The Court also declined to revoke Stone’s bond.
Instead, the Court again modified the conditions of Stone’s
release to include a blanket ban on using Instagram, Twitter, or
Facebook. Specifically, the Court declared that during the
pendency of the case, Stone is prohibited from posting “on
Instagram, Twitter or Facebook in any way, on any subject,”
and that this ban “includes, but is not limited to, forwarding,
liking, re-posting or re-Tweeting anyone else’s posts or
Tweets.” A.224.
The next day, on July 17, 2019, the Court entered an order
restating this modification and clarifying that “all other
conditions of release, and all other provisions of the Court’s
orders of February 15 and February 21, 2019, remain in force.”
A.229-30. The order emphasized in bold the existing
restrictions on Stone’s discussion of the case through “any
other form of social media” and “indirect” discussion of the
case through “surrogates, family members, spokespersons,
representatives, or volunteers.” Id. The order also stated that
such prohibited statements “include, but are not limited to,
statements about public filings or orders issued in the case, and
the re-transmission, quotation, or dissemination of statements
by others about the investigation or the case.” A.230.
On August 2, 2019, Stone and four of Stone’s family
members petitioned this Court for a writ of mandamus seeking
to vacate the District Court’s February 21, July 16, and July 17,
10
2019 orders modifying Stone’s conditions of release and
sought expedited review. The Petitioners argue that the orders
constitute an unconstitutional prior restraint on their speech.
Shortly after they filed the petition, an individual named David
Christenson moved to intervene.
II.
“[T]he remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations.” Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980). To show entitlement to
mandamus, a petitioner “must demonstrate (1) a clear and
indisputable right to relief, (2) that the government agency or
official is violating a clear duty to act, and (3) that no adequate
alternative remedy exists.” Am. Hosp. Ass’n v. Burwell, 812
F.3d 183, 189 (D.C. Cir. 2016) (citation omitted). “These three
threshold requirements are jurisdictional; unless all are met, a
court must dismiss the case for lack of jurisdiction.” Id.(citation omitted). Because the Petitioners possess adequate
alternative remedies, they fail to satisfy the third prong of
mandamus entitlement, and we must dismiss the petition for
lack of jurisdiction.
A.
For his part, Stone could have appealed under 18 U.S.C.
§ 3145(c), which expressly provides for judicial review of a
detention order. See United States v. Salerno, 481 U.S. 739,
752 (1987) (“The [Bail Reform] Act’s review provisions,
§ 3145(c), provide for immediate appellate review of the
detention decision.”). Indeed, we recently heard a direct appeal
by a criminal defendant from a pretrial order regarding his
conditions of release – in that case, a pretrial detention order.
11
See United States v. Manafort, 897 F.3d 340 (D.C. Cir. 2018).1
And despite Stone’s protestation that “no adequate alternative
remedy would suffice to expeditiously address the violation”
he complains of, Pet’rs’ Reply Br. at 10-11, this provision
expressly requires expeditious review, stating that “[t]he appeal
shall be determined promptly,” 18 U.S.C § 3145(c).2
Stone could have challenged the conditional release orders
by filing a notice of appeal within fourteen days after their
entry, see FED. R. APP. P. 4(b)(1)(A), but failed to do so. Stone
also could have filed a motion to modify his conditional release
order and filed an appeal within fourteen days if unsuccessful.
Instead, on August 2, 2019 – sixteen days after the July 17
order and over six months after the February 21 order – he filed
the instant petition for writ of mandamus. Thus, even if we
were to construe his petition as a notice of appeal, we would
have to dismiss the appeal because the government argued that
the petition, so construed, would be untimely. See id.; United
States v. Byfield, 522 F.3d 400, 402-03 (D.C. Cir. 2008). Stone
had an adequate avenue of relief – direct appeal – but he failed
to avail himself of it in a timely fashion, so we lack jurisdiction
1
See Appellant’s Opening Br. at 2, Manafort, 897 F.3d 340 (No. 18-
3037) (asserting 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291 as the
basis for our jurisdiction).
2
Though the technical basis for appealability of pretrial release
orders has confounded scholars and divided courts, see, e.g., 15B
Charles A. Wright et al., Federal Practice and Procedure § 3918.2
at 440 (2d ed. 1992) (noting that “the incorporation of [28 U.S.C.]
§ 1291 [in 18 U.S.C. § 3145(c)] is potentially ambiguous”), we need
not decide this question here. Whether a criminal defendant’s appeal
of his detention or release order is reviewable as a “final order” under
28 U.S.C § 1291, see, e.g., United States v. Abuhamra, 389 F.3d 309,
317 (2d Cir. 2004), or as a “collateral order,” see, e.g., United States
v. Schock, 891 F.3d 334, 339 (7th Cir. 2018), the end result is the
same: an appealable order.
12
to grant the mandamus petition. See United States v.
Gundersen, 978 F.2d 580, 583 (10th Cir. 1992) (conditional
release order was an appealable order pursuant to 18 U.S.C.
§ 3145(c), and “[m]andamus, therefore, is inappropriate”); In
re Ojeda Rios, 863 F.2d 202, 205 (2d Cir. 1988) (mandamus
not available where appeal of pretrial detention order was still
pending); see also In re Robinson, 713 F. App’x 764, 769 (10th
Cir. 2017) (court denied mandamus petition as moot where
appeal of detention order was also filed); In re Williams, 364
F. App’x 764, 765 (3d Cir. 2010) (pretrial detainee not entitled
to mandamus relief when he could have appealed denial of his
motion seeking review of detention order).
B.
Stone’s family members, who assert a somewhat different
injury than Stone, also fail to establish that no adequate
alternative remedy exists. Unlike Stone himself, Stone’s
family members are free to use social media and free to speak
about the case. The order merely enjoins Stone from
vicariously expressing his speech about the case through
anyone else. However, because the order expressly mentions
his family members, they argue that it chills their speech rights
in two ways. First, they contend that speaking about the case
could put Stone’s liberty at risk, because it could be “viewed
as” speaking on his behalf. Petition at 27. Second, they fear
that speaking about the case will “[a]t the least” subject them
“to an inquiry by the court” as to whether they were acting as
Stone’s “surrogates.” Id. (citing Dombrowski v. Pfister, 380
U.S. 479, 487 (1965)).
To the extent Stone’s family members assert a right to
make statements about the case completely independent from
Stone, and not on his behalf, their complaints about the District
Court’s order appear somewhat exaggerated. Even if the
13
District Court’s order did not contain the challenged provision
prohibiting Stone from “comment[ing] publicly about the case
indirectly by having statements made publicly on his behalf by
surrogates, family members, spokespersons, representatives, or
volunteers,” A.107-08, 114-15, 229-30, Stone’s family
members would be in the same position they are now – that is,
they would not be permitted to knowingly aid and abet Stone
in contemptuously violating the Court’s orders. See 18 U.S.C.
§ 2. Moreover, Stone cannot be automatically punished
anytime one of his family members speaks about his criminal
proceedings. Rather, the government would have the burden
to establish such surrogacy by clear and convincing evidence.
See 18 U.S.C. § 3148(b)(1)(B). Nevertheless, Stone’s family
members also possess an adequate appellate remedy to
challenge the alleged First Amendment violations, depriving us
of mandamus jurisdiction.
Though they lack the same appellate rights Stone has
under 18 U.S.C. § 3145(c), our Circuit has long allowed
nonparties subject to a restrictive order to appeal that order
under the collateral order doctrine. Often, where a gag order
restricts speech about a case, the nonparties challenging the
order are members of the press. For example, in In re
Reporters Committee for Freedom of the Press, we considered
nonparty reporters’ appeal of a protective order over discovery
materials under the collateral order doctrine, because the
reporters’ claims were “separable from, and collateral to, the
rights of the parties to the underlying proceeding.” 773 F.2d
1325, 1330 (D.C. Cir. 1985). We explained that the order was
a final, reviewable order as to the reporters because they
asserted that it irreparably damaged their “right to [receive] the
unprivileged information during trial, when it had greater news
value,” and because “appellate consideration of the reporters’
claims would not disrupt the trial[.]” Id.; see also Cable News
Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987)
14
(per curiam) (considering an appeal brought by nonparty news
organization and reversing a district court’s decision to close
the courtroom during the voir dire portion of a criminal
proceeding); United States v. Brown, 218 F.3d 415, 422 (5th
Cir. 2000) (“[T]his Court and other Courts of Appeals have
repeatedly held, in both civil and criminal trials, that gag orders
imposed on members of the press are appealable under the
collateral order doctrine.” (collecting cases)).
For purposes of collateral-order appellate jurisdiction, we
see no distinction between an appeal brought by nonparty
relatives of a party who wish to speak publicly about a case and
nonparty reporters who wish to receive information about a
case. In both instances, the alleged injury is to First
Amendment rights during the pendency of a case. And an
aggrieved nonparty with Article III standing can appeal an
order that affects her interests. See In re Sealed Case (Med.
Records), 381 F.3d 1205, 1211 n.4 (D.C. Cir. 2004) (“The
Supreme Court has never restricted the right to appeal to named
parties to a litigation, and if the decree affects a third party’s
interests, he is often allowed to appeal.” (citation and internal
quotation marks omitted)).
In short, we hold that mandamus is not available for
Stone’s family members, because they may move the District
Court to reconsider or modify the conditions of release and, if
unsuccessful, appeal the denial of that motion.3 As we
3
Because they filed their petition more than fourteen days after the
entry of the July 17, 2019 order, we cannot construe Stone’s family
members’ motion as a notice of appeal. See FED. R. APP. P.
4(b)(1)(A). We therefore do not decide whether they could have
directly appealed the conditional release orders without first
presenting their objections to the District Court. Suffice it to say that
they have an adequate alternative remedy: a motion for
reconsideration and, if necessary, an appeal of the denial of that
15
explained in United States v. Hubbard, “[t]he means by which
third parties have sought to assert their interests
in criminal cases have been manifold,” but generally “[i]t is the
trial court and not this court that should engage in the initial
consideration of the interests at stake[.]” 650 F.2d 293, 309-10
(D.C. Cir. 1980) (“Even assuming mandamus relief is available
to non-parties in a criminal proceeding, we think the inevitable
delay in seeking a writ and the narrow circumstances under
which it will be granted render it inadequate to redress the type
of injury here alleged and mandate the identification of some
other means by which a non-party’s interest may timely be
presented to the district court whose actions are alleged to
affect that interest.”); see also United States v. Barry, No. 90-
3149, 1990 WL 104925, at *1 (D.C. Cir. July 5, 1990)
(remanding an appeal by nonparties of an order banning them
from attending a criminal trial and holding that they did not
motion. See In re GTE Serv. Corp., 762 F.2d 1024, 1026 (D.C. Cir.
1985) (denying writ of mandamus “because the petitioners had a
clearly adequate remedy in that they could have petitioned for review
of the [agency’s] order . . . and could then have moved for a stay of
that order”); Cole v. U.S. Dist. Court For Dist. of Idaho, 366 F.3d
813, 815 (9th Cir. 2004) (“[B]ecause mandamus is an extraordinary
remedy and petitioners did not take advantage of an available remedy
by seeking review of the magistrate judge’s decision before the
district court, we deny the petition.”); In re Ramirez, 605 F. App’x
361, 363 (5th Cir. 2015) (explaining that the circuit court had
previously denied a mandamus petitioner’s petition “because a
motion for reconsideration was still pending with the district court,
meaning that an alternative means for relief was still available”); In
re Ingris, 601 F. App’x 71, 75 (3d Cir. 2015) (denying mandamus
petition seeking to correct an alleged docketing error because
“recourse [could] be had either by writing a letter to the Clerk of the
District Court seeking reconsideration of the decision, or by
appealing the decision of the Clerk to a United States District Judge
. . . in accordance with whatever local rules or internal operating
procedures might apply”).
16
need to “seek to intervene in the criminal proceeding in order
to note an appeal,” and that “the most appropriate course” was
“to require [them] to present their First and Fifth Amendment
claims to the district court in the first instance”); Republic of
Venezuela v. Philip Morris Inc., 287 F.3d 192, 198 (D.C. Cir.
2002) (“We are particularly disinclined to issue the writ before
the district court has acted[.]”). Though the availability of a
motion to reconsider will not preclude mandamus jurisdiction
where a petitioner shows that such a motion would be futile,
see In re BigCommerce, Inc., 890 F.3d 978, 982 (Fed. Cir.
2018), Stone’s family members give us no reason to believe
that the District Court would not fairly consider their
objections. Because Stone’s family members fail to meet their
burden to establish the lack of any adequate alternative remedy,
we lack jurisdiction over their mandamus petition. See Am.
Hosp. Ass’n, 812 F.3d at 189.
III.
Consistent with the foregoing, we dismiss the mandamus
petition and deny the motion to intervene as moot.
So ordered.