U.S. v. Lilly

• Decision Date: 17 March 2000
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLE,No. 98-2991,V,98-2991
• Citation: 206 F.3d 756
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA,LARRY M. LILLY,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 756

206 F.3d 756 (7th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

LARRY M. LILLY, DEFENDANT-APPELLANT.

No. 98-2991

U.S. Court of Appeals, Seventh Circuit

Argued September 8, 1999

Decided March 17, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 92 CR 128--Sarah Evans Barker, Chief Judge. [Copyrighted Material Omitted] Mark D. Stuaan, Donna R. Eide (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Linda M. Wagoner, James C. McKinley (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before Posner, Chief Judge, and Bauer and Ripple, Circuit Judges.

Ripple, Circuit Judge.

In 1993, Larry M. Lilly was convicted of securities fraud and tax evasion. See 15 U.S.C. sec.sec. 77q(a) & 77x and 26 U.S.C. sec. 7201. Five years later, in 1998, Mr. Lilly filed a "Petition for Clarification" in which he sought to have the district court declare that he had satisfied his restitution obligation. After the district court issued an order stating that Mr. Lilly had not, in fact, satisfied his restitution obligation, Mr. Lilly filed a notice of appeal in this court. We, however, do not reach Mr. Lilly's substantive claims because, as we explain more fully below, Mr. Lilly's notice of appeal was untimely. Therefore, we lack jurisdiction over this appeal and must dismiss it.

I. BACKGROUND

A.

Until his resignation in 1989, Mr. Lilly was the pastor at Faith Baptist Church of Avon, Indiana. As pastor of the church in the 1980s, Mr. Lilly induced a number of church members and other investors to purchase $1.6 million worth of "Certificates of Deposit" that were supposed to be used to finance church-related projects. Mr. Lilly, however, put much of this money to his own use-- buying airplanes, cars and houses for himself and for his family. At the same time, Mr. Lilly, along with his wife, underreported the couple's taxable income for several years in the late 1980s.

An investigation into these activities ultimately led to a multi-count, federal grand jury indictment against Mr. Lilly and his wife in September 1992. The indictment charged Mr. Lilly with 12 counts of securities fraud and charged him and his wife with 4 counts of income tax evasion. During the investigation of Mr. Lilly and his wife, the Government froze their assets and forced the sale of many of these assets, including their home. The proceeds from the sale of their house, which totaled $28,395.20, were placed in an escrow account administered by Mr. Lilly's attorney pending the outcome of the investigation. In December 1992, the prosecuting United States attorney sent a letter to Mr. Lilly's attorney regarding the release of the escrow funds. In that letter, the government attorney requested the immediate transfer of the escrow funds to the trustee for the Faith Baptist Church, which was by then in bankruptcy. According to the letter, the escrow funds were to be used by the church trustee to make partial restitution to the victims of Mr. Lilly's investment scheme. The letter also stated that the "[u]se of the escrow funds... will serve to reduce, by the same amount, any potential restitution order which may result from the conviction of Rev. Lilly in his pending criminal prosecution." Petition for Clarification, Ex.B. As a result of the prosecutor's request, Mr. Lilly's attorney released the $28,395.20 held in escrow on January 7, 1993, and issued a check in that amount to the church's trustee.

The case against Mr. Lilly and his wife later proceeded to trial, and the jury returned a guilty verdict against both of them on all counts. The district court conducted separate sentencing hearings for the two defendants. At Mr. Lilly's sentencing hearing, the district court imposed a 5½-year term of imprisonment to be followed by 3 years of supervised release; the court also ordered Mr. Lilly to pay $25,000 in restitution¹ to the Faith Baptist Church and to pay a statutory special assessment of $800. Under the terms of his sentence, Mr. Lilly was to satisfy the $25,000 restitution obligation by making installment payments through the Inmate Financial Responsibility Program, and then, while on supervised release, by paying any unpaid balance in monthly installments as directed by the U.S. Probation Office.

When Mr. Lilly took his direct appeal to this court, we affirmed his conviction and sentence. See United States v. Lilly, 37 F.3d 1222 (7th Cir. 1994), cert. denied, 513 U.S. 1175 (1995). Mr. Lilly subsequently filed a petition under 28 U.S.C. sec. 2255. The district court denied Mr. Lilly's petition, and we affirmed the judgment of the district court in an unpublished order.

B.

Mr. Lilly has completed his prison term and is now on supervised release. In June 1998, while still on supervised release, Mr. Lilly filed a document entitled "Petition for Clarification" in the district court. In this filing, Mr. Lilly alleged that he had satisfied his $25,000 restitution obligation with the $28,395.20 payment that his lawyer had made with the escrow funds in January 1993. Mr. Lilly also maintained that "[t]he Court's order of restitution was unequivocal, plain, and did not indicate that it was in addition to the restitution already paid." Petition for Clarification at 2. Thus, he asked the district court to clarify "the restitution situation" by "declaring that the restitution ordered by this Court has been satisfied...." Id.

The Government responded to Mr. Lilly's petition by stating that it had no objection to the district court issuing an order clarifying the matter, except that the Government did object to the court's making a finding that Mr. Lilly had satisfied his restitution obligation. According to the Government, "[t]here is absolutely nothing to indicate that [the sentencing court] intended the $28,395.20, released approximately two months before trial and four months before sentencing, to be complete satisfaction of Defendant's sentence relative to restitution." Government's Response to Petition for Clarification at 3. Rather, the Government maintained that, in light of the $900,000 for which Mr. Lilly could have been held liable in restitution, the court clearly contemplated that Mr. Lilly should pay the $25,000 in addition to any amount of restitution he already had paid. Moreover, the Government argued, at the time the payment was made, the Government did not consider the release of the $28,395.20 in January 1993 to have satisfied Mr. Lilly's future restitution obligation.

The district court considered Mr. Lilly's petition for clarification, but the court's order did not grant the relief Mr. Lilly ultimately sought. Instead, the court explained that the original sentencing order required Mr. Lilly to pay the $25,000 "over and above the prejudgment payment of $28,395.20 which he voluntarily made in January, 1993" and that, like the other conditions of his supervised release, the $25,000 obligation had to be satisfied in full. District Court Order (July 16, 1998) at 4.

The district court granted Mr. Lilly's petition for clarification on July 16, 1998, and the court's order was entered on the docket the next day. Unhappy with the district court's disposition of his petition, Mr. Lilly sought an appeal in this court by filing a notice of appeal on July 30, 1998--more than 10 days after the district court entered its order.

II. DISCUSSION

A.

Because the timing requirement for a notice of appeal is both "mandatory and jurisdictional," a timely filed notice of appeal is a prerequisite to our jurisdiction. Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)); United States v. Brown, 133 F.3d 993, 996 (7th Cir.), cert. denied, 523 U.S. 1131 (1998). Before oral argument in this case, the Government sought to have the appeal dismissed for lack of appellate jurisdiction on the ground that Mr. Lilly's notice of appeal was untimely. After considering the Government's motion and Mr. Lilly's response, a motion panel of this court denied the Government's motion to dismiss the appeal. The determination by the motion panel, however, did not resolve definitively the question of our jurisdiction, and we are free to re-examine this issue in our disposition. See American Fed'n of Grain Millers, Local 24 v. Cargill Inc., 15 F.3d 726, 727 (7th Cir. 1994) (explaining that a motion panel's decision is reviewable by the merits panel and is "merely tentative" because it is often based on a limited record). Thus, before we may adjudicate the merits of Mr. Lilly's appeal, we must first determine whether Mr. Lilly's notice of appeal was filed in timely fashion. See, e.g., Brown, 133 F.3d at 996.

In criminal cases, Rule 4(b) of the Federal Rules of Appellate Procedure provides that "a defendant's notice of appeal must be filed in the district court within 10 days after... the entry of either the judgment or the order being appealed."² Fed. R. App. P. 4(b)(1)(A). By contrast, for appeals in civil cases to which the Government is a party, Rule 4(a) provides that "the notice of appeal may be filed by any party within 60 days after the judgment or order being appealed from is entered." Fed. R. App. P. 4(a)(1)(B). Because Mr. Lilly filed his notice of appeal more than 10 days after the district court entered its order granting his petition for clarification, our appellate jurisdiction is contingent on whether this appeal is properly labeled "criminal" or "civil."

The Government continues to urge us to dismiss this appeal for want of jurisdiction. According to the Government, we lack jurisdiction to hear this appeal because the district court lacked jurisdiction, in the first instance, to entertain Mr. Lilly's petition for clarification. Moreover, the Government submits that, even if Mr. Lilly's petition was properly before the...