In the

United States Court of Appeals

For the Seventh Circuit

No. 98-2991

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. 

LARRY M. LILLY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 92 CR 128--Sarah Evans Barker, Chief Judge.

Argued September 8, 1999--Decided March 17, 2000

 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 5 -year term of imprisonment to

be followed by 3 years of supervised release; the

court also ordered Mr. Lilly to pay $25,000 in

restitution/1 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 district court,

Mr. Lilly’s appeal is a criminal appeal subject

to Rule 4(b) notice of appeal filing

requirements. Mr. Lilly maintains that we have

appellate jurisdiction because this appeal is

subject to the timing requirement of Rule 4(a)

for appeals in civil matters. According to Mr.

Lilly, his petition for clarification was in the

nature of a writ of error coram nobis, which is a

civil proceeding that would give rise to a civil

appeal.

B.

 It is true that a number of proceedings

involving criminal matters are treated as civil

for purposes of Rule 4’s filing requirements.

See, e.g., Browder, 434 U.S. at 265 n.9

(observing that habeas corpus is undeniably a

civil proceeding to which the time limits of Rule

4(a) apply); United States v. Taylor, 975 F.2d

402, 403 (7th Cir. 1992) (holding that Rule

4(a)’s timing requirements apply to an appeal

from an order granting or denying a criminal

defendant’s motion for the return of property

under Fed. R. Crim. P. 41(e)); United States v.

Craig, 907 F.2d 653, 657 (7th Cir.) (holding that

Rule 4(a)’s time limits govern an appeal from a

district court order granting or denying a

petition for a writ of error coram nobis),

amended on other grounds, 919 F.2d 57 (7th Cir.

1990), cert. denied, 500 U.S. 917 (1991). Thus,

to determine the character of an appeal, we must

look to the "substance and context" of the

underlying proceeding. Betts v. United States, 10

F.3d 1278, 1283 (7th Cir. 1993). From the

substance and context of the proceeding in this

case, it is clear that Mr. Lilly’s appeal is

subject to Rule 4(b)’s 10-day filing requirement.

Mr. Lilly’s petition for clarification asked the

district court to clarify a condition of the

supervised release it previously had imposed upon

him. Specifically, Mr. Lilly asked the court to

clarify whether the amount ($28,395.20)

previously paid by him prior to sentencing

fulfilled his obligation to pay $25,000 in

restitution to the Faith Baptist Church. In
granting Mr. Lilly’s petition, the district court

responded directly to Mr. Lilly’s inquiry, made

clear that the $25,000 imposed at sentencing was

intended to be an amount in addition to the funds

that he had paid previously, and informed Mr.

Lilly that he had not satisfied his restitution

obligation.

 There can be no doubt that the district court

had the authority to entertain such a motion for

clarification and to issue an order responding to

Mr. Lilly’s inquiry. When Mr. Lilly was sentenced

in 1993, the criminal code authorized the

district court to impose an obligation of

restitution as a condition of Mr. Lilly’s

supervised release. See 18 U.S.C. sec. 3583(d)

(1993) (referencing 18 U.S.C. sec. 3563, which

sets forth conditions for probation, and

authorizing the district court to impose a number

of conditions listed in sec. 3563, including

restitution, as a condition of a defendant’s

supervised release); see also U.S. Sentencing

Guidelines Manual sec. 5E1.1(a)(2) (1992)

(requiring the sentencing court to include a

restitution requirement as a condition of a

defendant’s supervised release). Moreover, under

sec. 3583, district courts retained the authority

to terminate, modify or revoke a defendant’s term

of supervised release. See 18 U.S.C. sec. 3583(e)

(1993). Although Congress has amended various

provisions of sec. 3583, including sec. 3583(e),

since 1993, those changes do not have a

substantive impact on our discussion here, and

the district court’s authority to terminate,

modify or revoke a term of supervised release

under sec. 3583(e) remains essentially the same

under the current statute./3 In addition to

their authority over the term of supervised

release, district courts continue to have the

authority to modify, reduce or enlarge the

conditions of supervised release at any time

prior to the expiration or termination of a

defendant’s term of supervised release. See 18

U.S.C. sec. 3583 (e)(2); United States v.

Navarro-Espinosa, 30 F.3d 1169, 1171 (9th Cir.

1994) (holding that, even if the district court

lacked jurisdiction to correct a defendant’s

sentence under Fed. R. Crim. P. 35(c), sec.

3583(e)(2) authorized the court to modify the

conditions of a defendant’s supervised release);

United States v. Allen, 2 F.3d 538, 539-40 (4th

Cir. 1993) (holding that sec. 3583(e)(2) allows a

district court to modify the conditions of

supervised release without extending the term of

that release).

 As the text of sec. 3583 demonstrates, a

district court retains ultimate responsibility

for ensuring that a defendant has complied with

the conditions of his supervised release. See
Gozlon-Peretz v. United States, 498 U.S. 395,

400-01 (1991) (noting that, with sec. 3583,

Congress placed responsibility for overseeing a

defendant’s postconfinement monitoring with the

sentencing court); Knight v. United States, 73

F.3d 117, 119 n.5 (7th Cir. 1995) (observing that

"the district court monitors a convict’s

compliance with the terms and conditions of

supervised release" under sec. 3583(e)), cert.

denied, 519 U.S. 827 (1996); United States v.

Spinelle, 41 F.3d 1056, 1058 (6th Cir. 1994)

(stating that under sec. 3583(e), the sentencing

court oversees the post-confinement monitoring of

the defendant). Additionally, the committee notes

to Rule 32.1 of the Federal Rules of Criminal

Procedure state specifically that a defendant

ought to have an opportunity to obtain from the

district court a clarification of a term or

condition of supervised release so that the

defendant may have an opportunity to comply with

the court’s order without first having to violate

it. See Fed. R. Crim. P. 32.1(b) advisory

committee’s note; see also United States v.

Dempsey, 180 F.3d 1325, 1325-26 (11th Cir. 1999)

(per curiam) (holding in favor of a defendant

who, on a Rule 32.1(b) motion, had sought to have

the conditions of his supervised release modified

or clarified by the district court). Thus, when

restitution is one of the conditions of

supervised release, the district court retains

jurisdiction to determine a defendant’s

compliance with this condition. 

 A proceeding in the district court related to

whether a defendant has complied with a condition

of supervised release is necessarily criminal in

nature. Thus, an appeal from an order modifying

or revoking a defendant’s supervised release is

subject to Rule 4(b)’s 10-day filing requirement

for notices of appeal. See United States v.

Johnson, 980 F.2d 1212, 1212 (8th Cir. 1992) (per

curiam); see also United States v. Jeanes, 150

F.3d 483, 484 (5th Cir. 1998) (stating that an

appeal from the denial of the defendant’s motion

for a modification of the terms of his supervised

release was timely because the notice of appeal

was filed within 10 days of the district court’s

decision); United States v. Cooper, 135 F.3d 960,

961 (5th Cir. 1998) (applying Rule 4(b) to a

defendant’s appeal from an order revoking the

defendant’s supervised release); United States v.

Clark, 51 F.3d 42, 42-43 (5th Cir. 1995) (same).

Similarly, we believe an appeal from a district

court’s exercise of its continuing authority to

monitor a defendant serving a term of supervised

release must satisfy the filing requirements for

criminal appeals. 

 Mr. Lilly’s petition for clarification invoked

the district court’s jurisdiction over the
conditions of his supervised release. Therefore,

to perfect an appeal from the district court’s

order granting his petition, Mr. Lilly needed to

comply with the rules pertaining to criminal

appeals. Mr. Lilly’s notice of appeal was filed

after the 10 days allowed by Rule 4(b) for

criminal appeals. Accordingly, we must dismiss

the appeal for lack of appellate jurisdiction./4

Conclusion

 For the foregoing reasons, Mr. Lilly’s notice of

appeal was filed too late, and we must dismiss

this appeal for lack of appellate jurisdiction.

APPEAL DISMISSED

/1 The district court apparently imposed the

restitution obligation as both an independent

part of the sentence and as a condition of

supervised release. At no point has Mr. Lilly

argued that, because he was convicted of offenses

under Titles 15 and 26, restitution could not be

imposed as an independent part of the sentence

under 18 U.S.C. sec. 3663 as it was written in

1993. Here, we deal with the restitution

obligation as a condition of supervised release.

See 18 U.S.C. sec. 3583(d).

/2 When calculating the deadline for filing under

Rule 4(b), "10 days" means "10 days." For

purposes of the Federal Rules of Appellate

Procedure, intermediate weekend days and legal

holidays are counted unless the filing period is

7 days or less. See Fed. R. App. P. 26(a)(2).

/3 In 1993, 18 U.S.C. sec. 3583(e) read:

(e) Modification of conditions or revocation.--

The court may, after considering the factors set

forth in section 3553 (a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)-

-

(1) terminate a term of supervised release and

discharge the person released at any time after

the expiration of one year of supervised release,

pursuant to the provisions of the Federal Rules

of Criminal Procedure relating to the

modification of probation, if it is satisfied

that such action is warranted by the conduct of

the person released and the interest of justice;

(2) extend a term of supervised release if less

than the maximum authorized term was previously

imposed, and may modify, reduce, or enlarge the

conditions of supervised release, at any time

prior to the expiration or termination of the

term of supervised release, pursuant to the
provisions of the Federal Rules of Criminal

Procedure relating to the modification of

probation and the provisions applicable to the

initial setting of the terms and conditions of

post-release supervision;

(3) revoke a term of supervised release, and

require the person to serve in prison all or part

of the term of supervised release without credit

for time previously served on postrelease

supervision, if it finds by a preponderance of

the evidence that the person violated a condition

of supervised release, pursuant to the provisions

of the Federal Rules of Criminal Procedure that

are applicable to probation revocation and to the

provisions of applicable policy statements issued

by the Sentencing Commission, except that a

person whose term is revoked under this paragraph

may not be required to serve more than 3 years in

prison if the offense for which the person was

convicted was a Class B felony, or more than 2

years in prison if the offense was a Class C or D

felony; or

(4) order the person to remain at his place of

residence during nonworking hours and, if the

court so directs, to have compliance monitored by

telephone or electronic signaling devices, except

that an order under this paragraph may be imposed

only as an alternative to incarceration.

18 U.S.C. sec. 3583(e) (1993).

 Congress made the amendments to sec. 3583(e) in

1994. Specifically, Congress changed the word

"person" to "defendant" in subsections 3583(e)(1)

and (e)(4). See 18 U.S.C. sec. 3583(e) (Supp.

1999). Congress also rewrote sec. 3583(e)(3) so

that it now reads:

(3) revoke a term of supervised release, and

require the defendant to serve in prison all or

part of the term of supervised release authorized

by statute for the offense that resulted in such

term of supervised release without credit for

time previously served on postrelease

supervision, if the court, pursuant to the

Federal Rules of Criminal Procedure applicable to

revocation of probation or supervised release,

finds by a preponderance of the evidence that the

defendant violated a condition of supervised

release, except that a defendant whose term is

revoked under this paragraph may not be required

to serve more than 5 years in prison if the

offense that resulted in the term of supervised

release is a class A felony, more than 3 years in

prison if such offense is a class B felony, more

than 2 years in prison if such offense is a class

C or D felony, or more than one year in any other

case[.] 
18 U.S.C. sec. 3583(e)(3) (Supp. 1999).

/4 We cannot accept Mr. Lilly’s attempt to style his

petition for clarification as a petition in the

nature of a writ of error coram nobis. See

Carlisle v. United States, 517 U.S. 416, 428-29

(1996). As we have noted, Mr. Lilly’s petition

for clarification asked the district court to

make a determination, in accordance with the

court’s supervisory role over the conditions of

Mr. Lilly’s supervised release, that he had

satisfied his restitution obligation. A writ of

error coram nobis would not have been appropriate

under these circumstances, especially because an

appeal to this court was otherwise possible. This

extraordinary writ is only available to correct

errors of "’the most fundamental character.’"

United States v. Morgan, 346 U.S. 502, 512 (1954)

(quoting United States v. Mayer, 235 U.S. 55, 69

(1914)); United States v. Mischler, 787 F.2d 240,

241 n.1 (7th Cir. 1986) (quoting Morgan).