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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