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).
