Michael D. TANN, Appellant, Lannell N. Cooper, Appellant, Antonio Arnette, Appellant, James E. Rushing, Appellant, Saquawn L. Harris, Appellant,
v.
UNITED STATES, Appellee.
CF1-22807-07, CF1-22940-07, CF1-22893-07, CF1-3359-08,
CF1-22962-07
BEFORE:
Blackburne-Rigsby, Chief Judge, and Glickman, Fisher,
Thompson, Beckwith, and Easterly, Associate Judges.
ORDER
PER
CURIAM
On
consideration of appellant Michael D. Tanns motion for
appointment of new counsel to file a petition for writ of
certiorari in the Supreme Court of the United States; the
motions by appellants Tann and Saquawn L. Harris for
reconsideration of the denial of their petitions for
rehearing en banc; the motion by Mr. Harris "for prompt
resolution of his pending motion to reconsider the denial of
rehearing en banc to allow for Supreme Court review";
the joint motion by Mr. Tann and Mr. Harris to stay issuance
of the mandate; and the motion by appellant Lannell N. Cooper
to stay issuance of the mandate, it is
ORDERED that the motions by Mr. Tann and Mr. Harris for
reconsideration of the denial of their petitions for
rehearing en banc are denied. It is
FURTHER ORDERED that the time for filing a petition for writ
of certiorari in the United States Supreme Court and the time
for seeking an extension of time in which to file such a
petition having expired, see S.Ct. R. 13, Mr. Tanns
motion for appointment of new counsel to file a petition for
writ of certiorari is denied as moot. It is
FURTHER ORDERED that the joint motion by Mr. Tann and Mr.
Harris to stay issuance of the mandate is denied as moot, as
Mr. Harriss petition for writ of certiorari was denied on
December 4, 2017, and as Mr. Tanns time for filing a
petition for writ of certiorari or for seeking an extension
of time in which to file such a petition has expired. It is
FURTHER ORDERED that Mr. Harriss "motion for prompt
resolution of his pending motion to reconsider the denial of
rehearing en banc to allow for Supreme Court
review" is denied as moot. It is
FURTHER ORDERED that Mr. Coopers motion to stay the mandate
is denied as moot, as his petition for writ of certiorari was
denied on October 2, 2017. It is
FURTHER ORDERED that the Clerk shall issue the mandates in
these consolidated appeals forthwith.
Statement
of Blackburne-Rigsby, Chief Judge, and Fisher and Thompson,
Associate Judges, in support of denying appellant Tanns and
appellant Harriss motions for reconsideration of the denial
of rehearing en banc.
A
majority of the Board of Judges[1] voted to reaffirm that
this court will continue
Page 274
to adhere to the "absolute majority" rule for
voting on en banc petitions until the Rules Committee
considers and weighs, following the regular Rules process,
whether to "prescribe or adopt modifications" to
our rules to be consistent with Federal Rule of Appellate
Procedure 35(a). Under the "absolute majority"
rule, recused judges are counted as "judges in regular
active service" for the purpose of voting on petitions
for rehearing en banc. See D.C. Code § 11-705(d)
(2012 Repl.) ("A rehearing before the court in banc may
be ordered by a majority of the judges of the court in
regular active service.") and D.C. App. R. 35(a)
("A majority of the judges ...