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Tann v. United States

Court of Appeals of The District of Columbia

April 11, 2019

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. Tann’s 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. Tann’s 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. Harris’s petition for writ of certiorari was denied on December 4, 2017, and as Mr. Tann’s 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. Harris’s "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. Cooper’s 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 Tann’s and appellant Harris’s 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 ...


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