IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

 ALPHONSO MICHAEL ESPY,

Defendant

Criminal No. 97-0335 (RMU

GOVERNMENT’S MOTION AND INCORPORATED

MEMORANDUM TO EXPEDITE APPEAL

I.               INTRODUCTION

                The United States, represented by the Independent Counsel, hereby moves this court to expedite this appeal.  The reason for this motion is the public interest in a prompt resolution of the underlying Independent Counsel investigation; this resolution will be delayed so long as the present appeal, which concerns the dismissal of four counts of a 39 count indictment, remains unresolved.

                The present appeal arises out of an independent counsel investigation initiated pursuant to the Ethics in Government Act, 28 U.S.C. § 591 et seq., concerning former Secretary of Agriculture Alphonso Michael Espy.  The Independent Counsel was appointed on September 9, 1994, and brought a 39 count indictment against defendant Espy in the District of Columbia on August 27, 1997.  Certain of these counts (numbers 26 to 28) were brought under the Meat Inspection Act (21 U.S.C. § 622); others (numbers 34 and 36 to 39) concerned false statements to federal officials prohibited by 18 U.S.C. § 1001.

                On December 23, 1997, the district court granted defense motions to dismiss the Meat Inspection counts of the indictment (counts 26 to 28) and one of the false statement counts (count 39), and the Independent Counsel promptly noticed the present appeal.  The District Court’s order is attached as Exhibit A.  The Independent Counsel is urging the District Court to try the remaining 35 counts as soon as possible.  For the reasons discussed below, the Independent Counsel respectfully asks that this appeal be expedited.

II.             REASONS FOR GRANTING THE MOTION

                The District Court’s dismissal of four counts of a 39 count indictment implicates the important public interest in prompt resolution of criminal matters.  However, that interest is heightened here because this prosecution is one of a number brought by an independent counsel appointed pursuant to the Ethics in Government Act, 28 U.S.C. § 591 et seq.

                Unlike the Department of Justice or the United States Attorney, the office of an independent counsel is not a continuing one.  An independent counsel is appointed to investigate and, where appropriate, prosecute a single set of related matters.  A principal concern of the legislation creating the office is that the independent counsel perform his duties in a “prompt, responsible, and cost-effective manner,” and that he complete . . . any prosecution without undue delay.”  28 U.S.C. § 593(b)(3).  Any delay in bringing an independent counsel’s prosecutions to trial impedes the achievement of this goal.

                In this regard, the statute directly reflects the concerns of Congress.  The legislative history of the present statute includes the congressional criticism that “Independent Counsel investigations take too long.”  Senate Report No. 103-101, 2994 U.S.C.C.A.N. at 761.  Consequently, the Special Division of the United States Court of Appeals for the District of Columbia that appoints the independent counsel is instructed to review the progress of his work every two years for the first four years, and every year thereafter, to determine whether to terminate his office.  28 U.S.C. § 596(b)(2).

                The need for prompt resolution is not just theoretical, however; it is very practical.  Since the office of an independent counsel is a temporary one, its personnel are by definition temporary, also.  Some of the employees come from within the federal service, and some come from without, but virtually all of the attorneys and investigative agents working on these cases have somewhere else to which they need to return.  Consequently, if a case is not tried expeditiously, there is likely to be turnover in personnel, rendering the prosecution highly inefficient.

                The statutory requirement that an independent counsel investigation be  promptly resolved goes hand-in-hand with the requirement that it be cost-effective.  That concern is heightened in the present case.  The prosecution of Secretary Espy is, of course, the focal point of this independent counsel investigation.  The Independent Counsel has brought eight indictments and two informations, and of those all have either been tried or resolved through plea bargaining (although one is scheduled for retrial commencing February 2, 1998 and severed counts of another are to be scheduled for trial in early 1998).  The remaining counts of the present indictment are scheduled to go to trial on March 30, 1998.

                The present appeal is well suited to expedited treatment.   It concerns two motions raising discrete and relatively simple legal defenses to two statutes under which the indictment was brought.  The record consists only of the motion papers, the transcript of a single hearing (which has already been prepared), and the attached district court order.  The underlying motions to be reviewed entailed a total of 67 pages of briefing.   The issues raised by this appeal are important but not unduly complex.

                Moreover, failure to expedite this appeal will result in substantial prejudice to the Government.  During an in chambers conference on December 15, 1997, Judge Urbina informed counsel for both sides that if trial did not commence by the end of March or beginning of April, 1998, congestion in the court's calendar and the expected length of trial would postpone trial in this matter until 1999.  See Declaration of Joseph P. Guichet, Associate Independent Counsel (attached as Exhibit B).  For the reasons discussed above, such a delay would constitute a significant hardship to the Office of Independent Counsel.

III.            SUGGESTED TIMETABLE

                The Government respectfully suggests the following timetable for the briefing and hearing of this appeal.

Appellant’s Brief Filed                          5 days after record is filed or this motion is granted, whichever comes later.

Appellee’s Brief Filed                           15 days after Appellant’s Brief filed.

Appellant’s Reply Filed                        5 days after Appellee’s Brief filed.

Oral Argument                                      As soon as practicable after Appellant’s Reply is filed.

IV.            CONCLUSION

                There is a strong public interest in resolving the present appeal quickly, so that the entirety of this phase of the Independent Counsel’s investigation can be brought to closure.  The Independent Counsel respectfully request this court to expedite the present appeal so that all charges brought against defendant can be resolved as quickly as possible.

Date: January 12, 1998                                            Respectfully submitted,

                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy

                                                                                                __________________________________

                                                                                                Donald C. Smaltz, Independent Counsel

                                                                                                California Bar No. 37312

                                                                                                Charles M. Kagay, Chief Appellate Counsel

                                                                                                California Bar No. 73377

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Phone:  (703) 706-0010

                                                                                                Fax:      (703) 706-0076