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FRAP and D.C. Cir. Rule 8(a); D.C. Cir. Rule 27(f)



                The United States of America, through the Office of Independent Counsel, hereby requests, on an expedited basis, a stay of the order of the District Court for the District of Columbia, entered November 4, 1999, in the action United States v. Schaffer, Crim. Action No. 96-0134, setting an evidentiary hearing for November 12, 1999.  A copy of this order is attached.  The Government asks for a stay to prevent the November 12 evidentiary hearing from proceeding.

                This stay is sought on an expedited basis, fewer than seven days before action is required, because the Government first received the order to be stayed just before the close of business on November 4, 1999, little more than a week before the evidentiary hearing that is the subject of the order.  The Government immediately upon receiving the order began preparation of petition for writ of mandamus to address the order.  This petition is filed contemporaneously with the present motion.  Until the petition was fully researched and reviewed by the Independent Counsel, the Government could not determine with certainty whether it would be filed, or what specific relief would be sought.  It was therefore infeasible to file this emergency motion earlier than November 9, 1999.

                Because of this short time frame, it was impracticable for the Government to seek the stay in the first instance from the district court.  It will do so simultaneously with this emergency motion, and will report any outcome immediately to this Court.

                The stay is required to forestall, during the pendency of the petition for writ of mandamus, some of the extrajurisdictional actions on the part of the District Court that the Government has filed its petition to prevent.  Specifically, rather than proceeding to sentence criminal defendant Archibald Schaffer following this Court’s affirmance of conviction, the District Court is entertaining a late-filed motion for new trial under Fed.R.Crim.Proc. 33 that is totally beyond its power to grant.  As the motion for new trial was filed more than 7 days after the verdict, and was based on “newly discovered evidence” that defendant concedes he was aware of during his trial, any action by the trial court other than summary denial of the new trial motion is outside its jurisdiction.  United States v. Smith, 331 U.S. 469 (1947); Thompson v. United States, 88 F.2d 652, 653 (D.C. Cir. 1951).  This matter is discussed in detail in the accompanying Petition for Writ of Mandamus.

                The present request for stay fulfills all of this Circuit’s criteria for such relief.  Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977):

                (1) The likelihood that the moving party will prevail on the merits.  It is very likely that the Government will prevail on the merits of its petition for writ of mandamus.  As the accompanying petition illustrates, the district court’s action is blatantly beyond its jurisdiction, and the Supreme Court has expressly recognized the appropriateness of relief through extraordinary writ in this situation.  United States v. Smith, 331 U.S. 469 (1947).

                (2)  The prospect of irreparable injury to the moving party if relief is withheld.  If a stay is not granted, the Government will be required to participate in proceedings before the District Court in direct contravention of the Federal Rules of Criminal Procedure, without any available appellate remedy after they take place.

                (3)  The possibility of substantial harm to other parties if relief is granted.  There is no possibility of harm to defendant from this stay, as it would at most only serve to postpone the resolution of a criminal case which he has succeeded in drawing out for several years already.


                (4) The public interest.  The public has a strong interest in having the courts of the United States follow the rules of procedure to effect the speedy and certain resolution of criminal matters.   The public interest argues strongly in favor of not allowing the extrajurisdictional proceeding under challenge to go ahead before this Court has had a chance to review its propriety.

                For the reasons stated above, and for those discussed in the petition for writ of mandamus, it also is desirable that the mandamus proceeding be expedited, whether or not the stay is granted.

                Because of the imminent extrajurisdictional actions of the trial court, and of the irreparable harm that will result, the United States respectfully requests that this Court immediately enter the requested stay.

                At approximately 3:05 p.m. today, November 9, 1999, notice was given to opposing counsel that we would be filing a petition for a writ of mandamus, a motion for stay in the appellate court, and a motion for stay in the district court.

                                                                                                Respectfully submitted,

                                                                                By:           _________________________________

                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel

                                                                                                Charles M. Kagay

                                                                                                Chief Appellate Counsel

                                                                                                Joseph P. Guichet

                                                                                                Senior Associate Independent Counsel

                                                                                                Wil Frentzen

                                                                                                Associate Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                P.O. Box 26356

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax: (703) 706-0050