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Nos.  98-3131, 98-3123










I.              INTRODUCTION

                The United States hereby moves the Court to expedite both above-captioned appeals.  The reason for this motion is the public interest in a prompt resolution of the underlying Independent Counsel investigation and closure of its office; this resolution and closure will be delayed so long as the present appeals, which concern conviction of defendant Williams on two counts of making false statements to federal agents (18 U.S.C. 1001) and conviction of Schaffer of giving illegal gratuities (18 U.S.C. 201(c)) and violating the Meat Inspection Act (21 U.S.C. 622), remains undecided.

                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 went to trial on the indictment against the defendants on June 15, 1998.

                On June 26, 1998, a jury found defendant Williams guilty of two counts of making false statements to federal agents and found defendant Schaffer guilty of giving illegal gifts to the Secretary of Agriculture in violation of one count each of 18 U.S.C. 201(c) and 21 U.S.C. 622.  On September 22, 1998, the district court upheld Williams’ convictions and granted Schaffer’s motion for judgment of acquittal.  United States v. Williams, __ F. Supp. 2d __, 1998 WL 852895 (D.D.C.).  The government noticed its appeal of the district court’s acquittal of Schaffer on October 9, 1998.  Following the district court sentencing of Williams to pay a $5,000 fine (declining to impose any term of incarceration or probation) on November 2, 1998, Williams filed a notice of appeal of his conviction on November 12, 1998.  The government filed a motion to consolidate the two appeals on November 17, 1998.  This Court, by order dated January 13, 1999, denied the government’s motion to consolidate the Williams appeal with the Schaffer appeal, but ordered that the Williams appeal be scheduled for oral argument on the same day before the same panel as the Schaffer appeal.  Government counsel has been informed that the Court will not hear the appeals before its summer break during the months of June, July and August.  For the reasons discussed below, the Independent Counsel respectfully asks that it expedite these appeals so that oral argument may be held in late May, 1999.


                The ordinary public interest in prompt resolution of criminal matters is heightened here because this prosecution is at the tail end of a number of proceedings brought by an independent counsel appointed pursuant to the Ethics in Government Act, 28 U.S.C.  591 et seq.  The investigation has concluded and with the acquittal of defendant Espy, other than these appeals, the only prosecution remaining on this Independent Counsel’s plate is resolution of United States v. Sun-Diamond Growers of California, currently being briefed to the United States Supreme Court and scheduled for oral argument on March 2, 1999.

                Unlike the Department of Justice or a United States Attorney’s Office, 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.  The legislation creating the office requires 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 conclusion impedes the achievement of this goal and provides a major source of public criticism of the institution as a whole.

                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 working on these cases have somewhere else to which they need to return.  Consequently, if a case is not concluded expeditiously, there is likely to be turnover in personnel, rendering the prosecution highly inefficient.

                At the present time, three of the four attorneys who tried the instant case for the Independent Counsel remain on staff; however, each of the attorneys is examining returning to permanent posts or seeking other employment possibilities, and could depart at any time.

                These appeals are well suited to expedited treatment.  Both appeals  concern discrete and relatively simple issues regarding defendants’ convictions.  The issues raised by this appeal are important but not unduly complex and the parties have previously briefed them for the district court.[1] 

                Finally, the government requests that if the Court does not expedite the Schaffer appeal, it amend its January 13, 1999 Order requiring that oral argument be held on the same day in both appeals.  That would permit the Court to expedite the Williams appeal and at least bring that appeal to resolution.


                The Government respectfully requests the following timetable for the briefing and hearing of the Williams appeal.

Appellant’s Brief Filed   15 days after this motion is granted.

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

Appellant’s Reply Filed   10 days after Appellee’s Brief filed.

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


                The government respectfully requests the following timetable for the briefing and hearing of the Schaffer appeal:

Appellant’s Brief Filed   5 days after this motion is granted.

Appellee/Cross-Appellant’s Brief Files     20 days after Appellant’s Brief filed.

Appellant’s Reply/Cross-    15 days after Appellee/Cross-

Appellee’s Brief Filed      Appellant’s Brief filed.

Cross-Appellant’s Reply Filed    10 days after Appellant’s Reply and Cross-Appellee’s Brief filed.

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



                There is a strong public interest in resolving the present appeals quickly, so that this phase of the Independent Counsel’s prosecution can be brought to closure and then phase out its operations.  Accordingly, it is respectfully requested that this court expedite these appeals so that this matter can be resolved as promptly as possible.

Date: February 4, 1999                                            Respectfully submitted,


                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy




                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Phone:  (703) 706-0010

                                                                                                Fax:      (703) 706-0076


[1]  In fact, the government and the defendant have previously briefed some of the issues in the Williams appeal twice before the district court -- once following the first trial in which the jury found Williams guilty of the same false statements, and again following the trial that is the subject of this appeal.