UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

     No.  98-3131

______________________________

UNITED STATES OF AMERICA, 

v.

Jack L. Williams

                          Defendant.           

______________________________

  Nos.  98-3123, 98-3126

______________________________

UNITED STATES OF AMERICA,  

v.

ARCHIBALD R. SCHAFFER, III,           

                                                  Defendant.            

______________________________

UNITED STATES’ REPLY REGARDING ITS MOTION

TO EXPEDITE APPEALS

I.               INTRODUCTION

                Defendants’ assertions -- that the United States’ motion for a briefing schedule and oral argument before June, 1999 is untimely -- are difficult to comprehend.  The government has promptly pursued these appeals and there is nothing in the Court’s rules or case law that prohibits it from setting a briefing schedule that will provide for oral argument by the end of May, 1999, following a jury verdict rendered on June 26, 1998.  Further, defendants’ claims of prejudice are insupportable and should not delay these proceedings into September, 1999.

II.             ARGUMENT

                A.             The Government’s Motion Should not be Denied as Untimely

                The United States has diligently prosecuted and promptly pursued these appeals.  Following the jury’s entry of guilty verdicts on June 26, 1998, the district court filed an order granting Schaffer’s motion for acquittal and denying Williams’ post-trial motions on September 22, 1998.  It did not conditionally deny defendant Schaffer’s motions for new trial until October 6, 1998.  Shortly thereafter, on October 9, 1998, the government noticed its appeal of the district court’s judgment of acquittal as to defendant Schaffer.  This Court’s November 2, 1998, Order set forth a date of November 17, 1998 for “procedural motions which would affect the calendaring of [the Schaffer appeals, Nos. 98-3123 and 98-3126].”  Only after his sentencing did defendant Williams file a notice of appeal of his conviction on November 12, 1998.  On November 17, 1998, the government filed its motion to consolidate, believing that the Court would consolidate the two appeals, since they arose from a single trial, and issue a briefing schedule in the very near future.  The Court did not rule on the government’s motion until January 13, 1999, ultimately denying the motion.  Following the Court’s issuance of that order, government counsel contacted the Clerk concerning the whereabouts of a briefing schedule.  He was then informed that no briefing schedule would be issued in the immediate future as the Court does not usually hear oral argument between June through August, and the order, when it was issued, would most probably schedule the hearing of the appeals in September or thereafter.  Upon hearing this, the government immediately moved for expedited treatment requesting that the Court set a schedule that would permit oral argument during May, 1999.

                Thus, only following the Court’s order denying consolidation and following contacts with the Clerk’s Office did the government learn of the need to have the appeals briefed and heard by May, 1999, to avoid a three to four month delay in resolution of the appeals.  If the pendency of the Court’s order denying consolidation did not enlarge the permissible time in which the government could request expedited treatment, then the otherwise unannounced window during which the Court will not hear oral arguments during the summer clearly provided good cause for an enlargement of time during which the Court can consider the government’s motion.^[1]

                Defendant Schaffer additionally asserts that, with respect to the government’s appeal of his acquittal, the government’s appeal should have been expedited by statute, pursuant to D.C. Circuit Rule 47.2.  On October 9, 1998, the United States filed its Notice of Appeal as to defendant Schaffer and expressly stated the statutory basis for the appeal (in fact the only possible statutory basis for an appeal of a district court’s grant of a motion for acquittal): “[p]ursuant to 18 U.S.C. § 3731 . . . .”  Even if additional notice to the Clerk’s Office were required, this Circuit’s rules also permit for expedited treatment via motion.  Circuit Rule 47.2 does not, as Schaffer erroneously contends, foreclose expedited treatment by motion as an alternative to expedited treatment by statute.

                B.             The Government Demonstrates Good Cause for Expedited Treatment and Defendants Demonstrate no Prejudice

                Defendants concede the strongly compelling public interest in prompt resolution of independent counsel matters.  As the Court recognizes in its Handbook of Practice and Internal Procedures, Part 8(b), “[t]he Court may . . . expedite cases in which the public generally . . . have an unusual interest in prompt disposition.”  Despite this important basis for expedited briefing, defendants argue that (1) they intend to raise issues other than those briefed before the district court below, and (2) their lead counsel are otherwise preoccupied with other cases. 

                Defendant Williams already briefed his appellate issues in his motions for new trial and for judgment of acquittal, filed in the district court.  Despite his claims that he dealt with some of these issues “in a perfunctory manner” before the district court, his 88 pages of post-trial motions covering precisely the issues he indicates he will raise in his appeal indicate otherwise.

                Similarly, Schaffer filed 100 pages of post-trial motions addressing all of the issues he indicates will be raised in his appeal with the exception of two issues: the district court’s reasonable doubt jury instruction (citing only a case from the District of Columbia Court of Appeals for support) and aiding and abetting jury instruction.  The Court took both jury instructions verbatim from the “Redbook” -- the authoritative pattern instructions for this Circuit, and these two issues are neither complex nor inappropriate for expedited briefing.  Defendant Schaffer also complains that the government’s appeal of the judgment of acquittal requires analysis of the entire record.  Defendant Schaffer previously reviewed that record in order to file a motion for acquittal 44 pages in length before the district court.

                Both defendants accuse the government of moving for expedited treatment for the convenience of government counsel.  Rather, the government simply pointed out in its motion that the temporary nature of an office of independent counsel creates turnover in personnel and that the turnover can render the prosecution inefficient.  The government does not seek expedited treatment for the convenience of its counsel; rather, it is the defendants that ask the Court to consider the schedules of its counsel -- Messrs. Jeffress and Levine -- despite that defendants were each represented by four attorneys during trial.

                Given the schedules presented by both defendants for their lead counsel, they would have difficulty complying with any reasonably prompt briefing schedule issued by the Court.  Furthermore, “[t]he right to counsel of one’s choice does not include a lawyer whose other commitments preclude compliance with a court’s reasonable scheduling of its cases.”  United States v. Delia, 925 F.2d 574, 575 (2d Cir. 1991) (criticizing motion for additional time to file appeal because appellant’s counsel occupied with a lengthy trial) (citing Morris v. Slappy, 461 U.S. 1 (1983)).

                In a final diversionary argument, defendant Schaffer contends that the Court should dismiss the government’s appeal.  For support, Schaffer disingenuously cites two inapposite cases that briefly comment, in dictum relegated to footnotes, on a Circuit Rule of the Second Circuit, but not this Circuit: United States v. Goldstein, 479 F.2d 1061, 1064 n.4 (2d Cir. 1973); United States v. Jenkins, 490 F.2d 868, 869 n.2 (1973).  The unpersuasive nature of these cases was noted in United States v. Dennison, 891 F.2d 255, 257-58 (10th Cir. 1989), which held that the government did not fail to diligently prosecute its appeal even after requesting two extensions totaling sixty days to file its opening brief.  In any event, the government here is attempting to further prosecute these appeals diligently by requesting an expedited briefing schedule.

III.            CONCLUSION

                For the foregoing reasons, the government requests that the Court grant the expedited schedule as requested for both appeals, or, alternatively, to expedite the Williams appeal and to permit oral argument on separate days.  If, however, the Court will not grant a schedule that permits oral argument for either appeal during the month of May, 1999 (or before) the government respectfully requests that the Court order a normal briefing schedule.

Dated:  February 9, 1999                           Respectfully submitted,

                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy

                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel

                                                                                By:           _________________________

                                                                                                Wil Frentzen

                                                                                                Associate Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Phone:  (703) 706-0010

                                                                                                Fax:      (703) 706-0076