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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

USDC Eastern Dist. La.

Criminal Docket No. 96 -198

Section “N” (2)

No. 97-30552

 

UNITED STATES OF AMERICA   

v.

ALVAREZ T. FERROUILLET, JR., 
JOHN J. HEMMINGSON,    

  Defendants

UNITED STATES’ MOTION TO EXPEDITE APPEAL

          

 

                                                                                                                DONALD C. SMALTZ

                                                                                                                INDEPENDENT COUNSEL

                                                                                                                Jacob S. Frenkel, La. Bar No. 12986

                                                                                                                Associate Independent Counsel

                                                                                                                Wil Frentzen, La. Bar No. 24421

                                                                                                                Associate Independent Counsel

                                                                                                                Office of Independent Counsel

 

                                                                                                                103 Oronoco Street, Suite 200

                                                                                                                Alexandria, VA 22314

                                                                                                                (703) 706-0010


UNITED STATES’ MOTION TO EXPEDITE APPEAL

I.              INTRODUCTION

                The United States, represented by the Independent Counsel, hereby moves this Court pursuant to Fifth Circuit Local Rule 27.7, to expedite these appeals.  The reason for this motion is the public interest in prompt resolution of the underlying Independent Counsel investigation; this resolution will be delayed so long as the present appeals remain unresolved.

                The present appeals arise out of an independent counsel investigation undertaken pursuant to the Ethics in Government Act, 28 U.S.C. 591 et seq.  The Independent Counsel was appointed on September 9, 1994, and brought a 15 count indictment in the Eastern District of Louisiana on July 9, 1996.  On August 6, 1996 a superseding indictment in the Eastern District of Louisiana was returned against defendants Hemmingson and Ferrouillet -- and others.  The District Court transferred 6 counts of that indictment to the Northern District of Mississippi on November 6, 1996.  The District Court in New Orleans retained jurisdiction of the remaining counts.  These remaining counts charged Ferrouillet with interstate transportation of stolen property (Count 1), money laundering (counts 2, 3, 5, 6, 7), engaging in illegal monetary transactions (Counts 4, 8) and lying to federal agents (counts 9 and 10).  Hemmingson was charged in Counts 1, 3, 4 and 8.  On December 19, 1996, a jury returned verdicts of guilt against both defendants on all counts except Hemmingson as to Count 8.  Following post-trial motions, the District Court entered judgments of guilt on April 10, 1997, from which both defendants now appeal.  Additionally, the United States cross-appeals defendants’ sentences.

                This Court has not, to date, entered an Order providing a schedule for these appeals.  This motion proposes an expedited time schedule.  The United States understands that the transcripts should be completed or very near completion.  The defendants have been in possession of the full trial transcripts since shortly after the conclusion of trial and the parties have already had opportunity to review the prior proceedings.  Therefore, the briefing schedule should commence promptly.   Once the record is filed, we propose the following schedule.

Action

Time provided by rule

Proposed time

Defendants’ opening briefs and excerpts of record served and filed

Within 40 days of filing of record

Within 30 days of filing of record

United States’ responses and cross-appeal served and filed

Within 30 days after opening briefs filed

Within 15 days after opening briefs filed

Defendants’ replies and responses to cross-appeal served and filed

Within 30 days after responses filed

Within 20 days after responses filed

United States’ reply served and filed

Within 14 days after replies filed

Within 7 days after replies filed

Appeal deemed ready for calendaring

First available calendar after appellee’s brief filed

First available calendar after appellee’s brief filed

 

                This expedited schedule will have little effect on defendants’ time to file as it deprives them of only 10 days out of the 40 allotted by a standard schedule to file opening briefs and 10 days out of the 30 normally provided for responses to the cross-appeal.  Otherwise, the schedule is strictly expedited by halving the time allotted for the United States to respond -- 15 rather than 30 days -- and reply -- 7 rather than 14 days.

                For the reasons discussed below, the United States respectfully asks that this appeal be expedited as shown above.

II.            REASONS FOR GRANTING THE MOTION

                The defendants’ appeals implicate the important public interest in prompt resolution of criminal matters.  However, that interest is especially 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 prosecution to a close impedes the achievement of this goal.

                The independent counsel 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).

                It has been the practice of this Independent Counsel to attempt to expedite both trials and appeals -- whether brought by us or by opposing counsel -- to speed culmination of the investigation.  An expedited schedule will not impose an undue burden on defendants who have been in possession of the trial transcript for months and who likely have previously briefed and re-briefed each issue they intend to raise on appeal. 

III.           CONCLUSION

                There is a strong public interest in resolving the present appeal quickly, so that this phase of the Independent Counsel’s investigation can be brought to closure.  The Independent Counsel respectfully requests this Court to expedite the present appeal so that this matter can be resolved as quickly as possible.

Date:        June 9, 1997                                                            Respectfully submitted,

                                                                                                                DONALD C. SMALTZ

                                                                                                                INDEPENDENT COUNSEL

 

 

                                                                                                                _____________________________

                                                                                                                Jacob S. Frenkel, La. Bar No. 12986

                                                                                                                Associate Independent Counsel

                                                                                                                Wil Frentzen, La. Bar No. 24421

                                                                                                                Associate Independent Counsel

                                                                                                                Office of Independent Counsel

 

                                                                                                                103 Oronoco Street, Suite 200

                                                                                                                Alexandria, VA 22314

                                                                                                                (703) 706-0010


 


 

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

USDC Eastern Dist. La.

Criminal Docket No. 96 -198

Section “N” (2)

No. 97-30552

 

UNITED STATES OF AMERICA   

v.

ALVAREZ T. FERROUILLET, JR., 
JOHN J. HEMMINGSON,    

  Defendants

          ORDER

 

                After consideration of the motion of the United States to expedite the appeal of this matter, and upon finding a showing of good cause, it is hereby ordered that this appeal be expedited in the following manner:

                Defendants shall file their opening briefs within 30 days after the date on which the record is filed.  Within 15 days thereafter, the United States shall file a brief containing its response and argument as appellant.  Within 20 days thereafter, the defendants shall file their replies and responses to the United States’ cross-appeal.  The United States shall then have 7 days to file its reply.

                Ordered this _____ day of _____________, 1997.

 

                                                                                                                ___________________________

 


                                                                                                                United States Circuit Court Judge

                                                                                                                                               

 

 

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