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ORAL ARGUMENT HELD MAY 12, 1999
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
(consolidated with No. 98-3126)
UNITED STATES OF AMERICA,
ARCHIBALD R. SCHAFFER, III,
UNITED STATES REPLY REGARDING
EXPEDITED ISSUANCE OF THE MANDATE
Defendants opposition to the Governments motion for immediate issuance of the mandate demonstrates that he will suffer no prejudice from such an order. Defendant does not even attempt to argue that he would suffer any prejudice; instead, he simply asserts that he has a better chance for rehearing than the average defendant. Even assuming, arguendo, that he does a view with which the Government strongly disagrees defendant cites no reason whatsoever why the Court should not issue the mandate so that the trial court may sentence him. He would then be put in precisely the same procedural position as the vast majority of criminal defendants who have been found guilty and whose cases are on appeal.
To the extent that defendant asserts that there is unfinished business in the trial court, his assertions are either irrelevant or supportive of immediate issuance of the mandate. Defendants motion for a new trial on the supposed ground of non-disclosure of exculpatory evidence related only to Count Ten, the gratuity count predicated on his giving Secretary Espy inaugural tickets worth $6,000. Because this Court affirmed the trial courts grant of acquittal as to that count, defendants motion for a new trial on only that count was mooted. Defendants claim that the motion is unfinished business is therefore a red herring. Even if defendants motion were not moot, and unfinished business other than sentencing actually did remain for the trial court to attend to, this Court should issue the mandate to expedite those proceedings.
As the Government made clear in its original motion, while defendant seeks rehearing, rehearing en banc, and petitioning the Supreme Court for certiorari, the Government seeks to utilize that time to tie up loose ends in the trial court that are ordinarily resolved before appeal. Regardless of defendants chance for success on his various petitions, he cites no reason why the Court should not issue the mandate. If the act of sentencing presented an unnecessary hardship on a defendant and the trial court, it would not ordinarily take place prior to appeal.
Issuance of the mandate would serve to place the defendant in the same position as the ordinary criminal defendant and advance the prosecution to final resolution. Therefore, the Government respectfully requests that the Court grant its motion and issue the mandate so that the lengthy process of a Presentence Investigation Report and sentencing may commence.
Dated: August 19, 1999 Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy
_______________________________ Donald C. Smaltz
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703) 706-0076