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 No.  98-3123

(consolidated with No. 98-3126)














I.                     INTRODUCTION

                Because good cause exists to expedite issuance of the mandate in this case, without imposing any prejudice to the rights of the defendant, the Government hereby respectfully requests that the Court order expedited issuance of the mandate pursuant to Fed. R. App. P. 41(a) and D.C. Cir. R. 41(a)(1).  The relevant Local Rule provides that there is a “right of any party at any time to move for expedited issuance of the mandate for good cause shown.”  Id.  The Handbook of Practice and Internal Procedures of this Court further recognizes that “[t]he Court . . . retains discretion to direct immediate issuance of its mandate in an appropriate case, and any party may move at any time for expedited issuance of the mandate on a showing of good cause.”  Handbook of Practice and Internal Procedures, United States Court of Appeals for the District of Columbia Circuit, Chap. XIII, Sec. A(1), p. 100 (1997).

I.              BACKGROUND

                On June 26, 1998, a jury in the United States District Court for the District of Columbia returned two guilty verdicts against defendant Schaffer.  On September 22, 1998, the trial court granted Schaffer’s motion for judgment of acquittal.  As of that date it had not sentenced Schaffer, nor had the United States Probation Office conducted a Presentence Investigation Report (PSI).  The Government filed a timely notice of appeal on October 9, 1998.  On February 11, 1999, the Court granted the Government’s motion to expedite the appeal.  Following full briefing, oral argument, and supplemental briefing on the merits the Court issued a decision on July 23, 1999, whereby it affirmed the district court’s grant of acquittal as to one count and reversed the district court’s grant of acquittal as to the other count and reinstated that count.  By order of July 23, 1999, the Court instructed the Clerk to withhold issuance of the mandate until 7 days after disposition of any timely petition for rehearing or petition for rehearing en banc.




III.           ARGUMENT

                Unlike the typical criminal case in which the defendant is convicted and sentenced prior to initiation of the appellate process, in this case, the trial court did not sentence the defendant.  In order to expedite conclusion of this case, the Government seeks to have the mandate issued immediately so that the Probation Office may initiate its Presentence Investigation and the trial court may set the matter for sentencing.  Although Schaffer might still petition for rehearing and petition for rehearing en banc, there is no reason to delay the time-consuming sentencing process while awaiting resolution of the Court’s consideration of those petitions.

                A grant of rehearing before this Court is a rare and extraordinary occurrence in any case.  See Handbook of Practice and Internal Procedures, United States Court of Appeals for the District of Columbia Circuit, Chap. XIII, Sec. B, pp. 103-107 (1997).  In this case, because the original panel’s decision principally relies upon its factual review of the record and, therefore, does not present a conflict “among the panels of the Court” or a “question[ ] of exceptional importance,” Handbook at 104, the probability that any petition for rehearing will be granted is not substantial.  In any event, even if rehearing were granted, Schaffer will not suffer any prejudice from the initiation of a Presentence Investigation and, perhaps, a sentencing hearing since the Local Rules provide for immediate recall of the mandate by the Court if it grants rehearing.  D.C. Cir. R. 41(a)(4).  This is not the circumstance where the Government is moving for the mandate to issue so that the defendant would be committed to custody during the pendency of the appeal.  The Government is simply seeking to tie loose ends in the trial court that are already resolved in the ordinary criminal case.

                Further strengthening the good cause for issuance of the mandate in this case is the fact that an independent counsel has a statutory obligation to conclude its investigations in a timely fashion to better serve the public interest.  See 28 U.S.C. 593(b)(3) (requiring independent counsel to perform duties in a “prompt, responsible, and cost-effective manner,” and that he or she “complete ... any prosecution without undue delay.”)  This particular Independent Counsel has concluded his investigation and all of his prosecutions with the exception of this case; United States v. Blackley, 167 F.3d 543 (D.C. Cir. 1999) (only awaiting decision by the Supreme Court on a submitted petition for certiorari by the defendant following conviction at trial); United States v. Five M Farming Enterprises, et al., No. 99-3085 (D.C. Cir., Notice of Appeal filed June 30, 1999) (awaiting disposition of an appeal of jurisdiction filed by defendant after entering a plea of guilty); and United States v. Sun-Diamond, No. 96-193-1(RMU) (D.D.C., Indictment filed 1996) (resentencing set for September 3, 1999, after resolution of all appeals).  Barring a grant of certiorari in the Blackley or Mitchell case, therefore, each of these cases should conclude in the near future.  The Government seeks to conclude the instant case as promptly as possible.  Completion of a PSI and sentencing at the trial court level while awaiting determinations on petitions for rehearing and for certiorari would reduce the total time required to conclude the case by a number of months.


IV.           CONCLUSION

                For the good cause demonstrated above, the Government hereby respectfully requests that the Court issue the mandate in this case immediately.

Dated: August 5, 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