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IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
IN RE UNITED STATES OF AMERICA,
PETITION FOR WRIT OF MANDAMUS
Petitioner United States of America, through the Office of Independent Counsel, respectfully petitions this Court to issue a Writ of Mandamus directing the Hon. James Robertson of the United States District Court for the District of Columbia to vacate the courts order of November 4, 1999, setting an evidentiary hearing for this Friday, November 12, 1999 at 10:00 a.m. on Real Party in Interest Archibald R. Schaffers motion for a new trial filed in that court on October 13, 1999, and to deny that motion summarily.
The relief sought by Real Party in Interest, a new trial on a motion brought outside the time limits of Rule 33 of the Federal Rules of Criminal Procedure, is manifestly beyond the trial courts jurisdiction. In ordering an evidentiary hearing on Real Partys untimely motion for a new trial, rather than denying it summarily, the trial court explicitly recognized and is exercising jurisdiction over a matter for which its jurisdiction is totally lacking. Mandamus is both available and necessary to rectify this continuing improper exercise of judicial authority. United States v. Smith, 331 U.S. 469 (1947).
The United States respectfully requests this Court's immediate attention to this Petition, as the District Court has ordered the unlawful hearing for Friday, November 12, 1999, at 10:00 a.m. Simultaneously with this Petition, we have filed in this Court and in the District Court stay motions seeking a stay of the Friday, November 12, 1999 hearing until this Court can rule on the merits of the Petition. The courts will be closed Thursday, November 11, 1999 in observance of Veterans Day. We will advise the Circuit Court Clerk of any decision of the District Court on the stay motion that is being presented to it and respectfully request this Court exercise its supervisory powers and immediately grant this stay until it rules on the United States petition, which raises significant and important issues of law.
Whether the District Court has jurisdiction to consider a motion for new trial brought by a criminal defendant more than 7 days after the verdict, where the motion is not based on newly discovered evidence because the evidence defendant seeks to present was concededly known to him at the time of trial.
STATEMENT OF THE CASE
Independent Counsel Donald C. Smaltz was appointed by the Special Division of the United States Court of Appeals for the D.C. Circuit to investigate whether then-Secretary of Agriculture Alphonso Michael Espy accepted unlawful gratuities from persons or entities with business matters pending before the United States Department of Agriculture (USDA). The original order of appointment also granted to the Independent Counsel jurisdiction to investigate and, where appropriate, prosecute all
other allegations or evidence of violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, by any organization or individual developed during the Independent Counsels investigation referred to above and connected with or arising out of that investigation.
September 9, 1994 Order of Special Division. (Tab A)
Pursuant to that jurisdictional mandate, the Independent Counsel investigated whether Tyson Foods, Inc. (Tyson Foods), the nations largest poultry producer, provided unlawful gratuities to Secretary of Agriculture Espy. That investigation disclosed and confirmed that Tyson Foods provided several things of value to the Secretary. Tyson Foods Information and Plea Agreement (attached as Tab B).
On September 17, 1996, the Grand Jury returned a two-count indictment against Williams charging him with knowingly and wilfully, and on two separate occasions, making false statements to federal investigators who were looking into whether Tyson Foods provided Secretary Espy unlawful gratuities. 9/17/96 Williams Indictment (Tab C).
The jury convicted Williams on both counts on March 21, 1997. Shortly thereafter, the District Court threw out the jurys verdict and granted Williams a new trial on the basis of a claim that the United States had failed to provide Williams with the material from a government witnesss personnel file. 6/11/97 Order (D.D.C.) (Tab D). Although the United States believed the District Courts ruling to be in error, to avoid delay it elected to retry Williams rather than bring the matter to this Court.
Before a new trial commenced, on September 30, 1997, the Grand Jury returned a Superseding Indictment charging Williams with the same two false statement counts as well as two counts of violating 21 U.S.C. § 622 (the Meat Inspection Act or the Act), as a result of his participation in providing things of value from Tyson Foods to Secretary Espy and Acting Assistant Secretary Jensen. 9/30/97 Williams Indictment (Tab E).
Pursuant to a plea agreement, on December 29, 1997, Tyson Foods pled guilty to a one-count gratuity violation, admitting that it provided to Secretary Espy approximately $12,000 in unlawful gratuities, including: four $1500 tickets to a 1993 Presidential Inaugural Dinner; air transportation, lodging and entertainment at a birthday party thrown by Tyson in Russellville, Arkansas; a $1,200 Tyson Foundation scholarship check for Espys girlfriend; and airline tickets, limousine service, and skybox tickets for Espy and his girlfriend to attend a Dallas Cowboys Green Bay Packers playoff game. Tyson Foods Information and Plea Agreement (Tab B).
On January 15, 1998, the Grand Jury returned a Second Superseding Indictment that charged Williams with conspiracy to provide gratuities, mail and wire fraud to deprive the public of the honest services of Secretary Espy, and giving unlawful gratuities, in addition to the violations of the Meat Inspection Act and false statements already alleged in the indictment. 1/15/98 Williams/Schaffer Indictment (Tab F). Additionally, the Second Superseding Indictment added Real Party in Interest Archibald Schaffer as a defendant and charged him with conspiracy, wire fraud, violating the Meat Inspection Act, and giving unlawful gratuities. Id.
Schaffer never moved for a continuance or to sever his trial from Williams trial. Trial commenced on June 15, 1998. Both defendants presented evidence in their defense. At no time did Schaffer ever attempt to introduce, or even indicate that he wanted to introduce, testimony from former Secretary Espy. At the close of the governments case, on June 23, 1998, the District Court entered judgments of acquittal in favor of Williams and Schaffer as to the conspiracy count and the mail and wire fraud counts. Transcript of Proceedings, 6/23/98 (D.D.C.) at 1381-85 (Tab G).
On June 26, 1998, the jury found defendant Williams guilty of two counts of making false statements to federal agents and defendant Schaffer guilty of one count of giving unlawful gratuities and one count of violating the Meat Inspection Act. 9/22/99 Memorandum Order (D.D.C.) (Tab H). Both defendants filed timely motions for new trial and motions for judgment of acquittal. Schaffer did not assert in his motion for new trial that he was deprived of a fair trial because the testimony of Secretary Espy was unavailable. On September 22, 1998, the District Court denied the motions for new trial and denied Williams motion for judgment of acquittal, but he rejected the jurys verdict and granted Schaffers motion for judgment of acquittal as to both counts of conviction. Id.
The government noticed its appeal seeking reversal of the judgment of acquittal, and Schaffer cross-appealed the denial of his motion for new trial. This Court reversed the District Court with respect to the judgment of acquittal on the Meat Inspection Act, but affirmed as to the gratuity count and the denial of the motion for new trial. United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999) (Tab I). In the interim, over the governments objections, the District Court sentenced Williams (who later abandoned his appeal of his conviction) to pay a $5,000 fine, without imprisonment or probation. Williams Judgment of Conviction, filed 11/2/98 (D.D.C.) (Tab J).
On August 27, 1997, the Grand Jury indicted former Secretary of Agriculture Espy on multiple counts. Espy Indictment (Tab K). These included receipt of the same gratuities that Schaffer and Williams were indicted for giving him. Id. at ¶¶ 9b, 20b, 22a, 24. On December 2, 1998, following a two month jury trial in the United States District court for the District of Columbia, Espy was acquitted of all charges brought against him. Espy Verdict Form (Tab L).
On December 15, while his appeal was pending, Real Party Schaffer filed a second motion for new trial in the District Court with respect to the gratuity count on which he had been convicted, purportedly based on non-disclosure of exculpatory evidence learned by defendant during the trial of former Secretary Espy. Schaffers Mot. for New Trial on Grounds of Non-Disclosure of Exulp. Evid., filed 12/15/98 (Tab M). At no time in that motion, however, did Schaffer raise the potential testimony of Secretary Espy as requiring a new trial. This motion became moot with the Court of Appeals affirmance of the judgment of acquittal as to the gratuity count.
On September 13, 1999, in response to the governments motion for a sentencing date, Schaffer argued that the District Court should set a date well in the future because he was considering filing another motion for new trial. Schaffers Resp. to Govt. Mot. to Set Date for Sent., filed 9/13/99, at 2 (Tab N). Schaffer asserted that he had to review the record of Secretary Espys trial to determine whether a motion for new trial predicated on newly discovered evidence was appropriate. Id.
On October 13, 1999, almost sixteen months after the jurys verdict, Real Party Schaffer filed his third motion for new trial and asserted that it was predicated upon newly discovered evidence. Schaffers Mot. for New Trial Based on Newly Disc. Evid., filed 10/13/99, at 1 (Tab O). Schaffers proffered evidence, however, was the potential testimony of Williams and Espy, and he conceded that he was aware of this evidence at the time of his trial. Specifically, Schaffers motion for new trial stated: Mr. Schaffer knew the substance of Secretary Espys testimony at the time of Mr. Schaffers trial. Id. at 6. Nevertheless, he argued that unavailable evidence can constitute newly discovered evidence under case law in the First Circuit. Id. at 6, 8-11
On October 25, 1999, the government filed its opposition and pointed out that Schaffers proffered evidence was concededly not newly discovered and that his motion, therefore, was untimely under the law in this Circuit. U.S.s Opp. to Def.s Third Mot. for New Trial, filed 10/25/99, at 1-2 (Tab P). The government also argued that Schaffers proffered testimony failed to satisfy almost all of the criteria for obtaining a new trial as required in this Circuit pursuant to Fed. R. Crim. P. 33 and Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951), and was only filed at this late date as a stopgap measure to avoid his impending sentencing. Id. at 2, 12.
On November 4, 1999, the District Court entered an Order acknowledging that Williams testimony does not warrant new trial, but holding, contrary to controlling authority, that the testimony of Espy, depending upon its substance, may warrant a new trial. 11/4/99 Memorandum and Order (D.D.C.) (Tab Q).
If the District Court proceeds with this untimely and extrajurisdictional motion, it will have the effect of further delaying the last case pending for this Office of Independent Counsel and causing as much as another year of delay until Schaffer is sentenced. The Independent Counsel is not a permanent position and its officers are under a statutory duty to conduct themselves as expeditiously as possible. 28 U.S.C. § 593(b)(3). This statutory requirement is not just theoretical, it is very practical.
WHY THE WRIT SHOULD ISSUE
I. THE DISTRICT COURTS DECISION TO PROCEED TO AN EVIDENTIARY HEARING ON AN UNTIMELY MOTION FOR NEW TRIAL IS BEYOND ITS JURISDICTION
The District Court lacks jurisdiction to consider the defendants untimely Rule 33 motion, and its order allowing an evidentiary hearing on such a motion is clearly an improper usurpation of power. Rule 33 of the Federal Rules of Criminal Procedure provides:
On a defendants motion, the court may grant a new trial to that defendant if the interests of justice so require. . . . A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. But if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
The Supreme Court has made clear that the time limits of Rule 33 are jurisdictional, that district courts lack the power to entertain untimely motions for new trial, and that a peremptory writ is the proper remedy when a trial court exceeds its jurisdiction in this manner. United States v. Smith, 331 U.S. 469 (1947). The district court in Smith had denied the defendants timely motion for new trial but, after the defendants conviction was affirmed on appeal, reconsidered the defendants arguments and sua sponte ordered a new trial. An en banc Court of Appeals denied the Governments petition for mandamus seeking to vacate the order granting a new trial.
The Supreme Court reversed and ordered the writ to issue. In so doing, the Court expressly rejected the argument that a district court has the power to order a new trial without request and at any time. Smith, 331 U.S. at 473-474. Rather, the Court held, district courts possess the power to grant a new trial only pursuant to a timely filed motion, and upon deciding that motion, their authority to grant a new trial terminates. Id. at 473-77. Moreover, the Court emphasized that the time limits stated by Rule 33 set the boundaries of the trial courts jurisdiction. We think that expiration of the time within which relief can openly be asked of the judge, terminates the time within which it can properly be granted on the courts own initiative. Id. at 475. Consequently, the government was entitled to the requested writ.
The Smith Court also explained the justification for requiring motions for new trial soon after the completion of trial:
[A]s time passes, the peculiar ability which the trial judge has to pass on the fairness of the trial is dissipated as the incidents and nuances of the trial leave his mind to give way to immediate business. It is in the interest of justice that a decision on the propriety of a trial be reached as soon after it has ended as is possible, and that decision be not deferred until the trials story has taken on the uncertainty and dimness of things long past.
Id. at 476.
In the wake of Smith, the circuits have uniformly held that district courts lack authority to consider untimely motions for new trial. See, e.g., United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984) (The time limits [of Rule 33] are jurisdictional. If a motion is not timely filed, the district court lacks power to consider it.); United States v. Gaydos, 108 F.3d 505, 512 (3d Cir. 1997) (A district court is powerless to entertain untimely motions under Rule 33 . . .); United States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983) (Because Rule 33's time limitations are jurisdictional, a district court is powerless to consider an untimely motion for a new trial.); United States v. Miller, 869 F.2d 1418, 1420 (10th Cir.1989) (holding district court lacked jurisdiction to order new trial in response to motion filed one year and nine months after finding of guilt); United States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir. 1997) (The time limits imposed by Rule 33 are jurisdictional.); cf. In re United States, 598 F.2d 233, 236 (D.C. Cir. 1979) (recognizing that the Supreme Court in Smith h[e]ld that a timely motion pursuant to Rule 33 [is] a prerequisite to the District Courts power to award a new trial.).
Real Party Schaffers motion for new trial was filed on October 13, 1999, over fifteen months after a jury found him guilty. Consequently, the trial court lacked jurisdiction to entertain that motion or order an evidentiary hearing to address it, unless the motion actually was grounded on newly discovered evidence. Its decision to the contrary amounts to an extrajurisdictional exercise of power and should not be permitted.
Schaffer argued, and the trial court apparently agreed, that Schaffers present motion for new trial is based on newly discovered evidence, and thus timely. But in light of Schaffers concession that he was aware of the evidence at the time of trial, this premise is unequivocally incorrect as a matter of law, and therefore cannot justify the trial courts extrajurisdictional exercise of power.
Rule 33 compels that any motion for new trial must be filed within seven days of the verdict or finding of guilt unless it is based on newly discovered evidence. (emphasis added) As this Court held in Thompson v. United States, the evidence must have been discovered since the trial or it is not newly discovered within the meaning of Rule 33. 88 F.2d 652, 653 (D.C. Cir. 1951) (establishing five prong test a defendant must satisfy to obtain new trial based on newly discovered evidence). See also United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997) (A motion for new trial based upon newly discovered evidence must not be based on evidence or incidents of which appellants had knowledge prior to return of the jury verdict.) citing United States v. Jones, 597 F.2d 485, 489 (5th Cir. 1979).
Schaffer openly concedes that he did not first learn about the evidence underlying his motion after his trial. Mr. Schaffer knew the substance of Secretary Espys testimony at the time of Mr. Schaffers trial. Schaffers Mot. for New Trial, filed 10/13/99, (D.D.C.) at 6. Consequently, Schaffers motion is untimely and the District Court lacks jurisdiction to order an evidentiary hearing or otherwise entertain it.
In granting the evidentiary hearing, the District Court has accepted Schaffers erroneous argument that witness testimony known to a defendant at the time of trial, but unavailable because that witness would assert a Fifth Amendment right not to testify if called during trial, may qualify as newly discovered evidence. But the District Courts decision flies in the face of the plain language of Rule 33 and of Thompson.
Moreover, the reasoning employed by the District Court was expressly rejected by this Court in United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993). The defendant in Dale argued that the post-trial testimony of a codefendant entitled him to a new trial based on newly discovered evidence. This Court resoundingly rejected that claim, emphasizing the long-standing rule of this Circuit that [t]o obtain a new trial based on newly discovered evidence, a convicted defendant must offer evidence that has been discovered since the trial. Dale, 991 F.2d at 838 (quoting United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989)). The Court also supported its decision by noting that all other circuits that had considered the question concluded this requirement is not met simply by offering the post-trial testimony of a co-conspirator who refused to testify at trial id. at 838-39, and by pointing to its own decision in Charino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988). Id. at 838-39.
Dale commands dismissal of Schaffers similarly grounded motion for new trial and the District Court is without authority to disregard Dale. The District Court, however, purported to distinguish Dale on two grounds. First he noted that former Secretary Espy was not a co-defendant, nor was he alleged to be a co-conspirator. 11/4/99 Memorandum and Order (D.D.C.) at 1 (Tab Q). Second, Judge Robertson noted that on the present record, we do not know whether the substance of the proffered testimony was known to the defendant at the time of trial. Id. at 2 (internal quotations and citation omitted).
Both of these assertions are flatly contradicted by the record. As to the first, that Secretary Espy was not named as a co-defendant or alleged to be a co-conspirator, the trial court was just flat-out wrong. The United States did in fact allege that Secretary Espy was a co-conspirator. Govts Opp. To Schaffers Motion for Bill of Particulars, filed 2/23/98 at 16. (Tab R). In any event, in his own trial, Secretary Espy was charged with receiving the gratuities that Schaffer was alleged in the present case to have given. Espy Indictment at ¶¶ 9b, 20b, 22a, 24 (Tab K). In other words, Secretary Espy was not Schaffers co-defendant simply because the government brought separate indictments and conducted separate trials on this one crime. However, this election (grounded on the fact that both defendants were also charged with a number of non-overlapping crimes) does not make Secretary Espys testimony any more newly discovered than it would have been if the two defendants had been tried together.
As to the courts second assertion, that we do not know whether the substance of the proffered testimony was known to the defendant at the time of trial, this question was definitively resolved by defendants own admission. Schaffers motion for new trial forthrightly concedes that Mr. Schaffer knew the substance of Secretary Espys testimony at the time of Mr. Schaffers trial. Schaffers Mot. For New Trial, filed 10/13/99, at 6 (Tab O).
Even if the United States had not alleged Espy was a co-conspirator, the District Court would still lack jurisdiction to address Schaffers untimely motion. There is no principled reason why Secretary Espys status as a nonparty witness rather than a co-conspirator or co-defendant would make a difference as to whether his testimony is newly discovered.
Recently, this Court has twice strongly suggested as much. In United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) and again in United States v. Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999), defendants argued that statements by third party witnesses known to the defendants but unavailable to the defendant at trial can constitute newly discovered evidence. In both instances, this Court looked upon this assertion with great skepticism.
In Ortiz, 136 F.3d at 167-68, this Court observed:
The traditional definition of newly discovered evidence is evidence discovered since the trial, at least with respect to motions for a new trial, and [the testimony of the third party] was known to Ortiz at the time of trial. Ortiz cites no authority for his newly minted definition of newly discovered evidence . . .
Similarly, when the defendant in Gloster raised the same argument accepted here by Judge Robertson, this Court admonished that
[a]lthough it is true that some of the cases in which we have applied the general rule [that testimony known to a defendant but unavailable until after trial does not qualify as newly discovered evidence] involved codefendants, . . ., that was not the situation in Ortiz itself, where the witness who initially refused to testify was a nonparty. Ortiz strongly suggested that even a nonparty witness post-trial offer to testify would fail to qualify as newly discovered evidence where the substance of the testimony was known to defendant at the time of trial.
Gloster, 185 F.3d at 915 (citation omitted).
Ultimately, Ortiz and Gloster each denied the defendants arguments for new trial on other grounds. But these decisions make clear what the trial court failed to see here: there is no reasonable basis to distinguish Dale based upon the witness identity as a nonparty witness rather than a co-conspirator. Of course, this Court need not resolve this issue in the present case either because, as noted above, Espy was alleged to be a co-conspirator and in fact was indicted for offenses connected with those for which defendant Schaffer was convicted.
To compound the errors discussed above, the District Court has also ignored this Circuits substantive requirements for granting a new trial based on newly discovered evidence. At least since Thompson v. United States, discussed supra, defendants in this Circuit seeking a new trial on the basis of newly discovered evidence have been required to show diligence in the attempt to procure the newly discovered evidence. 188 F.2d at 653.
In its opposition to Schaffers motion for new trial, the United States emphasized that Schaffer took absolutely no measures to obtain or introduce Espys testimony. Schaffer did not: (1) move to continue his trial until Espys testimony became available; (2) include Espy on his pretrial witness list; (3) obtain written statements from Espy for admission at trial; or (4) move for or request that Espy have use immunity conferred upon him to compel the purportedly desired testimony. Nor did Schaffer move within seven days for a new trial based on the unavailability of Espys testimony. United States Opp. to Def.s Third Mot. for New Trial, filed 10/25/99, at 9-11 (Tab P).
Schaffer failed to present one iota of evidence that he exercised any diligence at all in discovering or obtaining former Secretary Espys testimony, in asking for a trial schedule that would allow him to present such testimony, in attempting to introduce Espys testimony at trial, or in moving for new trial on a timely basis. Nevertheless, the District Court concluded that Schaffer was excused from exercising the diligence this Court requires because his efforts would likely have been unsuccessful anyway:
The second Thompson element, that the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence, will not be resolved against Schaffer because of his counsels asserted failures to take any of the measures suggested by the prosecution, Memo at 9-12. None of those measures would have had a chance of success. Schaffers counsel are experienced, responsible officers of this Court, loath to file futile motions.
11/4/99 Memorandum and Order (D.D.C.) at 2-3 (Tab Q). Neither Schaffer in his motion, nor the District Court court in its order, gave any hint as to why the efforts at diligence that this Court requires should have been excused because of assumed futility.
This holding conflicts with the express language of Thompson, is clear error, and must be corrected. Allowing this decision to stand would open the floodgates to similar unsubstantiated, post-hoc claims of unavailability of evidence from defendants seeking new trials, and would encourage defendants not to pursue newly discovered evidence diligently, in hopes that a trial court reach a post-hoc conclusion months or years later that such efforts would be futile. Moreover, absent strict adherence to the jurisdictional requirements of Rule 33, the substantial jurisprudential interest in finality of judgments is undermined.
In conclusion, Schaffer concedes he was aware of the substance of Espys testimony at the time of trial but did nothing to attempt to secure it. Now, over fifteen months after a jury found him guilty, he has raised for the first time via a motion for new trial his argument that he should now be provided a new trial at which he could introduce Espys testimony. Because this request does not involve newly discovered evidence under the plain language of Rule 33 and this circuits precedents, Schaffers motion is untimely, and the District Court has no jurisdiction to entertain it. The trial courts decision to conduct a mini-trial under the guise of an evidentiary hearing on this facially extrajurisdictional motion is an unlawful exercise of power that must be halted.
II. A WRIT OF MANDAMUS IS THE PROPER REMEDY
The Supreme Court, and other courts of appeal, have held that a writ of mandamus is appropriate where a district court improperly considers an untimely motion for new trial. United States v. Smith, 331 U.S. 469, 473-74 (1947); In re United States, 565 F.2d 173 (1st Cir. 1977). Indeed, this Circuit has also implicitly recognized that a writ would be appropriate under such circumstances. In In re United States, 598 F.2d 233 (D.C. Cir. 1979), this Court contrasted the facts present in that case, in which the defendant filed a timely new trial motion, with those before the Supreme Court in Smith, to highlight why a writ would not issue. Id. at 236. This Court explained that given the timely new trial motion [filed by the defendants here]. . . there can be no serious contention that the District Court was without jurisdiction to entertain and to act upon it. Id.
This Court should issue a writ of mandamus when the petitioner's right to the issuance of the writ is clear and indisputable and the petitioner has no other adequate means to obtain relief. In re Sealed Case, 141 F.3d 337, 339 (D.C. Cir. 1998) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988)). Issuance of the writ is appropriate when the district court engages in a clear abuse of discretion, see Papandreou, 139 F.3d at 249-50, or exceed[s] its authority, Sealed Case, 141 F.3d at 343. Accord In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1996) (Under mandamus, we exercise our discretion to issue the writ only where the petitioner has shown a clear and indisputable right to it because, for instance, the district court has acted patently beyond its authority.).
This Court recently identified five factors to be considered to determine whether a supervisory writ of mandamus shall issue:
(1) whether the party seeking the writ has any other adequate means, such as a direct appeal, to attain the desired relief;
(2) whether that party will be harmed in a way not correctable on appeal;
(3) whether the district court clearly erred or abused its discretion;
(4) whether the district courts order is an oft-repeated error; and
(5) whether the district courts order raises important and novel problems or issues of law.
National Association of Criminal Defense Lawyers, Inc. v. United States Department of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). All of these factors are present here, to a greater or lesser degree.
First, the United States possesses no right of direct appeal on the District Courts improper assertion of jurisdiction to entertain defendant Schaffers untimely new trial motion. In re United States, 598 F.2d at 234, 238.
Second, failure to grant this Petition will result in injury to the United States that cannot be rectified on appeal. Schaffers prosecution is being handled by an Independent Counsel and will be this offices last open case. Unlike the Department of Justice or a United States Attorneys 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 counsels 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 this case have somewhere else to which they need to go. 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, only two full time attorneys remain on the Independent Counsels staff. Both of these attorneys may soon move to other employment and could depart at any time.
Schaffer was found guilty on June 26, 1998, over sixteen months ago. Due to the District Courts rejection of the jurys verdict and the time necessary to have the Meat Inspection Act count reinstated on appeal, Schaffer has yet to be sentenced. After sentencing takes place, there may well be additional appeals by Schaffer.
Unless this Petition is granted, the completion of this litigation may extend this offices existence for months. The United States will likely appeal any negative ruling; but such an appeal on the merits of the District Courts decision would not likely be resolved in less than six to seven months even if expedited. The United States should not have to suffer such delay.
Third, as explained above, the United States' right to a summary denial of defendant Schaffers untimely motion for new trial is clear and indisputable. The District Courts actions are unequivocally unlawful and in contravention of Rule 33 and binding precedent.
Fourth, while it cannot be said that the trial courts error is frequently repeated to the contrary, what the trial court did is clearly contrary to circuit precedent it does appear that litigants and the trial courts would profit from a definitive ruling from this court at this time. On at least two recent occasions, litigants have put to this Court arguments similar to the one that the trial court accepted here. In both United States v. Ortiz, 136 F.3d 161, 167-168 (D.C. Cir. 1998) and United States v. Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999), defendants argued that newly discovered evidence included the testimony of non-parties who were unavailable for trial, even though the defendant knew at the time of trial the substance of the testimony the non-parties would give. Although in both instances this Court strongly indicated that the such evidence did not satisfy the rule, the Court did not actually have to reach the issue in either case, since there were other even more compelling grounds for denying the new trial claims. Somehow, the trial court in the present case was able to transmute this Courts observation that it need not tarry over the issue, Gloster, 185 F.3d at 915, into a professed uncertainty about the state of the law. 11/4/99 Memorandum and Order (D.D.C.) at 2 (Tab Q). A direct ruling on this question would benefit future litigants and the trial courts of this circuit by eliminating any future temptation to find uncertainty where none exists.
Fifth, the District Courts erroneous exercise of power in contravention of the Federal Rules of Criminal Procedure and Supreme Court and circuit precedents presents an important problem of law that demands an immediate remedy. The public, the courts, and criminal defendants all have an interest in the speedy and final resolution of criminal matters. As noted above, the jury found Schaffer guilty sixteen months ago and this Court has already affirmed his conviction on appeal. The District Court is now unlawfully considering reopening a final conviction by conducting a mini-trial based upon evidence known to the defendant at the time of trial. If a criminal case can be brought back to square one after a trial and affirmance on appeal, through the mechanism of a trial courts extrajurisdictional consideration of a new trial motion whenever a defendant seeks delay, the criminal justice system will cease to serve the publics interest in speedy and final resolution of criminal cases.
Finally, the United States respectfully requests that this Court exercise its supervisory authority under 28 U.S.C. §§ 1651 and 2106 to direct that, on remand, this case be assigned to a different District Judge. This Court may make such a determination of its own accord, pursuant to it supervisory power to require such further proceedings to be had as may by just under the circumstances. United States v. Microsoft Corporation, 56 F.3d 1448, 1463 and n.2 (D.C. Cir. 1995) (per curiam) (citing Liteky v. United States, 510 U.S. 540 (1994)). In determining whether reassignment is appropriate to a different judge, this Court considers whether the facts might reasonably cause an objective observer to question [the judges] impartiality, id., and where, upon remand, the circumstances of the case would cause a reasonable observer to question whether [the judge] would have difficulty putting his previous views and findings aside, id. at 1465.
Were the District Judge to continue on its current course of ignoring the law to grant defendants untimely motion for new trial, it would represent the third time that he has overturned jury verdicts in this case, each time causing significant delays. Upon remand and reassignment, a new judge would have the single task of imposing a sentence for which the Probation Office has already completed the Presentence Investigation Report. The transcript of the trial was transcribed long ago, this Court has set forth the pertinent facts in some detail in its earlier opinion, and, with those resources, a new judge could easily familiarize himself or herself with the facts in the case.
For the foregoing reasons, the United States respectfully petitions this Court for a Writ of Mandamus directing the United States District Court for the District of Columbia to vacate its order granting an evidentiary hearing on Real Partys Archibald R. Schaffers motion for new trial filed in that court on November 9, 1999, and to deny that motion summarily.
Donald C. Smaltz
Charles M. Kagay
Chief Appellate Counsel
Joseph P. Guichet
Senior Associate Independent Counsel
Associate Independent Counsel
103 Oronoco Street, Suite 200
P.O. Box 26356
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0050
 Under Circuit Rule 28(a)(1)(C), this case is "related" to our earlier appeal, decided by this Court on July23, 1999, as amended on September 10, 1999, because it involves the same parties and the same or similar issues. See United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999) (Wald, Silberman, Henderson, JJ.). The two cases arose out of the Office of Independent Counsels prosecution of defendant Schaffer and involve Judge Robertsons rulings on motions filed by Schaffer attacking the jurys verdict, including defendants previous motion for new trial which was conditionally denied by the District Court and affirmed by this Court.
In his motion, Schaffer also alluded to potential testimony from his co-defendant Williams as newly-discovered evidence. Schaffers Mot. for New Trial at 1, 3-4, 12-14 (Tab O). However, the trial court correctly concluded that this potential testimony could not be so characterized. 11/4/99 Memorandum and Order (D.D.C.) at 1 (Tab Q).
It also flies in the face of the plain meaning of the words used in the statute. Blacks Law Dictionary defines discover as: To uncover that which was hidden, concealed, or unkown to every one. To get first sight or knowledge of; to get knowledge of what has existed but has not theretofore been known to the discoverer. Blacks Law Dictionary 322 (6th ed. 1991). See also Meriam Websters Collegiate Dictionary 331 (10th ed. 1996) (defining discover as: to make known or visible or to obtain sight or knowledge of for the first time.) Clearly, evidence known to the defendant at the time of trial cannot be discovered by him after trial.
 In Chirino, this Court held that evidence was not newly discovered so as to satisfy a NTSB regulation worded similarly to Rule 33 where the petitioner sought reconsideration of his case based on the testimony of an individual who had previously refused to testify because of charges pending against him but had since pled guilty. The NTSB held that this evidence was not newly discovered because it was known to the petitioner before and during the hearing. Analogizing the finding to one under Rule 33, this Court affirmed, ruling:
[D]ecisions from the criminal law setting provide a direct analogy to the situation before the Board in this case. In effect, the FAA alleged that [the petitioner] and [the witness] were co-conspirators in an unlawful scheme to issue fraudulent [pilot] ratings. Inasmuch as [the witness] chose to remain silent in the earlier proceedings, the Board could reasonably conclude that he should not now be allowed to exculpate his co-conspirator at a point when to do so was apparently cost-free (or at least no longer unacceptably costly) to him.
Charino, 849 F.2d at 1532-33.
The fact that Schaffers opportunity to move for a new trial is now long expired does not mean that he did not have the right and the power to protect himself on a timely basis. If he really did require Espys testimony but was unable to secure it at the time of his trial, he could have asked for a trial continuance or moved for a new trial within seven days of the verdict against him. In waiting for more than a year after the trial, and until after he has lost his appeal of that judgment, to bring his motion for new trial, Schaffer is merely trying once again to delay the inevitable by belatedly asserting a right that he elected to waive many months ago.
 This office has completed all other prosecutions and appellate matters except for one appeal which is currently before this Court on a defendants motion for reconsideration. That motion has been pending for nearly one month and a decision is expected in the near future. After that case is resolved, Schaffers case will be the last for this office to resolve.