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No.  99-3153









I.                     INTRODUCTION

                Because good cause exists to expeditiously issue the mandate for the second time in this case, the Government hereby respectfully requests that the Court order expedited issuance of the mandate pursuant to Fed. R. App. P. 41(b) and D.C. Cir. R. 41(a).  Local Rule 41(a)(1) provides that there is a “right of any party at any time to move for expedited issuance of the mandate for good cause shown.”  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, Part XIII, Sec. A(2) (2000).

II.            BACKGROUND

                Over two years ago, on June 26, 1998, a jury in the United States District Court for the District of Columbia returned two guilty verdicts against defendant Schaffer.  Prior to sentencing, the trial court granted Schaffer’s motion for judgment of acquittal as to both counts.  The Government appealed and filed a motion to expedite which this Court granted on February 11, 1999.  After briefing, oral argument, and supplemental briefing on the merits, this 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.  Soon thereafter, the Government moved this Court for expedited issuance of the mandate so that sentencing of defendant on the reinstated count could proceed in the district court.  On August 26, 1999, this Court granted the Government’s motion and directed the Clerk to issue the Court’s mandate “as promptly as the business of his office permits.”


                At the Government’s request, the district court thereafter set a date for sentencing and then continued that date to December 4, 1999.  On October 13, 1999, the defendant moved for a new trial on the basis of purported “newly discovered evidence.”  Over the Government’s objection of untimeliness, the district court held a hearing on November 12, 1999 to examine the claimed newly discovered evidence.  The Probation Officer prepared Schaffer’s Presentence Investigation Report in the interim.  On the eve of sentencing, December 3, 1999, the district court granted defendant’s motion for new trial.  The Government noticed its appeal on the same day.  This Court granted the Government’s motion for expedited treatment and, following briefing and argument, reversed the district court’s grant of a new trial on June 27, 2000.


                This Court expeditiously issued the mandate following the first appeal in this case so that the trial court could sentence the defendant.  Now, ten months later, following a second reversal by this Court, defendant Schaffer still has not been sentenced.  Therefore, 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 before either of two appeals.  In order to expedite conclusion of this case, the Government again seeks immediate issuance of this Court’s mandate so that the trial court may set the matter for prompt sentencing.

                Although Schaffer might still petition for rehearing and for rehearing en banc, there is no reason to delay sentencing 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 at Part XIII, Sec. B (2000).  In this case, the panel’s recent 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 Part XIII, Sec. B(2).  Consequently, 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 sentencing 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).  The Government is simply seeking to tie loose ends in the trial court that are already resolved in the ordinary criminal case but have not been concluded in this 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 and United States v. Sun Growers, 212 F.3d 603 (D.C. Cir. 2000).  The Sun Growers case, by all indications, will soon be completed.  In contrast, Schaffer still has not been sentenced, and he will possess the right to appeal that sentence after it is imposed.  Thus, resolution of the case against defendant Schaffer (which has already taken over two and a half years) will likely be the last open matter for this office and has the potential to prolong its existence for quite some time.  Therefore, the Government seeks to conclude the instant case as promptly as possible.


IV.           CONCLUSION

                For the good cause demonstrated above, the Government hereby respectfully requests that the Court issue the mandate in this case immediately and direct the district court to sentence defendant forthwith.

Dated: June 28, 2000                                              Respectfully submitted,


                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel


                                                                                By:          _________________________

                                                                                                Joseph P. Guichet

                                                                                                Senior Associate Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Phone:  (703) 706-0010