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No. 99-3153












The United States hereby moves for this Court to reverse summarily the December 3, 1999 order of the Hon. James Robertson, United States District Court for the District of Columbia, granting defendant Schaffer's post-verdict motion for new trial.(1) The ground for this motion is that the District Court's order directly contravened the applicable language of the Federal Rules of Criminal Procedure and the controlling precedent of this Court in granting an untimely motion for new trial.(2)

Rule 33 of the Federal Rules of Criminal Procedure unequivocally commands that motions for new trial filed later than seven days after a finding of guilt must be "based on newly discovered evidence." This Court has repeatedly held that this provision must be interpreted to mean exactly what it says. Thompson v. United States, 88 F.2d 652 (D.C. Cir. 1951), United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997), Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988), United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993), United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998), and United States v. Gloster, 185 F.3d 910 (D.C. Cir. 1999). However, Schaffer filed a motion for new trial over fifteen months after a jury found him guilty, and conceded that he knew of the underlying evidence at the time of trial - i.e., that the evidence upon which he based his new trial motion was not newly discovered. Nevertheless, Judge Robertson granted Schaffer's motion. Consequently, the order granting a new trial should be summarily reversed.


This appeal is the latest chapter in the long saga that includes the previous appeal United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999). The essential facts are stated in 183 F.3d at 836-39, 842-45, and 847-50.

On August 27, 1997, the Grand Jury indicted former Secretary of Agriculture Espy on multiple counts. These included the receipt of gratuities from defendant Schaffer in violation of the Meat Inspection Act and the unlawful gratuities statute.

On January 15, 1998, the Grand Jury indicted Schaffer for conspiracy, wire fraud, violating the Meat Inspection Act, and giving unlawful gratuities to Secretary Espy. Indictment, filed 1/15/98 (D.D.C.) (Tab 1). The Meat Inspection Act and gratuities charges concerned the same gifts as the corresponding charges then pending against Secretary Espy. Schaffer's indictment also charged a co-defendant, Jack Williams, with similar offenses.(3) Prior to trial, in response to inquiry by defendants, the government notified the defendants and the District Court that Espy was an unnamed and unindicted co-conspirator. Govt.'s Opp. to Mot. for Bill of Part., filed 2/23/98 at 16. (Tab 2).

Trial against Williams and Schaffer commenced on June 15, 1998. At no time did Schaffer ever attempt to introduce, or even indicate that he wanted to introduce, testimony from former Secretary Espy. Nor did he ever indicate or even hint that he suffered any injustice as the result of any inability to call Espy to testify. At the close of the government's case, on June 23, 1998, the District Court entered judgments of acquittal in favor of Williams and Schaffer as to the conspiracy and mail and wire fraud counts. 6/23/98 Tr. at 1381-85. This judgment of acquittal was not appealable. See 18 U.S.C. 3731.

On June 26, 1998, the jury found Schaffer guilty of one count of giving unlawful gratuities and one count of violating the Meat Inspection Act.(4) 9/22/99 Memorandum Order (D.D.C.) (Tab 3). He filed timely motions for new trial and for judgment of acquittal after requesting an additional seven days in which to file his motions, which the government did not oppose. 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." See Schaffer, 183 F.3d 833. On September 22, 1998, the District Court rejected the jury's verdict as irrational and granted Schaffer's motion for judgment of acquittal as to both counts of the conviction. Id. On October 6, 1998, the district court conditionally denied Schaffer's motion for new trial. Schaffer, 183 F.3d at n.7. The government appealed the judgment of acquittal, and Schaffer cross-appealed the denial of his motion for new trial.

Secretary Espy went to trial on October 1, 1998. He was acquitted of all charges on December 2, 1998.

On December 15, 1998, after Espy's acquittal and while Schaffer's appeal was pending, Schaffer filed a second motion for new trial in the District Court with respect to the gratuity count only (and not the Meat Inspection Act count), claiming the government failed to disclose exculpatory evidence presented in the trial of former Secretary Espy. Schaffer's Mot. for New Trial on Grounds of Non-Disclosure of Exculp. Evid., filed 12/15/98 (Tab 4). At no time in that motion, however, did Schaffer suggest that the potential testimony of Secretary Espy could require a new trial.

On the United States' appeal, this Court reversed the District Court's judgment of acquittal on the Meat Inspection Act, but affirmed the judgment of acquittal on the gratuity count. This Court also affirmed the denial of Schaffer's motion for new trial. United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999). With that decision, Schaffer's then-pending motion for new trial on the gratuity count became moot.

The Court expeditiously remanded to the District Court for sentencing and the government thereafter filed a motion to set a date for sentencing. In response, Schaffer asserted that his counsel had yet to determine whether "matters first revealed in the record of the trial of former Secretary Espy warrant the filing of [a motion for new trial based upon newly discovered evidence]." Def.'s Response to Mot. for Sentencing Date, filed 9/13/99, at 2 (Tab 5). Even at this late stage, Schaffer did not suggest that he was deprived of a fair trial because he could not present testimony from Espy (who did not testify at his own trial).

On October 13, 1999, almost sixteen months after the jury's verdict, Schaffer filed his third motion for new trial, predicated upon "newly discovered evidence." Schaffer's Mot. for New Trial Based on Newly Disc. Evid., filed 10/13/99, at 1 (Tab 6). Schaffer's proffered evidence was the potential testimony of Williams and Espy, but he conceded that he was aware of the Espy evidence at the time of his own trial. Specifically, Schaffer's motion for new trial stated: "Mr. Schaffer knew the substance of Secretary Espy's testimony at the time of Mr. Schaffer's trial." Id. at 6. Nevertheless, Schaffer argued that this "unavailable evidence" should be treated as if it were "newly discovered evidence." Id. at 6, 8-11

On October 25, 1999, the government opposed the new trial motion, pointing out that Schaffer's proffered evidence was by his own admission not newly discovered and that his motion, therefore, was untimely. U.S.'s Opp. to Def.'s Third Mot. for New Trial, filed 10/25/99, at 1-2 (Tab 7). The government also argued that Schaffer's proffered testimony failed to satisfy each of the five requirements for obtaining a new trial on newly discovered evidence, as articulated in Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951). Id. at 2, 12. On November 4, 1999, the District Court entered an Order acknowledging that Williams' testimony did not warrant a new trial, but holding that Espy's testimony, depending upon its substance, might justify a new trial. 11/4/99 Memorandum and Order (D.D.C.) (Tab 8). It ordered an evidentiary hearing to make this determination.

On November 9, 1999, the government petitioned this Court for a writ of mandamus ordering the District Court to deny the motion for new trial. On November 10, 1999, after ordering defendant to respond to the petition for mandamus, this Court denied the petition without addressing the merits. Instead, the Court held that the government had not "shown that an appeal under 18 U.S.C. 3731 from any adverse decision would provide a clearly inadequate remedy."

On November 12, 1999, the District Court held an evidentiary hearing on the motion for new trial. Schaffer called former United States Secretary of Agriculture Espy as a witness. At the hearing, Schaffer's counsel proffered to the court that he had communicated with Espy's counsel prior to trial and thereby knew the substance of Espy's testimony prior to trial. 11/12/99 Tr. at 21-26 (afternoon session) (Tab 9). Further, he admitted that the extent of his efforts to obtain Mr. Espy's testimony at trial was to ask Espy's counsel whether Espy would testify. Id. Schaffer's counsel claimed that he failed to raise the issue of Espy's testimony at trial through a motion for continuance or other means because he assumed that any such motions would fail. Id. at 27-28. Schaffer's counsel did not explain why, although he was aware of the substance of Espy's testimony at the time of Schaffer's trial, he did not make a new trial motion on this ground within the 7 day period permitted by Fed. R. Crim. P. 33. Espy advised that his attorneys never informed him that anyone wanted him to provide testimony. Tr. 11/12/99 at 91 (morning session). Following defense counsel's proffer, the government requested that the trial court inquire as to whether defense counsel had any correspondence or memoranda demonstrating conversations or inquiry with Espy's counsel. 11/12/99 Tr. at 33 (afternoon session). In response, the trial court recognized defense counsel's admission that they knew the substance of Espy's testimony before Schaffer's trial. Id.

On December 3, 1999, the District Court granted defendant's motion for a new trial. 12/3/99 Order (D.D.C.) (Tab 10). Also on December 3, immediately following issuance of the order, the government noticed its appeal and informed the Clerks of Court for the District Court and this Court that it was taking appeal pursuant to 18 U.S.C. 3731, thereby warranting expedited treatment pursuant to D.C. Cir. L.R. 47.2(a).


The district court's granting of a new trial is contrary to the plain and unequivocal language of Rule 33 of the Federal Rules of Criminal Procedure and controlling D.C. Circuit precedents. The question presented on this motion is purely one of law, which this Court reviews de novo. United States v. Torres, 115 F.3d 1033, 1035 (D.C. Cir. 1997) (whether district court possessed jurisdiction over motion for new trial reviewed de novo); see also United States v. Dozier, 162 F.3d 120, 123 (D.C. Cir. 1998) (recognizing that Court of Appeals reviews purely legal questions de novo).

A. Summary Reversal Is Appropriate Because the Merits are So Clear that Plenary Briefing and Oral Argument Would Not Affect the Court's Decision


Summary disposition is appropriate where the merits are "so clear [that] plenary briefing, oral argument and the collegiality of the decisional process would not affect [the Court's] decision." Sills v. Bureau of Prisons, 761 F.2d 792, 793-94 (D.C. Cir. 1985); D.C. Circuit Handbook of Practice and Internal Procedures 65-66 (1994) (quoting Sills). In this situation, the movant has truly established "that his remedy is proper and the merits of his claim so clearly warrant relief as to justify expedited action." Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 812 (D.C. Cir. 1985).

Summary reversal is warranted here because, on the facts conceded by defendant, the decision below is directly contrary to unequivocal controlling authority. See Vietnam Veterans Against the War v. Morton, 506 F.2d 53, 56 (D.C. Cir. 1974) ("However heavy the burden may be for a litigant to earn summary reversal in the normal case, the District Court's failure to defer to and follow [controlling law] clearly warranted that disposition in this case.").

B. Schaffer's Motion for New Trial Was Untimely


The time limits imposed by Rule 33 are clear and unambiguous:

A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. . . . 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 . . .


(emphasis added).

Schaffer moved for new trial on October 13, 1999, over fifteen months after a jury found him guilty. Consequently, under the plain language of Rule 33, the District Court possessed jurisdiction to entertain that motion only if the motion was "based on newly discovered evidence."

Schaffer openly conceded that his motion was not based on newly discovered evidence, because he was aware of the evidence at the time of his trial in June of 1998. In his moving papers, Schaffer's counsel admitted that "Mr. Schaffer knew the substance of Secretary Espy's testimony at the time of Mr. Schaffer's trial." Schaffer's Mot. for New Trial, filed 10/13/99, (D.D.C.) at 6.

Evidence adduced at the November 12, 1999 evidentiary hearing further confirmed that Espy's testimony was not discovered by Schaffer after trial. As Judge Robertson remarked near the conclusion of the hearing:

[The proffer by Mr. Schaffer's counsel] seems to me to say, yes, we did know what the testimony would be at the time of trial, at least in every respect that is relevant to the question before me. He says he didn't know the details, but he says that he knew that Espy believed that the APF meeting was legitimate. That, [Mr. Schaffer's counsel] has characterized as the centerpiece for the reason why [Espy's] testimony would probably result in an acquittal.

11/12/99 Tr. at 33 (afternoon session). Indeed, even in granting Schaffer's tardy motion for new trial, the District Court candidly observed that defense counsel knew the substance of Espy's testimony at the time of trial. Order at 5.

This fact - that Schaffer knew the substance of Espy's testimony at the time of his trial - ends the matter. Since Schaffer knew about the testimony, the testimony is not newly discovered evidence, and the plain and unambiguous language of Rule 33 commands denial of Schaffer's motion as untimely.

In granting the new trial, Judge Robertson accepted Schaffer's 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, can be treated as if it were "newly discovered evidence." But the District Court's reasoning openly defies the plain language of Rule 33 and the decisions of this Court.

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). Black's Law Dictionary defines "discover" as: "To uncover that which was hidden, concealed, or unknown to everyone. To get first sight or knowledge of; to get knowledge of what has existed but has not theretofore been known to the discoverer." Black's Law Dictionary 322 (6th ed. 1991). See also Meriam Webster's 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 (regardless of whether it was available for use by him) cannot be "newly discovered" fifteen months later.

This Court has had no difficulty applying the plain meaning of Rule 33. In fashioning a test for new trial motions based on newly discovered evidence, this Court determined in Thompson v. United States, 88 F.2d 652 (D.C. Cir. 1951), that "the evidence must have been discovered since the trial" or it is not "newly discovered" within the meaning of Rule 33. Id. at 653 (establishing five prong test a defendant must satisfy to obtain new trial based on newly discovered evidence) (emphasis added). See also United States v. Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997) (affirming dismissal of motion for new trial based on newly discovered evidence for lack of jurisdiction where defendant conceded he knew facts supporting his claim at time of trial and noting that a contrary ruling would "defy [Rule 33's] plain language.")

Likewise, this Court has resoundingly rejected the argument accepted by the District Court here - that testimony known to a defendant at the time of trial, but "unavailable" because the witness would refuse to testify if called at trial, may qualify as newly discovered evidence under Rule 33. United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993). The Dale decision emphasized 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.'" Id. at 838 (quoting United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989)). Dale also noted 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 relied on its own decision in Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988).(5) Id. at 838-39.

Dale and Chirino command dismissal of Schaffer's similarly grounded motion for new trial, and the District Court could not disregard these holdings. The District Court, however, purported to distinguish Dale on the specious ground that Dale involved the newly available testimony of a co-defendant or co-conspirator while Espy "was neither a co-defendant of Schaffer nor a coconspirator." Order at 6.(6) This reasoning suffers from two fatal errors.

First, the Government did in fact allege Espy to be Schaffer's co-conspirator. Govt.'s Opp. to Schaffer's Mot. for Bill of Part., filed 2/23/98 at 16. In response to this fact, Judge Robertson attempted to distinguish Dale on the ground that he had earlier determined, in an unreviewable decision, that there was no conspiracy. Order at 6 n.2. But under the law of this Circuit, it does not matter whether a person identified as a co-conspirator is tried in the same proceeding or even if he is charged or convicted of conspiracy; his testimony is not "newly discovered evidence" if it is known to defendant at trial. See Chirino, 849 F.2d at 1532-33 (concluding testimony not "newly discovered" under analogous NTSB regulation where known to defendant before trial and defendant and newly available witness "in effect . . . alleged . . . [to be] co-conspirators," even though not charged or tried together or convicted of conspiracy) (emphasis added).

Moreover, Secretary Espy was charged in his own trial with receiving the very same things of value that Schaffer was alleged in the present case to have given. United States v. Espy, Cr. No. 97-0335 (RMU) (D.D.C.), Indictment at 9b, 20b, 22a, 24. Espy was not Schaffer's co-defendant simply because the government elected to bring separate indictments and conduct separate trials within which both individuals were charged with violating the same statute for the same offending act (defendant as the giver and Secretary Espy as the recipient). This election was grounded on the fact that the defendants were also charged with several non-overlapping crimes. However, the fact of separate trials does not make Espy any less a co-conspirator and it does not make his testimony any more "newly discovered," than if the two defendants had been tried together.

Second, even if the United States had not alleged that Espy was a co-conspirator, Schaffer's motion would still have been untimely. There is no principled reason why Secretary Espy's status as a nonparty (but clearly interested) witness rather than a co-conspirator or co-defendant would make a difference as to whether his testimony was newly discovered. In the end, regardless of Espy's status, the defendant knew about his testimony before trial and, therefore, it could not have been newly discovered.

Rather than following the plain and unambiguous language of Rule 33 and this Circuit's decisions in Thompson, Chirino, and Dale, the District Court seized on two recent decisions from this Court to surmise that the precise issue raised here is as yet unresolved. Order at 7-8. 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 defendant but "unavailable" during trial can constitute newly discovered evidence. In both instances, this Court greeted this proposition with the appropriate skepticism but did not have the occasion to rule on it directly.

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 very argument the District Court accepted here, 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 both denied the defendants' arguments for new trial on other grounds.(7) But these decisions do not cast doubt upon the plain meaning and import of Rule 33. To the contrary, they make clear what the District Court failed to see here: that the witness' status as a nonparty witness rather than a co-conspirator provides no reasonable basis to distinguish Dale.(8)

Despite Rule 33, Thompson, Chirino, Dale, and the "strong suggestions" of Ortiz and Gloster, Judge Robertson's ipse dixit is that this Court did not mean what it said in its prior holdings and that it would uphold his ruling. Order at 8. As support for his prediction, the District Court turned to authority not from this Court, but from the First Circuit - specifically, United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997). Id.

Judge Robertson's reliance on the First Circuit's decision in Montilla-Rivera was nothing less than an abrogation of his duty to follow the law of this Circuit. That decision, like this Circuit's decision in Dale, concerned whether previously known but unavailable testimony of a co-conspirator could be treated as "newly discovered evidence" for the purposes of Rule 33. The First Circuit held that it could, noting that in so doing it was directly contravening Dale and similar holdings in at least five other circuits. Montilla-Rivera, 115 F.3d at 1065-1066 ("[the First C]ircuit has, for almost twenty years, held that the 'newly discovered' language of Rule 33 encompasses evidence that was 'unavailable.' . . . In this, our test has differed from that of other circuits, as the cases cited above [including Dale] demonstrate.").

District courts in this district are obligated to follow the controlling precedents of this Court. United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997). "That a district judge disagrees with circuit precedent does not relieve him of this obligation whether or not the precedent has been embraced by our sister circuits." Id. As Prof. Moore presciently noted, "[t]he 'obedience' principle is tremendously important in the operation of our hierarchical court system, for unless the inferior courts make a good faith effort to follow the decisions of the courts with jurisdiction to review their judgments, appeals would be endless." Moore's Federal Practice,  0.402[1], n. 14 (1995).

Nevertheless, the District Court rejected precedent from this Court, but "predicted" that this Court would uphold his ruling on the basis of an out-of-circuit decision that is expressly in conflict with this Court's precedent. A district court does not have the power to disregard this Court's precedents in this fashion, and its attempts to do so should be met with summary reversal.

In this Circuit (and every other circuit that has considered the matter except the First), Rule 33 is taken to mean exactly what it says: newly discovered evidence is evidence that was not known to defendant at the time of trial. This does not, as Judge Robertson fretted in his opinion, create "a per se rule[] that a Rule 33 motion may never be granted for information that was known to the defense at the time of trial." Order at 8. To the contrary, Rule 33 allows a new trial on the basis of evidence known at the time of trial, so long as the defendant moves within 7 days of the verdict.

Contrary to Judge Robertson's reasoning, there is no rational basis for creating a three-year hiatus during which a defendant can sit on evidence, which he knew about at the time of trial, before pouncing with his new trial motion. Such a distortion of Rule 33 would allow a defendant, as it has allowed Schaffer, to make a mockery of appellate proceedings by waiting until he loses his appeal to present a motion for new trial that could have been made before appeal. Here, in fact, Schaffer lost his appeal on the new trial motion that he did bring at the time of trial, but has nevertheless prevailed on the new trial motion that he strategically deferred until the first appeal was lost.

In summary, Schaffer concedes he was aware of the substance of Espy's testimony at the time of trial, yet he did nothing about it. Over fifteen months after a jury found him guilty, he moved for the first time for a new trial in which to introduce Espy's testimony. Because this request does not involve newly discovered evidence under the plain language of Rule 33 and this circuit's precedents, this motion was untimely.

C. The District Court Lacked Jurisdiction to Grant Schaffer's Untimely Motion for New Trial

Schaffer's noncompliance with Rule 33's time limitations is not simply a technical, procedural misstep that may be overlooked. The time limits of this rule are jurisdictional, and district courts lack the power to entertain untimely motions for new trial. In United States v. Smith, 331 U.S. 469 (1947), the Supreme Court held that district courts have the power to grant a new trial only pursuant to a timely filed motion, and that their authority to grant a new trial then terminates. Id. at 473-77. In so holding, the Court emphasized that the time limits stated by Rule 33 set the boundaries of the trial court's 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 court's own initiative." Id. at 475.

The Smith Court 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 trial's story has taken on the uncertainty and dimness of things long past.

Id. at 476.

In the wake of Smith, a district court lacks jurisdiction to grant an untimely new trial motion. 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 Court's power to award a new trial."). Consequently, Judge Robertson's order granting Schaffer's untimely motion for a new trial was an unlawful exercise of power -- one that drastically undermines the substantial jurisprudential and societal interest in the finality of judgments. That order should be summarily reversed.



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 its 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 & 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 judge's] 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.

This is now the third time that Judge Robertson has undermined and overturned jury verdicts in this case, each time causing significant delays. Indeed, the history of this one count alone suggest that reassignment is appropriate. Even before trial commenced, Judge Robertson suggested to and even urged the prosecution to dismiss the Meat Inspection Act count against Schaffer arising from the Russellville party. 9/22/98 Memorandum at 15 n.4. After the jury found Schaffer guilty of that count, Judge Robertson overturned their finding and granted a judgment of acquittal.

This Court reversed and reinstated that count, finding that the government had presented sufficient evidence for the jury to find that the benefits of the Russellville party were given to Secretary Espy with intent to influence him with respect to both zero tolerance and safe-handling. 183 F.3d at 847-50. During the evidentiary hearing on Schaffer's latest motion for a new trial, however, Judge Robertson apparently disregarded this finding: "Let's set aside the zero tolerance pathogen issue for a moment. I still think zero tolerance is meat only, and pathogen is not the same as zero tolerance ."(9) 11/12/99 Tr. at 4 (afternoon session). Now, Judge Robertson has flagrantly contravened the Federal Rules of Criminal Procedure and D.C. Circuit precedent in order to again overturn the jury's verdict on this same count. These actions in their totality create an appearance problem and we submit that they certainly would cause an objective observer to question the judge's impartiality.(10)

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 prepared 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.


Should this Court decide not to reverse the District Court's order summarily, the United States respectfully submits that the interests of justice compel an expedited schedule for briefing and argument of this appeal.

Schaffer's prosecution is being handled by an Independent Counsel and is this office's sole remaining prosecution. Unlike the Department of Justice or a United States Attorney's 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 counsel's 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 Counsel's 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 seventeen months ago. Due to the District Court's rejection of the jury's verdict and the time necessary to have the Meat Inspection Act count reinstated on appeal, Schaffer has yet to be sentenced. In light of the District Court's recent order granting a new trial, the previously scheduled sentencing date of December 6, 1999 has been canceled and the government must, for the second time, ask this Court to reinstate the jury's verdict. Moreover, even after sentencing finally takes place, there may well be additional appeals by Schaffer as to the term of his sentence.

Recognizing these concerns, this Court has twice agreed to expedite this case -- it ordered expediting briefing on the first appeal, and it ordered expedited issuance of the mandate following its decision. The justification for expedited treatment of this matter has only further increased since the first appeal. Consequently, if summary reversal is not granted, the government respectfully requests the following schedule upon denial of summary reversal: 10 days for Government's Opening Brief; 15 days for Defendant's Response Brief; 7 days for Government's Reply Brief.


For the foregoing reasons, the United States respectfully requests that this Court summarily reverse the District Court's order of December 3, 1999 granting defendant Schaffer's motion for new trial, immediately issue the mandate, and assign the case to a different District Court judge on remand. In the alternative, the United States requests that this Court schedule this appeal for expedited briefing, argument and decision.

Dated: December 9, 1999 Respectfully submitted,

By: __________________________________

Donald C. Smaltz

Independent Counsel

Charles M. Kagay

Chief Appellate Counsel

Joseph P. Guichet

Senior Associate Independent Counsel

Wil Frentzen

Associate Independent Counsel

103 Oronoco Street, Suite 200

P.O. Box 26356

Alexandria, Virginia 22314

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1. Under Circuit Rule 28(a)(1)(C), this case is "related" to our earlier appeal, decided by this Court on July 23, 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 Independent Counsel's prosecution of defendant Schaffer and involve Judge Robertson's rulings on motions filed by Schaffer attacking the jury's verdict. This appeal is also related to the government's petition for a writ of mandamus denied by this Court last month. In re United States of America, No. 96Cr.00314-02 (D.C. Cir. November 10, 1999) (Silberman, Henderson, Tatel, JJ.)

2. This is only one of several errors requiring reversal of the District Court's order. If this motion for summary reversal is not granted, the United States will of course brief all the grounds of this appeal. However, the error raised in this motion is sufficient, in and of, itself to require reversal.

3. Williams had been tried once before in this matter, and had been found guilty by the jury on March 2, 1997. Shortly thereafter, the District Court overturned the jury's verdict and granted Williams a new trial on his claim that the United States had failed to provide him with material from a government witness's personnel file, even though the prosecutors had brought the information to the attention of the Court and defense counsel as soon as it was made known to them. 6/11/97 Order (D.D.C.). Although the United States believed the District Court's ruling to be in error, to avoid delay it elected to retry Williams rather than appeal the new trial order.

4. The Jury also found Williams guilty of two counts of lying to federal investigators. Subsequently, over the government's objection, the District Court sentenced Williams to pay a $5,000 fine without imposing any term of imprisonment or probation. Williams Judgment of Conviction, filed 11/2/98 (D.D.C.).

5. In Chirino, a case factually analogous to the present one, this Court held that evidence was not "newly discovered" so as to satisfy a NTSB regulation worded similarly to Rule 33. The petitioner was a pilot charged with falsifying his pilot application who sought reconsideration of his case based on the testimony of an individual who had previously refused to testify because of pending charges that he had accepted bribes from the petitioner. 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 stated:


[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.


Chirino, 849 F.2d at 1532-33.

6. Judge Robertson's order does not distinguish or even address Chirino. Also conspicuously absent from that opinion is any discussion of the plain language of Rule 33 and any substantive discussion of the rule established in Thompson.

7. Similarly, this Court need not resolve this issue in the present case because, as noted above, Espy was alleged to be a co-conspirator and in fact was indicted and tried for offenses connected with those for which defendant Schaffer was convicted. Espy therefore stands in effect as both a co-conspirator and a co-defendant precisely as the proffered "unavailable" witness stood in Chirino, 849 F.2d at 1532-1533.

8. Other circuits have similarly held that testimony of "unavailable" non-party witnesses known at the time of trial cannot serve as newly discovered evidence. See United States v. Ouimette, 798 F.2d 47 (2nd Cir. 1986) (holding that exculpatory testimony of non-party witness known to defendant during trial but unavailable because police officers threatened witness could not constitute "newly discovered evidence" under Fed. R. Crim. P. 33, but evidence of threats themselves, which defendant did not discover until after trial, could constitute newly discovered evidence); United States v. Cotner, 657 F.2d 1171, 1173 (10th Cir. 1981) (upholding denial of defendant's motion for new trial on basis of "unavailable" testimony of witnesses because "it is apparent that [defendant] was aware of all so-called newly discovered witnesses and evidence prior to trial.")

9. This Court explicitly found that "FSIS refined and implemented a plan for pathogen reduction, an effort which eventually acquired the name "zero tolerance." 183 F.3d at 837-38.

10. Moreover, during this prosecution, Judge Robertson has taken the unorthodox step of criticizing the office of the Independent Counsel. In denying defendant Williams' motion for dismissal of the Second Superceding Indictment, Judge Robertson responded to the prosecution's explanation for seeking one indictment against Williams while knowing another might follow stating: "In this case . . . pressing ahead to trial on the first indictment knowing there would be another one was an arrogant demonstration of the unlimited resources available to prosecutors under the Ethics in Government Act . . ." 5/2/98 Memorandum at 15.


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