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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA No. ___________________________________ IN RE UNITED STATES OF AMERICA __________________________________ EMERGENCY MOTION FOR STAY OF DISTRICT COURT ORDER FRAP and D.C. Cir. Rule 8(a); D.C. Cir.
Rule 27(f)
The United States of America, through the Office of Independent Counsel, hereby
requests, on an expedited basis, a stay of the order of the District Court for the
District of Columbia, entered November 4, 1999, in the action United States v. Schaffer,
Crim. Action No. 96-0134, setting an evidentiary hearing for November 12, 1999. A copy of this order is attached. The Government asks for a stay to prevent the
November 12 evidentiary hearing from proceeding.
This stay is sought on an expedited basis, fewer than seven days before action is
required, because the Government first received the order to be stayed just before the
close of business on November 4, 1999, little more than a week before the evidentiary
hearing that is the subject of the order. The
Government immediately upon receiving the order began preparation of petition for writ of
mandamus to address the order. This petition
is filed contemporaneously with the present motion. Until
the petition was fully researched and reviewed by the Independent Counsel, the Government
could not determine with certainty whether it would be filed, or what specific relief
would be sought. It was therefore infeasible
to file this emergency motion earlier than November 9, 1999.
Because of this short time frame, it was impracticable for the Government to seek
the stay in the first instance from the district court.
It will do so simultaneously with this emergency motion, and will report any
outcome immediately to this Court.
The stay is required to forestall, during the pendency of the petition for writ of
mandamus, some of the extrajurisdictional actions on the part of the District Court that
the Government has filed its petition to prevent. Specifically,
rather than proceeding to sentence criminal defendant Archibald Schaffer following this
Courts affirmance of conviction, the District Court is entertaining a late-filed
motion for new trial under Fed.R.Crim.Proc. 33 that is totally beyond its power to grant. As the motion for new trial was filed more than 7
days after the verdict, and was based on newly discovered evidence that
defendant concedes he was aware of during his trial, any action by the trial court other
than summary denial of the new trial motion is outside its jurisdiction. United States v. Smith, 331 U.S. 469
(1947); Thompson v. United States, 88 F.2d 652, 653 (D.C. Cir. 1951). This matter is discussed in detail in the
accompanying Petition for Writ of Mandamus.
The present request for stay fulfills all of this Circuits criteria for such
relief. Washington Metropolitan Area
Transit Commn v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977):
(1) The likelihood that the moving party will prevail on the merits. It is very likely that the Government will prevail
on the merits of its petition for writ of mandamus. As
the accompanying petition illustrates, the district courts action is blatantly
beyond its jurisdiction, and the Supreme Court has expressly recognized the
appropriateness of relief through extraordinary writ in this situation. United States v. Smith, 331 U.S. 469
(1947).
(2) The prospect of irreparable injury
to the moving party if relief is withheld. If
a stay is not granted, the Government will be required to participate in proceedings
before the District Court in direct contravention of the Federal Rules of Criminal
Procedure, without any available appellate remedy after they take place.
(3) The possibility of substantial
harm to other parties if relief is granted. There
is no possibility of harm to defendant from this stay, as it would at most only serve to
postpone the resolution of a criminal case which he has succeeded in drawing out for
several years already.
(4)
The public interest. The public has a strong
interest in having the courts of the United States follow the rules of procedure to effect
the speedy and certain resolution of criminal matters.
The public interest argues strongly in favor of not allowing the
extrajurisdictional proceeding under challenge to go ahead before this Court has had a
chance to review its propriety.
For
the reasons stated above, and for those discussed in the petition for writ of mandamus, it
also is desirable that the mandamus proceeding be expedited, whether or not the stay is
granted.
Because
of the imminent extrajurisdictional actions of the trial court, and of the irreparable
harm that will result, the United States respectfully requests that this Court immediately
enter the requested stay.
At approximately 3:05 p.m. today,
November 9, 1999, notice was given to opposing counsel that we would be filing a petition
for a writ of mandamus, a motion for stay in the appellate court, and a motion for stay in
the district court.
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
Tel: (703) 706-0010
Fax:
(703) 706-0050
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