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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________________________________
GOVERNMENTS MOTION AND
INCORPORATED MEMORANDUM TO EXPEDITE APPEALS I.
INTRODUCTION
The United States hereby moves the Court to expedite both above-captioned appeals. The reason for this motion is the public interest
in a prompt resolution of the underlying Independent Counsel investigation and closure of
its office; this resolution and closure will be delayed so long as the present appeals,
which concern conviction of defendant Williams on two counts of making false statements to
federal agents (18 U.S.C. § 1001) and conviction of Schaffer of giving illegal gratuities
(18 U.S.C. § 201(c)) and violating the Meat Inspection Act (21 U.S.C. § 622), remains
undecided.
The present appeal arises out of an independent counsel investigation initiated
pursuant to the Ethics in Government Act, 28 U.S.C. § 591 et seq., concerning
former Secretary of Agriculture Alphonso Michael Espy.
The Independent Counsel was appointed on September 9, 1994, and went to trial on
the indictment against the defendants on June 15, 1998.
On June 26, 1998, a jury found defendant Williams guilty of two counts of making
false statements to federal agents and found defendant Schaffer guilty of giving illegal
gifts to the Secretary of Agriculture in violation of one count each of 18 U.S.C. §
201(c) and 21 U.S.C. § 622. On September 22,
1998, the district court upheld Williams convictions and granted Schaffers
motion for judgment of acquittal. United
States v. Williams, __ F. Supp. 2d __, 1998 WL 852895 (D.D.C.). The government noticed its appeal of the district
courts acquittal of Schaffer on October 9, 1998.
Following the district court sentencing of Williams to pay a $5,000 fine (declining
to impose any term of incarceration or probation) on November 2, 1998, Williams filed a
notice of appeal of his conviction on November 12, 1998.
The government filed a motion to consolidate the two appeals on November 17, 1998. This Court, by order dated January 13, 1999,
denied the governments motion to consolidate the Williams appeal with the Schaffer
appeal, but ordered that the Williams appeal be scheduled for oral argument on the same
day before the same panel as the Schaffer appeal. Government
counsel has been informed that the Court will not hear the appeals before its summer break
during the months of June, July and August. For
the reasons discussed below, the Independent Counsel respectfully asks that it expedite
these appeals so that oral argument may be held in late May, 1999. II.
REASONS FOR GRANTING THE MOTION
The ordinary public interest in prompt resolution of criminal matters is heightened
here because this prosecution is at the tail end of a number of proceedings brought by an
independent counsel appointed pursuant to the Ethics in Government Act, 28 U.S.C.
§ 591 et seq. The investigation
has concluded and with the acquittal of defendant Espy, other than these appeals, the only
prosecution remaining on this Independent Counsels plate is resolution of United
States v. Sun-Diamond Growers of California, currently being briefed to the United
States Supreme Court and scheduled for oral argument on March 2, 1999.
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 these
cases have somewhere else to which they need to return.
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, three of the four attorneys who tried the instant case for the
Independent Counsel remain on staff; however, each of the attorneys is examining returning
to permanent posts or seeking other employment possibilities, and could depart at any
time.
These appeals are well suited to expedited treatment. Both appeals
concern discrete and relatively simple issues regarding defendants
convictions. The issues raised by this appeal
are important but not unduly complex and the parties have previously briefed them for the
district court.[1]
Finally, the government requests that if the Court does not expedite the Schaffer
appeal, it amend its January 13, 1999 Order requiring that oral argument be held on the
same day in both appeals. That would permit
the Court to expedite the Williams appeal and at least bring that appeal to resolution. III.
SUGGESTED TIMETABLE
The Government respectfully requests the following timetable for the briefing and
hearing of the Williams appeal. Appellants Brief Filed 15 days after this motion is granted. Appellees Brief Filed 15 days after Appellants Brief
filed. Appellants Reply Filed 10 days after Appellees Brief filed. Oral Argument
As soon as practicable after Appellants Reply is filed.
The government respectfully requests the following timetable for the briefing and
hearing of the Schaffer appeal: Appellants Brief Filed 5 days after this motion is granted. Appellee/Cross-Appellants Brief
Files 20 days after
Appellants Brief filed. Appellants Reply/Cross- 15 days after Appellee/Cross- Appellees Brief Filed Appellants
Brief filed. Cross-Appellants Reply Filed 10 days after Appellants Reply
and Cross-Appellees Brief filed. Oral Argument As soon as practicable
after Cross-Appellants Reply is filed. CONCLUSION
There is a strong public interest in resolving the present appeals quickly, so that
this phase of the Independent Counsels prosecution can be brought to closure and
then phase out its operations. Accordingly,
it is respectfully requested that this court expedite these appeals so that this matter
can be resolved as promptly as possible. Date: February 4, 1999
Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy
___________________________
Donald C. Smaltz
Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703)
706-0076
[1]
In fact, the government and the defendant have previously briefed some of
the issues in the Williams appeal twice before the district court -- once following
the first trial in which the jury found Williams guilty of the same false statements, and
again following the trial that is the subject of this appeal.
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