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ORAL ARGUMENT HELD MAY 12, 1999 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 98-3123 (consolidated with No. 98-3126) ______________________________ UNITED STATES OF AMERICA, v. ARCHIBALD R. SCHAFFER, III, Defendant. ______________________________ UNITED STATES REPLY REGARDING EXPEDITED ISSUANCE OF THE MANDATE
Defendants opposition to the Governments motion for immediate issuance
of the mandate demonstrates that he will suffer no prejudice from such an order. Defendant does not even attempt to argue that he
would suffer any prejudice; instead, he simply asserts that he has a better chance for
rehearing than the average defendant. Even
assuming, arguendo, that he does a view with which the Government strongly
disagrees defendant cites no reason whatsoever why the Court should not issue the
mandate so that the trial court may sentence him. He
would then be put in precisely the same procedural position as the vast majority of
criminal defendants who have been found guilty and whose cases are on appeal.
To the extent that defendant asserts that there is unfinished business
in the trial court, his assertions are either irrelevant or supportive of immediate
issuance of the mandate. Defendants
motion for a new trial on the supposed ground of non-disclosure of exculpatory evidence
related only to Count Ten, the gratuity count predicated on his giving Secretary Espy
inaugural tickets worth $6,000. Because this
Court affirmed the trial courts grant of acquittal as to that count, defendants
motion for a new trial on only that count was mooted.
Defendants claim that the motion is unfinished business is
therefore a red herring. Even if defendants
motion were not moot, and unfinished business other than sentencing actually
did remain for the trial court to attend to, this Court should issue the mandate to
expedite those proceedings.
As the Government made clear in its original motion, while defendant seeks rehearing, rehearing en banc, and
petitioning the Supreme Court for certiorari, the Government seeks to utilize that
time to tie up loose ends in the trial court that are ordinarily resolved before appeal. Regardless of defendants chance for success
on his various petitions, he cites no reason why the Court should not issue the mandate. If the act of sentencing presented an unnecessary
hardship on a defendant and the trial court, it would not ordinarily take place prior to
appeal.
Issuance of the mandate would serve to place the defendant in the same position as
the ordinary criminal defendant and advance
the prosecution to final resolution. Therefore,
the Government respectfully requests that the Court grant its motion and issue the mandate
so that the lengthy process of a Presentence Investigation Report and sentencing may
commence. Dated: August 19, 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
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