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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 MOTION TO EXPEDITE ISSUANCE OF THE MANDATE I.
INTRODUCTION
Because good cause exists to expedite issuance of the mandate in this case, without
imposing any prejudice to the rights of the defendant, the Government hereby respectfully
requests that the Court order expedited issuance of the mandate pursuant to Fed. R. App.
P. 41(a) and D.C. Cir. R. 41(a)(1). The
relevant Local Rule provides that there is a right of any party at any time to move
for expedited issuance of the mandate for good cause shown. Id. 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, Chap. XIII, Sec. A(1), p. 100 (1997). I.
BACKGROUND
On June 26, 1998, a jury in the United States District Court for the District of
Columbia returned two guilty verdicts against defendant Schaffer. On September 22, 1998, the trial court granted
Schaffers motion for judgment of acquittal. As
of that date it had not sentenced Schaffer, nor had the United States Probation Office
conducted a Presentence Investigation Report (PSI). The
Government filed a timely notice of appeal on October 9, 1998. On February 11, 1999, the Court granted the
Governments motion to expedite the appeal. Following
full briefing, oral argument, and supplemental briefing on the merits the Court issued a
decision on July 23, 1999, whereby it affirmed the district courts grant of
acquittal as to one count and reversed the district courts grant of acquittal as to
the other count and reinstated that count. By
order of July 23, 1999, the Court instructed the Clerk to withhold issuance of the mandate
until 7 days after disposition of any timely petition for rehearing or petition for
rehearing en banc.
III.
ARGUMENT
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. In order to expedite
conclusion of this case, the Government seeks to have the mandate issued immediately so
that the Probation Office may initiate its Presentence Investigation and the trial court
may set the matter for sentencing. Although
Schaffer might still petition for rehearing and petition for rehearing en banc,
there is no reason to delay the time-consuming sentencing process while awaiting
resolution of the Courts 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, United States Court of Appeals for the District of Columbia
Circuit, Chap. XIII, Sec. B, pp. 103-107 (1997). In
this case, because the original panels 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
104, 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 the initiation of a Presentence Investigation
and, perhaps, a sentencing hearing 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). This is not the
circumstance where the Government is moving for the mandate to issue so that the defendant
would be committed to custody during the pendency of the appeal. The Government is simply seeking to tie loose ends
in the trial court that are already resolved in the ordinary criminal 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; United
States v. Blackley, 167 F.3d 543 (D.C. Cir. 1999) (only awaiting decision by the
Supreme Court on a submitted petition for certiorari by the defendant following
conviction at trial); United States v. Five M Farming Enterprises, et al., No.
99-3085 (D.C. Cir., Notice of Appeal filed June 30, 1999) (awaiting disposition of an
appeal of jurisdiction filed by defendant after entering a plea of guilty); and United
States v. Sun-Diamond, No. 96-193-1(RMU) (D.D.C., Indictment filed 1996) (resentencing
set for September 3, 1999, after resolution of all appeals). Barring a grant of certiorari in the Blackley
or Mitchell case, therefore, each of these cases should conclude in the near
future. The Government seeks to conclude the
instant case as promptly as possible. Completion
of a PSI and sentencing at the trial court level while awaiting determinations on
petitions for rehearing and for certiorari would reduce the total time required to
conclude the case by a number of months.
IV.
CONCLUSION
For the good cause demonstrated above, the Government hereby respectfully requests
that the Court issue the mandate in this case immediately. Dated: August 5, 1999
Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy
Donald C. Smaltz
Independent Counsel
By:
_________________________
Wil Frentzen
Associate Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703)
706-0076
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