Shortly thereafter, on April 14, 1999, defendants Five M Farming Enterprises and Brook Keith Mitchell, Sr. filed a notice of appeal from their convictions in the court below. On July 16, 1999, defendants identified their sole challenge on appeal as:

[w]hether the District Court erred in refusing to dismiss the indictment where the Office of Independent Counsel lacked jurisdiction in that jurisdiction was premised on a "referral" of the matter by the Special Division for the Purpose of Appointing Independent Counsels over the express objection of the United States Attorney General, thereby violating the United States Constitution, the Ethics in Government Act and applicable precedent.

Def.s’ Statement of the Issues, filed 7/16/99 (D.C. Cir.). By this motion, the United States moves to dismiss defendants’ appeals because defendants knowingly and expressly waived all challenges to the IC’s jurisdictional as part of a written agreement to plead guilty to the indicted offenses. Having expressly agreed to waive all challenges to jurisdiction, there are no jurisdiction issues to appeal and defendants’ appeal should be dismissed.

Should this Court conclude that defendants’ appeal cannot be dismissed, the United States moves alternatively for summary affirmance of the trial court’s denial of defendants’ jurisdictional challenge.

I. STATEMENT OF FACTS

        A. THE INDEPENDENT COUNSEL’S JURISDICTION

This prosecution arose out of an independent counsel investigation of allegations of unlawful activity by former Secretary of Agriculture Alphonso Michael Espy. Independent Counsel Donald C. Smaltz was appointed by the Special Division of the United States Court of Appeals for the D.C. Circuit to investigate whether then-Secretary Espy accepted unlawful gratuities from persons or entities with business matters pending before the United States Department of Agriculture ("USDA"). The original order of appointment also granted to the Independent Counsel jurisdiction to investigate and, where appropriate, prosecute all

other allegations or evidence of violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, by any organization or individual developed during the Independent Counsel’s investigation referred to above and connected with or arising out of that investigation.

September 9, 1994 Order of Special Division.

Pursuant to an application by the Independent Counsel for the referral of a related matter, the Special Division referred to the Independent Counsel, over the objection of the Attorney General, jurisdiction to investigate and prosecute:

any violation of any federal law, other than a Class B or C misdemeanor, by any organization or individual, related to any application, appeal, or request for subsidy made to or considered by the United States Department of Agriculture, for which Secretary of Agriculture Alphonso Michael (Mike) Espy and/or his Chief of Staff Ronald Blackley intervened in the application, approval, or review process.

April 1, 1996 Order of Special Division (attached as Exhibit 1). The Special Division explained its decision to grant this referral in a lengthy opinion published at In re Espy, 80 F.3d 501 (D.C. Cir. 1996).

    B. DEFENDANTS’ CRIMINAL CONDUCT

Defendant Brook Keith Mitchell, Sr. ("Mitchell"), a long-time supporter and friend of Mike Espy, owned and operated defendant Five M Farming Enterprises ("Five M"), a 4700 acre farming operation in Greenville, Mississippi. Indictment ("Ind.") at ¶ 7. Five M participated in a federal subsidy program administered through the Agricultural Stabilization and Conservation Service ("ASCS") of the USDA. The subsidies were determined, in part, by the number of persons who owned and operated the farming operation. Ind. at ¶ 4. To apply for these subsidies, farming operations submitted "farm plans" annually to the ASCS that identified, inter alia, the persons who owned and operated the farming operation. Ind. at ¶¶ 5-6.

In 1992, Mitchell, with Ronald Blackley’s assistance, drafted a farm plan that artificially inflated the number of owners of Five M so as to fraudulently make the farming operation eligible for additional subsidies. To accomplish this goal, Mitchell established three companies (wholly owned by his two sons) and listed those companies as partial owners of Five M. Ind. at ¶¶ 8, 17. The Mississippi ASCS Office rejected the farm plan, and Mitchell appealed that decision to two additional forums — the Mississippi ASCS Committee and the National Appeals Division of the ASCS. Ind. at ¶ 18. Informal hearings were held at each forum wherein Blackley represented Mitchell, and each affirmed the Mississippi ASCS Office’s decision. Ind. at ¶¶ 19-20.

In January 1993, Alphonso Michael Espy became Secretary of USDA. Soon thereafter, Espy appointed Ronald Blackley as his Chief of Staff and Mitchell to a position on the Mississippi ASCS Committee. Ind. at ¶¶ 10, 22. Blackley, shortly before becoming USDA Chief of Staff and again after taking that position, directed the ASCS Administrator’s Office in Washington D.C. to review the Mitchell decision. Ind. at ¶¶ 21-22.

Pursuant to Blackley’s request, the Acting Administrator of ASCS removed the case from the National Appeals Division and ordered his own office to review the Mitchell decision. Ind. at ¶ 23. During that review, Mitchell made false statements and provided false documents to a representative of the Administrator’s Office to support the Five M farm plan. Ind. at ¶¶ 24-27. Relying on these false statements and documents, the Administrator’s Office reversed the decisions of the State and National Appeals Division. Ind. at ¶ 28. As a result, the ASCS awarded Five M $179,520 in additional deficiency payments for the 1992 crop year. Ind. at ¶ 28. Mitchell submitted essentially the same farm plan the following years and received $776,860 in deficiency payments for the crop years 1992-1995. Ind. at ¶ 29.

On May 22, 1996, a federal grand jury in the District of Columbia returned a four-count indictment charging Mitchell, Five M, and Brook Keith Mitchell, Jr. (hereinafter "Mitchell, Jr.") with conspiracy to make false statements in violation of 15 U.S.C. § 714m(d), false statements in violation of 15 U.S.C. § 714m(a), and false entries in violation of 15 U.S.C. § 714m(b)(ii) as a result of their efforts to illegally obtain the excess USDA subsidy payments. Trial on the matter was scheduled to commence in November 1996.

    C.  DEFENDANTS’ JURISDICTIONAL CHALLENGE

Prior to the scheduled trial, defendants argued vigorously for dismissal of the indictment for lack of jurisdiction. In all, defendants filed well over a dozen pleadings regarding the Independent Counsel’s jurisdiction in the district court, this Circuit court, and in the Special Division. Each of these motions advanced defendants’ single argument in support of their jurisdictional challenge — the Special Division lacked the authority to refer a related matter to an Independent Counsel over the objection of the Attorney General. The district court rejected this challenge:

Defendants challenge the Special Division’s statutory and constitutional authority to make the referral without the Attorney General’s consent. The Special Division itself considered all the relevant issues and held that it may constitutionally refer matters under [28 U.S.C.] § 594(e) that are implicitly covered by the original grant of jurisdiction. In re Espy, 80 F.3d 501, 507 (D.C. Cir. 1996). . . .

Assuming without deciding that the Court has the power to review the Special Division’s referral decision, the Court agrees that the Special Division acted within its authority, primarily because the Five M Farming case is "demonstrably related" to the Espy investigation Smaltz was appointed to oversee. Morrison [v. Olson], 487 U.S. [654], 679 [(1987)] (establishing "demonstrably related" standard). The Court has reviewed in camera the evidence of relatedness before the Special Division, and has no doubt that referral of this case did not impermissibly expand the Special Division’s original grant of jurisdiction.

Order, Oct. 28, 1996, at 2-3 (internal footnote omitted) (attached as Exhibit 2). On the same date, the district court denied defendants’ request for a stay of the trial date pending an appeal of the court’s decision, holding that defendants’ jurisdictional challenge was not subject to an interlocutory appeal.

Nonetheless, defendants sought an interlocutory appeal to this Court, requesting this Court to stay the trial date and review the district court’s jurisdiction ruling. On November 7, 1996, this Court concluded that it lacked jurisdiction to entertain defendants’ appeal as the appeal did not fall within the collateral order exception. Order, Nov. 7, 1996 (D.C. Cir.). On November 12, 1996, this Court denied defendants’ subsequent request for a stay pending rehearing en banc. The following morning, the morning trial was to commence, defendants filed a petition for writ of mandamus that again asked this Court to consider their challenge to the IC’s jurisdiction. Later that morning, immediately before jury selection, defendants entered into a plea agreement with the United States. Plea Agreement, filed 11/13/93 (a true copy of which is appended as Exhibit 3).

    D.  DEFENDANTS’ WAIVER OF THEIR JURISDICTION CHALLENGE

Pursuant to the terms of the Plea Agreement, Five M and Mitchell pleaded guilty to all four counts. In exchange, the United States agreed to: (i) place Mitchell, Jr. on pre-trial diversion for one year and thereafter, provided he successfully completed that program, dismiss the charges against him; (ii) not further prosecute defendants for any crimes related to the offenses charged in the indictment; (iii) convey to the United States Department of Agriculture all relevant information related to the matter, including all cooperation provided by defendants; (iv) inform the sentencing court of the plea agreement and the nature and extent of defendants’ cooperation; and (v) file a U.S.S.G. § 5K1.1 motion with the sentencing court authorizing a downward departure if defendants substantially assisted the United States in its investigation. Exhibit 3 at 1-3.

Important to resolution of the instant matter, defendants agreed as part of the Plea Agreement to "withdraw immediately all challenges to the Independent Counsel’s jurisdiction in all courts and the Department of Justice." Exhibit 3 at 2. Accordingly, defendants, on November 14, 1996, withdrew from this Court their petition for writ of mandamus. Defendants also confirmed their relinquishment of their jurisdictional challenge when they opposed a motion by the United States for specific performance of the Plea Agreement provision at issue by orally assuring the district court that they had withdrawn all challenges to the Independent Counsel’s jurisdiction. Order, filed 12/9/96 (attached as Exhibit 4).

On March 9, 1999, the district court entered judgment against and sentenced Five M and Mitchell. Acting on a U.S.S.G. §5K1.1 motion filed by the United States, the district court departed from the 24 - 30 months incarceration required by the Sentencing Guidelines and sentenced defendants to a term of three years probation. The court also ordered defendants to pay full restitution to the USDA in the amount of $776,860 to be paid $500 monthly. In accordance with the Plea Agreement, the United States then made an oral motion to dismiss the charges against Mitchell, Jr., which the court granted.

Immediately after the United States dismissed the charges against Mitchell Jr., and thereby completed its obligations under the Plea Agreement, defendants announced their intention to appeal their convictions on the ground that the Independent Counsel lacked jurisdiction to prosecute them for their offenses. Granting defendants’ oral motion (over the United States’s objection), the district court stayed the sentencing order pending defendants’ appeal of the jurisdiction issue.

II. ARGUMENT

    A.  THE PRESENT APPEAL SHOULD BE DISMISSED BECAUSE             DEFENDANTS WAIVED THEIR JURISDICTIONAL CHALLENGE

The undisputable facts of this case command dismissal of defendants appeal. As part of their plea agreement, defendants knowingly and expressly agreed to waive all challenges to the Independent Counsel’s jurisdiction, the only issue they present to this Court for review. Defendants themselves acknowledged their waiver, withdrawing their petition for mandamus from this Court and orally avowing to the district court that they had withdrawn all challenges to the Independent Counsel’s jurisdiction.

Waivers such as that agreed to by defendants here are routinely upheld by the courts. See, e.g., Ricketts v. Adamson, 483 U.S. 1, 9-10 (1987) (upholding plea agreement provision waiving double jeopardy claim); United States v. Morrison, 171 F.3d 567 (8th Cir. 1999) (plea agreement provision waiving right to appeal sentence upheld, dismissing appeal); United States v. Howle, 166 F.3d 1166 (11th Cir. 1999) (same); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994) (waivers of right to appeal are enforceable so long as knowingly and intelligently executed); United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.) (right to appeal is statutory and can be waived in plea agreement), cert. denied, 117 S.Ct. 2467 (1997).

There is not an iota of evidence suggesting that defendants’ waiver was anything but knowingly and intelligently executed. Indeed, as noted above, defendants mounted a substantial jurisdiction challenge and pled guilty only after being denied relief on the jurisdiction issue by both the district court and this Court. As their own withdrawal of their petition for writ of mandamus and statements to the district court reveal, defendants clearly understood the import of the jurisdiction provision in the Plea Agreement. Cf. Ricketts, 483 U.S. at 11-12 (considering statements of defense counsel as evidence that defendant appreciated and understood waiver provision in plea agreement).

Consequently, because defendants knowingly and expressly agreed as part of their plea agreement to withdraw their challenge to the Independent Counsel’s jurisdiction from all courts, their appeal should be dismissed with prejudice.

    B.   IN THE ALTERNATIVE, THE PRESENT APPEAL SHOULD BE             SUMMARILY AFFIRMED BECAUSE THE MERITS ARE SO CLEAR             THAT PLENARY BRIEFING AND ARGUMENT ARE
          UNNECESSARY

Should this Court conclude that defendants’ appeal should not be dismissed as waived by their Plea Agreement, the United States respectfully requests that this Court summarily affirm the district court’s denial of defendants’ jurisdictional claim. Summary affirmance is appropriate where, as here, "the merits of [an] appeal . . . are so clear that ‘plenary briefing, oral argument, and the traditional collegiality of the decisional process would not affect [the reviewing court’s] decision.’" Cascade Broadcasting Group, LTD. v. F.C.C., 822 F.2d 1172, 1174 (D.C. Cir. 1987) (quoting Sills v. Bureau of Prisons, 761 F.2d 792, 794 (D.C. Cir. 1985)); see also D.C. Circuit Handbook of Practice and Internal Procedures 65-66 (1994) (providing at § VIII. G. that "[s]ummary affirmance is appropriate where the merits are so clear as to justify summary action.")

The plain language of the Independent Counsel Act ("the Act") as well as the holdings of three separate panels of this Court resoundingly refute defendants’ arguments. Consequently, their appeal is properly resolved through summary disposition.

The statutory language of the Act granting the Special Division the authority to make referrals could hardly plainer:

An independent counsel may ask the Attorney General or the division of the court to refer to the independent counsel matters related to the independent counsel’s prosecutorial jurisdiction, and the Attorney General or the division of the court, as the case may be, may refer such matters.

28 U.S.C. § 594(e) (emphasis added). As the Special Division of this Court expressly noted in granting the referral now at issue: "The plain language of section 594(e) in no way suggests that the concurrence of the Attorney General is required; rather, it plainly contemplates the opposite." In re Espy, 80 F.3d at 505.

The striking clarity of the statute’s language is further amplified by its legislative history. Congress added the final clause of the statute (i.e. "and the Attorney General or the division of the court, as the case may be, may refer such matters") immediately after, and apparently in direct response to, this Court’s conclusion in In re Olson, 818 F.2d 34, 37 (D.C. Cir. 1987) that the Special Division could not make a referral after "the Attorney General has specifically determined, under [28 U.S.C.] § 592(b)(1) that those allegations should not be pursued." As the Special Division aptly noted in In re Espy after reviewing the legislative history:

[T]he amendment to section 594(e) after this court’s decision in Olson clarified that the section permits the court to refer a related matter to an independent counsel without the concurrence of the Attorney General. See H.R.Conf.Rep. No. 452, reprinted in 1987 U.S.C.C.A.N. at 2194-95 . . . .

80 F.3d at 506.

The same conclusion was also reached implicitly in United States v. Hubbell, 167 F.3d 552 (D.C. Cir. 1999) and United States v. Blackley, 167 F.3d 543 (D.C. Cir. 1999), two recent decisions from this Court rejecting similar challenges to Independent Counsels’ jurisdiction.

At issue in Hubbell, as in the instant case, was a referral from the Special Division to an Independent Counsel without the consent of the Attorney General. 167 F.3d at 556-63. Contrary to the arguments advanced by defendants here, this Court did not conclude that such referrals are unconstitutional; rather, the Court held that Special Division referrals are due substantial deference. 167 F.3d at 557.

Blackley involved a prosecution brought under the precise jurisdiction orders present in the instant case. Upholding the jurisdiction of the Independent Counsel to prosecute Blackley for lying about receiving money from persons with business before the USDA, this Court noted the April 1, 1996 referral order but in no fashion suggested that the order was unconstitutional or otherwise inappropriate. 167 F.3d at 545-46 (D.C. Cir. 1999).

III. CONCLUSION

Defendants’ agreement to waive their jurisdictional challenge could scarcely be plainer under the language of the plea agreement. Defendants themselves acknowledged their waiver by withdrawing their petition for mandamus from this Court and assuring the trial court that they had withdrawn all challenges to the Independent Counsel’s jurisdiction. But now, after the United States has complied with its obligations under the agreement (including dismissing all charges against Brook Keith Mitchell, Jr.), defendants seek to circumvent their obligations. Having reaped the benefits of their plea agreement, defendants must be held to their end of the agreement and the present appeal must be dismissed.

In the alternative, should this Court conclude that dismissal is not appropriate, the United States requests that this Court summarily affirm the district court’s jurisdictional finding as defendants’ appeal is so clearly without merit that plenary briefing and oral argument are unwarranted.

July 20, 1999.

DONALD C. SMALTZ

INDEPENDENT COUNSEL

By: _____________________________

Charles M. Kagay

Chief Appellate Counsel

Joseph P. Guichet

Associate Independent Counsel

103 Oronoco Street, Suite 200

Alexandria, Virginia 22314

Tel: (703) 706-0010

Fax: (703) 706-0050

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing United States’ Motion to Dismiss Appeal or, In the Alternative, for Summary Affirmance, was provided this 20th day of July, 1999, via facsimile and United States mail, postage prepaid, to the following:

Nancy Luque, Esq.

Andrew Hurst, Esq.

REED SMITH SHAW & McCLAY

1301 K Street, N.W.

Suite 1100 - East Tower

Washington, D.C. 20005-3317

(202) 414-9200

(202) 414-9299 (fax)

____________________________

Joseph P. Guichet

Associate Independent Counsel