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IN
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN RE UNITED STATES OF AMERICA, No. 99-___________ Petitioner. PETITION FOR WRIT OF MANDAMUS RELIEF SOUGHT
Petitioner United States of America, through the Office of Independent Counsel,
respectfully petitions this Court to issue a Writ of Mandamus directing the Hon. James
Robertson of the United States District Court for the District of Columbia to vacate the
courts order of November 4, 1999, setting an evidentiary hearing for this Friday,
November 12, 1999 at 10:00 a.m. on Real Party in Interest Archibald R. Schaffers
motion for a new trial filed in that court on October 13, 1999, and to deny that motion
summarily.[1]
The relief sought by Real Party in Interest, a new trial on a motion brought
outside the time limits of Rule 33 of the Federal Rules of Criminal Procedure, is
manifestly beyond the trial courts jurisdiction.
In ordering an evidentiary hearing on Real Partys untimely motion for a new
trial, rather than denying it summarily, the trial court explicitly recognized and is
exercising jurisdiction over a matter for which its jurisdiction is totally lacking. Mandamus is both available and necessary to
rectify this continuing improper exercise of judicial authority. United States v. Smith, 331 U.S. 469
(1947).
The United States respectfully requests this Court's immediate attention to this
Petition, as the District Court has ordered the unlawful hearing for Friday, November 12,
1999, at 10:00 a.m. Simultaneously with this
Petition, we have filed in this Court and in the District Court stay motions seeking a
stay of the Friday, November 12, 1999 hearing until this Court can rule on the merits of
the Petition. The courts will be closed
Thursday, November 11, 1999 in observance of Veterans Day.
We will advise the Circuit Court Clerk of any decision of the District Court on the
stay motion that is being presented to it and respectfully request this Court exercise its
supervisory powers and immediately grant this stay until it rules on the United States
petition, which raises significant and important issues of law. ISSUE
PRESENTED
Whether the District Court has jurisdiction to consider a motion for new trial
brought by a criminal defendant more than 7 days after the verdict, where the motion is
not based on newly discovered evidence because the evidence defendant seeks to
present was concededly known to him at the time of trial. STATEMENT OF THE CASE
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 of Agriculture
Alphonso Michael 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 Counsels
investigation referred to above and connected with or arising out of that investigation. September 9, 1994 Order of Special
Division. (Tab A)
Pursuant
to that jurisdictional mandate, the Independent Counsel investigated whether Tyson Foods,
Inc. (Tyson Foods), the nations largest poultry producer, provided
unlawful gratuities to Secretary of Agriculture Espy.
That investigation disclosed and confirmed that Tyson Foods provided several
things of value to the Secretary. Tyson Foods
Information and Plea Agreement (attached as
Tab B).
On
September 17, 1996, the Grand Jury returned a two-count indictment against Williams
charging him with knowingly and wilfully, and on two separate occasions, making false
statements to federal investigators who were looking into whether Tyson Foods provided
Secretary Espy unlawful gratuities. 9/17/96
Williams Indictment (Tab C).
The
jury convicted Williams on both counts on March 21, 1997.
Shortly thereafter, the District Court threw out the jurys verdict and
granted Williams a new trial on the basis of a claim that the United States had failed to
provide Williams with the material from a government witnesss personnel file.
6/11/97 Order (D.D.C.) (Tab D). Although the
United States believed the District Courts ruling to be in error, to avoid delay it
elected to retry Williams rather than bring the matter to this Court.
Before
a new trial commenced, on September 30, 1997, the Grand Jury returned a Superseding
Indictment charging Williams with the same two false statement counts as well as two
counts of violating 21 U.S.C. § 622 (the Meat Inspection Act or the Act),
as a result of his participation in providing things of value from Tyson Foods to
Secretary Espy and Acting Assistant Secretary Jensen.
9/30/97 Williams Indictment (Tab E).
Pursuant
to a plea agreement, on December 29, 1997, Tyson Foods pled guilty to a one-count gratuity
violation, admitting that it provided to Secretary Espy approximately $12,000 in unlawful
gratuities, including: four $1500 tickets to a 1993 Presidential Inaugural Dinner; air
transportation, lodging and entertainment at a birthday party thrown by Tyson in
Russellville, Arkansas; a $1,200 Tyson Foundation scholarship check for Espys
girlfriend; and airline tickets, limousine service, and skybox tickets for Espy and his
girlfriend to attend a Dallas Cowboys Green Bay Packers playoff game. Tyson Foods Information and Plea Agreement (Tab
B).
On
January 15, 1998, the Grand Jury returned a Second Superseding Indictment that charged
Williams with conspiracy to provide gratuities, mail and wire fraud to deprive the public
of the honest services of Secretary Espy, and giving unlawful gratuities, in addition to
the violations of the Meat Inspection Act and false statements already alleged in the
indictment. 1/15/98 Williams/Schaffer Indictment (Tab F).
Additionally, the Second Superseding Indictment added Real Party in Interest
Archibald Schaffer as a defendant and charged him with conspiracy, wire fraud, violating
the Meat Inspection Act, and giving unlawful gratuities.
Id.
Schaffer
never moved for a continuance or to sever his trial from Williams trial. Trial commenced on June 15, 1998. Both defendants presented evidence in their
defense. At no time did Schaffer ever
attempt to introduce, or even indicate that he wanted to introduce, testimony from former
Secretary Espy. At the close of the
governments case, on June 23, 1998, the District Court entered judgments of
acquittal in favor of Williams and Schaffer as to the conspiracy count and the mail and
wire fraud counts. Transcript of Proceedings, 6/23/98 (D.D.C.) at 1381-85 (Tab G).
On
June 26, 1998, the jury found defendant Williams guilty of two counts of making false
statements to federal agents and defendant Schaffer guilty of one count of giving unlawful
gratuities and one count of violating the Meat Inspection Act. 9/22/99 Memorandum Order
(D.D.C.) (Tab H). Both defendants filed
timely motions for new trial and motions for judgment of acquittal. Schaffer did not assert in his motion for new
trial that he was deprived of a fair trial because the testimony of Secretary Espy was
unavailable. On September 22,
1998, the District Court denied the motions for new trial and denied Williams motion
for judgment of acquittal, but he rejected the jurys verdict and granted Schaffers
motion for judgment of acquittal as to both counts of conviction. Id.
The
government noticed its appeal seeking reversal of the judgment of acquittal, and Schaffer
cross-appealed the denial of his motion for new trial.
This Court reversed the District Court with respect to the judgment of
acquittal on the Meat Inspection Act, but affirmed as to the gratuity count and the denial
of the motion for new trial. United States
v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999) (Tab I).
In the interim, over the governments objections, the District Court
sentenced Williams (who later abandoned his appeal of his conviction) to pay a $5,000
fine, without imprisonment or probation. Williams
Judgment of Conviction, filed 11/2/98 (D.D.C.) (Tab J).
On
August 27, 1997, the Grand Jury indicted former Secretary of Agriculture Espy on multiple
counts. Espy Indictment (Tab K). These included receipt of the same gratuities that
Schaffer and Williams were indicted for giving him. Id.
at ¶¶ 9b, 20b, 22a, 24. On December 2,
1998, following a two month jury trial in the United States District court for the
District of Columbia, Espy was acquitted of all charges brought against him. Espy Verdict Form (Tab L).
On
December 15, while his appeal was pending, Real Party Schaffer filed a second motion for
new trial in the District Court with respect to the gratuity count on which he had been
convicted, purportedly based on non-disclosure of exculpatory evidence learned by
defendant during the trial of former Secretary Espy.
Schaffers Mot. for New Trial on Grounds of Non-Disclosure of Exulp.
Evid., filed 12/15/98 (Tab M). At no time in
that motion, however, did Schaffer raise the potential testimony of Secretary Espy as
requiring a new trial. This motion became
moot with the Court of Appeals affirmance of the judgment of acquittal as to the
gratuity count.
On
September 13, 1999, in response to the governments motion for a sentencing date,
Schaffer argued that the District Court should set a date well in the future because he
was considering filing another motion for new trial.
Schaffers Resp. to Govt. Mot. to Set Date for Sent., filed 9/13/99, at
2 (Tab N). Schaffer asserted that he had to
review the record of Secretary Espys trial to determine whether a motion for new
trial predicated on newly discovered evidence was appropriate. Id.
On
October 13, 1999, almost sixteen months after the jurys verdict, Real Party Schaffer
filed his third motion for new trial and asserted that it was predicated upon newly
discovered evidence. Schaffers Mot. for
New Trial Based on Newly Disc. Evid., filed 10/13/99, at 1 (Tab O). Schaffers proffered evidence, however, was
the potential testimony of Williams and Espy, and he conceded that he was aware of this
evidence at the time of his trial. Specifically,
Schaffers motion for new trial stated: Mr. Schaffer knew the substance of
Secretary Espys testimony at the time of Mr. Schaffers trial. Id.
at 6. Nevertheless, he argued that
unavailable evidence can constitute newly discovered evidence under case law in the First
Circuit. Id. at 6, 8-11
On
October 25, 1999, the government filed its opposition and pointed out that Schaffers
proffered evidence was concededly not newly discovered and that his motion, therefore, was
untimely under the law in this Circuit. U.S.s
Opp. to Def.s Third Mot. for New Trial, filed 10/25/99, at 1-2 (Tab P). The government also argued that Schaffers
proffered testimony failed to satisfy almost all of the criteria for obtaining a new trial
as required in this Circuit pursuant to Fed. R. Crim. P. 33 and Thompson v. United
States, 188 F.2d 652, 653 (D.C. Cir. 1951), and was only filed at this late date as a
stopgap measure to avoid his impending sentencing. Id.
at 2, 12.
On
November 4, 1999, the District Court entered an Order acknowledging that Williams
testimony does not warrant new trial, but holding, contrary to controlling authority, that
the testimony of Espy, depending upon its substance, may warrant a new trial. 11/4/99 Memorandum and Order (D.D.C.) (Tab Q).
If
the District Court proceeds with this untimely and extrajurisdictional motion, it will
have the effect of further delaying the last case pending for this Office of Independent
Counsel and causing as much as another year of delay until Schaffer is sentenced. The Independent Counsel is not a permanent
position and its officers are under a statutory duty to conduct themselves as
expeditiously as possible. 28 U.S.C.
§ 593(b)(3). This statutory requirement
is not just theoretical, it is very practical. WHY THE WRIT SHOULD ISSUE I.
THE
DISTRICT COURTS DECISION TO PROCEED TO AN EVIDENTIARY HEARING ON AN UNTIMELY MOTION
FOR NEW TRIAL IS BEYOND ITS JURISDICTION
The
District Court lacks jurisdiction to consider the defendants untimely Rule 33
motion, and its order allowing an evidentiary hearing on such a motion is clearly an
improper usurpation of power. Rule 33 of the
Federal Rules of Criminal Procedure provides:
On
a defendants motion, the court may grant a new trial to that defendant if the
interests of justice so require. . . . A
motion for new trial based on newly discovered evidence may be made only within three
years after the verdict or finding of guilty. But
if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on any other
grounds may be made only within 7 days after the verdict or finding of guilty or within
such further time as the court may fix during the 7-day period.
The
Supreme Court has made clear that the time limits of Rule 33 are jurisdictional, that
district courts lack the power to entertain untimely motions for new trial, and that a
peremptory writ is the proper remedy when a trial court exceeds its jurisdiction in this
manner. United States v. Smith, 331
U.S. 469 (1947). The district court in Smith
had denied the defendants timely motion for new trial but, after the defendants
conviction was affirmed on appeal, reconsidered the defendants arguments and sua
sponte ordered a new trial. An en
banc Court of Appeals denied the Governments petition for mandamus seeking to
vacate the order granting a new trial.
The
Supreme Court reversed and ordered the writ to issue.
In so doing, the Court expressly rejected the argument that a district court
has the power to order a new trial without request and at any time. Smith, 331 U.S. at 473-474. Rather, the Court held, district courts possess
the power to grant a new trial only pursuant to a timely filed motion, and upon deciding
that motion, their authority to grant a new trial terminates. Id. at 473-77. Moreover, the Court emphasized that the time
limits stated by Rule 33 set the boundaries of the trial courts jurisdiction. We think that expiration of the time within
which relief can openly be asked of the judge, terminates the time within which it can
properly be granted on the courts own initiative. Id. at 475.
Consequently, the government was entitled to the requested writ.
The
Smith Court also explained the justification for requiring motions for new trial
soon after the completion of trial: [A]s time passes, the peculiar ability
which the trial judge has to pass on the fairness of the trial is dissipated as the
incidents and nuances of the trial leave his mind to give way to immediate business. It is in the interest of justice that a decision
on the propriety of a trial be reached as soon after it has ended as is possible, and that
decision be not deferred until the trials story has taken on the uncertainty and
dimness of things long past. Id. at 476.
In
the wake of Smith, the circuits have uniformly held that district courts lack
authority to consider untimely motions for new trial.
See, e.g., United States v. Dukes, 727 F.2d 34, 38 (2d
Cir. 1984) (The[] time limits [of Rule 33] are jurisdictional. If a motion is not timely filed, the district
court lacks power to consider it.); United States v. Gaydos, 108 F.3d 505,
512 (3d Cir. 1997) (A district court is powerless to entertain untimely motions
under Rule 33 . . .); United States v. Cook, 705 F.2d 350, 351 (9th Cir.
1983) (Because Rule 33's time limitations are jurisdictional, a district court is
powerless to consider an untimely motion for a new trial.); United States v.
Miller, 869 F.2d 1418, 1420 (10th Cir.1989) (holding district court lacked
jurisdiction to order new trial in response to motion filed one year and nine months after
finding of guilt); United States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir. 1997)
(The time limits imposed by Rule 33 are jurisdictional.); cf. In re United
States, 598 F.2d 233, 236 (D.C. Cir. 1979) (recognizing that the Supreme Court in Smith
h[e]ld[] that a timely motion pursuant to Rule 33 [is] a prerequisite to the
District Courts power to award a new trial.).
Real
Party Schaffers motion for new trial was filed on October 13, 1999, over fifteen
months after a jury found him guilty. Consequently,
the trial court lacked jurisdiction to entertain that motion or order an evidentiary
hearing to address it, unless the motion actually was grounded on newly discovered
evidence. Its decision to the contrary
amounts to an extrajurisdictional exercise of power and should not be permitted.
Schaffer
argued, and the trial court apparently agreed, that Schaffers present motion for new
trial is based on newly discovered evidence, and thus timely. But in light of Schaffers concession that he
was aware of the evidence at the time of trial, this premise is unequivocally incorrect as
a matter of law, and therefore cannot justify the trial courts extrajurisdictional
exercise of power.
Rule
33 compels that any motion for new trial must be filed within seven days of the verdict or
finding of guilt unless it is based on newly discovered evidence. (emphasis added)
As this Court held in Thompson v. United States, the evidence
must have been discovered since the trial or it is not newly discovered
within the meaning of Rule 33. 88 F.2d 652,
653 (D.C. Cir. 1951) (establishing five prong test a defendant must satisfy to obtain new
trial based on newly discovered evidence). See also United States v. Calderon,
127 F.3d 1314, 1351 (11th Cir. 1997) (A motion for new trial based upon newly
discovered evidence must not be based on evidence or incidents of which appellants had
knowledge prior to return of the jury verdict.) citing United States v. Jones,
597 F.2d 485, 489 (5th Cir. 1979).
Schaffer
openly concedes that he did not first learn about the evidence underlying his
motion after his trial. Mr. Schaffer
knew the substance of Secretary Espys testimony at the time of Mr. Schaffers
trial. Schaffers Mot. for New Trial, filed 10/13/99, (D.D.C.) at 6.
Consequently, Schaffers motion is untimely and the District Court lacks jurisdiction
to order an evidentiary hearing or otherwise entertain it.[2]
In
granting the evidentiary hearing, the District Court has accepted Schaffers
erroneous argument that witness testimony known to a defendant at the time of trial, but
unavailable because that witness would assert a Fifth Amendment right not to
testify if called during trial, may qualify as newly discovered evidence. But the District Courts decision flies in
the face of the plain language of Rule 33 and of Thompson.[3]
Moreover,
the reasoning employed by the District Court was expressly rejected by this Court in United
States v. Dale, 991 F.2d 819 (D.C. Cir. 1993). The defendant in Dale argued
that the post-trial testimony of a codefendant entitled him to a new trial based on newly
discovered evidence. This Court resoundingly
rejected that claim, emphasizing the long-standing rule of this Circuit that [t]o
obtain a new trial based on newly discovered evidence, a convicted defendant must offer
evidence that has been discovered since the trial. Dale, 991 F.2d
at 838 (quoting United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989)). The Court also supported its decision by noting
that all other circuits that had considered the question concluded this requirement
is not met simply by offering the post-trial testimony of a co-conspirator who refused to
testify at trial id. at 838-39, and by pointing to its own decision in Charino
v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988).[4] Id. at 838-39.
Dale
commands dismissal of Schaffers similarly grounded motion for new trial and the
District Court is without authority to disregard Dale. The District Court, however, purported to
distinguish Dale on two grounds. First
he noted that former Secretary Espy was not a co-defendant, nor was he alleged to be
a co-conspirator. 11/4/99 Memorandum
and Order (D.D.C.) at 1 (Tab Q). Second,
Judge Robertson noted that on the present record, we do not know whether the
substance of the proffered testimony was known to the defendant at the time of trial. Id. at 2 (internal quotations and citation
omitted).
Both
of these assertions are flatly contradicted by the record.
As to the first, that Secretary Espy was not named as a co-defendant or
alleged to be a co-conspirator, the trial court was just flat-out wrong. The United States did in fact allege that
Secretary Espy was a co-conspirator. Govts
Opp. To Schaffers Motion for Bill of Particulars, filed 2/23/98 at 16. (Tab R). In any event, in his own trial, Secretary Espy was
charged with receiving the gratuities that Schaffer was alleged in the present case to
have given. Espy Indictment at ¶¶ 9b, 20b,
22a, 24 (Tab K). In other words, Secretary Espy was not Schaffers co-defendant
simply because the government brought separate indictments and conducted separate trials
on this one crime. However, this election
(grounded on the fact that both defendants were also charged with a number of
non-overlapping crimes) does not make Secretary Espys testimony any more newly
discovered than it would have been if the two defendants had been tried together.
As
to the courts second assertion, that we do not know whether the substance of
the proffered testimony was known to the defendant at the time of trial, this
question was definitively resolved by defendants own admission. Schaffers motion for new trial forthrightly
concedes that Mr. Schaffer knew the substance of Secretary Espys testimony at
the time of Mr. Schaffers trial. Schaffers
Mot. For New Trial, filed 10/13/99, at 6 (Tab O).
Even
if the United States had not alleged Espy was a co-conspirator, the District Court would
still lack jurisdiction to address Schaffers untimely motion. There is no principled reason why Secretary Espys
status as a nonparty witness rather than a co-conspirator or co-defendant would make a
difference as to whether his testimony is newly discovered.
Recently,
this Court has twice strongly suggested as much. In
United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) and again in United States v.
Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999), defendants argued that statements by
third party witnesses known to the defendants but unavailable to the defendant
at trial can constitute newly discovered evidence. In
both instances, this Court looked upon this assertion with great skepticism.
In
Ortiz, 136 F.3d at 167-68, this Court observed: The traditional definition of newly
discovered evidence is evidence discovered since the trial, at least with respect to
motions for a new trial, and [the testimony of the third party] was known to Ortiz at the
time of trial. Ortiz cites no authority for
his newly minted definition of newly discovered evidence . . .
Similarly,
when the defendant in Gloster raised the same argument accepted here by Judge
Robertson, this Court admonished that
[a]lthough
it is true that some of the cases in which we have applied the general rule [that
testimony known to a defendant but unavailable until after trial does not
qualify as newly discovered evidence] involved codefendants, . . ., that was
not the situation in Ortiz itself, where the witness who initially refused to
testify was a nonparty. Ortiz strongly
suggested that even a nonparty witness post-trial offer to testify would fail to
qualify as newly discovered evidence where the substance of the testimony was known to
defendant at the time of trial. Gloster, 185 F.3d at 915
(citation omitted).
Ultimately,
Ortiz and Gloster each denied the defendants arguments for new trial
on other grounds. But these decisions make
clear what the trial court failed to see here: there
is no reasonable basis to distinguish Dale based upon the witness identity as
a nonparty witness rather than a co-conspirator. Of
course, this Court need not resolve this issue in the present case either because, as
noted above, Espy was alleged to be a co-conspirator and in fact was indicted for offenses
connected with those for which defendant Schaffer was convicted.
To
compound the errors discussed above, the District Court has also ignored this Circuits
substantive requirements for granting a new trial based on newly discovered evidence. At least since Thompson v. United States,
discussed supra, defendants in this Circuit seeking a new trial on the basis of
newly discovered evidence have been required to show diligence in the attempt to
procure the newly discovered evidence. 188
F.2d at 653.
In
its opposition to Schaffers motion for new trial, the United States emphasized that
Schaffer took absolutely no measures to obtain or introduce Espys testimony. Schaffer did not: (1) move to continue his trial
until Espys testimony became available; (2) include Espy on his pretrial witness
list; (3) obtain written statements from Espy for admission at trial; or (4) move for or
request that Espy have use immunity conferred upon him to compel the
purportedly desired testimony. Nor did
Schaffer move within seven days for a new trial based on the unavailability of Espys
testimony. United States Opp. to Def.s
Third Mot. for New Trial, filed 10/25/99, at 9-11 (Tab P).
Schaffer
failed to present one iota of evidence that he exercised any diligence at all in
discovering or obtaining former Secretary Espys testimony, in asking for a trial
schedule that would allow him to present such testimony, in attempting to introduce Espys
testimony at trial, or in moving for new trial on a timely basis. Nevertheless, the District Court concluded that
Schaffer was excused from exercising the diligence this Court requires because his efforts
would likely have been unsuccessful anyway: The second Thompson element, that
the party seeking the new trial must show diligence in the attempt to procure the
newly discovered evidence, will not be resolved against Schaffer because of his
counsels asserted failures to take any of the measures suggested by the
prosecution, Memo at 9-12. None of those
measures would have had a chance of success. Schaffers
counsel are experienced, responsible officers of this Court, loath to file futile motions. 11/4/99 Memorandum and Order (D.D.C.) at
2-3 (Tab Q). Neither Schaffer in his motion,
nor the District Court court in its order, gave any hint as to why the efforts at
diligence that this Court requires should have been excused because of assumed futility.
This
holding conflicts with the express language of Thompson, is clear error, and must
be corrected. Allowing this decision to stand
would open the floodgates to similar unsubstantiated, post-hoc claims of unavailability
of evidence from defendants seeking new trials, and would encourage defendants not to
pursue newly discovered evidence diligently, in hopes that a trial court reach a post-hoc
conclusion months or years later that such efforts would be futile. Moreover, absent strict adherence to the
jurisdictional requirements of Rule 33, the substantial jurisprudential interest in
finality of judgments is undermined.
In
conclusion, Schaffer concedes he was aware of the substance of Espys testimony at
the time of trial but did nothing to attempt to secure it.[5] Now, over fifteen months after a jury found him
guilty, he has raised for the first time via a motion for new trial his argument that he
should now be provided a new trial at which he could introduce Espys testimony. Because this request does not involve newly
discovered evidence under the plain language of Rule 33 and this circuits
precedents, Schaffers motion is untimely, and the District Court has no jurisdiction
to entertain it. The trial courts
decision to conduct a mini-trial under the guise of an evidentiary hearing on this
facially extrajurisdictional motion is an unlawful exercise of power that must be halted. II.
A WRIT OF
MANDAMUS IS THE PROPER REMEDY
The
Supreme Court, and other courts of appeal, have held that a writ of mandamus is
appropriate where a district court improperly considers an untimely motion for new trial. United States v. Smith, 331 U.S. 469,
473-74 (1947); In re United States, 565 F.2d 173 (1st Cir. 1977). Indeed, this Circuit has also implicitly
recognized that a writ would be appropriate under such circumstances. In In re United States, 598 F.2d 233 (D.C.
Cir. 1979), this Court contrasted the facts present in that case, in which the defendant
filed a timely new trial motion, with those before the Supreme Court in Smith, to
highlight why a writ would not issue. Id.
at 236. This Court explained that given
the timely new trial motion [filed by the defendants here]. . . there can be no serious
contention that the District Court was without jurisdiction to entertain and to act
upon it. Id.
This
Court should issue a writ of mandamus when the petitioner's right to the issuance of the
writ is clear and indisputable and the petitioner has no other adequate means
to obtain relief. In re Sealed Case,
141 F.3d 337, 339 (D.C. Cir. 1998) (quoting Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 289 (1988)). Issuance
of the writ is appropriate when the district court engages in a clear abuse of discretion,
see Papandreou, 139 F.3d at 249-50, or exceed[s] its authority, Sealed
Case, 141 F.3d at 343. Accord In re
Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1996) (Under mandamus, we exercise our
discretion to issue the writ only where the petitioner has shown a clear and indisputable
right to it because, for instance, the district court has acted patently beyond its
authority.).
This
Court recently identified five factors to be considered to determine whether a supervisory
writ of mandamus shall issue:
(1) whether
the party seeking the writ has any other adequate means, such as a direct appeal, to
attain the desired relief;
(2) whether
that party will be harmed in a way not correctable on appeal;
(3) whether
the district court clearly erred or abused its discretion;
(4) whether
the district courts order is an oft-repeated error; and
(5) whether
the district courts order raises important and novel problems or issues of law. National Association of Criminal
Defense Lawyers, Inc. v. United States Department of Justice, 182 F.3d 981, 986 (D.C.
Cir. 1999). All of these factors are present
here, to a greater or lesser degree.
First,
the United States possesses no right of direct appeal on the District Courts
improper assertion of jurisdiction to entertain defendant Schaffers untimely new
trial motion. In re United States, 598 F.2d at 234, 238.
Second,
failure to grant this Petition will result in injury to the United States that cannot be
rectified on appeal. Schaffers
prosecution is being handled by an Independent Counsel and
will be this offices last open case.[6] 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 this
case have somewhere else to which they need to go. 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, only two full time attorneys remain on the Independent Counsels
staff. Both of these attorneys may soon move
to other employment and could depart at any time.
Schaffer
was found guilty on June 26, 1998, over sixteen months ago.
Due to the District Courts rejection of the jurys verdict and
the time necessary to have the Meat Inspection Act count reinstated on appeal, Schaffer
has yet to be sentenced. After sentencing
takes place, there may well be additional appeals by Schaffer.
Unless
this Petition is granted, the completion of this litigation may extend this offices
existence for months. The United States will
likely appeal any negative ruling; but such an appeal on the merits of the District Courts
decision would not likely be resolved in less than six to seven months even if expedited. The United States should not have to suffer such
delay.
Third,
as explained above, the United States' right to a summary denial of defendant Schaffers
untimely motion for new trial is clear and indisputable.
The District Courts actions are unequivocally unlawful and in
contravention of Rule 33 and binding precedent.
Fourth,
while it cannot be said that the trial courts error is frequently repeated to
the contrary, what the trial court did is clearly contrary to circuit precedent it
does appear that litigants and the trial courts would profit from a definitive ruling from
this court at this time. On at least
two recent occasions, litigants have put to this Court arguments similar to the one that
the trial court accepted here. In both United
States v. Ortiz, 136 F.3d 161, 167-168 (D.C. Cir. 1998) and United States v. Gloster, 185 F.3d 910, 915
(D.C. Cir. 1999), defendants argued that newly discovered evidence included
the testimony of non-parties who were unavailable for trial, even though the defendant
knew at the time of trial the substance of the testimony the non-parties would give. Although in both instances this Court strongly
indicated that the such evidence did not satisfy the rule, the Court did not actually have
to reach the issue in either case, since there were other even more compelling grounds for
denying the new trial claims. Somehow, the
trial court in the present case was able to transmute this Courts observation that
it need not tarry over the issue, Gloster, 185 F.3d at 915, into a
professed uncertainty about the state of the law. 11/4/99 Memorandum and Order (D.D.C.)
at 2 (Tab Q). A direct ruling on this
question would benefit future litigants and the trial courts of this circuit by
eliminating any future temptation to find uncertainty where none exists.
Fifth,
the District Courts erroneous exercise of power in contravention of the Federal
Rules of Criminal Procedure and Supreme Court and circuit precedents presents an important
problem of law that demands an immediate remedy. The
public, the courts, and criminal defendants all have an interest in the speedy and final
resolution of criminal matters. As noted
above, the jury found Schaffer guilty sixteen months ago and this Court has already
affirmed his conviction on appeal. The
District Court is now unlawfully considering reopening a final conviction by conducting a
mini-trial based upon evidence known to the defendant at the time of trial. If a criminal case can be brought back to square
one after a trial and affirmance on appeal, through the mechanism of a trial courts
extrajurisdictional consideration of a new trial motion whenever a defendant seeks delay,
the criminal justice system will cease to serve the publics interest in speedy and
final resolution of criminal cases.
Finally,
the United States respectfully requests that this Court exercise its supervisory authority
under 28 U.S.C. §§ 1651 and 2106 to direct that, on remand, this case be assigned to a
different District Judge. This Court may make
such a determination of its own accord, pursuant to it supervisory power to require
such further proceedings to be had as may by just under the circumstances. United States v. Microsoft Corporation, 56 F.3d
1448, 1463 and n.2 (D.C. Cir. 1995) (per curiam) (citing Liteky v. United States,
510 U.S. 540 (1994)). In determining whether
reassignment is appropriate to a different judge, this Court considers whether the
facts might reasonably cause an objective observer to question [the judges]
impartiality, id., and where, upon remand, the circumstances of the case
would cause a reasonable observer to question whether [the judge] would have
difficulty putting his previous views and findings aside, id. at 1465.
Were
the District Judge to continue on its current course of ignoring the law to grant
defendants untimely motion for new trial, it would represent the third time that he
has overturned jury verdicts in this case, each time causing significant delays. Upon remand and reassignment, a new judge would
have the single task of imposing a sentence for which the Probation Office has already
completed the Presentence Investigation Report. The
transcript of the trial was transcribed long ago, this Court has set forth the pertinent
facts in some detail in its earlier opinion, and, with those resources, a new judge could
easily familiarize himself or herself with the facts in the case. CONCLUSION
For
the foregoing reasons, the United States respectfully petitions this Court for a Writ of
Mandamus directing the United States District Court for the District of Columbia to vacate
its order granting an evidentiary hearing on Real Partys Archibald R. Schaffers
motion for new trial filed in that court on November 9, 1999, and to deny that motion
summarily.
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 [1] Under
Circuit Rule 28(a)(1)(C), this case is "related" to our earlier appeal, decided
by this Court on July23, 1999, as amended on September 10, 1999, because it involves the
same parties and the same or similar issues. See
United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999) (Wald, Silberman, Henderson,
JJ.). The two cases arose out of the Office
of Independent Counsels prosecution of defendant Schaffer and involve Judge
Robertsons rulings on motions filed by Schaffer attacking the jurys verdict,
including defendants previous motion for new trial which was conditionally denied by
the District Court and affirmed by this Court. [2]In his motion, Schaffer also alluded to potential
testimony from his co-defendant Williams as newly-discovered evidence.
Schaffers Mot. for New Trial at 1, 3-4, 12-14 (Tab O). However, the trial court correctly concluded that
this potential testimony could not be so characterized.
11/4/99 Memorandum and Order (D.D.C.) at 1 (Tab Q). [3]It also flies in the face of the plain meaning of the
words used in the statute. Blacks Law
Dictionary defines discover as: To uncover that which was hidden,
concealed, or unkown to every one. To get
first sight or knowledge of; to get knowledge of what has existed but has not theretofore
been known to the discoverer. Blacks Law Dictionary 322 (6th ed. 1991). See also Meriam Websters Collegiate Dictionary 331
(10th ed. 1996) (defining discover as: to make known or visible or to
obtain sight or knowledge of for the first time.) Clearly, evidence known to the
defendant at the time of trial cannot be discovered by him after trial. [4]
In Chirino, this Court held that evidence was not newly discovered
so as to satisfy a NTSB regulation worded similarly to Rule 33 where the petitioner sought
reconsideration of his case based on the testimony of an individual who had previously
refused to testify because of charges pending against him but had since pled guilty. The NTSB held that this evidence was not newly
discovered because it was known to the petitioner before and during the hearing. Analogizing the finding to one under Rule 33, this
Court affirmed, ruling: [D]ecisions from
the criminal law setting provide a direct analogy to the situation before the Board in
this case. In effect, the FAA alleged that
[the petitioner] and [the witness] were co-conspirators in an unlawful scheme to issue
fraudulent [pilot] ratings. Inasmuch as [the
witness] chose to remain silent in the earlier proceedings, the Board could reasonably
conclude that he should not now be allowed to exculpate his co-conspirator at a point when
to do so was apparently cost-free (or at least no longer unacceptably costly)
to him. Charino, 849 F.2d at 1532-33. [5]The fact that Schaffers opportunity to move for a
new trial is now long expired does not mean that he did not have the right and the power
to protect himself on a timely basis. If he
really did require Espys testimony but was unable to secure it at the time of his
trial, he could have asked for a trial continuance or moved for a new trial within seven
days of the verdict against him. In waiting
for more than a year after the trial, and until after he has lost his appeal of that
judgment, to bring his motion for new trial, Schaffer is merely trying once again to delay
the inevitable by belatedly asserting a right that he elected to waive many months ago. [6]
This office has completed all other prosecutions and appellate matters except for
one appeal which is currently before this Court on a defendants motion for
reconsideration. That motion has been pending
for nearly one month and a decision is expected in the near future. After that case is resolved, Schaffers case
will be the last for this office to resolve.
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