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ORAL ARGUMENT HELD MARCH 24, 2000 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UNITED STATES OF AMERICA, No.
99-3153 v. ARCHIBALD R. SCHAFFER, III, Defendant UNITED STATES MOTION TO EXPEDITE ISSUANCE OF THE MANDATE
I.
INTRODUCTION
Because good cause exists to expeditiously issue the mandate for the second time in
this case, the Government hereby respectfully requests that the Court order expedited
issuance of the mandate pursuant to Fed. R. App. P. 41(b) and D.C. Cir. R. 41(a). Local Rule 41(a)(1) provides that there is a
right of any party at any time to move for expedited issuance of the mandate for
good cause shown. 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, Part XIII, Sec. A(2) (2000). II.
BACKGROUND
Over two years ago, on June 26, 1998, a jury in the United States District Court
for the District of Columbia returned two guilty verdicts against defendant Schaffer. Prior to sentencing, the trial court granted
Schaffers motion for judgment of acquittal as to both counts. The Government appealed and filed a motion to
expedite which this Court granted on February 11, 1999.
After briefing, oral argument, and supplemental briefing on the merits, this 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. Soon thereafter, the
Government moved this Court for expedited issuance of the mandate so that sentencing of
defendant on the reinstated count could proceed in the district court. On August 26, 1999, this Court granted the
Governments motion and directed the Clerk to issue the Courts mandate as
promptly as the business of his office permits.
At the Governments request, the district court thereafter set a date for sentencing and then continued that date to December 4, 1999. On October 13, 1999, the defendant moved for a new trial on the basis of purported newly discovered evidence. Over the Governments objection of untimeliness, the district court held a hearing on November 12, 1999 to examine the claimed newly discovered evidence. The Probation Officer prepared Schaffers Presentence Investigation Report in the interim. On the eve of sentencing, December 3, 1999, the district court granted defendants motion for new trial. The Government noticed its appeal on the same day. This Court granted the Governments motion for expedited treatment and, following briefing and argument, reversed the district courts grant of a new trial on June 27, 2000. III.
ARGUMENT
This Court expeditiously issued the mandate following the first appeal in this case
so that the trial court could sentence the defendant.
Now, ten months later, following a second reversal by this Court, defendant
Schaffer still has not been sentenced. Therefore,
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 before either of two appeals. In
order to expedite conclusion of this case, the Government again seeks immediate issuance
of this Courts mandate so that the trial court may set the matter for prompt
sentencing.
Although Schaffer might still petition for rehearing and for rehearing en banc,
there is no reason to delay sentencing 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 at Part XIII, Sec. B (2000). In
this case, the panels recent 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
Part XIII, Sec. B(2). Consequently, 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 sentencing 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). The Government is simply
seeking to tie loose ends in the trial court that are already resolved in the ordinary
criminal case but have not been concluded in this 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 and United States v. Sun Growers, 212 F.3d 603 (D.C. Cir. 2000). The Sun Growers case, by all indications,
will soon be completed. In contrast, Schaffer
still has not been sentenced, and he will possess the right to appeal that sentence after
it is imposed. Thus, resolution of the case
against defendant Schaffer (which has already taken over two and a half years) will likely
be the last open matter for this office and has the potential to prolong its existence for
quite some time. Therefore, the Government
seeks to conclude the instant case as promptly as possible.
IV.
CONCLUSION
For the good cause demonstrated above, the Government hereby respectfully requests
that the Court issue the mandate in this case immediately and direct the district court to
sentence defendant forthwith. Dated: June 28, 2000
Respectfully submitted,
Donald C. Smaltz
Independent Counsel
By:
_________________________
Joseph P. Guichet
Senior Associate Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax:(703)706-0076
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