United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 2, 2001
No. 99-3153
United States of America,
Appellant
v.
Archibald R. Schaffer III,
Appellee
On Motion to Dismiss as Moot
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Before: Edwards, Chief Judge, Williams, Ginsburg,
Henderson, Rogers, and Tatel, Circuit Judges.*
Opinion for the Court en banc filed Per Curiam.
Per Curiam: On December 22, 2000, then-President Clin-
ton granted a full and unconditional pardon to Archibald R.
Schaffer III, for his conviction in the District Court of
violating the anti-bribery provision of the Meat Inspection
Act, 21 U.S.C. s 622 (1994). Schaffer now moves this court
to dismiss the case as moot.
__________
* Judges Sentelle, Randolph, and Garland did not participate in
this matter.
The parties agree that the pardon rendered moot the
ongoing appeals. They are quite right on this point. Accord-
ingly, under well-established principles governing the disposi-
tion of cases rendered moot during the pendency of an
appeal, we hereby vacate the disputed panel decision in this
case and all underlying judgments, verdicts, and decisions of
the District Court.
I.
Because this case has had a long and curious history, we
offer a brief chronicle of the record leading to the instant
motion:
In the early summer of 1998, a jury found Schaffer guilty
on two counts of a seven count indictment--one for violating
the anti-bribery provision of the Meat Inspection Act and one
for providing unlawful gratuities to a public official. Persuad-
ed that the prosecution had submitted insufficient evidence to
sustain the verdict, the District Court granted Schaffer's
motion for acquittal on both counts, United States v. Schaffer,
Cr. No. 96-0314 (D.D.C. Sept. 22, 1998) (order), and condi-
tionally denied his request for a new trial, Schaffer, Cr. No.
96-0314 (D.D.C. Oct. 6, 1998) (order). The independent
counsel appealed. On July 23, 1999, a panel of this court
affirmed the District Court's judgment of acquittal on the
unlawful gratuities charge, reversed and reinstated the jury
verdict on the Meat Inspection Act charge, and remanded for
sentencing on the latter charge. Schaffer, 183 F.3d 833 (D.C.
Cir. 1999) ("Schaffer I").
Before this court's decision in Schaffer I was issued, Schaf-
fer filed a second motion for a new trial, this time pursuant to
Rule 33 of the Federal Rules of Criminal Procedure. Schaf-
fer cited the newly-found and arguably exculpatory testimony
of former Secretary of the Department of Agriculture, Al-
phonso Michael Espy, which had become available following
Espy's own acquittal in a related prosecution. Subsequently,
after the decision in Schaffer I issued, the District Court
granted Schaffer's Rule 33 motion for a new trial on the Meat
Inspection Act charge. Schaffer, 83 F. Supp. 2d 52 (D.D.C.
1999).
The independent counsel again appealed, this time chal-
lenging the trial court's order granting a new trial. On June
27, 2000, a different panel of this court reversed the order
granting a new trial, reinstated the jury verdict on the Meat
Inspection Act charge, and remanded the case for sentencing.
Schaffer, 214 F.3d 1359 (D.C. Cir. 2000) ("Schaffer II").
This court's ruling in Schaffer II set in motion two distinct
trajectories of response. First, the panel granted the inde-
pendent counsel's unopposed motion to expedite issuance of
the panel's mandate to the District Court without, as would
be the normal case, waiting for any potential petitions for
rehearing and rehearing en banc to run their course. Schaf-
fer, No. 99-3153 (D.C. Cir. July 17, 2000) (per curiam order).
On remand, Schaffer moved the trial court to delay sentenc-
ing pending the outcome of his petitions for rehearing and en
banc review in the Court of Appeals. The District Court
denied the motion and, on September 25, 2000, sentenced
Schaffer to a term of imprisonment of one year and one day.
Schaffer, 121 F. Supp. 2d 29 (D.D.C. 2000).
Second, on July 19, 2000, Schaffer filed petitions for rehear-
ing and rehearing en banc of the Schaffer II decision. The
Schaffer II panel denied the petition for rehearing three
months later. Schaffer, 229 F.3d 284 (D.C. Cir. 2000) (per
curiam order). Shortly thereafter, on November 22, 2000, the
full court granted Schaffer's petition for rehearing en banc,
vacated the panel's June 27, 2000 Schaffer II decision, and
scheduled oral argument for April 4, 2001. Schaffer, 234 F.3d
36 (D.C. Cir. 2000) (en banc) (per curiam order). In a
separate order, the court recalled the July 27, 2000 expedited
mandate, which had set in motion the September 25, 2000
sentencing. Schaffer, No. 99-3153 (D.C. Cir. Dec. 1, 2000)
(en banc) (per curiam order). On December 14, 2000, the full
court granted defendant's motion to continue his release
pending appeal. Schaffer, No. 99-3153 (D.C. Cir. Dec. 14,
2000) (en banc) (per curiam order).
On December 22, 2000, then-President Clinton granted a
full and unconditional pardon to Schaffer. Schaffer filed an
unopposed motion and memorandum to dismiss all pending
appeals as moot on January 4, 2001. In a supplemental
memorandum filed the next day, Schaffer urged this court to
remand the case to the District Court so that it might
determine what action, if any, should be taken to reconcile the
"unreversed" new trial order and the preceding conviction.
II.
The independent counsel, the appellant in this case, con-
cedes that "these appeals are moot and that the Presidential
pardon ends all litigation." Response of United States to
Schaffer's Supplemental Memorandum at 2. We agree. In
making this concession, however, the prosecutor advances the
odd suggestion that Schaffer's conviction is established as a
matter of law. We disagree. Final judgment never has been
reached on this issue, because the appeals process was termi-
nated prematurely.
Certainly, a pardon does not, standing alone, render Schaf-
fer innocent of the alleged Meat Inspection Act violation. See
In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (citing
United States v. Noonan, 906 F.2d 952, 960 (3d Cir. 1990)).
In fact, acceptance of a pardon may imply a confession of
guilt. See North, 62 F.3d at 1437 (citing Burdick v. United
States, 236 U.S. 79, 91, 94 (1915)). In the present case, the
pardon states only that Schaffer receive
A Full and Unconditional Pardon for his conviction in the
United State District Court for the District of the Dis-
trict [sic] of Columbia of the charge of violation of
Section 622, Title 21, United States Code, as set forth in
an indictment (Criminal Action No. 96-0314 (JR)), for
which he was sentenced on September twenty-fifth, 2000,
to one year and one day's imprisonment and fined five
thousand dollars ($5000).
Pres. William J. Clinton, Executive Grant of Clemency (Dec.
22, 2000). In other words, the pardon acts on Schaffer's
supposed conviction, without purporting to address Schaffer's
innocence or guilt.
Nevertheless, the independent counsel is wrong to suggest
that Schaffer's conviction is a fait accompli. Finality was
never reached on the legal question of Schaffer's guilt. The
District Court ordered a new trial following Espy's acquittal;
the prosecutor exercised a legitimate right to appeal that
order; a panel of this court reversed the order of the trial
court; the court expedited issuance of the mandate in Schaf-
fer II; and Schaffer was sentenced on September 25, 2000.
However, the matter was never actually put to rest, because
this court granted Schaffer's petition for en banc review and
recalled the mandate on December 1, 2000. And in agreeing
to en banc review, this court vacated the panel decision in
Schaffer II. It was at that uncertain juncture that then-
President Clinton pardoned Schaffer, thus rendering the case
moot.
When a case becomes moot on appeal, whether it be during
initial review or in connection with consideration of a petition
for rehearing or rehearing en banc, this court generally
vacates the District Court's judgment, vacates any outstand-
ing panel decisions, and remands to the District Court with
direction to dismiss. See U.S. Bancorp Mortgage Co. v.
Bonner Mall P'ship, 513 U.S. 18, 25, 29 (1994); United States
v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); Clarke v.
United States, 915 F.2d 699, 706-08 (D.C. Cir. 1990) (en
banc); Flynt v. Weinberger, 762 F.2d 134, 135-36 (D.C. Cir.
1985). Because the present mootness results not from any
voluntary acts of settlement or withdrawal by Schaffer, but
from the unpredictable grace of a presidential pardon, vaca-
tur is here just and appropriate. See U.S. Bancorp, 513 U.S.
at 24-25.
Given this posture of the case, the efficacy of the jury
verdict against Schaffer remains only an unanswered question
lost to the same mootness that the independent counsel so
readily concedes. The same is true of Schaffer's claim of
innocence. That claim will never again be tried.
We hereby vacate all opinions, judgments, and verdicts of
this court and the District Court relating to the Meat Inspec-
tion Act charge. The matter will be remanded to the District
Court with directions to dismiss the case as moot.
So ordered.