3-25-11 motion to stay mandate
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Transcript of 3-25-11 motion to stay mandate
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) )
Plaintiff-Appellee, ) )
v. ) )
XAVIER ALVAREZ, ) )
Defendant-Appellant. ) )
_____________________________)
C.A. No. 08-50345D. Ct. No. CR 07-1035-RGK(Cent. Dist. Calif.)
GOVERNMENT’S UNOPPOSED MOTIONTO STAY MANDATE
Plaintiff-Appellee, the United States of America, through
its counsel of record, the United States Attorney for the Central
District of California, hereby moves pursuant to Federal Rule of
Appellate Procedure 41(d)(2) and Ninth Circuit Rule 41-1 to stay
the mandate for 90 days pending the filing of a petition for a
writ of certiorari.
A petition for writ of certiorari in this case would present
a substantial question. In this Court’s opinion reversing the
conviction in this case, a split panel held the Stolen Valor Act,
18 U.S.C. § 704(b), facially unconstitutional under the First
Amendment. United States v. Alvarez, 617 F.3d 1198 (9th Cir.
2010). A circuit court decision holding an Act of Congress
unconstitutional inherently presents “an important question of
federal law,” Sup. Ct. R. 10(c), in a petition for a writ of
certiorari. See United States v. Stevens, 130 S. Ct. 1577, 1583-
Case: 08-50345 03/25/2011 Page: 1 of 6 ID: 7694490 DktEntry: 38
84 (certiorari granted where single circuit held criminal statute
facially unconstitutional under the First Amendment); United
States v. Gainey, 380 U.S. 63, 65 (1965) (certiorari granted “to
review the exercise of the grave power of annulling an Act of
Congress”). Moreover, seven judges of this Court dissented from
the denial of rehearing en banc in this case primarily on the
ground that the majority opinion “conflicts with relevant
decisions of [the Supreme] Court,” which itself can constitute a
ground for certiorari. Sup. Ct. R. 10(c); United States v.
Alvarez, __ F.3d __, 2011 WL 941617 at *12-*13 (O’Scannlain, J.,
dissenting) (relying on “nearly forty years” of Supreme Court
precedent and “plain application of the Supreme Court’s
guidance”).
There is good cause for a stay. This Court’s opinion orders
the case remanded to the district court “for proceedings
consistent with this opinion.” Alvarez, 617 F.3d at 1218.
Absent relief from the Supreme Court on a writ of certiorari,
such proceedings would mean the termination of the case in
district court. To preserve the government’s ability to obtain
meaningful relief on a certiorari petition, a ninety-day stay
should be granted. Furthermore, even if the government chooses
not to file a petition for a writ of certiorari, it may be
obligated to report its decision to Congress in time for Congress
to intervene to defend the statute in the Supreme Court if it
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wishes. See 28 U.S.C. § 530D(a)(1)(B), (b)(2). Thus, the
mandate should be stayed to allow for this process as well.
This court will deny a stay of mandate where a “petition for
certiorari would be frivolous or filed merely for delay.” Ninth
Cir. R. 41-1. As this case involves the weighty issue of an
Act’s facial unconstitutionality -- and as seven judges of this
Court dissented from denial of rehearing en banc -- it is
apparent that a certiorari petition would be neither frivolous
nor filed merely for delay.
DATED: March 25, 2011 Respectfully submitted,
ANDRÉ BIROTTE JR. United States Attorney
ROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal Division
/s/ Michael J. Raphael MICHAEL J. RAPHAELAssistant United States AttorneyChief, Criminal Appeals Section
Attorneys for Plaintiff-AppelleeUnited States of America
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DECLARATION OF MICHAEL J. RAPHAEL
I, Michael J. Raphael, hereby declare the following:
1. I am an Assistant United States Attorney in the Central
District of California and am Chief of the Criminal Appeals
Section. In that capacity, I supervise the work on United States
v. Alvarez, C.A. No. 08-50345. I make this declaration in
support of the government’s motion to stay the mandate.
2. The government has not yet decided whether to file a
petition for a writ of certiorari. This is a decision to be made
by the Acting Solicitor General after recommendations from the
United States Attorney for the Central District of California and
the Assistant Attorney General for the Criminal Division of the
Department of Justice. Because this case involves the
invalidation of an Act of Congress, I am certain that the
decision will be given close consideration. In fact, the
Attorney General is obligated under 28 U.S.C. § 530D(a)(1)(B) to
report to Congress any instance in which the Department of
Justice decides to “refrain (on the grounds that the provision is
unconstitutional) from defending or asserting, in any judicial,
administrative, or other proceeding, the constitutionality of any
provision of any Federal statute.” Moreover, the Attorney
General is obligated to submit such a report in time for Congress
to intervene to defend the statute if it chooses. 28 U.S.C.
§ 530D(b)(2).
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3. On March 24, 2011, defendant’s counsel Jonathan Libby
informed me that defendant does not oppose this motion.
4. Defendant Xavier Alvarez is not in custody due to the
charges in this case, as he received a sentence of three years’
probation on July 21, 2008.
I declare under penalty of perjury that the foregoing is
true and correct.
DATED: March 25, 2011 /s/ Michael J. Raphael MICHAEL J. RAPHAELAssistant United States AttorneyChief, Criminal Appeals Section
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CERTIFICATE OF SERVICEWhen All Case Participants are Registered for the
Appellate CM/ECF System
(date)
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuitby using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service willbe accomplished by the appellate CM/ECF system.
I hereby certify that on , I electronically filed the foregoing
Signature
(date)
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuitby using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the appellateCM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users.I have mailed the foregoing document by First-Class Mail, postage prepaid, or havedispatched it to a third party commercial carrier for delivery within 3 calendar days to thefollowing non-CM/ECF participants:
I hereby certify that on , I electronically filed the foregoing
Signature
CERTIFICATE OF SERVICEWhen Not All Case Participants are Registered for the
Appellate CM/ECF System
***********************************************************************
Mar 25, 2011
/s/ Michael J. Raphael
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