USCA Case #20-5143 Document #1844374 Filed: 05/27/2020 Page 1 of 4

_______________

No. 20-5143
_______________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________

In re MICHAEL T. FLYNN, Petitioner.

_______________

MOTION OF LAWYERS DEFENDING AMERICAN DEMOCRACY, INC.

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN OPPOSITION
TO THE PETITION FOR A WRIT OF MANDAMUS
_______________

Lawyers Defending American Democracy, Inc. (“LDAD”) respectfully

moves for leave to file a brief as amicus curiae in opposition to the petition for a

writ of mandamus. The certificate of parties and amici and disclosure statement

required by Circuit Rule 27(a)(4) are provided in the addendum to this motion.

1. LDAD is a not-for-profit non-partisan organization qualified under Internal

Revenue Code § 501(c)(4) and incorporated in Massachusetts. Its purpose is to foster

adherence to the rule of law. Since its founding in January 2019, LDAD has issued

Open Letters and statements calling for adherence by public officials to the rule of

law and encouraging our fellow lawyers, the leaders of national, state, and local bar

associations, and the legal academy to join us in speaking out against threats to the

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rule of law. LDAD’s Open Letters have been signed by over 1500 lawyers, including

former federal and state judges, former United States Attorneys, law deans and

professors from around the country. Our Open Letters and statements are available

at https://lawyersdefendingdemocracy.org/statements/. LDAD moved last week for

leave to file a brief as amicus curiae in opposition to the Government’s Fed. R. Crim.

P. 48(a) motion in the District Court. The District Court has not yet ruled on LDAD’s

motion.

2. The mandamus petition seeks, among other things, the extraordinary

remedy of an order directing the district judge to grant a pending Government motion

to dismiss with prejudice a serious charge to which a former senior federal official

has twice pled guilty. The Government’s stated reasons for do not withstand scrutiny

and the motion itself directly implicates the rule of law and constitutes a substantial

threat to public confidence in the administration of justice. The mandamus petition

does not satisfy the exacting standard for issuance of such a writ, for the reasons set

forth in the brief tendered herewith.

3. Because Petitioner and the Government are aligned with respect to the

Government’s motion and presumably will be with respect to the mandamus

petition, the normal adversary process is not functioning. The views of amici that –

like LDAD – are associated with neither side are therefore necessary and appropriate

to aid this Court in fully and fairly examining the issues.

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For the foregoing reasons, LDAD respectfully moves for leave to file the brief

tendered herewith in opposition to the mandamus petition.

Respectfully submitted,

/s/ Eugene R. Fidell

Evan Falchuk Eugene R. Fidell
429 Wolcott Street Feldesman Tucker Leifer Fidell LLP
Newton, MA 02466 1129 20th St., N.W., Ste. 400
(617) 564-3482 Washington, DC 20036
[email protected] (202) 466-8960
[email protected]
Gershon M. Ratner
8209 Hamilton Spring Ct. Stanley J. Marcuss
Bethesda, MD 20187 4616 29th Place, N.W.
(301) 469-8000 Washington, DC 20008
[email protected] (202) 256 0470
[email protected]

Attorneys for Amicus Curiae

Lawyers Defending American
Democracy, Inc.

May 27, 2020

Certificate of Service

I certify that I have, this 27th day of May, 2020, filed the foregoing motion

via the Court’s CM/ECF system, which will send notice thereof to all counsel of

record.

Eugene R. Fidell

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ADDENDUM

CERTIFICATE OF PARTIES AND AMICI CURIAE

Except for LDAD and the other amici who have filed in this Court, all parties

and amici appearing before the District Court and in this Court are listed in the

petition. The District Court has not yet ruled on LDAD’s motion below for leave to

file a brief as amicus curiae.

DISCLOSURE STATEMENT

LDAD is a Massachusetts not-for-profit corporation. It has no shareholders,

parent corporations or subsidiaries. It is not owned or controlled by any other entity.

Nor does it own or control any other entity. Its purpose is to foster adherence to the

rule of law in the United States.

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_______________

No. 20-5143
_______________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________

In re MICHAEL T. FLYNN, Petitioner.

_______________

BRIEF OF LAWYERS DEFENDING AMERICAN DEMOCRACY, INC.

AS AMICUS CURIAE IN OPPOSITION TO THE
PETITION FOR A WRIT OF MANDAMUS
_______________

Evan Falchuk Eugene R. Fidell

429 Wolcott St. Feldesman Tucker Leifer Fidell LLP
Newton, MA 02466 1129 20th St., N.W., Ste. 400
(617) 564-3482 Washington, DC 20036
[email protected] (202) 466-8960
[email protected]
Gershon M. Ratner
8209 Hamilton Spring Ct. Stanley J. Marcuss
Bethesda, MD 20187 4616 29th Place, N.W.
(301) 469-8000 Washington, DC 20008
[email protected] (202) 256 0470
[email protected]

Attorneys for Amicus Curiae

Lawyers Defending American
Democracy, Inc.
May 27, 2020

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 USCA Case #20-5143 Document #1844374 Filed: 05/27/2020 Page 2 of 18

DISCLOSURE STATEMENT

In accordance with Circuit Rule 26.1, Lawyers Defending American Democ-

racy, Inc. (“LDAD”) is a Massachusetts not-for-profit corporation. It has no share-

holders, parent corporations or subsidiaries. It is not owned or controlled by any

other entity. Nor does it own or control any other entity. Its purpose is to foster ad-

herence to the rule of law in the United States.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and amici. Except for LDAD and the other amici who have filed in this

Court, all parties and amici appearing before the District Court and in this Court are

listed in the petition. The District Court has not yet ruled on LDAD’s motion below

for leave to file a brief as amicus curiae.

B. Rulings under review. Petitioner seeks review of an order that appointed an

amicus curiae, ECF No. 205, and a minute order allowing that amicus to appear pro

hac vice and setting a briefing schedule. He also seeks an order requiring the District

Court to grant a pending Government motion to dismiss the information with preju-

dice under Fed. R. Crim. P. 48(a), ECF No. 198, and assigning the case to another

judge for any additional proceedings.

C. Related cases. LDAD is unaware of any related cases other than the proceed-

ings in the District Court.

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Table of Contents

Disclosure Statement ................................................................................................. i

Certificate as to Parties, Rulings, and Related Cases................................................. i

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iii

Identity, Interest, and Authority of the Amicus ......................................................... 1

Questions Presented .................................................................................................. 2

DOES PETITIONER HAVE A CLEAR AND INDISPUTABLE RIGHT TO

RELIEF?

SHOULD THE DISTRICT COURT BE ORDERED TO GRANT A PROS-

ECUTION MOTION TO DISMISS UNDER FED. R. CRIM. P. 48(a) BE-
FORE IT HAS EXAMINED THE FACTS, HEARD ORAL ARGUMENT,
AND RULED?

Facts .......................................................................................................................... 2

Governing Statute and Rule ...................................................................................... 3

Summary of Argument ............................................................................................. 3

Argument .................................................................................................................. 4

PETITIONER DOES NOT HAVE A CLEAR AND INDISPUTABLE

RIGHT TO RELIEF

A. The District Court should be permitted to continue its consideration

of the Rule 48(a) motion ............................................................................... 4

B. Three unresolved issues further show that Petitioner lacks a clear

and indisputable right to mandamus ............................................................ 10

Conclusion .............................................................................................................. 11

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Certificate of Service .............................................................................................. 13

Certificate of Compliance ....................................................................................... 13

Table of Authorities*

Cases:

In re Al Hawsawi, 955 F.3d 152 (D.C. Cir. 2020) .................................................... 9

In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019) ...................................................... 9
Cheney v. United States Dist. Ct., 542 U.S. 367 (2004) ........................................... 9
Jackson v. McCall, 509 F. Supp. 504 (D.D.C. 1981) ............................................. 10
In re Khadr, 823 F.3d 92 (D.C. Cir. 2016) ............................................................... 9
* United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) ................................. 6
United States v. Armstrong, 517 U.S. 456 (1996) .................................................... 6
United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) ............................................. 5
* United States ex rel. Turner v. Fisher, 222 U.S. 204 (1911) (mem.) .................. 10
United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016) ................ 6, 7
United States v. Hamm, 659 F.2d 624 (5th Cir. 1981).............................................. 5
United States v. James, 861 F. Supp. 151 (D.D.C. 1994) ..................................... 4, 5
United States v. Pitts, 331 F.R.D. 199 (D.D.C. 2019) .............................................. 5
United States v. Salinas, 693 F.2d 348 (5th Cir. 1982) ........................................ 5, 6
United States v. Smith, 467 F.3d 785 (D.C. Cir. 2006) ..................................... 10, 11
United States v. Strayer, 846 F.2d 1262 (10th Cir. 1988) ........................................ 5
In re Washington, 544 F.2d 203 (5th Cir. 1976) (en banc), rev’d on other
grounds sub nom. Rinaldi v. United States, 434 U.S. 22 (1977) ........................... 6

Statutes:

18 U.S.C. § 1001 ................................................................................................... 1, 2

* All Writs Act, 28 U.S.C. § 1651 ........................................................................ 3, 9

*
Cases and authorities chiefly relied on are marked with an asterisk.

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Rules of Court:

* Fed. R. Crim. P. 48(a) ................................................................................... passim

Miscellaneous:

Advisory Comm. Note on Fed. R. Crim. P. 48 (1944) ............................................. 4

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Brief Amicus Curiae

Identity, Interest, and Authority of the Amicus

Lawyers Defending American Democracy, Inc. (“LDAD”) is a not-for-profit,

non-partisan organization incorporated in Massachusetts and qualified under section

501(c)(4) of the Internal Revenue Code. Its purpose is to foster adherence to the rule

of law in the United States.

The petition seeks, among other things, an order directing the District Court

to grant a Government motion under Rule 48(a) of the Federal Rules of Criminal

Procedure to dismiss with prejudice charges under 18 U.S.C. §1001 for material

false statements in the course of the FBI’s investigation into Russian interference in

the 2016 presidential election. Petitioner pled guilty and is awaiting sentencing.

The petition raises grave rule of law issues. Granting it would the threaten

public confidence in the administration of justice that this and other Article III courts

have sought to foster for more than two centuries. To order the District Court to grant

the Government’s motion before it has had an opportunity to develop a proper rec-

ord, hear from counsel, and render a considered decision would needlessly depart

from the normal course of proceedings and, on the merits, would effectively nullify

the requirement that such a motion be granted only with leave of court. Whether the

petition is well-founded requires fact-finding for which an appellate court is ill-

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suited. Dueling briefs are not a substitute for the normal course of record-develop-

ment.

This brief has been authorized by LDAD’s Steering Committee. No party or

counsel for any party authored this brief in whole or in part or contributed funding

to it or in connection with its preparation. No person other than LDAD and its coun-

sel contributed money to fund the preparation or submission of this brief.

Questions Presented

DOES PETITIONER HAVE A CLEAR AND INDISPUTABLE RIGHT TO

RELIEF?

SHOULD THE DISTRICT COURT BE ORDERED TO GRANT A PROS-

ECUTION MOTION TO DISMISS UNDER FED. R. CRIM. P. 48(a) BE-
FORE IT HAS EXAMINED THE FACTS, HEARD ORAL ARGUMENT,
AND RULED?

Facts

Petitioner was charged in 2017 under 18 U.S.C. § 1001 with making a false

statement to the Government. The District Court accepted his guilty plea in both

2017 and 2018.

While Petitioner was awaiting sentencing, the Government moved to dismiss

the charges with prejudice. This motion was based on pages of alleged factual asser-

tions, none of which had been previously presented to the District Court. At the same

time, the Government’s motion came against the backdrop of dozens of Tweets and

other public statements by President Trump making it clear that exonerating

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Petitioner is a priority for the President. For example, in spite of evidence of wrong-

doing by Petitioner and his two guilty pleas, the President has called the prosecution

a “witch hunt” and said that the officials who investigated Petitioner were them-

selves guilty of treason. He has further stated that he didn’t think Petitioner had done

anything wrong, and that he was charged in order to “take down a president.”

Governing Statute and Rule

The All Writs Act, 28 U.S.C. § 1651, provides in pertinent part:

(a) The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge

of a court which has jurisdiction.

Rule 48(a) of the Federal Rules of Criminal Procedure provides:

BY THE GOVERNMENT. The Government may, with leave of court, dis-

miss an indictment, information, or complaint. The Government may
not dismiss the prosecution during trial without the defendant’s con-
sent.

Summary of Argument

The petition should be dismissed because Petitioner does not have the requi-

site clear and indisputable right to relief. There is no reason to interfere with the

District Court’s ongoing consideration of the Government’s Rule 48(a) motion. Al-

lowing the District Court to develop a record, hear from counsel, and prepare a rea-

soned decision will afford both Petitioner and the Government a better basis for

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deciding on their future course of action, and will, importantly, provide this Court

and, should it come to that, the Supreme Court, a firmer basis on which to conduct

appellate review.

Argument

PETITIONER DOES NOT HAVE A CLEAR

AND INDISPUTABLE RIGHT TO RELIEF

The District Court should be permitted to

continue its consideration of the Rule 48(a) motion

At common law, prosecutors had unfettered discretion to decide not to pro-

ceed with the prosecution of a case against a defendant, under the principle of nolle

prosequi. In 1944, with the adoption of Rule 48(a), the Supreme Court fundamen-

tally altered that practice by requiring leave of court for any such dismissal in federal

court.1 Numerous cases since the adoption of Rule 48(a) make clear that the role of

the courts in granting leave for any such dismissal is to ensure that the dismissal is

consistent with the law and reflects good faith decision-making by the Government.2

1
Advisory Comm. Note to Fed. R. Crim. P. 48 (1944).
2
United States v. James, 861 F. Supp. 151, 155 (D.D.C. 1994) (under Rule 48(a),
“as considerable precedent has emphasized, the only protection against the abuse of
prosecutorial discretion lies with the court”).

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The rule is “intended to allow the courts to consider the ‘public interest, fair

administration of criminal justice and preservation of judicial integrity.’ To advance

these broader goals, a district court may act where a prosecutor acts in bad faith, or

where the prosecution’s motion ‘is prompted by considerations clearly contrary to

the public interest.’”3 Among the uses that are seen as contrary to the public interest

is the strategic use of Rule 48(a) to correct what the government perceives to be

defects in its case.4

Rule 48(a) does not “confer on the Judiciary the power and authority to usurp

or interfere with the good faith exercise of the Executive power to take care that the

laws are faithfully executed. . . . The exercise of its discretion with respect to the

termination of pending prosecutions should not be judicially disturbed unless clearly

contrary to manifest public interest.”5 However, when it makes a Rule 48(a) motion,

the government “is under an obligation to supply sufficient reasons — reasons that

constitute more than a ‘mere conclusory interest.’”6 While courts indulge a

3
Id. at 155-56 (quoting United States v. Strayer, 846 F.2d 1262, 1265 (10th Cir.
1988)).
4
United States v. Pitts, 331 F.R.D. 199, 205 (D.D.C. 2019) (noting that strategic use
of Rule 48(a) is not permitted “simply because the government seeks to cure its self-
inflicted defects in this case”).
5
United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
6
United States v. Salinas, 693 F.2d 348, 352 (5th Cir. 1982) (quoting United States
v. Hamm, 659 F.2d 624, 631 n.23 (5th Cir. 1981)).

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presumption of good faith when the government seeks dismissal under Rule 48(a),

that presumption is rebutted when evidence is presented that the motion is not made

in good faith. “In such a case, Rule 48(a) mandates that the court deny the Govern-

ment’s motion to dismiss the indictment: ‘under the discretion yielded to [the court]

by [Rule] 48(a) to “check [an] abuse of Executive prerogative,” the court can and

must deny the motion to dismiss.’”7 While the government enjoys significant dis-

cretion in deciding whether to make a Rule 48(a) motion, the Court should not “serve

merely as a rubber stamp for the prosecutor’s decision.”8

Petitioner cites United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir.

2016), for the proposition that courts “generally” do not second guess decisions by

the prosecution on whether to dismiss a case against a defendant. We agree. As this

Court pointed out, a “‘presumption of regularity’ applies to ‘prosecutorial decisions,

and in the absence of clear evidence to the contrary, courts presume that [prosecu-

tors] have properly discharged their official duties.’”9 Given the substantial evidence

of a lack of good faith on the part of the Government in deciding to dismiss this case,

7
Salinas, 693 F.2d at 352 (quoting In re Washington, 544 F.2d 203, 209 (5th Cir.
1976) (en banc), rev’d on other grounds sub nom. Rinaldi v. United States, 434 U.S.
22 (1977) (citation omitted)).
8
United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973).
9
Fokker, 813 F.3d at 741-42 (quoting United States v. Armstrong, 517 U.S. 456, 464
(1996)) (internal quotation marks, quotation and alterations omitted).

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the district court must have the opportunity to determine whether this constitutes

“clear evidence” that the Government did not properly discharge its official duties.

More importantly, unlike Fokker, this case does not involve any already-made

and, thus, reviewable decision on the Government’s motion to drop the charges. The

District Court has yet to rule on the Rule 48(a) motion. In theory, it could go either

way. Thus far, all the District Court has done is announce its determination to care-

fully examine the facts and circumstances pertinent to the decision it must eventually

make under Rule 48(a).

It is obviously premature for this Court to inquire into the basis of a decision

the District Court has yet to make. A fortiori, it is inappropriate to order it to rule

one way or the other. After all, Rule 48(a) is addressed to the discretion of the Dis-

trict Court; this Court’s function is one of appellate review applying the conventional

standard for matters that are reviewable for abuse of discretion. To grant a manda-

mus would be inconsistent with Rule 48(a)’s requirement that the court exercise dis-

cretion when it decides whether to grant such a motion. If this Court were to grant a

mandamus as a way to effectuate a Rule 48(a) dismissal, the leave-of-court require-

ment would be meaningless. It would be odd indeed to preempt a decision that the

law thus entrusts in the first instance to the trial court. If such a case exists in the

context of Rule 48(a), we have not found it and Petitioner has not cited it.

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Perhaps most disturbing about Petitioner’s demand that this Court decide the

Rule 48(a) issue in the first instance is that this Court would have to evaluate the

host of factual matters he asserts as grounds for granting the Government’s motion.

This Court would be determining the truth of those multifarious allegations and eval-

uating their relevance and probative value, without being able to take sworn testi-

mony under oath in open court, evaluate witnesses’ demeanor, and consider the ev-

idence against the backdrop of several years’ worth of prior proceedings.

The District Court is the proper forum for making this decision in the first

instance. If it denies the Rule 48(a) motion, an appeal will lie as of right and the

normal standards for appellate review would apply. Proceeding in the usual manner

preserves the proper allocation of responsibilities between trial and appellate courts

and avoids the egregious misuse of the writ of mandamus Petitioner seeks. Manda-

mus is certainly not appropriate when it is transparently used as a substitute for the

appellate procedure prescribed by Congress.

A court that is asked to grant a writ of mandamus must be satisfied that the

petitioner has demonstrated “that his right to issuance of the writ is clear and indis-

putable, the party seeking issuance of the writ must have no other adequate means

to attain the relief he desires, and the issuing court, in the exercise of its discretion,

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must be satisfied that the writ is appropriate under the circumstances.”10 “Mandamus

is a drastic and extraordinary remedy reserved for really extraordinary causes.”11

The mere fact that a case has generated a great deal of public attention, that the de-

fendant was previously a high public official, or that the moving papers claim that

the circumstances constitute an emergency, does not turn the case into an extraordi-

nary cause for All Writs Act purposes.

A petitioner whose case in still before a district court on a motion that has not

yet been decided because of unresolved factual and legal issues cannot reasonably

be regarded as having demonstrated that he has a “clear and indisputable right” to

mandamus. A petitioner who has the right to appeal a decision on a motion to dis-

miss if the decision is adverse clearly has an adequate means to attain the relief he

desires. Far from presenting a compelling “clear and indisputable” case for appellate

intervention by extraordinary writ, a mandamus petition concerning a matter on

which the District Court has not even ruled is manifestly premature.

10
In re Al-Nashiri, 921 F.3d 224, 233 (D.C. Cir. 2019) (internal quotation marks
and brackets omitted) (quoting Cheney v. United States Dist. Ct., 542 U.S. 367, 380
(2004)).
11
In re Al Hawsawi¸ 955 F. 3d 152, 157 (quoting In re Khadr, 823 F. 3d 92, 97
(D.C. Cir. 2016) (quoting Cheney v. United States Dist. Ct., 542 U.S. at 380)).

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Three unresolved issues further show that Petitioner

lacks a clear and indisputable right to mandamus

The deficient basis for Petitioner’s claim on the merits aside, three additional

factors indicate that he does not have the requisite clear and indisputable right to a

writ of mandamus dismissing the prosecution.

First, the equitable doctrine of clean hands applies to the writ of mandamus.

United States ex rel. Turner v. Fisher, 222 U.S. 204, 209 (1911) (mem.); e.g., Jack-

son v. McCall, 509 F. Supp. 504, 506-07 (D.D.C. 1981). Given the District Court’s

stated concern that Petitioner may have committed perjury in the course of the pro-

ceedings below, this Court should be especially loath to grant a writ of mandamus

until any question of clean hands has been resolved.

Second, even if Petitioner’s case were otherwise well-founded, the burden is

on him to show not only that he had a clear and indisputable right to dismissal of the

information, he would also need to show that that he had a clear and indisputable

right to a dismissal with prejudice. This is plainly an extremely tall order on manda-

mus, and he has not even come close to making such a showing so as to bind the

federal government for all time.

Finally, the structure and text of Rule 48(a) suggest that it does not apply after

pleas have been accepted. In United States v. Smith, 467 F.3d 785, 789 (D.C. Cir.

2006), which Petitioner nowhere cites, this Court expressly did not reach the

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question “whether Rule 48 alone can properly be used to vacate a final conviction.”

Whether or not the advanced posture of the case alone is fatal, nothing in Smith

suggests that timing either cannot or should not be taken into account in deciding

whether to grant a Rule 48(a) motion. Here again, Petitioner has failed to make out

a clear and indisputable right. Quite the contrary, Smith suggests that a major inter-

pretive issue that is directly pertinent to the disposition of the Government’s motion

and Petitioner’s right to a writ of mandamus is unresolved. That issue too ought to

be resolved by the District Court in the first instance.

For these additional reasons, by definition, Petitioner does not have a clear

and indisputable right to the relief he seeks.

Conclusion

Because compelling the District Court to grant the Government’s Rule 48(a)

motion would unjustifiably interfere with the normal allocation of decision-making

responsibilities as between this Court and the District Court, and because Petitioner

has fallen far short of demonstrating a clear and indisputable right to relief, the peti-

tion should be denied.

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Respectfully submitted,

/s/ Eugene R. Fidell

Evan Falchuk Eugene R. Fidell
429 Wolcott Street Feldesman Tucker Leifer Fidell LLP
Newton, MA 02466 1129 20th St., N.W., Ste. 400
(617) 564-3482 Washington, DC 20036
[email protected] (202) 466-8960
[email protected]
Gershon M. Ratner
8209 Hamilton Spring Ct. Stanley J. Marcuss
Bethesda, MD 20187 4616 29th Place, N.W.
(301) 469-8000 Washington, DC 20008
[email protected] (202) 256 0470
[email protected]

Attorneys for Amicus Curiae

Lawyers Defending American
Democracy, Inc.
May 27, 2020

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Certificate of Service

I certify that I have, this 27th day of May, 2020, filed the foregoing brief via

the Court’s CM/ECF system, which will send notice thereof to all counsel of record.

Eugene R. Fidell

Certificate of Compliance

1. This brief complies with the type-volume limitation of Fed. R. App. P.

29(a)(3) because it contains 2548 words, excluding the parts exempted by Fed. R.

App P. 32(f) and Circuit Rule 32(e)(1).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Word in 14-point

Times New Roman type.

Eugene R. Fidell

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