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Notice is hereby given that the United States District Judge Alcee L. Hastings hereby appeals to the United States Court of Appeals for the Eleventh Circuit from the order entered in this action on September 21, 1987 (Butzner, Sr. Cir. J., by designation) and the order entered on August 5, 1987 (King, Ch. J.).

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In the


No. 87-5857


On Appeal from the

United States District Court
for the Southern District of Florida


United States District Judge Alcee L. Hastings asks this court to extend the stay of the orders entered by the court below on September 21, 1987 (Butzner, Sr. Cir. J., by designation) and on August 5, 1987 (King, Ch. J.) until such time as his appeal to this court has been heard and decided. THE STATUS OF THE PROCEEDINGS AND THE NEED FOR EMERGENCY RELIEF

On September 21, 1987, the district court entered an order directing the clerk of that court to make a copy of the entire record of the proceedings of Grand Jury 81-1 and to deliver that copy to the Committee on the Judiciary (the "Committee") of the United States House of Representatives (the "House") (A. 162-63). Under the terms of that and a 1. Appendix to Emergency Motion to Extend Stay Pending


prior order, the court approved procedures that would permit access to the grand jury record by all 535 members of Congress, the 100 Senators as well as the 435 Representatives (A. 13-16, 162-63). The district court recognized the importance of its decision and granted a stay of its order for 21 days to permit this court to determine whether the stay should be extended to permit an orderly disposition of this appeal (A. 163, 178). Unless that stay is extended by this court on or before October 12, 1987, the copy of the grand jury record may be delivered to the Committee at any time thereafter. That action is likely to make it impossible for this court to grant effective relief in the event it determines the lower court erred.


The Background: Six Years of Investication


Six years ago, in 1981, Grand Jury 81-1 in Miami aided the Justice Department in conducting an investigation. purpose of that Grand Jury investigation was to determine whether there was probable cause to believe that Judge Hastings had committed a high crime in office. Late that year, the Grand Jury returned an indictment that alleged that

Disposition of Appeal. The Appendix contains all substantive documents filed with or entered by the court below. There has been a further exchange of correspondence between Judge Hastings and Chairmen Rodino and Conyers. Those letters bear upon the issues in this case and are appended as an Addendum ("Add.") to this motion. See, e.g., Buckley Valeo, 424 U.S. 1, 114-18 (1976) duty of reviewing court to consider events occurring subsequent to entry of judgment under review).

Judge Hastings had corrupted and obstructed and had conspired to corrupt and obstruct justice in connection with his decisions in United States v. Romano. William Borders, a Washington attorney, had solicited and accepted a bribe from an FBI undercover agent posing as one of the defendant Romano brothers. Borders had represented to the agent that Judge Hastings would enter certain orders in their favor in exchange for the bribe. Although none of the money that the agent paid Borders had ever been transferred to Judge Hastings, the indictment alleged that the judge had in fact been a participant in Borders's corrupt scheme.


Five years ago, in 1982, this court ruled that the Constitution did not require that impeachment and removal by the legislative branch precede prosecution by the executive and trial by the courts on allegations that a sitting federal judge had committed high crimes in office. United States v. Hastings, 681 F.2d 706, reh'g denied, 689 F.2d 192 (11th Cir. 1982), cert. denied 459 U.S. 1203 (1983). This court premised its decision, in part, on the view that con

2. The necessary background facts are not in dispute and have been reported in the decisions and documented in the records of this and other courts. See United States v. Hastings, 681 F.2d 706, (11th Cir. 1982): In re Petition to Inspect and Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984); Hastings v. Judicial Conference of the United States, 770 F.2d 1093 (D.C. Cir. 1985); In re Certain Complaint Under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986); Hastings Judicial

Conference of the United States, No. 86-5588 (D.C. cir. Slip. Op. Sept. 15, 1987).

viction by the courts would not be tantamount to removal and that criminal prosecution and trial would not subvert the grant of life tenure to federal judges or the assignment of the sole power of impeachment and removal to the legislative

branch.3 The court directed that Judge Hastings stand


More than four years ago, in early 1983, Judge Hastings did stand trial. At that trial, the only issue was whether Judge Hastings was a participant in Borders's corrupt scheme. Borders had been tried and convicted. As to him

the evidence was overwhelming and direct. 4 After having had eighteen months to investigate and prepare this case, however, the prosecutors acknowledged that the evidence of Judge Hastings's involvement was only circumstantial. They presented their circumstantial evidence to the jury and argued that it showed the judge's guilt. Judge Hastings took the stand and claimed that he too was a victim of Borders's scheme and that Borders had acted without his knowledge and consent. The judge testified and presented other evidence The prosecutors cross-examined the judge

in his defense.


and tried to challenge the other evidence he offered. closing, the prosecutors argued that Judge Hastings's testimony was false and his evidence fabricated and that he was 3. 681 F.2d at 710 n.12 (and accompanying text), 711, n 14 (and accompanying text), 712 n.19 (and accompanying text).


United States v. Borders, 693 F.2d 1318 (11th Cir.

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