greater than the need for such materials in an administrative proceeding that can lead at most to a finding that consideration of impeachment by the House of Representatives may be warranted. On appeal, an order authorizing disclosure of grand jury materials may only be reversed for an abuse of discretion. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979); United States v. Fishbach and Moore, Inc., 776 F.2d 839, 842 (9th Cir. 1985). Judge Hastings cannot make such a showing. There is no substantial likelihood that he will prevail on appeal.

Given the posture of this matter, where the existence of the investigation was long ago made public and the grand jury's work has been completed, Judge Hastings would suffer no irreparable injury if the stay were denied. Indeed, Judge Hastings' own request for public disclosure of the grand jury materials belies his contention that he would be harmed in any way by disclosure of the materials to the Committee.

By contrast, a further stay of the Order may, to the detriment of both Congress and the public interest, frustrate the Committee in carrying out its constitutional responsibility to conduct a full, fair, and expeditious impeachment inquiry. In sum, since Judge Hastings has no substantial likelihood of winning this appeal, and both the Committee and the public would be hurt by a stay, while Judge Hastings would suffer minimal injury, if any, the stay should be denied.

III. FACTUAL BACKGROUND

On December 29, 1981, Grand Jury No. 81-1-GJ (MIA), sitting in the Southern District of Florida, returned indictments against Judge Hastings and William A. Borders, Jr., charging them with conspiracy and obstruction of justice. Mr. Borders was convicted following a jury trial on March 29, 1982. Judge Hastings was tried separately and was acquitted by a jury on February 4, 1983. On March 17, 1983, two United States District Judges filed a Complaint with the Clerk of the Court of Appeals for the Eleventh Circuit. The Complaint requested an investigation pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act, 28 U.S.c. sec. 372(c), to determine whether Judge Hastings had engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.

In response to this Complaint, the Chief Judge of the Eleventh Circuit appointed an Investigating Committee which conducted an investigation and other proceedings over a threeyear period. During that inquiry, the Investigating Committee sought and obtained the same grand jury materials which the Committee is now seeking. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261 (11th Cir.), cert. denied 469

U.S. 884 (1984), aff'g 576 F. Supp. 1275 (S.D. Fla. 1983).1

Following the completion of its investigation, the Investigating Committee on August 4, 1986 submitted its Report and recommendations to the Judicial Council of the Eleventh Circuit. On September 2, 1986, the Council adopted the Investigating Committee's Report and determined that "consideration of impeachment [of Judge Hastings] may be warranted." Appendix ("A.")6.

On March 17, 1987, the Judicial Conference of the United States concurred in the determination of the Council and transmitted the Investigating Committee's Report and records to the Speaker of the United States House of Representatives for use by the House in determining whether Judge Hastings' impeachment is warranted. A.6. The Investigating Committee's Report was referred to the Committee on the Judiciary and was released publicly on October 7, 1987 pursuant to House Resolution 274. The Committee also has pending before it House Resolution 128, which provides for the impeachment of Judge Hastings for high crimes and misdemeanors. A.4.

1The Committee has been informed that the grand jury materials sought consist of approximately two file drawers of documents. In the course of his criminal prosecution Judge Hastings was granted access to substantial portions of the grand jury record pursuant to the Jencks Act and Rule 16 discovery, including the testimony of each witness who testified for the government at Judge Hastings' trial.

On July 15, 1987, the Chairman of the Judiciary Committee, Representative Peter W. Rodino, Jr., wrote to the Chief Judge of the United States District Court for the Southern District of Florida, requesting access to the grand jury materials for use in the impeachment inquiry. A.1. On August 5, 1987, Chief Judge King issued an Order granting the Committee's request. A.13. Chief Judge King immediately thereafter provided a copy of the Order to Judge Hastings and his counsel. Judge Hastings then moved, inter alia, to stay the Order. A.17.

On August 11, 1987, Judge King issued an Order of Recusal and Request for Designation. A.68. On August 27, 1987, the Honorable John D. Butzner, Jr., Senior United States Circuit Judge, was designated to hear this matter. Both the Committee (A.72) and Judge Hastings (A.131) filed extensive briefs. The Department of Justice also appeared and fully supported the Committee's request, while opposing Judge Hastings' request for disclosure to himself and the public. A.127. The motion to stay was argued on September 15, 1987.

On September 21, 1987, Judge Butzner entered an opinion and Order denying the stay sought by Judge Hastings (except for a 21day interim stay), making copies of the grand jury materials available to the Committee, declining to permit disclosure of the grand jury materials to Judge Hastings and to the public

generally, and unsealing the court file. A.162, 164. On October

1, 1987 Judge Hastings filed an appeal to this Court.2

III. ARGUMENT

A. Factors Considered In Determining Whether A Stay
Pending Appeal Should Be Granted.

An applicant for the "exceptional" relief of a stay pending appeal must establish four factors. Failure to demonstrate any single factor requires denial of the stay. This court described the test for granting a stay in Garcia-Mir v. Meese:

The

Our standard of review in cases of this sort is
well-settled. We must always be diffident in
interposing the power of an appellate court into the
province of the trial court and its orders save upon
full briefing and mature reflection by this Court.
grant of an emergency motion to stay the trial court's
mandate is thus an exceptional response granted only
upon a showing of four factors: (1) that the movant is
likely to prevail on the merits on appeal; (2) that
absent a stay the movant will suffer irreparable
damage; (3) that the adverse party will suffer no

2In addition to the required Appendix, Judge Hastings has filed a so-called "Addendum" to his Motion containing a lengthy self-serving letter dated September 22, 1987 addressed to the Chairman of the Committee and its Subcommittee on Criminal Justice (Add. 4); and a September 9, 1987 letter from Chairman Rodino and Chairman Conyers replying to an earlier letter from Judge Hastings. (Add. 1).

The "Addendum" consists entirely of documents and allegations of facts never presented to or considered by the district court. Of course, appellate courts cannot act on evidence not before the court below, nor can they receive any paper which was not used at the hearing below. Fed.R.App.P. 10(a); Coplin . U.S., 761 F.2d 688 (Fed. Cir. 1985); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3rd Cir. 1978).

Buckley v. Valeo, 424 U.S. 1, 114-18 (1976) which Judge Hastings claims permits the filing of the "Addendum", was a case in which the Supreme Court merely took judicial notice of federal regulations promulgated after the district court had ruled; Buckley hardly supports the filing, as here, of irrelevant evidentiary matter never presented to the court below. The Committee therefore requests that this Court strike Judge Hasting's Addendum.