Case: 08-50345 03/25/2011 Page: 1 of 6 ID: 7694490 DktEntry: 38

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) C.A. No. 08-50345

) D. Ct. No. CR 07-1035-RGK
Plaintiff-Appellee, ) (Cent. Dist. Calif.)
)
v. ) GOVERNMENT’S UNOPPOSED MOTION
) TO STAY MANDATE
XAVIER ALVAREZ, )
)
Defendant-Appellant. )
)
_____________________________)

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-

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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. DUGDALE
Assistant United States Attorney
Chief, Criminal Division

/s/ Michael J. Raphael

MICHAEL J. RAPHAEL
Assistant United States Attorney
Chief, Criminal Appeals Section

Attorneys for Plaintiff-Appellee

United 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. RAPHAEL
Assistant United States Attorney
Chief, Criminal Appeals Section

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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the
Appellate CM/ECF System

I hereby certify that on (date) Mar 25, 2011 , I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will
be accomplished by the appellate CM/ECF system.

Signature /s/ Michael J. Raphael

***********************************************************************

CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the
Appellate CM/ECF System

I hereby certify that on (date) , I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate
CM/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 have
dispatched it to a third party commercial carrier for delivery within 3 calendar days to the
following non-CM/ECF participants:

Signature