### The Honorable Susan Webber Wright, United States Distric t 1 

### Judge for the Eastern District of Arkansas. ___________ No. 95-4097

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Christopher V. Wade, * * [PUBLISHED] Appellant. *

___________ Submitted: April 11, 1996 Filed: April 22, 1996

___________ Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________ PER CURIAM.
Christoph er V. Wade pled guilty to one count of bankruptcy fraud in violati onof 18 U.S.C. § 152 (1994) and one count of knowingly making a false st atement on a loan application in violation of id. § 1014. Th e Dist rict Court sentenced Wade to serve two concurrent terms of fiftee n 1 months of imprisonment followed by three years o f supervised release. The court also required Wade to make restitution in the amount of $112,000 and to pay an assessment of $100 and a fine of $3000. Wade now appeals , arguing that the District Court lacked jurisdiction. We affirm.

### -2- The prose cution of this case was undertaken on behalf of the United States by Independent Counsel Kenneth W. Starr following a referral by Attorney General Janet Reno pursuant to 28 U.S.C. § 594(e) (1994). Th e Independent Counsel also sought and was granted an order of referral for the prosecution from the Division for the Purpose of Appointing Independen t Counsels (Special Division). See In re Madison Guar. Sav. & Loan Ass'n , Div. No. 94-1, Order at 1-2, 4 (D.C. Cir. Sp. Div. Dec. 19, 1994). Wade makes two arguments in support of his contention that the District Court lacked jurisdiction. Citing Morrison v. Olson , 487 U.S. 654 (1988), Wade first argues that the Special Division's original grant of authority to th e Independent Counsel, and thus necessarily its subsequent grant of an order of referral for the Wade prosecution, violates t he Appointments Clause and Article III of the United States Constitution. Second, Wade argues that the Attorney General' s referral of this matter to the Independent Counsel
was arbitrary, unconstitutional, and in excess of authority because this matter is not related to the Special Division's original grant of authorit y to the Independent Counsel. We will address eac h of these issues in turn.

Th e constitutionality of the independent counsel provisions of th e Ethics in Government Act, now codified at 28 U.S .C. §§ 591-599 (1994), was upheldin Morrison v. Olson , 487 U.S. 654 (1988). Wade argues, however, that the appointment of Starr as Independent Counsel and the Specia l Division's broad grant of authority constitutes an unconstitutiona l expansion of the Special Division's authority. Wade's first argument thus is not a facial attack on the constitutionality of the statute, an argumen t that the Supreme Court disposed of in Morrison . Wade's argument is that the statute, as it has been applied in his case, violates the Appointments Clause and Article III of the Constitution.

As Wade e xplains in his brief, the Supreme Court warned in Morrison that

### -3- the Spe cial Division has no authority to take any action o r undert ake any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might in another context be a bureaucratic succes s sto ry, but it would be one that would have seriou s constitutional ramifications. . . . [T]he Division's exercise of unauthorized powers risks the transgression of th e constitutional limitations of Article III . . . .
Morrison , 487 U.S. at 684-85. Wade is correct that the Special Division has only the authority that the statute confers upon it. His argumen t nevertheless must fail, for he has not identified the Special Division's actionor actions in this case that exceed its statutory authority. The Ethics in Government Act specifically authorizes the Special Division to appo int an independent counsel and define the scope of the counsel' s jurisdict ion. 28 U.S.C. § 593(b)(1). In order for this case to fal l withinthe scope of the Morrisondicta quoted above, Wade must identif y some act of the Special Division that is not authorized by the statute
. Wad e's arguments on appeal reflect only a disagreement with the Specia l Div ision's orders defining the scope of the Independent Counsel' s authority. Wade thus has fallen short of demonstrating that the statute has been applied in an unconstitutional manner i n his case. Moreover, the portions of the Special Division's order to which Wade most vehementl y objects are entirely consistent with the statute. The statute requires th e Special Division to g rant an independent counsel authority to investigate and prosecute "all ma tters related to" the subject matter of the Attorney General's original request for appointment of an independent counsel and "Feder al crimes . . . that may arise out of the investigation o r prosecution of the matter." 28 U.S.C. § 593(b)(3).
Wade's second argument is foreclosed by our decision in United States
v. Tucker , No. 95-3268, 1996 WL 112414 (8th Cir. Mar. 15, 1996). I n Tucker , this Court held that the Attorney General's decision to refer a matter to an independent counsel is not reviewab le. Id. at *5-6. We thus do not have jurisdiction to

### -4-

consider Wade's argument that this matter is not related to the Specia l Division's original grant of authority to the Independent Counsel.

For the reasons stated, the judgment of the District Court i s affirmed.

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.