Filed: Oct. 18, 2013
Latest Update: Oct. 18, 2013
Summary: STIPULATION AND ORDER TO EXTEND TIME TO FILE RULE 29 AND RULE 33 MOTIONS, DECLARATION IN SUPPORT OF MOTION JOHN A. MENDEZ, District Judge. Stipulation to Extend Time to File LAW The law allows the defense to file a Motion to Dismiss (Rule 33) and a Motion for Acquittal (Rule 29) within 14 days after the verdict. However, the Federal Rules of Criminal Procedure, Rule 45 allow that such time may be extended by the Court on a proper showing. Rule 45(b) EXTENDING TIME. (1) In General. When a
Summary: STIPULATION AND ORDER TO EXTEND TIME TO FILE RULE 29 AND RULE 33 MOTIONS, DECLARATION IN SUPPORT OF MOTION JOHN A. MENDEZ, District Judge. Stipulation to Extend Time to File LAW The law allows the defense to file a Motion to Dismiss (Rule 33) and a Motion for Acquittal (Rule 29) within 14 days after the verdict. However, the Federal Rules of Criminal Procedure, Rule 45 allow that such time may be extended by the Court on a proper showing. Rule 45(b) EXTENDING TIME. (1) In General. When an..
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STIPULATION AND ORDER TO EXTEND TIME TO FILE RULE 29 AND RULE 33 MOTIONS, DECLARATION IN SUPPORT OF MOTION
JOHN A. MENDEZ, District Judge.
Stipulation to Extend Time to File
LAW
The law allows the defense to file a Motion to Dismiss (Rule 33) and a Motion for Acquittal (Rule 29) within 14 days after the verdict. However, the Federal Rules of Criminal Procedure, Rule 45 allow that such time may be extended by the Court on a proper showing.
Rule 45(b) EXTENDING TIME.
(1) In General. When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
(2) Exception. The court may not extend the time to take any action under Rule 35, except as stated in that rule.
Since the day of the verdict, Counsel for Mr. Arroyo has been engaged in a full day deposition, a full day Court trial as well as other court appearances and legal services. Additionally, counsel for Mr. Arroyo is a solo practitioner. As a result, counsel for Mr. Arroyo has not had sufficient time to research and draft Rule 29 and Rule 33 motions.
During the course of the trial, the defense made a motion to dismiss based upon prosecutorial misconduct. The Court denied the defense's motion to dismiss without prejudice, but did grant sanctions. The area of prosecutorial misconduct is complex and will require significant amount of time to properly research the law and draft an appropriate motion. Specifically, the proper remedy for the conduct of the Government needs to be thoroughly research. This is a time consuming process and Counsel for Mr. Arroyo has not had sufficient time to complete such research. Therefore the defense requests an extension to file Rule 29 and/or Rule 33 motions.
STIPULATION
Counsel for the defense has discussed this issue with Counsel for the Government and they have agreed upon a motions schedule. Therefore it is Stipulated and agreed between Michael Chastaine, attorney for Clemente Arroyo and Samuel Wong, attorney for the United States that the time to file Rule 29 and/or Rule 33 motions may be extended to October 31, 2013. It is further stipulated that the Government will have until November 26, 2013 to reply; the Defendant Arroyo may file a response on or before December 10, 2013 with a hearing date of December 17, 2013.
DECLARATION OF MICHAEL CHASTAINE IN SUPPORT OF MOTION TO EXTEND TIME TO FILE RULE 29 AND/OR RULE 33 MOTIONS
I, Michael Chastaine, declare as follows:
1. I am the appointed attorney for the Defendant, Clemente Arroyo in the above referenced case.
2. I was trial counsel for Mr. Arroyo in the recent jury trial.
3. During the course of the jury trial, the defense brought a motion to dismiss.
The Court ultimately denied the motion to dismiss without prejudice but did grant other sanctions.
5. I have a solo practice and have a relatively busy case load, including state criminal cases, federal criminal cases and several civil cases. Further, I have several jury trials pending and set to start in the next few months, including a child molest case in San Jose set to start on October 28, 2013, a child molest case in Sacramento set to start on November 5, 2013 and a civil jury trial against the Department of Corrections set to start December 3, 2013. All of these cases require a great deal of preparation and I have been involved in such preparation. Further, over the past two (2) weeks, I have conducted a full day deposition in a civil case involving an extremely injured plaintiff, been involved in a full day Court trial in a Sexually Violent Predators hearing, which will continue on October 21, 2013. This hearing involves the presentation of several expert witnesses. In addition, I have conducted a half day sentencing in a serious domestic violence case as well as several other court appearances and other legal services that are necessary to maintain a law practice.
6. As a result of all of the responsibilities noted above, I have not had sufficient time to adequately research and draft Rule 29 and/or Rule 33 motions in Mr. Arroyo's case.
7. The Rule 29 and/or Rule 33 will be based, in part, on Prosecutorial Misconduct. This area of the law is relatively complex and researching the proper remedies is time consuming.
8. In order to protect Mr. Arroyo's rights and provide him legally adequate representation I require an additional 14 days to research, draft and file Rule 29 and/or Rule 33 motions. I therefore request an extension to file motions to 5:00 pm, October 31, 2013.
9. I have had a conversation with counsel for the Government, Samuel Wong, and he has agreed to stipulate to an extension of time to file Rule 29 and/or Rule 33 motions on or before October 31, 2013. We further agreed that the Government will reply on or before November 26, 2013, with any defense response on or before December 10, 2013.
I declare under penalty of perjury that the above declaration is true and correct to the best of my knowledge.
ORDER TO EXTEND TIME TO FILE RULE 29 AND/OR RULE 33 MOTIONS
Based upon the Stipulation of Counsel and upon the Declaration of Michael Chastaine, the Court finds that Counsel for defendant Arroyo has made a proper showing that additional time is necessary to file Rule 29 and/or Rule 33 Motions. Therefore, the Court grants the requested extension to file Rule 29 and/or Rule 33 motions till no later than 5:00 pm on October 31, 2013.
The Court also accepts the briefing schedule proposed by counsel as followings
Rule 29 and/or Rule 33 motions filed on or before October 31, 2013
Government Reply filed on or before November 26, 2013
Defense response on or before December 10, 2013
Hearing date on the motion 9:45 a.m, December 17, 2013
