GOVERNMENT'S MOTION FOR LEAVE TO FILE SUR-REPLY TO DEFENDANT ENGEL'S REPLY TO GOVERNMENT'S RESPONSE IN OPPOSITION TO HIM MOTION FOR NEW TRIAL.

GLORIA M. NAVARRO, Chief District Judge.

CERTIFICATION: The local criminal rules do not provide a time frame to file a sur-reply. This motion is filed within seven days of Engel having filed his reply.

The United States of America, by and through undersigned counsel, respectfully seeks leave of Court to file a sur-reply in opposition to Engel's motion for new trial. See ECF Nos. 3183 (Motion for New trial), ECF No. 3198 (Government's Response), and 3204 (Reply to Response).1

The government seeks leave because Engel raises new arguments in his reply. In his motion for new trial, Engel argued that he was entitled to a new trial or dismissal on Brady grounds because the Court dismissed the superseding indictment against the Tier 1 defendants. The government responded that Engel's "me-too" argument did not meet the demanding Brady standard that requires a case-by-case fact intensive examination. In reply, Engel makes new arguments attempting to meet the Brady standard.

Engel also makes new arguments in support of his insufficiency of the evidence claims. First, he argues that his arguments should not be time-barred because the Court has inherent power to achieve justice, notwithstanding the 14day filing time in Rule 33. Second, he argues that the evidence was insufficient to support the extortion count because it did not prove who was extorted or whether the cattle extorted belonged to the United States.

In fairness, the government ought to be able to respond to Engel's new arguments.

WHEREFORE, the Court should grant the government leave to file the attached sur-reply.

IT IS SO ORDERED.