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United States v. Martin

United States District Court, Ninth Circuit

November 13, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ELAINE MARTIN, DARRELL SWIGERT, Defendant.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, District Judge.

INTRODUCTION

Before the Court is: Defendant Darrell Swigert's Ex Parte Motion for an Extension of Time to File Post-Trial Motions (Dkt. 164), and Defendant Elaine Martin's Joinder in that motion to extend the time to file post-trial motions (Dkt. 169); and Defendant Darrell Swigert's Motion to Continue Sentencing and the Disclosure of the Presentence Report (Dkt. 184), and Defendant Elaine Martin's Joinder in the motion to continue sentencing (Dkt. 180). For the reasons set forth below, the Court will grant the motions to extend the time to file post-trial motions and the motions to continue sentencing, but not for the time requested.

Post-trial motions shall be filed no later than December 11, 2013. Responses to post-trial motions shall be due on January 4, 2013, and replies shall be due on January 20, 2013. The Court will notify the parties if oral argument is requested. Otherwise, the Court will decide the motions on the briefs.

Defendant Darrell Swigert's sentencing shall be continued until February 20, 2013, at 3:30 p.m. Defendant Elaine Martin's sentencing shall be continued until February 21, 2013, at 9:00 a.m.

Finally, in accordance with Defendant Elaine Martin's notice to contest the preliminary order of forfeiture proposed by the government and request for a hearing, the Court will set a forfeiture hearing on December 9, 2013, at 10:00 a.m.

BACKGROUND

On September 19, 2013, the jury found Defendant Martin guilty of counts 1-20, 23 and 24. Minute Entry, Dkt. 142; Jury Verdict Form, Dkt. 146. After the verdict, Defendant Martin's defense counsel requested an extension for the filing of post-trial motions. The government did not object. The Court granted the continuance and set a new filing date of October 24, 2013.

On October 17, 2013, three attorneys from the firm of McKenna Long and Aldrige LLP filed motions to appear pro hac vice on behalf of Defendant Swigert. One of these attorneys was Mr. Raymond Aghaian. Motions for Pro Hac Vice Appearance, Dkts. 157, 159, 160. On Friday, October 18, 2013, Mr. Aghaian sent government prosecutors an email asking for the government's position on Defendant Swigert receiving a second extension for filing post-trial motions. The extension proposed by Mr. Aghaian was from October 24, 2013, to January 24, 2013. Ex. A. Mr. Aghaian's requested extension was based on his desire to review the trial transcripts in their entirety, which he represented would "not be available until just before the Thanksgiving weekend." Oct. 18 Email from R. Aghaian, Ex. A. to Gov't Resp., Dkt. 175-1.

On that same day, October 18, 2013, Mr. Larry Westberg, counsel for Defendant Martin, responded to Mr. Aghaian's email and requested that the deadline for post-trial motions be similarly extended for Defendant Martin. Oct. 18 Email from L. Westberg, Ex. B to Gov't Resp., Dkt. 175-2. At that time, Mr. Westberg did not provide any reason for his request that Defendant Martin's post-trial motions deadline be extended by three months. The government responded to both emails later that day, October 18, 2013. In its email, the government stated that it would not agree to Defendants' proposed three-month extension. Oct. 18 Email from K. Wong, Ex. C to Gov't Resp., Dkt. 175-3. With respect to Defendant Swigert, the government noted that Mr. Arkoosh continued to represent Swigert and therefore the defense team did not need the trial transcripts in their entirety, and two months to review those transcripts, in order to prepare and file post-trial motions. Id. The government stated it would object to any continuance for Defendant Martin because it was not aware of any facts that would warrant a further extension as to her. Id.

On Monday, October 21, 2013, Mr. Aghaian responded and proposed shortening the requested extension to January 17, 2013, seven days less than his original proposal. Oct. 21 Email from R. Aghaian, Ex. D to Gov't Resp., Dkt. 175-4. Mr. Aghaian then clarified that Mr. Arkoosh, trial counsel, was henceforth "only acting as local counsel and is not engaged to prepare the post-trial motions." Mr. Aghaian further proposed that "the court could hear argument on the motions on February 7th[, 2013]." Id. Mr. Westberg did not respond the government's October 18th email or Mr. Aghaian's October 21st email. On that same day, October 21, 2013, the government responded that it opposed an extension of time for Defendant Martin for the reasons stated in its October 18th email. Oct. 21 Email from M. Williams, Ex. E to Gov't Resp., Dkt. 175-5.

The government again stated that it opposed a lengthy extension for Defendant Swigert because trial counsel was still available to assist with post-trial motions and there had already been one continuance at the request of the defense. Id. The government also explained the prejudice that would result from a length continuance, including that all government counsel were scheduled to be in trial before the undersigned beginning January 27, 2013, in the midst of Defendants' proposed briefing schedule. Id.

Defendants Elaine Martin and Darrell Swigert now jointly request a second extension of time to file post-trial motions. Defendant Martin requests the extension of time because she "intends to hire handling lead legal counsel of her choice." Martin's Joinder at 1, Dkt. 169. Defendant Swigert requests an extension of time because he "retained new counsel" and "new counsel [will] serve in the capacity of lead counsel and preparing the post-trial motions..." Swigert's Br. to Extend Time at 4, Dkt. 164.

According to Defendant Swigert, "trial transcripts [will] not be available until the week ending November 29, " thereby ...


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