United States’ Response in Opposition to Motion to Extend Time to File Rule 33(a) Motion — United States v. Baver (Dkt. 250, D. Utah)

Summary

The United States' Response in Opposition to Motion to Extend Time to File Rule 33(a) Motion in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520 JNP, in the U.S. District Court for the District of Utah, dated November 6, 2024. The government opposes the defendant's request for leave to file an out-of-time motion for a new trial under Federal Rule of Criminal Procedure 33. It argues that the time for a Rule 33 motion expired more than 15 months earlier and that her allegation that previous counsel were ineffective does not establish excusable neglect. The response states that on June 29, 2023 a jury convicted her of two false statement counts under 18 U.S.C. § 1014, money laundering and criminal contempt. It is signed by United States Attorney Trina A. Higgins.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3756 Page 1 of 6




TRINA A. HIGGINS, United States Attorney (#7349)
Attorney for the United States of America
Office of the United States Attorney
111 South Main Street, Suite 1800
Salt Lake City, Utah 84111-2176

                       IN THE UNITED STATES DISTRICT COURT
                                     DISTRICT OF UTAH

  UNITED STATES OF AMERICA,                        Case No. 2:21-cr-00520 JNP

         Plaintiff,                                UNITED STATES’
                                                   RESPONSE IN OPPOSITION TO
         vs.                                       MOTION TO EXTEND TIME TO FILE
                                                   RULE 33(a) MOTION
  ALLISON MARIE BAVER,

         Defendant.                                District Court Judge Jill N. Parrish



       The United States of America respectfully submits this Response in Opposition to

Defendant’s motion to extend time. Defendant Allison Marie Baver seeks leave to file an

out-of-time motion for a new trial under Federal Rule of Criminal Procedure 33. (ECF 248).

The motion should be denied. The time for filing a Rule 33 motion expired more than 15

months ago, and Ms. Baver’s unsupported allegation that her previous counsel were

ineffective is insufficient to establish excusable neglect for that lengthy delay.

                                       BACKGROUND

       On June 29, 2023, a jury convicted Ms. Baver of two counts of making false

statements to a financial institution, in violation of 18 U.S.C. § 1014; money laundering, in

violation of 18 U.S.C. § 1957; and criminal contempt, in violation of 18 U.S.C. § 401(3). Ms.

 Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3757 Page 2 of 6




Baver was represented at trial by experienced counsel from the Federal Public Defender’s

office.

          After trial, this Court rejected Ms. Baver’s motion for a judgment of acquittal, finding

that there was sufficient evidence on all counts to support the verdict. (ECF 184 at 2-7).

          Following extensive proceedings in preparation for sentencing, the parties convened

for a sentencing hearing on October 15, 2024. At the hearing, the Court sua sponte

expressed concern about the performance of Ms. Baver’s counsel at trial. (ECF 241, Status

Conference Transcript). The Court stated that, in its view, the “closing argument was not

really a closing argument, at least it wasn’t a constitutionally effective closing argument” and

that “[s]ome of the cross-examinations would fall into that same category.” Tr. 7. The Court

then noted that, “if I sentence Ms. Baver today,” she might have “already served her

sentence” before she could raise an ineffective assistance claim in a collateral proceeding. Id.

at 7-8.

          The Federal Public Defender’s office requested to withdraw so that new counsel

could be appointed to “see if there is a motion for mistrial” that would “speed up any

remedy to Ms. Baver.” Tr. 13. This Court permitted the withdrawal. Id. The Court appointed

new counsel on October 24, 2024, and Ms. Baver filed the instant motion six days later.

                                           ARGUMENT

          Rule 33 permits a district court to “vacate any judgment and grant a new trial if the

interest of justice so requires.” Fed. R. Crim. P. 33. Except for a claim based on newly

discovered evidence, a defendant has 14 days to file a motion for a new trial. Id. The 14-day

time limit is an “inflexible claim-processing rule” that mandates enforcement when the


                                                 2

 Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3758 Page 3 of 6




government invokes it. Eberhart v. United States, 546 U.S. 12, 13, 17-20 (2005) (explaining that

such claim-processing rules “assure relief to a party properly raising them” because of the

rules’ “insistent demand for a definite end to proceedings”).

       The District Court may extend Rule 33’s otherwise inflexible deadline if the moving

party establishes that they “failed to act because of excusable neglect.” Fed. R. Crim. P.

45(b)(1)(B); see United States v. Johnson, 821 F.3d 1194, 1199 (10th Cir. 2016). Courts consider

four factors to determine whether a party has established excusable neglect: (i) “the danger

of unfair prejudice to the government”; (ii) “the length of the delay and its potential impact

on the judicial proceedings”; (iii) “the reasons for the delay”; and (iv) “whether the movant

acted in good faith.” United States v. Vogl, 374 F.3d 976, 981 (10th Cir. 2004).

       The Tenth Circuit has acknowledged that ineffective assistance of counsel “might”

provide a basis for establishing “excusable neglect” under Rule 45. See United States v. Smith,

311 F. App’x. 82, 84 (10th Cir. 2008) (unpublished). But the Court has made clear that an

“ineffective assistance of counsel claim does not automatically negate” a finding of

untimeliness under Rule 33. Id.

       Automatically excusing Rule 33’s time limits based on a bare-bones assertion of

ineffective assistance would render those limits meaningless, undermine the strong systemic

interest in finality that the deadline serves, and enable any defendant to substantially delay

sentencing simply by obtaining new counsel and alleging that the previous one was

ineffective. For that reason, courts should scrutinize the defendant’s ineffective assistance

claim and “distinguish clearly frivolous ineffective-assistance allegations from those with

potential merit” to ensure that defendants cannot pursue “opportunistic Rule 33 motions . . .


                                                3

 Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3759 Page 4 of 6




merely by crying ineffective assistance of counsel.” United States v. Munoz, 605 F.3d 359, 373

n.8 (6th Cir. 2010).

       Permitting untimely Rule 33 motions based on unsupported allegations of ineffective

assistance would also violate the established principle that a collateral motion under Section

2255 is nearly always the proper vehicle for adjudicating ineffective assistance of counsel

claims. See id. at 84 n.1 (suggesting that “almost all ineffective assistance of counsel claims

will be untimely” under Rule 33 and that “collateral review is almost always the proper

course for such claims”); United States v. Carbajal-Moreno, 136 F. App’x. 163, 165 (10th Cir.

2005) (unpublished) (“Our insistence that, except in extraordinary circumstances, defendants

must bring ineffective assistance of counsel claims in collateral proceedings extends to

motions for a new trial.”). Accordingly, to establish excusable neglect, a defendant must do

more than merely assert that their counsel was ineffective. Rather, the defendant must show

that (1) the claims are sufficiently substantial to constitute excusable neglect justifying an

extension of the ordinarily inflexible time limit; and (2) extraordinary circumstances exist

warranting a departure from the established rule that a collateral petition, rather than a

motion for new trial, is the proper vehicle for such claims. See generally United States v. Cates,

716 F.3d 445, 448-49 (7th Cir. 2013); Carbajal-Moreno, 136 F. App’x. at 165.

       Ms. Baver has not carried that burden here. Her bare-bones assertion of ineffective

assistance is unsupported by any legal argument, factual description, or reference to the

underlying record. Instead, Ms. Baver relies entirely on the fact that this Court expressed

concerns about counsel’s performance to justify her 15-month delay in seeking to file a Rule

33 motion. But it is the defendant’s burden, not the Court’s, to establish excusable neglect by


                                                 4

    Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3760 Page 5 of 6




setting forth the facts and argument that would support her claim. A new trial can only be

granted on the defendant’s motion; the district court cannot assert that relief on the

defendant’s behalf. See Fed. R. Crim. P. 33 (permitting the court to grant a new trial only

“[u]pon the defendant’s motion”); Fed. R. Crim. P. 33, advisory comm. notes, 1966 amends.

(“[A] judge has no power to order a new trial on his [or her] own motion, [but] can act only

in response to a motion timely made by a defendant”); United States v. Kennedy, 682 F.3d 244,

254 (3d Cir. 2012) (reversing district court’s grant of a new trial because the court lacked the

“power to identify and raise the matter sua sponte”). Accordingly, it is the defendant’s

responsibility to present specific facts and argument showing that her ineffective assistance

allegation constitutes excusable neglect for a 15-month delay and warrants departing from

the ordinarily proper vehicle for adjudicating such claims. See United States v. Sineneng-Smith,

590 U.S. 371, 375 (2020) (“[W]e rely on the parties to frame the issues for decision and

assign to courts the role of neutral arbiter of matters the parties present”); see id. at 375-76

(noting that parties, not judges, “are responsible for advancing the facts and argument

entitling them to relief”).

        Ms. Baver must do more than simply point to this Court’s concerns about counsel’s

performance to establish excusable neglect for her failure to file her Rule 33 motion within

the 14-day period. Because she has not done so, her motion should be denied. 1




1
  Ms. Baver requests, in the alternative, that the Court “permit another Motion to be filed
later to explore the issue if newly appointed counsel’s investigation merits such a motion.”
(ECF 248 at 7). That vague request is premature and should also be denied. The Court
cannot determine in advance whether unspecified claims that counsel may or may not
present in the future constitute excusable neglect.

                                                 5

Case 2:21-cr-00520-JNP Document 250 Filed 11/06/24 PageID.3761 Page 6 of 6




                                  CONCLUSION

     The defendant’s Motion to Extend time To File Rule 33(a) Motion should be denied.

     DATED: November 6, 2024.


                                             TRINA A. HIGGINS
                                             United States Attorney

                                              /s/ Trina A. Higgins




                                         6

File and source

File

250.pdf

Size

118,328 bytes

SHA-256

c53ece87ab37c4c390d57e212f6e457fee6b98de213deccc82edf08e0a9c8ee8

Our copy

250.pdf