Allison Baver — Memorandum Decision, Case No. 2:21-cr-00520-JNP (Document 253)
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A memorandum decision and order in United States v. Allison Baver, Case No. 2:21-cr-00520-JNP, Document 253, filed 12/03/24, in the U.S. District Court for the District of Utah, granting her motion for an extension of time to file a motion for a new trial (ECF No. 248). It recounts that the jury returned a guilty verdict on all counts on June 29, 2023, and that at a sentencing hearing on October 15, 2024, the judge noted concern that she may not have received effective assistance of counsel, after which her counsel withdrew. Citing United States v. Meacham, 567 F.3d 1184 (10th Cir. 2009), the court gives her leave to file a new trial motion by January 6, 2025. It is dated December 3, 2024 and signed by District Judge Jill N. Parrish.
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Case 2:21-cr-00520-JNP Document 253 Filed 12/03/24 PageID.<pageID> Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA, MEMORANDUM DECISION AND ORDER
GRANTING MOTION FOR EXTENSION
Plaintiff, OF TIME
v.
Case No. 2:21-cr-00520-JNP
ALLISON BAVER
District Judge Jill N. Parrish
Defendant.
Before the court is defendant Allison Baver’s motion for an extension of time to file a
motion for a new trial. ECF No. 248. The motion is GRANTED.
Baver went to trial on charges against her for making false statements to a bank, money
laundering, and criminal contempt of court. On June 29, 2023, the jury returned a guilty verdict on
all counts. After granting multiple continuances at Baver’s request, the court held a sentencing
hearing on October 15, 2024. At the hearing, the court noted its concern that Baver may not have
received effective assistance of counsel during her trial. Counsel for Baver moved to withdraw,
and the court granted the motion.
On October 30, 2024, after receiving new counsel, Baver moved for an extension of time
to file a motion for a new trial based on ineffective assistance of counsel. See United States v.
Meacham, 567 F.3d 1184, 1187 (10th Cir. 2009) (“[A] defendant has the ‘right to seek a new trial
as part of the original criminal proceedings (rather than by way of collateral attack) on the grounds
of ineffectiveness of counsel.’” (citation omitted)). The deadline to file a motion for a new trial
based on ineffective assistance of counsel is 14 days after the jury enters its verdict. FED. R. CRIM
Case 2:21-cr-00520-JNP Document 253 Filed 12/03/24 PageID.<pageID> Page 2 of 3
P. 33(b)(2). Because Baver filed her motion for an extension of time after this deadline had passed,
the court may grant the requested extension if it finds that she “failed to act because of excusable
neglect.” FED. R. CRIM. P. 45(b)(1)(B); see also Alva v. Teen Help, 469 F.3d 946, 952 n. 11 (10th
Cir. 2006); United States v. Green, No. CR 09-311 MCA, 2012 WL 12023805, at *5 (D.N.M. Feb.
14, 2012).
Whether excusable neglect justifies the untimely filing of a motion for a new trial is
determined by evaluating the four Pioneer factors. Green, 2012 WL 12023805, at *5. Excusable
neglect “is a somewhat ‘elastic concept.’” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 392 (1993) (citation omitted)). The determination of whether excusable neglect
exists is equitable in nature and involves the evaluation of four factors: “(1) the danger of prejudice
to opposing parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for
the delay, including whether it was in the control of the late-filer; and (4) whether the late-filer
acted in good faith.” In re Lang, 414 F.3d 1191, 1200 (10th Cir. 2005) (citing Pioneer, 507 U.S. at
395).
These factors favor Baver’s motion for an extension of time. The government does not
argue that it would be prejudiced by an untimely motion for a new trial. Nor does it contend that
Baver’s delay in filing a motion was motivated by bad faith. Thus, the first and fourth Pioneer
factors weigh in favor of granting leave to file an untimely motion. But the length of the delay in
seeking leave to file an untimely motion—over 15 months—is undoubtedly exceptional.
Therefore, the second factor weighs against granting Baver’s motion for an extension of time.
That leaves the third Pioneer factor: the reason for the delay. The substantial delay in
moving for an extension of time in this case was due to the fact that the court did not express its
concerns regarding the effectiveness of Baver’s counsel at trial until the frequently delayed
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Case 2:21-cr-00520-JNP Document 253 Filed 12/03/24 PageID.<pageID> Page 3 of 3
sentencing hearing was held. The court’s statements at the hearing appear to have been the first
time that Baver was alerted to this potential ground for a new trial. Although defendants are
typically held accountable for any procedural missteps on the part of their counsel, ineffective
assistance of counsel is an exception to this rule that may justify missing a deadline. See United
States v. Smith, 311 F. App’x 82, 84 (10th Cir. 2008) (unpublished) (“Arguably, if Defendant had
contested the district court’s untimeliness determination, an alleged ineffective assistance of
counsel might have provided Defendant with ‘good cause’ and/or ‘excusable neglect’ under Fed.
R. Crim. P. 45(b)(1)(B).”). Here, the continued representation of the very counsel that may have
been ineffective during the period of time from the jury verdict until the sentencing hearing is a
sufficient reason for delay to tip this factor in favor of Baver’s motion for an extension of time.
See United States v. Munoz, 605 F.3d 359, 371 (6th Cir. 2010) (“[W]e find that [trial counsel’s]
continuing representation of Munoz during the window for timely filing a Rule 33 motion was a
valid reason for the delay, and that the delay was not fairly within Munoz’s control. This factor
therefore favors Munoz.”).
Taken together, the court finds that the Pioneer factors favor granting Baver’s motion for
an extension of time. Only the length-of-delay factor weighs in favor of the government’s position.
The other three factors, including the important reason-for-delay factor, all favor Baver.
Accordingly, the court grants her motion for an extension of time. Baver has leave to file a motion
for a new trial by January 6, 2025.
DATED December 3, 2024.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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