Reply Memorandum in Support of Motion to Extend Time to File Rule 33(a) Motion — No. 2:21-cr-00520 (Dkt. 252, D. Utah)

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A Reply Memorandum in Support of Motion to Extend Time to File Rule 33(a) Motion, Document 252, filed November 9, 2024 in United States v. Allison Marie Baver, Case No. 2:21-cr-00520, before District Judge Jill N. Parrish in the U.S. District Court for the District of Utah. Filed by the defendant's counsel at Langford Ramos PLLC, it argues that she established excusable neglect and that the government waived its position on three of the four required factors by not addressing them in its opposition, ECF No. 250. It says the court has already raised concerns about the effectiveness of her closing argument, cites United States v. Munoz, 605 F.3d 359, 373 n. 8 (6th Cir. 2010), and asks the court to extend the time nunc pro tunc by thirty days from entry of its order.

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 Case 2:21-cr-00520-JNP Document 252 Filed 11/09/24 PageID.3763 Page 1 of 5




Michael Langford (9682)
Alexander E. Ramos (15234)
LANGFORD | RAMOS PLLC
43 E. 400 S.
Salt Lake City, UT 84111
Telephone: (801) 998-2002
Email: alex@langfordramos.com

Attorneys for Allison Marie Baver


                       IN THE UNITED STATES DISTRICT COURT
                                     DISTRICT OF UTAH

  UNITED STATES OF AMERICA,                          REPLY MEMORANDUM IN SUPPORT
                                                      OF MOTION TO EXTEND TIME TO
         Plaintiff,                                       FILE RULE 33(a) MOTION

  v.
                                                        Case No. 2:21-cr-00520

  ALLISON MARIE BAVER,                                  District Judge Jill N. Parrish


       Defendant.

       Allison Marie Baver (“Ms. Baver”) through undersigned counsel, respectfully submits

the following Reply in Support of Motion to Extend Time to File Rule 33(a) Motion. Pursuant to

this District’s Local Rules, the reply memorandum is “limited to rebuttal of matters raised in the

memorandum opposing the [M]otion.” DUCrimR 12-1(c).

                                        Government’s Response

       The Government tacitly acknowledged that district courts are capable of distinguishing

clearly frivolous ineffective-assistance allegations from those with potential merit. (See ECF No.

250 at 3–4 (citing United States v. Munoz, 605 F.3d 359, 373 n. 8 (6th Cir. 2010).) And the

Government acknowledged that this Court has already raised concerns about whether Ms. Baver




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received a “‘constitutionally effective closing argument.’” (ECF No. 250 at 2 (quoting Transcript

at 7).)

          Further, the Government acknowledged that this Court may extend Rule 33’s 14-day

deadline if a party establishes excusable neglect. (ECF No. 250.) And the Government agreed

with Ms. Baver that courts consider four factors to determine whether a party has established

excusable neglect. (Compare ECF No. 248 at 5 with ECF No. 250 at 3.) But the Government

largely failed to address the required factors. (See ECF No. 250 at 2–6.)

                                            Argument

    I.       Ms. Baver Established Excusable Neglect in Her Opening Motion, and the
             Government’s Failure to Address the Required Factors Results in Waiver.

     In its response, the Government acknowledged the factors this Court must consider in

determining whether Ms. Baver established excusable neglect. (ECF No. 250 at 3.) But

puzzlingly, the Government completely failed to address (1) what prejudice, if any, the

Government would suffer if an extension is granted; (2) the length of the delay and its potential

impact on the judicial proceedings; and (3) whether Ms. Baver acted in good faith.

    As the Government recognized in its Opposition, courts “‘rely on the parties to frame the

issues for decision . . . .’” (ECF No. 250 at 5 (citation omitted).) The Government’s opportunity

to address the required factors was in its Opposition. By failing to do so, the Government waived

its argument as to three of the four required factors. The Court should therefore weigh these

factors in Ms. Baver’s favor.

    Ms. Baver next turns to the one factor the Government did address—the reason for the delay.

The Government argues that Ms. Baver makes “bare-bones assertions of ineffective assistance”

based on “unsupported allegations of ineffective assistance.” (See ECF No. 250 at 4.) But

counsel for the United States was not present at Ms. Baver’s trial. (See Transcript at 9 (“I was not



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present at trial . . . .”).) The Court was. And, as the Government tacitly recognized, “common

sense suggests that district courts are capable of distinguishing clearly frivolous ineffective-

assistance allegations from those with potential merit . . . .” Munoz, 605 F.3d at 373 n. 8. This

Honorable Court has already recognized that Ms. Baver’s claim of ineffective assistance of

counsel has merit. And because Ms. Baver was represented by ineffective counsel “during the

window for timely filing a Rule 33 motion,” the “delay was not fairly within” Baver’s control.

Munoz, 605 F.3d at 371. The third required factor weighs in Ms. Baver’s favor.

   A consideration of the required factors establishes Ms. Baver’s excusable neglect. The Court

should therefore GRANT her Motion to Extend.

   II.      The Government’s Demand for a Section 2255 Motion Ignores Tenth Circuit
            Caselaw.

         In its Opposition, the Government argued that “[p]ermitting untimely Rule 33 motions

based on unsupported allegations of ineffective assistance of counsel would violate the

established principle that a collateral motion under Section 2255 is nearly always the proper

vehicle for adjudicating ineffective assistance of counsel claims.” (ECF No. 250 at 4.) But here,

the Government ignores the Tenth Circuit’s guidance in Meacham and Sands.

         The Tenth Circuit has long acknowledged that “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.’” United States v. Meacham, 567 F.3d 1184, 1187

(10th Cir. 2009) (bold added) (quoting United States v. Sands, 968 F.2d 1058, 1066 (10th Cir.

1992); see also United States v. Soto Hernandez, 849 F.2d 1325, 1327 (10th Cir. 1988) (“Soto,

through newly appointed counsel, filed a motion for a new trial on the ground that his trial

counsel was ineffective.”). The Government’s argument ignores that Ms. Baver has a “right to

seek a new trial” based on “the grounds of ineffectiveness of counsel.”



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   III.       The Government’s Critiques of Ms. Baver’s Motion Are Misplaced.

    The Government argued that Ms. Baver’s “assertion of ineffective assistance is unsupported

by any legal argument, factual description, or reference to the underlying record.” (ECF No. 250

at 4.) The Government’s argument is misplaced.

   First, Ms. Baver’s argument is supported by citation to the required Pioneer factors—which

the Government does not dispute apply. By failing to address three of the four required factors, it

is the Government’s opposition—not Ms. Baver’s Motion—that lacks sufficient “legal

argument.”

   Second, Ms. Baver cited to the “underlying record” when she quoted this Honorable Court’s

concerns with prior counsel’s ineffectiveness. As argued above, “district courts are capable of

distinguishing clearly frivolous ineffective-assistance allegations from those with potential merit

. . . .” Munoz, 605 F.3d at 373 n. 8. Ms. Baver’s citation to the record establishes excusable

neglect.

   Third, the record here is extensive and would have required much more additional time to

thoroughly review. Because the Court’s comments establish that the reason for the delay was not

within Ms. Baver’s control, there was no reason to delay in filing the Motion for an Extension.

Doing so would have allowed the Government to argue later that Ms. Baver was not acting in

good faith. The Court should reject the Government’s “darned if you do, darned if you don’t”

argument.

                                             Conclusion

          For the reasons argued, Ms. Braver respectfully requests that the Court extend, nunc pro

tunc, the time to file a Rule 33(a) Motion to Vacate Judgment and Grant a New Trial. Ms. Braver

requests that the length of the extension be thirty days from the entry of the Court’s Order.




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       Alternatively, Ms. Braver respectfully requests that the Court permit another Motion to

be filed later to explore the issue if newly appointed counsel’s investigation merits such a

Motion.



       DATED: 11.06.24



                                              ___________________________________
                                              Alexander E. Ramos
                                              LANGFORD RAMOS, PLLC.




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