Pandemic Darlings The pandemic economy, in original documents
Home Source documents United States v. Allison Baver Memorandum Decision and Order Granting Motion for Extension of Time (No. 2:21-cr-00520, D. Utah, Doc. 253)

United States v. Allison Baver Memorandum Decision and Order Granting Motion for Extension of Time (No. 2:21-cr-00520, D. Utah, Doc. 253)

Summary

Memorandum decision and order of the U.S. District Court for the District of Utah, dated December 3, 2024, granting Allison Baver's motion for more time to file a motion for a new trial. Baver was found guilty on June 29, 2023, and at a sentencing hearing on October 15, 2024 the court raised concern that she may not have received effective assistance of counsel, after which her counsel withdrew. Judge Jill N. Parrish found excusable neglect under the Pioneer factors and gave Baver until January 6, 2025 to file the motion.

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

Full text

 Case 2:21-cr-00520-JNP Document 253 Filed 12/03/24 PageID.3768 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.3769 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
                                                  2
 Case 2:21-cr-00520-JNP Document 253 Filed 12/03/24 PageID.3770 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
                                                3

File and source

File
253.pdf
Size
141,228 bytes
SHA-256
7669c8a31a406dcfca5c1a3191fb786b8d9590720b35b365d8ab9bd20a5e118a
Our copy
253.pdf
Original
No public link identified.
Back to top