Opposition To Late Filing

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BILL BOYD Texas Bar No. 0278000 [email protected] RUSS A. BAKER Texas Bar No. 24045440 [email protected]

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BOYD-VEIGEL, P.C. P.O. Box 1179 McKinney, Texas 75070 Telephone: 972-562-9700 Telecopier: 972-562-9600

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Attorneys for Armstrong

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA No. CR 94 276 PJH

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Plaintiff 16 17 18 19

v. CONNIE C. ARMSTRONG, JR.

DEFENDANT ARMSTRONG’S OPPOSITION TO UNITED STATES’ MOTION TO LATE FILE OPPOSITION TO DEFENDANT ARMSTRONG’S 28 U.S.C. § 2255 MOTION

Defendant

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Armstrong opposes the enlargement of time requested by the government. This is the second such request made by the government, and the request fails to demonstrate excusable neglect. Rule 6(b) provides that “When an act may or must be done within a specified time, the

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court may, for good cause, extend the time . . . on motion made after the time has expired if the

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party failed to act because of excusable neglect.” FED. R. CIV. P. 6(b). Here, the government has

27 ARMSTRONG’S OPPOSITION TO UNITED STATE’S MOTION TO LATE FILE OPPOSITION

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failed to show excusable neglect. To determine whether neglect is excusable, a court must consider four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.

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See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer Inv. 6 7

Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Here, the government

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seeks a very small amount of additional time due to inadvertence of counsel in preparing the

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opposition. Under the four Pioneer factors, this would suggest that the neglect is excusable

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under factors one and two. But counsel is not the movant; rather, the United States is the movant

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and offers no explanation for the apparent dumping of this assignment onto the shoulders of a

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new attorney at the last minute. Counsel for the government acknowledges that she was recently assigned this case but

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does not disclose exactly how long the file has been in her hands. The response suggests, 15 16

however, that it was prepared in great haste. For example, the bulk of the government’s

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argument centers on potential tardiness in filing the 2255 motion and denies that the government

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has a copy of the motion filed on April 22, 2009. 1 While Armstrong has no information on what

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the government may or may not choose to deliver to an AUSA in connection with a drafting

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assignment, the April 22, 2009 motion was hand delivered to the San Francisco U.S. Attorney’s

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Office by Armstrong’s counsel who traveled from Texas to California to file the document and personally serve a file-marked copy upon the government. [See Declaration of Russ Baker, filed

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contemporaneously.] It appears from a declaration by the government’s counsel that documents 24 25 1

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On May 11, 2009, Armstrong filed an amended motion, with exhibits, that provided additional briefing and evidentiary support for the core facts alleged in his April 22 motion. This amendment was filed pursuant to the “matter of course” provision of Rule 15(a) of the Federal Rules of Civil Procedure.

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relevant to this discussion were not even requested until July 23, 2009, the day the government’s

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response was due.

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Similarly, the response speculates that Armstrong’s evidentiary concerns about audio recordings are barred because they were not raised on direct appeal. This further suggests a

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hurried response because the government materially misstates the issue. The issue is not 6 7

whether, on the record before it, the trial court abused its discretion in denying a continuance.

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Instead, the issue is that the record before the trial court included a) the oral assurance of AUSA

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Michael Yamaguchi and b) the sworn affidavit of FBI SA Hatcher, both stating that the audio

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recordings were made by the Dallas FBI office in connection with an unrelated investigation

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while documents recently delivered to Armstrong pursuant to a FOIA request reveal that both the

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oral statement of Yamaguchi and the affidavit of Hatcher were false and the tapes were actually prepared by the Dallas FBI office at the direct request of Yamaguchi in support of his

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prosecution of the instant case. While the government’s counsel has made a generally correct 15 16

statement of the law, respectfully, counsel recites law relevant to evidentiary and abuse-of-

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discretion matters arising during trial when the topic of inquiry is actually fraud on the court that

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was discovered after the time for direct appeal had passed. See generally Appling v. State Farm

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Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003)(“Fraud upon the court” . . . is a fraud

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perpetrated by officers of the court so that the judicial machinery can not perform in the usual

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manner its impartial task of adjudging cases that are presented for adjudication.”) In short, the government’s capable counsel has made significant errors consistent with receiving only a few hours to prepare a response. 2 This is the neglect that is not excusable.

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Armstrong is aware of the government’s representation on June 19, 2009 that this case had already been reassigned to an AUSA to prepare an answering brief. [Docket Entry 553]. This statement is inconsistent with the content of the government’s July 24, 2009 filings.

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The Court will recall that it issued a show cause order compelling a response within 30 days. One day before its response was due, the government sought an additional 30 days, arguing that the AUSA was new to the case and the file was in storage. Despite a lack of explanation for the apparent last-minute discovery that the case needed assignment to an AUSA

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and that the file was in the local FRC, the Court found good cause and granted an additional 33 6 7 8 9

days to the government. Now, at the end of this extended period, the government is still arguing that its counsel is new to the file and is still arguing that records must come from San Bruno. Turning back to the

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four Pioneer factors, we may now analyze factors three and four: (3) the reason for the delay

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and (4) whether the movant acted in good faith. With the greatest respect to the government’s

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counsel—who can only work with what she is given—the government offers no reason for its delay in giving counsel the requisite time and material to perform her task. Armstrong’s 2255

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motion had been in the hands of the Court and the U.S. Attorney’s office for 93 days (74 days for 15 16

the amended motion) when the government sought its second enlargement of time. There is no

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showing of good faith here when section 2255 mandates a “prompt” hearing and the government

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has failed to comply with two orders from this Court.

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Armstrong requests that this Court deny the government’s motion to late file.

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DATED: July 27, 2009

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Respectfully submitted, /s/ Bill Boyd BILL BOYD

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