Free Motion for Extension of Time - District Court of Connecticut - Connecticut

Case 3:03-cr-00179-SRU

Document 111

Filed 07/06/2005

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA v. REYNALDO ARROYO

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CRIMINAL NO. 3:03CR179(SRU) JULY 6, 2005

UNITED STATES' MOTION FOR EXTENSION OF TIME TO FILE A RESPONSE TO DEFENDANT'S MOTION TO VACATE JUDGMENT The United States of America, through the undersigned counsel, hereby respectfully requests an extension of time of 15 days to respond to the Defendant's Motion to Vacate Judgment, filed June 15, 2005. In support of this motion, undersigned counsel avers the following: On June 30, 2004, after a three-day trial, a Bridgeport Federal jury returned a guilty verdict, finding the defendant Reynaldo Arroyo guilty of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Judgment entered on November 30, 2004, imposing a sentence of 51 months imprisonment and three years supervised release. On April 26, 2005, almost five months after entry of Judgment, the defendant filed a pro se Motion for Extension of Time to File a Notice of Appeal. On May 17, 2005, the United States filed a Memorandum in Opposition to the Defendant's Motion for Extension of Time to File an Appeal. On May 18, 2005, the Court entered an order appointing counsel, specifically the Office of the Federal Public Defender, to represent the defendant in his attempt to file an untimely Notice of Appeal. On June 15, 2005,

Case 3:03-cr-00179-SRU

Document 111

Filed 07/06/2005

Page 2 of 3

the defendant filed his Motion to Vacate Judgment, requesting that the Court vacate the existing Judgment, in order to enter a new Judgement from which a timely appeal may be taken, pursuant to the reasoning of United States v. Fuller, 332 F.3d 60, 65-66 (2d Cir. 2003). The United States of America has been researching the issues presented by the Fuller opinion, and considering its implication as it pertains to this case as well as all other cases, particularly in light of the "usual rule that a court may not normally circumvent appellate time limits by entering a new Judgement." Fuller, 332 F.3d at 65, citing Mendes, Jr. International Co. v. Banco do Brasil, S.A., 215 F.3d 306, 312-15 (2d Cir. 2000). This case would appear to be distinguishable from Fuller, in that defense counsel in Fuller confirmed that he was expressly directed to file an appeal and failed to do so, where it is the Government's understanding in this instance, from preliminary discussions with defendant's trial counsel, Walter Hussey, Esq., that such was not the case here. Part of the cause for the delay in the Government's formulating a response to the defendant's motion has been the Government's efforts to obtain an affidavit from Attorney Hussey, limited to his discussions with the defendant in regard to his representation after sentencing and directions in regard to appeal. Counsel for the defendant has indicated that he has no objection to the Government obtaining an affidavit limited to those issues. Attorney Hussey has indicated that the defendant's affidavit in support of his motions is inaccurate in regard to those issues. Undersigned counsel has discussed this motion for an extension of this time period with counsel for the defendant, Paul Thomas, Esq., who indicates that he does not object to the request. This is the Government's first motion for an extension of this filing deadline.

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Case 3:03-cr-00179-SRU

Document 111

Filed 07/06/2005

Page 3 of 3

Wherefore, the Government respectfully requests an extension of time of 15 days, until July 21, 2005, in order to file a response to the defendant's Motion to Vacate Judgment. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

BY: ALEX V. HERNANDEZ ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct08345 FOR: THOMAS V. DAILY ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct03467 450 Main Street Hartford, CT 06103 (860) 947-1101 CERTIFICATION I hereby certify that a copy of the foregoing was mailed this 6th day of July, 2005, to: Paul Thomas, Esq. Assistant Federal Public Defendant 2 Whitney Avenue, Suite 300 New Haven, CT 06510 Walter J. Hussey, Jr., Esq. 142 Jefferson Street Hartford, CT 06106 BY: _____________________________________ ALEX V. HERNANDEZ ASSISTANT UNITED STATES ATTORNEY

FOR: THOMAS V. DAILY ASSISTANT UNITED STATES ATTORNEY

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