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United States v. Long

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 29, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BRENT GORDON LONG, DEFENDANT-APPELLANT.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER SETTING SECOND NEW BRIEFING SCHEDULE

This is an appeal from a conviction for violation of 36 C.F.R. § 2.31(a)(2) following a bench trial before a Magistrate Judge. Notice of appeal was filed on October 21, 2008, and a briefing schedule was docketed on January 21, 2009. On April 2, 2009, the government filed a designation of counsel and used the Magistrate Court file number instead of the District Court file number. The designation indicated that attorney Laurel Montoya would be the attorney designated for service. On April 28, 2009, Appellant filed a request to modify the scheduling order. On May 22, 2009, the Court set a briefing schedule in which the government could file an opposition on or by June 12, 2009. No opposition was been filed. The Court recognized that AUSA Laurel Montoya had not been added as the attorney of record to the docket and instead attorney Mark McKeon remained listed as the attorney of record. The Court ordered the docket corrected and ordered the government to file a response/explanation for not filing an opposition brief. On June 25, 2009, the Government filed its response. The declaration of Ms. Montoya indicates that she did not receive notice of the new briefing schedule because the substitution of counsel had been filed under the Magistrate Court docket. Because she did not receive notice, no opposition brief was filed. The government requests the opportunity to respond to the Appellant's brief and asks that the response be due in 30 days. Ms. Montoya's declaration indicates that Appellant's counsel contacted her on June 18, 2009. To date, Appellant's counsel has not filed an opposition to the Government's request.

In light of the foregoing, the Court will once again modify the briefing schedule. However, the general briefing schedule gives the appellee 21 days in which to file an opposition. The government does not explain why it requests 30 days in which to respond. For the time being, the Court will retain the normal time periods of 21 days to file an opposition and 5 court-days thereafter in which to file a reply. However, if Appellant is amenable to a 30-day time period for the filing of an opposition brief, then the parties may file a signed stipulation to that effect and the Court will honor the stipulation.

Accordingly, IT IS HEREBY ORDERED that the briefing schedule in this case is modified as follows:

1. The Government shall file a response/opposition to Appellant's brief within 21 days of service of this order; and

2. Appellant may file a reply to the Government's response/opposition brief within 5 court-days of service of the Government's response/opposition.

IT IS SO ORDERED.

20090629

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