GOVERNMENT'S MOTION FOR AN EXTENSION OF TIME TO RESPOND TO THE DEFENDANT'S § 2255 PETITION
The United States of America, through its attorneys of record, Benjamin B. Wagner, United States Attorney, and William S. Wong, Assistant U.S. Attorney, hereby submits this request for an extension of time.
For the reasons set forth in Assistant U.S. Attorney William S. Wong's attached Declaration, the government requests an extension of time to file its opposition to January 11, 2013. The record in this case (according to the docket) consists of numerous filings by the defendant and his co-defendants, district court and appellate court decisions related to this case, and other materials. Counsel for the government recently had knee surgery on November 28, 2012 and returned to work on January 3, 2013. The backup legal assistant for the Government's counsel became unavailable due to a medical emergency on December 21, 2012 and did not return to the office until January 7, 2013 due to an emergency appendectomy surgery. Counsel for the government had previously completed approximately 31 pages of the Government's opposition which could not be accessed until the backup legal assistant returned to the office. Meanwhile, another legal assistant was able to reconstruct the loss text late last week. The government now needs additional time to complete the Government's response to adequately review its file and to research the case law and write its opposition to the defendant's § 2255 petition.
Counsel for the government spoke with William Osterhoudt, counsel for defendant Lu, who advises that he has no objection to the Government's requests for this extension of time.
The indictment was returned in 1999 and litigation in this case has been ongoing for approximately 13 years. The 2003 jury trial in this matter lasted approximately four weeks. Furthermore, post-trial motions and appeals extended litigation in this matter to the present.
Defendant LU's conviction and sentence has been affirmed by the Court of Appeals and he is now serving a life sentence, plus 60 months in custody. While the defense may disagree, the government contends that the granting of the government's extension will not serve to prejudice the defendant. Additionally, the defendant is also serving two state sentences of approximately 13 and 17 years.
Dated: January 7, 2013 BENJAMIN B. WAGNER United States Attorney /s/ William S. Wong WILLIAM S. WONG Assistant United States Attorney
DECLARATION OF WILLIAM WONG I, William S. Wong, hereby declare as follows:
1. I am an Assistant U.S. Attorney for the Eastern District of California and was the counsel assigned to prosecute the case of United States v. John That Luong, et. al, 2:99-CR-433-WBS, in which defendant BAO LU is a named co-defendant in that indictment.
2. Defendant LU was convicted by jury verdict after a four week-long trial in 2003 of Hobbs Act robbery and use of a firearm. This Court sentenced the defendant to a term of imprisonment of life, plus 60 months in custody. The defendant appealed his convictions and sentence to the Ninth Circuit which affirmed his convictions and sentence.
3. In his amended § 2255 petition, the defendant raises numerous and complicated legal issues which requires the government to review the trial transcript of 2003, the pre-trial and post-trial motions that were filed, the district court and appellate court decisions in this case, and other materials in order to adequately and comprehensively address the issues raised by the defendant.
4. On November 28, 2012, I had knee surgery performed on my left knee. I returned to work on January 3, 2013. Upon my return, I learned that 31 pages of my opposition to the defendant's 2255 petition could not be located in my computer or the computers of 2 other legal assistance that normally worked with me. The third legal assistant that could possibly have worked on the document went out on an medical emergency (appendectomy surgery) on December 21, 2012 and was scheduled to return to the office on January 7, 2013.
5. The defendant is currently serving a life sentence and will not be prejudiced by the government's request for an extension of time to January 11, 2013, in order to complete its research and to write its opposition to the defendant's § 2255 petition.
6. I personally spoke with William Osterhoudt, counsel for defendant Lu, who advises that he has no opposition to this request for short extension of time.
7. This I say under the penalty of perjury, and to the best of my knowledge. Executed this 7th day of January ...