No Continuance Flashcards
Doesn’t the plain text of CJO 18 defeat your argument?
No, your honor, because even by the plain terms of CJO 18, across-the-board continuances would end once jury trials resumed, and jury trials resumed in August 2020z (1) Paraphrase CJO 18 [Appx 5], (2) Link it to CJO 36 [Appx 17], including scheduling [Appx 19]
But wasn’t CJO 36 limited to out of custody trials? Isn’t it true that for in custody defendants, like your client, trials were suspended throughout the relevant period?
No, your honor. (1) Order mentions that kinks had to be worked out with quarantining before in-custody defendants were able to go forward. (2) Happened in short order—can see from Rivera, 19-CR-5151-AJB, set on 9/30, went forward on 10/13.
It seems like CJO 36 more modified the suspension rather than lifting it.
Several textual cues: (1) CJO 18 says continuances will end when “this trial suspension” ends, (2) CJO 36 called “Adopting District Trial Reopening Plan,” and sets up a system for individual judges to do scheduling, (3) CJO 52 [Appx 30] was titled “renewed suspension of jury trials, and it entered a new set of continuances—which would be superfluous on the government’s view. (4) Finally, add to this the strong evidence that judges were not treating CJO 36 as a “continuance” of “all” trials and trial-specific deadlines.
Shouldn’t we review for plain error?
No, your honor. (1) Forfeited. Murguia-Rodriguez, 815 F.3d at 573-73, (2) Claims not arguments, Lloyd, 807 F.3d at 1174-75. (3) Fairness. Govt not only failed to raise, but conceded.
In some sense, isn’t continuing all jury trials the same as entering a continence in every case, even those that don’t have a trial date yet?
No, your honor. Is the idea that continuing trials set in August might somewhere down the line affect when Mr. Orozco-Barron could go to trial? I think in that scenario, you might say that delaying jury trials in August might occasion or explain some later continuance in Mr. Orozco-Barton’s case. But I don’t see how it would result in a continuance in his case on the day that the CJO was entered.
Isn’t this case controlled by Paschall?
No—all grand juries really were continued for the relevant period, while here, CJOs weren’t continuing any cases. Also, not did not address this argument, so not preferential.
But the court was itself entering continuances, and then later on, the court said that was because of the CJOs. And that’s highly plausible given some of the court’s comments in the record prior to the MTD hearing
—Distinguish non-retroactivity from supplementation.
Shouldn’t we just read three orders to mean that any continuances granted during the time that the orders are enforced are excluded?
No. Plain text—“a continuance.” And must exclude for a specific period of time, not a shifting period of time.
