USA v. Andrew Auernheimer

Filing 51

ECF FILER: UNOPPOSED Motion filed by Appellant Andrew Auernheimer for Extension of Time to file Appellant's Reply Brief until/for October 25, 2013. Certificate of Service dated 09/23/2013. (HMF)

NO. 13-1816
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
V.

ANDREW AUERNHEIMER,
DEFENDANT-APPELLANT.
On Appeal From The United States District Court
For The District of New Jersey
Case No. 2:11-cr-00470-SDW-1
Honorable Susan D. Wigenton, District Judge
APPELLANT AUERNHEIMER’S UNOPPOSED MOTION FOR
EXTENSION OF TIME TO FILE REPLY BRIEF
Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Tel.: [phone]
Email: [e-mail]

Orin S. Kerr
2000 H Street, N.W.
Washington, DC 20052
Tel.: [phone]
Email: [e-mail]

Marcia C. Hofmann
LAW OFFICE OF MARCIA C. HOFMANN
25 Taylor Street
San Francisco, CA 94102
Tel.: [phone]
Email: [e-mail]

Hanni M. Fakhoury
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel.: [phone]
Email: [e-mail]
Attorneys for DefendantAppellant Andrew Auernheimer

Appellant Andrew Auernheimer, through undersigned counsel, asks this
Court to extend the time to file a reply brief to October 25, 2013. The government
has no objection to this request. Mr. Auernheimer makes this request based on the
following facts and for the following reasons:
1.

Mr. Auernheimer was convicted of two felony counts on

November 20, 2012. On March 18, 2013, he was sentenced to a 41-month prison
term on each count, to run concurrently. He began serving his sentence that day
and is currently incarcerated.
2.

On April 23, 2012, Mr. Auernheimer asked for an extension of time to

file his opening brief from May 6, 2013 to July 1, 2013. This Court granted the
request on April 25, 2013, informing counsel no further extensions of time would
be granted.
3.

Mr. Auernheimer filed his opening brief as directed on July 1, 2013.

The brief fell within the 14,000-word limit of Federal Rule of Appellate Procedure
32(a)(7)(B)(i).
4.

On August 5, 2013, the government asked this Court to stay the

briefing schedule while this Court considered the government’s request to file an
enlarged brief of 26,500 words.

The Court granted the stay before

Mr. Auernheimer could respond.

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5.

On August 6, 2013, the government, withdrew its request for a stay

and instead asked for an extension of time to September 20, 2013, which was
unopposed by Mr. Auernheimer.
6.

On September 20, 2013, the government filed a 26,495 word

answering brief.

Mr. Auernheimer filed a request with this Court on

September 23, 2013 asking it to reject this deficient brief, or alternatively to grant
it leave to file an enlarged reply brief.
7.

To date, the Court has not ruled on the government’s motion for extra

words or Mr. Auernheimer’s motion to reject it, nor has this Court lifted the stay or
ruled on the government’s request for an extension of time.
8.

Under Federal Rule of Appellate Procedure 31(a)(1)(A), a reply brief

must be filed within fourteen days of the filing of the Appellee’s brief. That would
make Mr. Auernheimer’s reply brief due on October 4, 2013.
9.

Mr. Auernheimer needs extra time to prepare the reply brief because

the government’s brief is almost 90% longer than permitted by the Federal Rules
of Appellate Procedure. That means there is a larger than usual number of points
and arguments Mr. Auernheimer must respond to in his reply brief. And there is a
possibility that the points and arguments Mr. Auernheimer will have to respond to
may change if this Court rejects the government’s oversized brief and orders it to

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refile a brief conforming to the 14,000-word limit in the Federal Rules of Appellate
Procedure.
10.

Mr. Auernheimer’s counsel are representing him pro bono and have a

variety of pre-existing litigation, transactional, and academic deadlines, as well as
work-related travel that make filing a reply brief by the current deadline extremely
difficult.
11.

Undersigned counsel has spoken with counsel to the Government,

who indicated he has no objection to this request.
12.

Therefore, Mr. Auernheimer requests this Court grant him an

extension of time to file his reply brief on October 25, 2013.
Dated this 23rd day of September, 2013.
Respectfully submitted,
/s/ Hanni M. Fakhoury
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Orin S. Kerr
2000 H Street, N.W.
Washington, DC 20052
Marcia C. Hofmann
LAW OFFICE OF
MARCIA C. HOFMANN
25 Taylor Street
San Francisco, CA 94102

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Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Attorneys for DefendantAppellant Andrew Auernheimer

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Third Circuit by using the
appellate CM/ECF system on September 23, 2013.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: September 23, 2013

By: /s/ Hanni Fakhoury__
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
Attorney for DefendantAppellant Andrew Auernheimer