USA v. Andrew Auernheimer

Filing 61

ECF FILER: LETTER from Tor B. Ekeland, Esq. for Appellant Andrew Auernheimer, Hanni M. Fakhoury, Esq. for Appellant Andrew Auernheimer, Marcia C. Hofmann, Esq. for Appellant Andrew Auernheimer, Mark H. Jaffe, Esq. for Appellant Andrew Auernheimer and Orin S. Kerr, Esq. for Appellant Andrew Auernheimer Time-sensitive request to lift stay, grant requests to file oversized briefs, and schedule case for oral argument. Certificate of Service dated 12/18/2013. (HMF)

December 18, 2013
Office Of The Clerk
United States Court Of Appeals For The Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106-1790
Re:

Time-Sensitive Request for a Ruling on the Government’s Motion
to File an Oversized Brief in No. 13-1816, United States v.
Auernheimer

This case has been stayed for over five months because the Court has yet to
rule on the Government’s request to file an oversized brief. In light of the unique
circumstances of this important case, appellant Andrew Auernheimer respectfully
urges this Court to accept the briefs filed in this case as soon as possible, lift the
stay of the briefing schedule immediately and schedule this matter for prompt
resolution by a merits panel.
This is a high-profile criminal appeal that has received widespread national
media attention, including a front-page Washington Post story that questioned
whether the defendant’s conduct was a crime. See Jerry Markon, As Cyberthreats
Mount, Hacker’s Conviction Underscores Criticism Of Government Overreach,
Washington Post, April 29, 2013 at A1. All of the attorneys for Auernheimer are
representing him pro bono.
On August 5, 2013 – over five months ago – the United States asked for
leave to file an oversized appellee’s brief in this case and for a stay of the briefing
schedule. Among the reasons the United States cited for doing so was that
Auernheimer’s opening brief “raises serious substantive challenges to the
Government’s prosecution.” United States’ Motion For a Word Limit Extension to
26,500 Words & a Stay of the Briefing Schedule at 1.
On August 5, 2013, this Court granted the government’s request to stay the
briefing schedule to consider the request to file an oversized brief. But on
August 6, 2013, the Government withdrew its request for a stay after conferring
with undersigned counsel. And although more than five months have passed since
then, the Court has not yet lifted the stay nor ruled on the Government’s motion to

Office Of The Clerk
United States Court Of Appeals For The Third Circuit
December 18, 2013
Page 2 of 4
file an oversized brief. Notwithstanding the stay, the parties diligently completed
briefing in this case, with the United States filing its oversized brief on
September 20, 2013 and Auernheimer filing an oversized reply brief on
October 25, 2013. Neither party objects to the brief filed by the other side.
Undersigned counsel hereby urges this Court to lift the stay, grant the
Government’s and Auernheimer’s request to file oversized briefs, and schedule this
case for oral argument at the soonest available merits panel.
Any further delay causes unwarranted prejudice to Auernheimer, who is
currently in custody serving a 41-month prison sentence. Since Auernheimer’s
primary argument is that he was convicted of conduct that is not a crime, any
further delay in the resolution of his appeal extends the time he is wrongly
incarcerated.
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

Office Of The Clerk
United States Court Of Appeals For The Third Circuit
December 18, 2013
Page 3 of 4
Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Counsel for
Appellant Andrew Auernheimer

Office Of The Clerk
United States Court Of Appeals For The Third Circuit
December 18, 2013
Page 4 of 4
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 December 18, 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: December 18, 2013

Respectfully submitted,
By: /s/ Hanni Fakhoury__
Hanni M. Fakhoury
ELECTRONIC FRONTIER
FOUNDATION
Counsel for Appellant
Andrew Auernheimer