USA v. Turner

Filing 35

Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,

3:08-cr-120-TMB-JDR
MEMORANDUM OPINION

vs.
JIMMY LEE TURNER,
Defendant.

Defendant Jimmy Lee Turner moved the court to grant his Unopposed
Motion to Suppress and Vacate the Evidentiary Hearing. Docket No. 28. The
government filed an opposition at Docket No. 29 arguing that based on its
computation its response was due December 15, 2008, the date the response was
filed. This order addresses the calculation of the due date for the government’s
opposition to the defendant’s criminal motion [20] in this case.

3-08-cr-120-TMB-JDR

Memorandum Opinion
Signed by Judge John D. Roberts

12/17/2008; Page 1 of 4

The starting point is the Pretrial Scheduling Order. Paragraph 4 of the
Order for the Progression of Criminal Case, Docket No. 10, provides: “If any pretrial
motion is filed by either side, opposing briefs shall be filed within five (5) working
days thereafter. . . . .” It is undisputed that Turner filed his motion to suppress on
December 3, 2008. Docket No. 20.
The government’s calculation begins with Local Rule 47.1 wherein it
states “. . . oppositions to motions in criminal cases must be served and filed within
five (5) days of service of the motion.” However, that sentence is preceded by the
following phrase: “Except as otherwise ordered by the court or as specified in these
rules.” D.Ak.LR. 47.1(a). The significance of that language is that the court’s
scheduling order counts workdays not calendar days.
Federal Criminal Rule 45 addresses the method of computing and
extending time in criminal cases. The rule applies in computing any period of time
specified in any local rule or any court order. Rule 45(a) Federal Rules of Criminal
Procedure. Thus, the day of the filing of the motion is excluded. See Rule 45(a)(1)
F.R.Cr.P.
Under Rule 45 intermediate Saturdays, Sundays and legal holidays are
excluded when the period is less than eleven days. Rule 45(a)(2) F.R.Cr.P. In the
court’s scheduling order in Turner weekends and legal holidays are already excluded
because only work days are counted toward the five days allowed for a response.

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Memorandum Opinion
Signed by Judge John D. Roberts

2

12/17/2008; Page 2 of 4

Rule 45 provides for additional time after service “when these rules permit or require
a party to act within the specified period after a paper has been served on that party.
Rule 45(c) F.R.Cr.P. Rule 45(c) provides for three additional days when service
occurs in the manner provided under Federal Rule of Civil Procedure 5(b)(2)(B), (C),
or (D).
Applying this computation to the instant case the fifth day for the date
due

for

the

response

under

the

court’s

scheduling

order

would

be

December 10, 2008. Because weekends and holidays have already been excluded
they are not excluded a second time under Rule 45(a) of the F.R.Cr.P. Excluding
the additional three days because of the manner of service under Rule 45(c) the
response date is moved out to December 13, 2008, a Saturday. Pursuant to Rule
45(a)(3) the period runs until the end of the next day that is not a Saturday, Sunday,
legal holiday (or day when the clerk’s office is inaccessible). Thus, the response
date became Monday, December 15, 2008. Therefore, the government’s response
to the motion to suppress filed December 15, 2008 was timely filed.1
The parties are cautioned to keep abreast of the amendments to the
Federal Rules of Criminal Procedure as well as this court’s local rules most notably

1

Even if the government’s response were filed after the time had expired, the
response time could be extended by the court on its own based on excusable neglect.
Rule 45(b)(1)(B).
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Memorandum Opinion
Signed by Judge John D. Roberts

3

12/17/2008; Page 3 of 4

with respect to future application of this opinion as changes in time computation may
occur from time to time.
DATED this 17th day of December, 2008, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

3-08-cr-120-TMB-JDR TURNER @28 Memorandum Opinion_mtd.wpd

3-08-cr-120-TMB-JDR

Memorandum Opinion
Signed by Judge John D. Roberts

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