Guy Gentile Still Fighting, Still Strong, Still the Sure Winner

Thinly Disguised Government Flip Flop during the November 14 Scheduled Court Conference with the Hon. Jose L. Linares  –  United States District Court Judge

us-v-guy-gentile-criminal-no-16-155jll-11-14-161

A conference with Judge Linares took place on November 14 to clarify certain points and for the Honorable judge to possibly deliver a decision on granting Guy Gentile’s Motion to Dismiss based on:

  • VIOLATIONS OF THE STATUTE OF LIMITATIONS
  • HIS RIGHT TO A SPEEDY TRIAL, &
  • HIS RIGHT TO DUE PROCESS

The Judge said he had reviewed the pending motion for dismissal and inferred he was ready to make a decision on the papers unless either side wanted an oral argument.

 

The defense said they did want an oral argument on the motion and also felt the need for an evidentiary hearing on a limited issue that was raised.  Mr. Grippo continued for the government adding that he believed that the bulk of the motion to dismiss could be denied on the papers; that the issues the defendant had raised in his motion could be denied on the legal issues alone, meaning the Statute of Limitations and the allegation that the defendant’s Sixth Amendment speedy trial right was violated.  He confirmed with the judge that “there needs to be an evidentiary hearing at some point to resolve the motion, but it should be limited to the one issue that I just discussed.”

Later in the conversation Mr. Grippo said that he did not think the Court needed a hearing on the Statute of Limitations nor the Sixth Amendment or speedy trial issues. However, half an hour into the conference he back-tracked or flip-flopped, saying this:

 

  1. GRIPPO: Your honor, if I could just weigh in briefly on the Statute of Limitations point. We think there is a slight chance that there could be a factual dispute that comes out of that argument, and without going into detail on the merits, there is a claim that Mr. Gentile would not have signed one of the two tolling waivers at issue here, if he knew at the time that he signed it, that the Statute of Limitations was six years rather than five, and that may be an issue that requires a very limited hearing or additional facts placed on the record.

 

Mr. Seigel for Guy Gentile said that for the purpose of expediency, etc., he suggests that the Court entertain the two legal arguments that are based on undisputed facts, namely, the Statute of Limitations and the Speedy Trial issues. “If after determination of those arguments, a hearing in necessary, we could proceed at that time.”

 

The judge said that the defense had anticipated his question because if he went ahead and made a decision on those two issues in favour of the defense, he wouldn’t need to consider any of the other issues.

 

  1. GRIPPO: I think that is right, your Honor, if your Honor grants their other two motions or the motion based on the statute of limitations —

THE COURT:    Or just one of them.

  1. GRIPPO: — or one of them, correct.

THE COURT:    If they just win on the statute, for example, I am not suggesting he is, I have not begun to decide that.          All right. Let’s just be clear.    So the two issues that you think there is no need for any type of evidential hearing is the statute of limitations —

  1. SEIGEL: Yes, your Honor, and the speedy trial.

THE COURT:    — and the speedy trial violation, correct?

  1. SEIGEL: Yes.

Here is a brief overview of the session – go to the link for the full 16 page transcript.

 

Judge Linares scheduled the conference as he wanted to “know where we stood.”  He said that he had the reviewed the pending motion for dismissal of the indictment and wanted to explore, number one, whether both sides want oral argument or not.

He said he had received and reviewed the pending motion for dismissal of the indictment, and he wanted to explore, number one, whether both sides want oral argument or not.

THE COURT: So if you do want oral argument, I will schedule one for you, or whether you want me to decide it on the papers. Either way would be fine with the Court, and also where we stand on the progress of the case.

Mr. Grippo for the government responded by requesting an oral argument on the motion to dismiss and stated that their position was that an evidentiary hearing was needed on a limited issue that had been raised.

  1. GRIPPO: There is one issue that the defense raised, where they alleged that the United States and the U.S. Attorney’s Office entered into a binding non-prosecution agreement with Mr. Gentile, with the defendant, and that is based on alleged statements of an Assistant United States Attorney in our office and conduct of the Government in the later half, the end of 2014 and 2015.  We dispute those facts, your Honor, and we think  that ..

THE COURT:    Okay.   I get it.  So that is a different basis for the motion, so there were a couple of bases. Okay.  All right.  You dispute that, and you want to have an evidential hearing as to whether or not that agreement actually took place?

  1. GRIPPO: Yes, your Honor. But we believe that the rest of the claims that the defendant has raised in his motion can be denied on the legal issues alone, that being the statute of limitations and the allegation that the defendant’s Sixth Amendment speedy trial right was violated.

The Court transcript continues with the government outlining further reasons for an oral argument rather than the Court making a decision on the motion to dismiss alone and their written response to that.  At times the Judge seems uncertain exactly which points government wants to raise in an oral argument and the Judge had to state that there was a difference between an oral argument and an evidentiary hearing.  It makes good reading so click on the link to read the back and forth.

Mr Grippo for the government and the Court did agree on one point:

THE COURT:    We need an evidential hearing on these other legal issues, such as the statute of limitations, for example. That is just purely legal, right, as to whether or not the retroactivity of the act, and whether or not it applies and all of that.

  1. GRIPPO: Yes, your Honor. We would agree with that. We do not think the Court has to have a hearing on that issue or on the Sixth Amendment or speedy trial issues.

THE COURT:    But you, nevertheless, want oral argument on it?

  1. GRIPPO: Yes.

THE COURT:    Okay.   All right.  I get it.

Mr. Siegel for the defense offered some clarity.

  1. SEIGEL: Your Honor, we had an opportunity to confer with the Government on this point, and I don’t think they disagree. For the purposes of expediency and potentially saving additional resources, what we would suggest is that the Court entertain the two legal arguments that are based on undisputed facts, namely, the statute of limitations and the speedy trial issues. If after a determination of those arguments, a hearing is necessary, we could proceed at that time. I am hopeful, your Honor —

THE COURT:    You anticipated my question, because my question was going to be if I went ahead and decided those issues, if you were to win, we don’t have to get to these other issues, right?

  1. GRIPPO: I think that is right, your Honor, if your Honor grants their other two motions or the motion based on the statute of limitations —

THE COURT:    Or just one of them.

  1. GRIPPO: — or one of them, correct.

THE COURT:    If they just win on the statute, for example, I am not suggesting he is, I have not begun to decide that.          All right. Let’s just be clear. So the two issues that you think there is no need for any type of evidential hearing is the statute of limitations —

  1. SEIGEL: Yes, your Honor, and the speedy trial.

THE COURT:    — and the speedy trial violation, correct?

  1. SEIGEL: Yes.

THE COURT:    Here is what I am going to do:           I am going to issue an order wherein I am going to schedule oral argument as it pertains to these two issues.  We will hear the oral arguments, and once we hear the oral arguments, maybe at that time, if it turns out that we have some kind of a factual dispute that needs something else or additional, and I will let you know. Maybe after I hear the oral arguments, I say to you, I really don’t need to decide that because legally I am going a different whatever, okay?

THE COURT:    There is no additional briefing needed on either of these two issues, is that correct?

Both sides agreed and the Clerk of the Court proceeded to find a date for the next appearance.

Seeking final clarity the judge questioned that the oral argument would pertain to the Statute of Limitations and the Speedy Trial which was confirmed. He said the other issues that remained open would be subject to a hearing.

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