Case 2:18-cr-00422-DJH Document 1450 Filed 01/11/22 Page 1 of 3
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`Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)
`Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)
`BIENERT KATZMAN LITTRELL WILLIAMS LLP
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Facsimile: (949) 369-3701
`tbienert@bklwlaw.com
`wbernstein@bklwlaw.com
`Attorneys for James Larkin
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Plaintiff,
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`United States of America,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`Case No. 2:18-cr-00422-PHX-DJH
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`MOTION FOR EXTENSION OF TIME
`TO RESPOND TO VINCENT
`FERRER’S AMENDED MOTION TO
`QUASH (DKT. 1443)
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`Defendant James Larkin, by and through his undersigned counsel, hereby submits the
`instant motion for an extension of time to oppose the Amended Motion to Quash Subpoena
`Served on Vincent Ferrer at Dkt. 1443 (“Motion to Quash”). The Motion to Quash was filed by
`Ferrer’s attorney on December 28, 2021 in response to a trial subpoena that was served on Ferrer
`nearly four months earlier on August 30, 2021. See Dkt. 1443 at 3:5-7. While the September 1,
`2021 trial listed on Ferrer’s subpoena ended on September 14, 2021 when Hon. Bnrovich declared
`a mistrial (see Dkt. 1308), all trial subpoenas were reconfirmed to apply to a retrial in this matter
`(see Dkt. 1353). However, on January 3, 2022, Mr. Larkin and his co-defendants filed a notice of
`appeal to the Ninth Circuit of this Court’s denial of their Motion to Dismiss with Prejudice. See
`Dkt. 1445. This appeal is currently pending before the Ninth Circuit (see Lacey, et al. v. United States,
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` MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO QUASH
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`Case 2:18-cr-00422-DJH Document 1450 Filed 01/11/22 Page 2 of 3
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`No. 22-10000 (9th Cir.)) and the District Court is accordingly divested of jurisdiction over trial
`related matters pending the appeal (see, e.g., Stewart v. Donges, 915 F.2d 572, 575-76 (10th Cir.
`1990) (“an interlocutory appeal from an order refusing to dismiss on double jeopardy or
`qualified immunity grounds relates to the entire action and, therefore, it divests the
`district court of jurisdiction to proceed with any part of the action against an appealing
`defendant.”); United States v. Trabelsi, No. 06-CR-89 (RDM), 2021 WL 430911, at *12
`(D.D.C. Feb. 5, 2021) (the Double Jeopardy Clause protects against not only double
`convictions but also against even the ‘risk’ or ‘potential’ of a second conviction for the
`same crime. It is thus generally understood that ‘an interlocutory appeal from an order
`refusing to dismiss on double jeopardy ... grounds relates to the entire action and,
`therefore, it divests the district court of jurisdiction to proceed with any part of the action
`against an appealing defendant.’”) (internal citations omitted)). Accordingly, Mr. Larkin
`respectfully requests an extension of time to file his opposition until no fewer than two weeks
`from the resolution of the Ninth Circuit appeal, should the Ninth Circuit deny relief.
`This motion will not result in any excludable delay under 18 U.S.C. § 3161(h). A proposed
`order is attached for the Court’s consideration.
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`RESPECTFULLY SUBMITTED this 11th day of January, 2022,
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`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`Whitney Z. Bernstein
`Attorneys for James Larkin
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`Case 2:18-cr-00422-DJH Document 1450 Filed 01/11/22 Page 3 of 3
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 11, 2022, I electronically transmitted the attached document
`to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic
`Filing to the CM/ECF registrants who have entered their appearance as counsel of record.
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`/s/ Toni Thomas
`Toni Thomas
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`CERTIFICATE OF SERVICE
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