UNITED STATES of America, Plaintiff-Appellant, v. Nathan J. WARREN, Jr., et al., Defendants-Appellees

United States Court of Appeals for the Ninth Circuit1979-07-30No. No. 79-1039

601 F.2d 471

Summary · law.co

Holding. The court affirmed the dismissal of the indictment, holding that local rule 11(g) is valid and that the district court properly exercised its discretion in applying the rule to dismiss the indictment based on the government's failure to respond to motions.

The United States appealed a district court's dismissal of an indictment against Nathan Warren, Jr., and codefendants under local rule 11(g) of the Arizona federal district court. The government failed to respond to over forty motions by the October 30, 1978 deadline, including specific motions to dismiss the indictment. When defendants filed a motion for summary dismissal under rule 11(g)—which provides that failure to respond constitutes consent to a motion—the government again did not respond. At the pretrial hearing, the government claimed the failure was an oversight discovered that day, despite the assistant U.S. attorney having been served twelve days earlier. The district court dismissed the indictment based on the rule 11(g) motion.

On appeal, the government challenged both the validity of rule 11(g) and its application, arguing the rule improperly stripped the judge of discretion. The court rejected both arguments, finding that district courts have authority to adopt local rules like 11(g), and that despite the rule's mandatory language, discretion is inherent in its administration—either in determining when non-response constitutes consent or in allowing relief from such deemed consent. The trial judge exercised this discretion by considering the government's pattern of non-response, its admission at the pretrial hearing, and the history of prior unsuccessful trials of the defendants, demonstrating proper weighing of relevant factors.

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Key issues

Whether a local court rule deeming failure to respond to motions as consent is valid
Whether rule 11(g) improperly deprives the district judge of discretion
Whether the district court properly exercised discretion in dismissing the indictment

Procedural posture

The United States appealed from the district court's dismissal of an indictment against multiple defendants based on the government's failure to respond to motions filed under local rule 11(g).

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

The United States (plaintiff-appellant) appeals from a dismissal of an indictment against Nathan Warren, Jr., and thirteen codefendants (defendants-appellees). The district court dismissed the indictment pursuant to local practice rule 11(g) of the United States District Court, District of Arizona. On appeal, the sole issue is whether the court erred m dismissing the indictment under the authority of local rule 11(g). This court has jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. §§ 1291, 1294. We affirm.

I. FACTS

On November 16, 1977, a federal grand jury returned an indictment against the named codefendants. The indictment charged interstate transportation of stolen property and mail fraud, violations of 18 U.S.C. §§ 2314 & 2 and 18 U.S.C. §§ 1341 & 2, respectively.

The final day to respond to all motions was October 30, 1978. Appellant failed to meet this deadline; over forty motions were left unanswered. Of greater importance, they failed to respond to any of the motions to dismiss the indictment. Thereafter, a motion for summary dismissal of the indictment pursuant to rule 11(g) of the district court was filed. The rule provides that a failure to respond to a motion “shall constitute a consent” to the motion. Appellant was served with an 11(g) motion, as well as a letter detailing the appellee’s position under the rule. Again appellant failed to respond.

At the November 21, 1978 pretrial hearing, appellant asserted that failure to respond was an oversight only discovered that day, although the Assistant United States Attorney in charge of the case was personally served with the moving papers twelve days earlier. Upon the basis of the Rule 11(g) motion, the district court dismissed the indictments. This appeal followed.

II. DISCUSSION

It is undisputed that district courts have the authority to “prescribe rules for the conduct of their business” in any manner not inconsistent with the federal rules or Acts of Congress. Hicks v. Bekins Moving & Storage, 115 F.2d 406 (9th Cir. 1940); United States v. Simmons, 476 F.2d 33 (9th Cir. 1973); 28 U.S.C. § 2071; see Fed.R.Crim.P. 57. Promulgation of such rules is proper. Rule 11(g) was so promulgated and is valid.

Appellant’s attack on Rule 11(g) and its application by the district court has two prongs. The first is that Rule 11(g) is defective because it deprives the district judge of discretion in determining whether a failure to respond to a motion should be deemed its consent. The second prong is that in fact the district judge did not exercise discretion in applying the rule believing, the appellant suggests, that Rule 11(g) afforded no discretion. We believe the appellant is mistaken in both respects.

Rule 11(g) does afford discretion in its application despite its mandatory language. “Consent” when imposed by rules such as 11(g) can be “withdrawn” by “permission” of the court given in its “discretion.” That is, fictional “consent” under Rule 11(g) is never a burden from which the transgressor can not be relieved. It is of no consequence whether one views Rule 11(g) as affording the court discretion to determine when a failure to respond should be deemed consent or to determine when he who has failed to respond should be relieved of the burden of consent. Either way the administration of the rule inescapably will embody discretion.

And so it did here. In making his decision the trial judge identified the government’s conduct, its failure to respond to numerous motions, and its subsequent admission at the pretrial hearing as factors he considered in applying Rule 11(g). Moreover, he pointed to the earlier unsuccessful trial of the major participants in the schemes in which appellees were but minor participants. This reflects the weighing and balancing of which the exercise of discretion consists.

We shall not disturb this exercise of the trial court’s discretion. Only in rare cases will we question the exercise of discretion in connection with the application of local rules. This is not one of those infrequent cases. Therefore, we hold the district court did not err in dismissing the indictments.

AFFIRMED.

. Rule 11(g) provides:

“MOTIONS — CIVIL AND CRIMINAL (g) Briefs or Memoranda of Law A failure to file a brief or memorandum of points and authorities in support of or in opposition to any motion shall constitute a consent of the party failing to file such a brief or memorandum to the denial or granting of the motion.”