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motion for a 21-day extension of time on the grounds that the delay will prejudice
him and inconvenience his counsel, and that, in the appellant’s view, the
possess 500 grams or more of cocaine with intent to distribute, and a count of
attempt to possess cocaine with intent to distribute. Jury Verdict Form, DDE
1In its motion, the government inadvertently stated, wrongly, that the
appellant’s counsel had not yet responded to the government’s inquiry about
whether the appellant opposed the motion. Government counsel overlooked an e-
mail response from the appellant’s counsel stating the appellant’s opposition. The
government regrets the error.
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#200; Judgment, DDE #285. Eight months of that term result from his guilty
sentence. Except for five days immediately following his arrest, Hunt-Irving was
imprisonment on March 28, 2019. DDE #284. His projected release date is
Despite having only begun to serve his sentence, Hunt-Irving argues that
time. He asserts that “[i]f his appeal succeeds, he would not get back the time
spent waiting for the government’s brief.” Response 1. This is true of any
circumstances that differentiate his situation from the norm, nor has he
man.
Hunt-Irving’s primary argument on appeal is his claim that his prior felony
This Court has not yet ruled on whether prohibiting the possession of firearms by
a convicted felon is constitutional. Every other circuit to have ruled on the issue
has found that prohibiting felons from possessing firearms does not violate the
Second Amendment. See, e.g., Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019)
(collecting cases). Although some courts have admitted a possibility that a felon
Hunt-Irving would have to remain in custody for more than four more years
before he would be at risk of losing the benefit of that hypothetical victory. The
wheels of justice may be reputed to turn slowly, but in the present case, they
strength. He argues that the district court erred in failing to suppress evidence
found in his living quarters on the date of his arrest. Because he did not raise the
been waived. United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008). Waiver
results not only where the defendant failed to file a suppression motion at all in
the district court, but also where he filed one but did not include the issues raised
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on appeal. Id. See also United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)
(stating that “in the context of a motion to suppress, a defendant must have
search of his living quarters were not waived, they would not result in the
invalidation of his drug convictions. The only evidence from the search that was
introduced at trial was a digital scale and $15,000 in cash found in a box at the
convictions were based on wiretap evidence recording his conversations with his
United States v. Irving, 316 F. Supp. 3d 879 (E.D. Pa. 2018) (finding that Hunt-
import the drugs it contained, and his explicit discussion of the need to find a
unlikely that without the evidence of the digital scale and the cash the jury would
3 Because the Section 922(g)(1) charge had been severed from the trial of
the drug charges, the two firearms found in Hunt-Irving’s home (an AK-47
assault rifle and a 9mm handgun) were not admitted or mentioned at trial.
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Case: 19-1636 Document: 003113418263 Page: 5 Date Filed: 11/26/2019
Hunt-Irving has thus failed to show that granting the government the
prejudice him.
extension is granted, the reply brief would be due during the holiday period,
when counsel has other plans. Response 3-4. Counsel states, that “[i]f granted,
the extension’s impact this time of year would likely necessitate another
the government would not oppose a request for a reasonable extension of time.
Hunt-Irving also takes the position that the government has already had
enough time to prepare its brief. He argues that government counsel should have
been working on the brief during the time that this appeal was still consolidated
with the appeal of co-conspirator Paris Church, and before Church had filed his
brief. By an order dated May 23, 2019, the Clerk of this Court had ordered that
the time for the government’s response would begin to run on the filing of the last
appellant’s brief. On October 15, 2019, the Clerk vacated the order in light of an
order the same day directing that Church’s three appeals would proceed on their
own.
Hunt-Irving argues that the government should have been preparing its
brief during this period before a due date had been set, and before it had even
received the brief of the third appellant. During this time, the government had no
way of knowing what appellant Church would argue, and to what extent, if any, it
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Case: 19-1636 Document: 003113418263 Page: 6 Date Filed: 11/26/2019
Hunt-Irving and Mills. Moreover, appellant’s counsel is not the only one who has
other obligations and due dates in other cases. It was perfectly reasonable, and
perhaps even absolutely necessary, for government counsel to devote their time
to matters that had present due dates, rather than a brief that would become due
consistent with our practice in our cases, which this Court has regularly
approved. It was appropriate for the government to wait to address the appeal
until all consolidated briefs were filed, or the cases were unconsolidated. Then, at
that time, it became apparent that the time of trial counsel was consumed by
other matters, so the case was reassigned to another prosecutor. That prosecutor
is diligently preparing a brief, while also addressing her other caseload. The brief
in this case will, consistent with the standard expected by the Court,
Amendment claim. And with respect to that claim, we will consult as required
Hunt-Irving has not shown that he would suffer prejudice from the
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respectfully requests that this Court extend the final due date of the brief for
Respectfully yours,
WILLIAM M. McSWAIN
United States Attorney
/s Robert A. Zauzmer
ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals
/s Emily McKillip
EMILY McKILLIP
Assistant United States Attorney
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Case: 19-1636 Document: 003113418263 Page: 8 Date Filed: 11/26/2019
CERTIFICATE OF SERVICE
I hereby certify that this pleading has been served on the Filing Users
/s Emily McKillip
EMILY McKILLIP
Assistant United States Attorney