Free Motion for Hearing - District Court of Arizona - Arizona

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Brian F. Russo, Esq. AZ Bar No. 018594 111 West Monroe Street Suite 1212 Phoenix, Arizona (602) 340-1133 Attorney for Defendant Robert Johnston Jr.

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) Case No. CR03-1167-PHX-DGC MOTION TO DEEM GOVERNMENT'S FAILURE TO FILE RESPONSIVE PLEADING A CONSENT TO THE GRANTING OF DEFNDNAT'S MOTION

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Plaintiff,
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vs.
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ROBERT J. JOHNSTON, JR. (1),
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Defendant.
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COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby moves this honorable Court for an order, granting his Motion for Evidentiary Hearing filed on July 8, 2005 concerning the wiretap evidence related to the instant case. The government received its copy of Defendant's Motion on July 8, 2005 and the court allowed time for a response. It has been more than 30 days and the government has not filed a responsive pleading in opposition to Defendant's Motion. Thus, it is presumed that the government does not oppose Defendant's Motion. In the District of Arizona, LRCiv. 7.2(i), governs the practice of Motions Pleadings and states in pertinent part "if the opposing party does not serve and file required answering memoranda . . . such non compliance may be deemed a consent to the denial or granting of the motion." Thus, Defendant's Motion should be granted and an evidnctiary hearing set

Case 2:03-cr-01167-DGC

Document 771

Filed 08/09/2005

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immediately because the subject matter of that pleading concerns relevant and material information relating to the overall discovery of the defendant's case.

RESPECTFULLY SUBMITTED this 9th day of August, 2005

/s/ Brian F. Russo Brian F. Russo Attorney for Defendant

COPY of the foregoing electronically filed and electronically mailed this day of Clerk of the Court Honorable David G. Campbell Judge of the United States District Court Tim Duax, AUSA Keith Vercauteren, AUSA , 2005, to:

All other defense counsel.

By:

/s/Jacqui Whitten

Case 2:03-cr-01167-DGC

Document 771

Filed 08/09/2005

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