Judge Denies Feuerborn’s Motion to Suppress Evidence *Corrected*

“ORDER DENYING DEFENDANT DAVID J. FEUERBORN'S REQUEST FOR HEARING ON MOTION TO SUPPRESS ALL EVIDENCE REGARDING ALLEGED TAX EVASION; ALL EVIDENCE REGARDING ALLEGED BOGUS ECO-LOGIC ACCOUNT; AND TO DISMISS ALL TAX EVASION CHANGES AGAINST DAVID FEUERBORN DUE TO: (A) USE OF EVIDENCE OBTAINED ILLEGALLY; (B) DESTRUCTION OF EXCULPATORY EVIDENCE; AND (C) FAILURE TO DISCLOSE EXCULPATORY EVIDENCE; DECLINING TO HEAR DEFENDANT THOMAS R. JENNING'S JOINDER MOTION. [Docket No. 83, 88.]” (Case 2:2010-cr-00346-SJO; Page ID 1497).

It looks like the Judge filed this written explanation of why he DENIED the motion filed by Feuerborn during the trial to suppress evidence.  

The best part of the Judge Otero’s Order was the discussion about why he denied David’s motions.  Basically he states that Neil Evans, the attorney for David Feuerborn, didn’t file anything correctly or timely. 

“Local Criminal Rule 12-1.1 mandates that any motion to suppress 'shall be supported by a declaration on behalf of the defendant, setting forth all facts then known upon which it is contended the motion should be granted.' L.Cr.R. 12-1.1. Defendant Feuerborn's motion contained no such declaration. (See generally Feuerborn's Mot.) Defendant Feuerborn, however, did file his Declaration on February 18, 2011 and a Declaration of Neil Evans, counsel for Defendant Feuerborn, on February 22, 2011. (Docket Nos. 100, 103.) At Defendant's request for a continuance, the trial date was set for February 22, 2011. (See Docket No. 81.)”

Because the instant Motion was not supported by a declaration on behalf of Defendant Feuerborn, the Motion violated the local rules. Accordingly, the Court may deny hearing the instant Motion on the merits. Even considering Defendant Feuerborn's untimely submitted declarations, the instant Motion was not complete until the first day of trial” (Case 2:2010-cr-00346-SJO; Page ID 1499).

“According to the Court's Criminal Standing Order, '[m]otions to [s]uppress must be filed thirty-five (35) days prior to the trial date and set for hearing two (2) weeks prior to the trial date at 8:30 a.m.' Criminal Standing Order ¶ 14.

As provided in the Criminal Standing Order, the deadline for motions to suppress was January 18, 2011, thirty-five days prior to the trial date. The instant Motion was correctly submitted on February 22, 2011, when the declarations required to support it were filed. (Docket Nos. 100, 103.) Because the Motion to Suppress was not complete until the day of trial, it violated the Criminal Standing Order. See Criminal Standing Order ¶ 14. Even assuming the instant Motion was initially filed in accordance with the Local Criminal Rules on February 15, 2011, Feuerborn filed it seven days before trial and twenty-eight days after the Court's motion deadline passed. (Docket No. 83.) This Motion is, therefore, in violation of the Court's Standing Order. See Criminal Standing Order ¶ 14. Defendants waived their right to file a motion to suppress because they did not file the instant Motion by the deadline and did not request an extension by the Court.

The Court also notes that the trial date was set after Defendant's fourth request for a continuance. Defendant specifically requested that trial commence on February 22, 2011. The instant Motion was untimely filed and would have caused further delay of trial because the jury panel had already been ordered on the morning of February 22, 2011. As a result, the Court would have had to delay trial to hear the instant Motion.

Furthermore, Defendant Feuerborn's representation that he recently discovered the grounds for the instant Motion is not credible. Defendant Feuerborn argues that '[t]he basis for this Motion was developed in January and February 2011' (Feuerborn's Mot. 13:14-15) and that the existence of the seized computers had not been disclosed to him until January 6, 2011. (Feuerborn's Reply 7:13-14, 11:27-28, 12:14-15). Defendant Feuerborn also asserts that 'he should be granted a continuance of the [t]rial so that he can try to recreate the records which were on the [c]omputers, by subpoenaing records from third parties co[m]prising the third party vendors which sold the chemicals and equipment purchased with monies from the 'Eco-Logic Account.' (Feuerborn's Reply 12:26-13:1.) These contentions, however, are unavailing because Defendant Feuerborn was aware that his computers and documents were seized in August 2005 and could have filed a motion to suppress well in advance of trial. Moreover, at any point after August 2005, Defendant Feuerborn was capable of subpoenaing third parties in order to recreate the records which were on the computers”(Case 2:2010-cr-00346-SJO; Page IDs 1499 and 1500).

Sorry David.  You should have filed your original motions in a timely manner, and with the proper attachments in accordance with the Court’s rules.  Ooopsy daisy!

This motion has no bearing on the recent motions mentioned in the post The Good, The Bad, The Ugly.  I can’t wait for June 27^th to roll around.  Court documents indicate that these motions will be heard before the sentencing hearing.   

-ESS Investor