Lawyers for Rep. Duncan D. Hunter filed paperwork Monday asking the federal judge in his corruption case to delay his trial seven weeks, saying prosecutors agree.
On Tuesday, U.S. District Judge Thomas J. Whelan will consider the joint request to delay the Alpine Republican’s trial from Sept. 10 to Oct. 29.
San Diego criminal defense lawyer Devin Burstein filed the request “in the interests of justice” after both sides met and conferred. Assistant U.S. Attorney Emily Allen joined the request.
“This request is made without prejudice to the litigation in the Court of Appeals,” Burstein wrote, referring to the Hunter legal team’s effort to overturn Whelan’s denial of a motion regarding whether Hunter was involved in legislative activity during an Italian trip.
“The parties understand that, depending on the Court of Appeals’ resolution of the motion to dismiss, the trial date may be vacated,” Burstein added.
Meanwhile, prosecutors intend to file a motion for a finding of “dual jurisdiction,” which would allow the judge to preside over the trial while the appeal is pending, Burstein wrote.
But “Mr. Hunter will oppose that motion,” he said.
If Whelan grants the motion and retains jurisdiction, Hunter will seek a stay with the Court of Appeals, “asking that no trial take place until after the Court of Appeals decides the government’s motion to dismiss the interlocutory appeal.”
If the San Francisco-based 9th U.S. Circuit Court of Appeals grants Hunter’s request for a stay or denies the government’s motion to dismiss, the parties agree to seek a status hearing where they will address a new trial date as soon as the Court of Appeals sends the case back to Whelan, Burstein said.
A month ago, Whelan denied Hunter’s requests to dismiss a 60-count indictment that accuses him of misusing $250,000 in campaign funds and to have prosecutors on the case recused due to alleged political bias.
Hunter, 42, is accused of spending campaign funds on personal expenses. Prosecutors allege he and his wife, Margaret, went on expensive family trips and made scores of other improper personal purchases over the course of six years.
Hunter has pleaded not guilty, but his wife changed her plea to guilty.
The East County congressman was indicted a year ago along with his wife on five dozen criminal counts, including wire fraud, conspiracy, and falsification of records. Margaret Hunter, 44, pleaded guilty in June to a conspiracy charge. She faces up to five years in federal custody and a fine of up to $250,000.
But her sentencing date, now set for Sept. 16, may also be pushed back at Tuesday’s 11 a.m. hearing.
On Saturday, The San Diego Union-Tribune quoted a lawyer in the 9th Circuit as saying it would be extremely unusual for that court to intervene at this stage in Hunter’s criminal case.
Ben Feuer, the lawyer, said: “Appellate courts rarely get involved before a final judgment has been issued, and there’s very little reason to think this situation is so exceptional that they would break with their usual practice here.”
But Feuer also said: “I think the likelihood of a trial date change on this basis is pretty small, but if the parties need more time to brief the issue or the court needs more time to review it, it’s always possible.”
