Last week, in this post, I discussed a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.
At the time I hoped it was an April Fools Day joke. Seems not.
Barry’s defense counsel responded. The response is available here.
The response argues, in part:
Nowhere in Rule 40 does it permit for parties to supplement their oral argument with written responses eleven days later. “At some point, litigation must come to an end. That point has now been reached.” . . .
Moreover, for several reasons the government has not demonstrated good cause to grant a motion “clarifying” its position, which should more accurately be captioned as a motion to retract no fewer than five case-dispositive concessions.
Mot. at 2 (citation in footnote omitted).