Case: 19-1636 Document: 003113436090 Page: 1 Date Filed: 12/17/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA :

v. : Nos. 18-3736 and 19-1636

RAPHAEL HUNT-IRVING, and :

SHAWN MILLS

MOTION TO FILE BRIEF IN EXCESS OF THE WORD LIMIT

The United States of America, by its attorneys, William M. McSwain,

United States Attorney for the Eastern District of Pennsylvania, Robert A.

Zauzmer, Assistant United States Attorney and Chief of Appeals, and Emily

McKillip, Assistant United States Attorney for the District, moves for an order,

pursuant to Rule 32(d) of the Federal Rules of Appellate Procedure, permitting

the government as appellee to file a brief containing more than 13,000 words.

Specifically, the government’s proposed brief, exclusive of the tables of contents

and authorities and the certificate of service, contains 17,688 words.

The length of the brief submitted is necessitated by the fact that the brief is

a consolidated response to the separate briefs submitted by two appellants, who

collectively presented five issues (plus subissues) for review.

Appellant Mills challenges the sufficiency of the evidence presented at trial.

A full response requires a detailed summary of the trial evidence, which is not

presented in Mills’ brief. Mills also challenges the district court’s Daubert ruling

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precluding the proffered testimony of a purported defense expert on voice

identification. He states in one conclusory paragraph, Br. 15, that this science is

now reliable and may be the subject of expert testimony. The government

necessarily presents a detailed response explaining otherwise.

Hunt-Irving presents multiple issues for review, each of which requires a

detailed discussion of law in response. In addition, one of those substantial

claims, regarding the constitutionality under the Second Amendment of the

application of 18 U.S.C. § 922(g)(1) to his possession of a firearm, is the subject of

a separate amicus brief as well. The other issues presented by Hunt-Irving –

whether a protective sweep of his residence was lawful, whether he provided valid

consent for a search, and whether his counsel provided effective assistance – also

necessitate detailed explanations of the applicable law.

The issues presented in the appellants’ briefs do not overlap. The

government’s consolidated brief is significantly shorter than the length of 26,000

words that would be permitted for separate briefs of the appellee.

In its order dated January 9, 2012, strongly discouraging the filing of

motions to exceed the word limitations, this Court recognized that

“multi-appellant consolidated appeals in which the appellee seeks to file a single

responsive brief” may present the type of unusual situation in which a lengthier

brief is required. Moreover, when promulgating the 2016 amendment to Rule 32

regarding word limits, the Advisory Committee recognized that a party “may

need to file a brief that exceeds the type-volume limitations specified in these

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rules, such as . . . to respond to multiple briefs by opposing parties or amici.” The

Advisory Committee stated, “The Committee expects that courts will

accommodate those situations by granting leave to exceed the type-volume

limitations as appropriate.”

For all of these reasons, the government requests permission to file a brief

of 17,688 words. Conscious of the federal rule and of this Court’s order, the

writers of this brief strived diligently to condense the brief as much as possible,

and present only the factual summaries and legal argument they deem necessary

in their professional judgment to explain the case and rebut the appellant’s

arguments.

The government recognizes that, in its January 9, 2012, order, the Court

advised counsel “to seek advance approval of requests to exceed the page/word

limitations whenever possible or run the risk of rewriting and refiling a compliant

brief.” Given that the government received the maximum number of extensions

of time to file its brief, it is filing the proposed brief along with this motion, and is

prepared to rewrite and refile a compliant brief promptly if this Court does not

approve this motion. 1

1 This office continues to endeavor strictly to comply with the Court’s

order dated January 9, 2012, regarding the length of briefs. Since that date, this
office has filed 852 briefs in criminal matters. This is the 24th in which the
government has sought permission to exceed the word limit; 20 of those
concerned consolidated appeals.
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In this case, the government submits that the nature of the appeal warrants

the filing of the government’s proposed brief, and requests that this motion be

granted.

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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CERTIFICATE OF SERVICE

I hereby certify that this pleading has been served on the Filing Users

identified below through the Electronic Case Filing (ECF) system:

Peter J. Scuderi, Esquire

121 South Broad Street
Suite 1400
Philadelphia, PA 19107

Alan Gura, Esquire

Gura PLLC
916 Prince Street, Suite 107
Alexandria, VA 22314

Counsel for Raphael Hunt-Irving

R. Kerry Kalmbach, Esquire

109 West Linden Street
Kennett Square, PA 19348

Counsel for Shawn Mills

/s Emily McKillip
EMILY McKILLIP
Assistant United States Attorney

DATED: December 17, 2019.