Case: 24-932, 02/22/2024, DktEntry: 8.

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CA NO. 24-932

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, DC NO. 2:18-cr-00759-CJC

Plaintiff-Appellant,

v.

ROBERT RUNDO and ROBERT

BOMAN,

Defendants-Appellees.

APPELLEE ROBERT RUNDO’S STATUS REPORT

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE CORMAC J. CARNEY

United States District Judge

CUAUHTEMOC ORTEGA
Federal Public Defender
CAROLINE S. PLATT
ERIN M. MURPHY
JULIA DEIXLER
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California 90012-4202
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Telephone: (213) 894-2854

Facsimile: (213) 894-0081
Email: caroline_platt@fd.org

Attorneys for Defendant-Appellee

Robert Rundo

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APPELLEE’S STATUS REPORT

Defendant-Appellee Robert Rundo submits this status report in

response to this Court’s order granting an administrative stay of the

district court’s release order, dated February 22, 2024 (Doc. 5) and the

Appellant’s status report (Doc. 7.1). In that order, this Court stayed Mr.

Rundo’s immediate release, pending resolution of appellant’s motion to

stay release pending appeal. (Doc. 3.) Mr. Rundo was released from

custody before that administrative stay was issued. (See Doc. 6).

Also pending before the Court is the government’s second

emergency motion, filed earlier today, which seeks an order authorizing

the government to arrest Mr. Rundo, and to keep him in custody

“pending resolution of [the government’s] motion to stay release

pending appeal.” 1 (Doc. 6.) Counsel for the appellee wishes to update

the Court on two matters:

1 Notably, that request contained not a single cited authority for

the extraordinary relief of arresting someone who was already released
absent a new charge, and in a case in which the dismissal of the
indictment is the subject of the instant appeal.

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(1) Mr. Rundo has been arrested without incident.

Before filing the pending emergency motion, the government

sought an arrest warrant before U.S. Magistrate Judge Steven Kim.

(See Status Rpt., Doc. 7.1 at 1.) After Judge Kim issued the arrest

warrant over the defense’s objection, defense counsel contacted the

government to arrange for the self-surrender of Mr. Rundo. Government

counsel agreed to self-surrender and advised that it would coordinate

with the case agents regarding a location for that surrender. The

defense understands that soon after or during those communications,

Mr. Rundo was arrested without incident, approximately 50 miles north

of San Diego,2 and will be brought to the Metropolitan Detention Center

in Los Angeles tomorrow.

(2) The government tells this Court something very

different from what it told another court to obtain the

arrest warrant issued.

Only hours earlier today, the government told Magistrate Judge

Kim that Mr. Rundo could contest his detention under the arrest

2 When initially arrested on this matter in 2018, Mr. Rundo lived

in nearby San Clemente.

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warrant it sought. Presumably based, at least in part, on that

representation, Judge Kim issued the arrest warrant, and the

government arrested Mr. Rundo. Now, the government says the exact

opposite to this Court.

When presented with the government’s request for an arrest

warrant this morning, Judge Kim held an emergency hearing scheduled

for twelve noon. Defense counsel were present, as were government

counsel. The court asked the government about the court’s authority to

issue an arrest warrant in what the government agreed were

“extraordinarily unorthodox” circumstances:3

[00:37:10]

Court: Where is that authority? That last sentence is the

one that is the key. What is it that I point to?

AUSA Alden: Two things, Your Honor. The first is the

indictment. The indictment remains a real and
true indictment. The government has a right to
appeal the district court’s order dismissing that
indictment under Section 1371, 3731, and that …
The second thing would be the Ninth Circuit’s

3 While there is no official transcript of today’s hearing yet

available, a recording was ordered and a motion to file the physical
exhibit (the audio recording) with this Court is being filed concurrently
with this status report. An expedited transcript will be ordered and also
lodged as soon as it becomes available.

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order issued this morning, which clearly intends

for this defendant to remain in custody for a very
brief period of time while the Ninth Circuit can
determine whether he should remain in custody
pending appeal.
[00:37:56]
Court: And when he makes an initial appearance
on an arrest warrant, does he then get a
detention hearing?

AUSA Alden: I would believe so, and that we would ask …

Court: And the detention hearing under what, 3142, as if

you were just arrested for the first time on the
indictment?

AUSA Alden: Under 3142, Rule 5, that his initial

appearance and potential detention hearing
would simply be if he wants to contest his
detention, we would rely on the same factors
that the government advanced in advocating
for detention initially, which was granted.
[00:38:34]
Court: But if the court at that point has discretion to
release the person on bail again, aren’t you then
circumventing the intent of the stay, which you
say is absolute?

AUSA Alden: And I think that’s the other thing that the
government would cite to the magistrate
judge in the Southern District of California
or here if that’s where he’s arrested is to say,
we have an order from the Ninth Circuit that
clearly intends for this defendant to remain in
custody. Accordingly, it would not be
appropriate to release him either due to that
order or under the 3142 factors. And in fact,
both.

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(emphasis added).
In its Status Report to this Court, the government now argues

that Mr. Rundo is not entitled to contest his detention upon the arrest

warrant the government obtained today. See Status Rpt., Doc. 7.1 at 2

(arguing an initial appearance before a magistrate “should not be

necessary” because Mr. Rundo already had one last year, and had this

Court issued the administrative stay before he was released, he could

not have had one then). This argument came after Judge Kim already

issued the arrest warrant and within the hour of Mr. Rundo’s arrest.

See Status Rpt., Doc. 7.1, filed at 5:20pm.

What the government said just hours ago today (when it wanted

the arrest warrant) is fundamentally different from what it says now

(after it got the arrest warrant). See Status Rpt., Doc. 7.1 at 2. In their

haste to effectuate an ultra vires arrest of Mr. Rundo, the government

plays fast and loose with the United States District Court, and this

Court.

“[W]here a party assumes a certain position in a legal proceeding,

and succeeds in maintaining that position, he may not thereafter,

simply because his interests have changed, assume a contrary position,

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especially if it be to the prejudice of the party who has acquiesced in the

position formerly taken by him.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (citing Davis v. Wakelee, 156 U.S. 680, 689 (1895));

Stumpf v. Robinson, 722 F.3d 739, 758 (6th Cir. 2013) (“Such

convenient flipflopping by a government official sworn to uphold justice

simply reeks of unfairness. In fact, the only rationale I can envision for

the prosecution’s . . . acceptance of the legitimacy of such tactics is an

unwavering commitment to a win-at-any-cost callousness that is

directly at odds with our solemn oath to preserve and defend the

Constitution of the United States.”); Steagald v. United States, 451 U.S.

204, 209 (1981) (“The Government, however, may lose its right to raise

factual issues of this sort before this Court when it has made contrary

assertions in the courts below, when it has acquiesced in contrary

findings by those courts, or when it has failed to raise such questions in

a timely fashion during the litigation.”).cf. United States v. Valencia-

Mendoza, 912 F.3d 1215, 1224 n.4 (9th Cir. 2019) (“Serious questions

are raised when the sovereign itself takes inconsistent positions in two

separate criminal proceedings against two of its citizens.” (citation

omitted)).

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The prejudice here is clear. Mr. Rundo is now in custody, after the

government made representations about whether he would have an

initial appearance and detention hearing. Judge Kim presumably

issued the warrant based, in part, on that representation. Certainly,

when defense counsel sought to arrange Mr. Rundo’s voluntary self-

surrender, they relied on that representation, too.

The government should be estopped from arguing Mr. Rundo is

not entitled to an immediate initial appearance and detention hearing

on the arrest warrant, when only hours ago – to obtain that warrant – it

said the opposite to a federal magistrate judge, in this same case. At a

minimum, this Court should be made aware of this about-face before it

decides whether to grant the extraordinary relief the government

seeks. 4

4 If this Court is inclined to grant the unusual and extraordinary

relief the government asked for in its emergency request for this Court
to grant it authorization to arrest Mr. Rundo, see Doc. 6, the
government’s arguments raised in its Status Report, Doc. 7.1 – whether
Mr. Rundo is entitled to a detention hearing, and whether the district
court could entertain a bond reconsideration hearing – all should be
fully briefed before the Court does so.

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Respectfully submitted,

CUAUHTEMOC ORTEGA
Federal Public Defender

DATED: February 22, 2024 By /s/ Caroline S. Platt

CAROLINE S. PLATT
Deputy Federal Public Defender
Attorney for Defendant-Appellee

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