U.S. v. JOHNSON

MARK BENNETT, Chief Judge, District

This matter comes before the court sua sponte for substitution, nunc pro tunc, of the attached order for the Memorandum Opinion And Order Regarding The Parties' Second Round Of Pretrial Motions entered on February 18, 2005 (docket no. 325). The court finds that such a substitution is appropriate for two reasons.

First, while the court stands by its comments in former footnote 15 on page 96, the court finds it unnecessary to include those comments in a "final" or "published" version of the order. In other words, the point stated in that footnote has now been made.

Second, and more importantly, the court concludes that it was unnecessary to decide the defendant's motion for trifurcation of proceedings on constitutional grounds when the court ultimately concluded that the trifurcation issue could be decided on non-constitutional grounds. See United States v. Turechek, 138 F.3d 1226, 1229 (8th Cir. 1998) ("While federal courts are obliged to decide constitutional questions when necessary to the resolution of a dispute before them, `they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.'") (quoting County Court v. Allen, 442 U.S. 140, 154 (1979)).

As a consequence of these determinations, the court has made the following alterations to its February 18, 2005, ruling:

1. Former footnote 15 on page 96 has been deleted;

2. The final paragraph of Section II.J.2.a. on page 106 has been rewritten to indicate that the court will not decide the constitutional issue, although there are prior indications that the court found the defendant's constitutional argument "unpersuasive," which the court has let stand;

3. The first sentence of Section II.J.2.b. on page 106 has been revised to delete the repetition of the court's statement that it finds the defendant's constitutional argument for trifurcation unpersuasive;

4. The final paragraph of Section II.J.2.c. on page 118 has, likewise, been revised to delete the reference to the court's conclusion that there is no constitutional requirement for trifurcation of proceedings.

The court finds that the attached version of its February 18, 2005, ruling should be substituted nunc pro tunc for the original version currently filed as Docket No. 325, not simply filed as an "amended and substituted" order with a subsequent docket number. Such a substitution nunc pro tunc will avoid confusion or inadvertent inclusion of omitted portions of the February 18, 2005, ruling in any appellate record or published version of the order.

THEREFORE, the attached version of the court's Memorandum Opinion And Order Regarding The Parties' Second Round Of Pretrial Motions shall be substituted nunc pro tunc for the version filed on February 18, 2005 (docket no. 325). The Clerk of Court is directed to remove the former version of the ruling and replace it with the attached version as Docket No. 325, with appropriate annotation of the docket entry to reflect the removal and substitution nunc pro tunc pursuant to this order.

IT IS SO ORDERED.