02-2340

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA                |

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                              Plaintiff/Appellee,           |

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          v.                                                          |

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GABRIEL RODRIGUEZ-AGUIRRE,          |

AND ELENO AGUIRRE,                             |

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                              Defendants/Appellants.   |

MOTION TO CONSOLIDATE WITH RELATED CASE

CLYMORE v. UNITED STATES, No. 02-2264

          Appellants, Gabriel Rodriguez-Aguirre and Eleno Aguirre, through undersigned counsel, respectfully request that this Court consolidate their case – for the purpose of oral argument and briefing scheduling – with the related case Craig Clymore v. United States, docket number 02-2264. As grounds for this motion Appellants state the following:

          1. The issues of law in this case overlap substantially with the issues of law in Clymore. Appellants in both cases have raised issues of the intra-circuit conflict between Clymore I and Clymore II in briefings in the district court before Judge Conway. See Clymore v. United States, 96-CV-763, District Court Docket Numbers 67, 70, and 72; United States v. Aguirre, , District Court Docket Numbers This issue is the pivotal issue in the resolution of both appeals.

          2. The third appeal in Clymore is now pending briefing. Craig Clymore, and his counsel, Jody Neal-Post and Christal K. Grisham, consent to the consolidation.

          3. Consolidation before the same panel and oral argument on the same day would serve judicial economy and would prevent inconsistent rulings between two different panels of this court.

          4. AUSA Stephen Kotz, United States counsel on both Clymore and Aguirre, was contacted by Jody Neal-Post, counsel for Mr. Clymore, and Mr. Kotz stated on January 6, 2002 that he does not consent to consolidation of the Clymore and Aguirre appeals.

          WHEREFORE, and for the foregoing reasons, these cases should be consolidated.

                                                                                  Respectfully submitted,

                                                                                  ____________________

                                                                                  Brenda Grantland

                                                                                  265 Miller Avenue

                                                                                  Mill Valley, CA 94941