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United States v. Barragan-Zepeda

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 13, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ABRAHAM BARRAGAN-ZEPEDA, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

AMENDED REQUEST AND ORDER TO ACCEPT WAIVER OF DEFENDANT'S PRESENCE (Rule 43(c), F.R.Cr.P.)

Defendant, DECIDERIA FRANCO, by and through her attorney, hereby respectfully requests that this Court, pursuant to Rule 43(c) of the Federal Rules of Criminal Procedure, permit her to waive her personal presence at the hearing of any motion or other proceeding in this case, including, but not limited to, the Status Conference/Control Dates set for March 26, 2009 and April 16, 2009 at 9:00 a.m., when the case is ordered set for trial, when a continuance is ordered, and when any other action is taken by the court before or after trial, except for impanelment of jury, trial, entry of plea, or sentencing. The Defendant makes this request for the following reasons:

1. The Defendant resides in Redding, California. She has recently gained employment working with honey bees six days a week. She is now the sole provider for her household. As such, she is attempting to re-unify with her three children who are currently dependents of the court as a result of her initial arrest in this case. This reunification depends in great part on her ability to obtain housing for her children prior to their next court date which I am informed and believe is in May, 2008. The Defendant was in custody from April 2, 2008 through February 20, 2009 when she was released upon her own recognizance. This prolonged period of incarceration left her with no home, no job, and depleted finances. Although she is on track to obtain her own apartment soon, any absence from her employment at this early stage would jeopardize her employment and her progress toward obtaining reunification. Defendant qualifies for court appointed counsel and, as such, has been appointed this writer, Lorie J. Teichert, as her counsel under the Criminal Justice Act. Travel to Sacramento on March 26, 2009, April 16, 2009, and other one day appearances would be unduly burdensome for this defendant.

2. Defendant has filed herein a Written Waiver of her Presence pursuant to Federal Rule of Criminal Procedure 43(c) waiving her right to be present in person in court upon the hearing of motions or other proceedings as described above, affirming that she has been informed of her rights under Title 18 U.S.C. sections 3161-3174 (Speedy Trial Act), and authorizing her attorney, or her designee, to set times and delays under that Act without her being present, and agreeing to be present in court and ready for trial on any day and hour the court may fix in her absence.

A proposed order is attached for the court's convenience.

Dated: April 4, 2009

Affidavit of Defense Counsel

I prepared the foregoing Motion for Acceptance of Defendant's Waiver of Presence on Defendant's behalf and hereby affirm that all factual representations made therein are true and correct, to the best of my knowledge and recollection, and that I have fully discussed the matters contained therein with the Defendant.

I declare that the foregoing is true and correct.

Affidavit of Defendant

I, DECIDERIA FRANCO, Defendant herein, affirm that I have fully discussed the foregoing Motion for Acceptance of Defendant's Waiver of Presence with my attorney and that I concur in said request. I have fully discussed my rights under Title 18 U.S.C. sections 3161-3174 (Speedy Trial Act) with my attorney and I authorize my attorney, or her designee, to set times and delays under that Act without my being present pursuant to my written Waiver of Defendant's Presence filed herein.

I declare that the foregoing is true and correct.

ORDER

For the reasons set forth above and in the affidavit of counsel and of the defendant, the Court finds that good cause has been shown and the Motion for Acceptance of Defendant's Waiver of Presence on behalf of Defendant, DECIDERIA FRANCO, is hereby GRANTED.

20090413

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