The opinion of the court was delivered by: Judge Hon. Edmund F. Brennan
NOTICE OF MOTION AND MOTION TO VACATE TRIAL DATE AND SET STATUS; MOTION TO EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT; PROPOSED ORDER Date: August 27, 2009 Time: 9:30 a.m.
TO: LAWRENCE G. BROWN, United States Attorney MATTHEW C. STEGMAN, Assistant United States Attorney CHRISTINA EASTMAN, Certified Law Clerk
PLEASE TAKE NOTICE that Oscar Foreman, Jr., pursuant to the U.S. Const., Fed. R. Crim. P., Fed. R. Evid., and all other applicable statutes, case law, and local rules, moves to vacate the current trial date and set a status conference on September 28, 2009, at 10:00 a.m. Mr. Foreman further moves to exclude time under the Speedy Trial Act.
DANIEL J. BRODERICK Federal Defender MICHAEL PETRIK, Jr. Assistant Federal Defender
On March 12, 2009, the government filed an information that charged Mr. Foreman with assault on a government officer, in violation of 18 U.S.C. § 111(a)(1). The Court arraigned Mr. Foreman, and set a trial confirmation hearing on April 27, 2009, and trial on May 12, 2009.
On March 13, 2009, Mr. Foreman requested discovery in this matter. In response, the government produced 34 pages of discovery that consisted mainly of a three page incident report, and Mr. Foreman's rap sheet.
On April 27, 2009, the parties appeared before the Court, and reset the trial confirmation hearing for July 27, 2009, and the trial for August 18, 2009. On July 27, 2009, the Court rescheduled the trial for August 27, 2009.
On August 19, 2009, the government produced 163 pages of new discovery. Upon cursory examination, the discovery appears to consist of the personnel files of Mr. Foreman and Ernie Barbour, the alleged victim in this case. The discovery also appears to contain the internal investigation conducted by Ahtna Technical Services, Inc., the company that employed Mr. Foreman and Mr. Barbour. The discovery appears to contain several alleged statements by Mr. Foreman not produced previously, new facts not contained in the three page incident report produced previously, several new witnesses not mentioned in the incident report, and new, additional statements by witnesses referred to in the incident report.
II. THE DEFENSE REQUIRES A CONTINUANCE TO INVESTIGATE THE NEW DISCOVERY IN ORDER TO PREPARE AN ADEQUATE DEFENSE
Under the Sixth Amendment, the right to counsel includes the right to effective counsel, and counsel able to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). This Court has the power to grant a continuance to the defense to investigate newly produced discovery. Fed. R. Crim. P. 16(d)(2)(B).
In this case, the government has produced 163 pages of new discovery. In order to provide effective, adequate assistance, counsel for Mr. Foreman requires more time to conduct further investigation related to the latest production of discovery. Counsel for Mr. Foreman asserts that the Court should exclude time to allow further defense preparation. See 18 U.S.C. § 3161(h)(7)(A) and (B) (Local Code T4). ...