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United States v. Foreman

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
OSCAR FOREMAN, JR., DEFENDANT.

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.

Dated: August 20, 2009

Respectfully submitted,

DANIEL J. BRODERICK Federal Defender MICHAEL PETRIK, Jr. Assistant Federal Defender

I. STATEMENT OF FACTS

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). Counsel for the government, Christina Eastman, has indicated that she does not oppose the defense motion.

III. CONCLUSION

For the reasons stated above, Mr. Foreman requests that the Court vacate the present trial date, set a status date for September 28, 2009, at 10:00 a.m., and exclude time under the Speedy Trial Act.

Dated: August 20, 2009

Respectfully submitted,

DANIEL J. BRODERICK Federal Defender MICHAEL PETRIK, Jr. Assistant Federal Defender

ORDER TO VACATE TRIAL DATE; SET STATUS DATE; EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT

After due consideration and for the reasons set forth in defendant's Motion To Vacate Trial Date And Set Status, the Court orders the trial date of August 27, 2009, at 9:30 a.m., vacated, and resets this matter for status conference on September 28, 2009, at 10:00 a.m. The Court further orders time excluded from the date of this order through the status conference on September 28, 2009, pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B) (Local Code T4).

SO ORDERED.

20090821

© 1992-2009 VersusLaw Inc.



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