The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
STIPULATION AND ORDER CONTINUING PRELIMINARY HEARING AND EXCLUDING TIME
IT IS HEREBY STIPULATED by and between Assistant United States Attorney Jason Hitt, counsel for the plaintiff United States of America, and defendant Jesus GONZALEZ-OCHOA, by and through his counsel John Virga, Esq., and defendant Maria GONZALEZ-OCHOA, by and through her counsel Ronald Peters, Esq., and that good cause exists to extend the preliminary hearing currently set for September 23, 2009, at 2:00 p.m. to October 21, 2009, pursuant to Federal Rule of Criminal Procedure 5.1(d).
Good cause exists to extend the time for the preliminary hearing within meaning of Rule 5.1(d) because extensive discovery has been provided to the defense and the parties are engaged in talks regarding a pre-indictment resolution of the case against both defendants. In addition, the government has turned over a CD containing over 1,000 pages of discovery, including bank records. As a result, the defendants agree that a continuance of the preliminary hearing date will not prejudice either of them because a pre-indictment resolution could result in overall sentencing exposure that is significantly reduced for each defendant. All counsel believe a resolution on this case may occur if additional time to continue the preliminary hearing is granted.
The parties stipulate that the ends of justice are served by the Court excluding time from September 23, 2009, to October 21, 2009, so that counsel for each defendant may have reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(B)(iv). Specifically, the defense agrees that it needs additional time to continue discussions with the government regarding resolution of the case against each defendant, reviewing the voluminous discovery in the case, effectively evaluate the posture of the case and potentially prepare for trial, and conduct further investigation into mitigation of each defendant's federal sentencing exposure in this case. Id. For these reasons, the defendants, each defense counsel, and the government stipulate and agree that the interests of justice served by granting this continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A); Local Code T4.
DATED: September 23, 2009
JASON HITT Assistant U.S. Attorney
JOHN VIRGA, ESQ. Counsel for defendant Jesus GONZALEZ-OCHOA Authorized to sign for Mr. Virga on 09-22-09
RONALD PETERS, ESQ. Counsel for defendant Maria GONZALEZ-OCHOA Authorized to sign for Mr. Peters on 09-22-09
Based upon the representations by counsel and the stipulation of the parties, IT IS HEREBY ORDERED that:
1. The Court finds good cause to extend the Preliminary Hearing currently set for September 23, 2009, to October 21, 2009, at 2:00 p.m. pursuant to Federal Rule of Criminal Procedure 5.1(d);
2. Based upon the representations and stipulation of the parties, the court finds that the time exclusion under 18 U.S.C. 18 U.S.C. § 3161(h)(7)(A) and Local Code T4 applies and the ends of justice outweigh the best interest of the public and the defendants in a speedy trial based upon the factors set forth in 18 U.S.C. § 3161(h)(7)(B)(iv). Accordingly, time under the Speedy Trial Act shall be excluded from September 23, 2009, up to and including October 21, 2009.
3. The court further finds, however, that the defendants have been in custody on the complaint for over a year, and that the preliminary examination/indictment has been deferred on at least eleven occasions over the past, approximate year and a third. No further extensions of time for the preliminary examination, or tolling of the Speedy Trial Act for the time in which to return an indictment will be granted.