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United States v. Tisthammer

December 14, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CARL STEPHEN TISTHAMMER, DEFENDANT.



The opinion of the court was delivered by: Honorable Christina A. Snyder United States District Judge

[PROPOSED] FINDINGS AND ORDER RE: CONTINUANCE OF TRIAL DATE AND EXCLUDABLE TIME UNDER SPEEDY TRIAL ACT

On December 8, 2009, the Court held a hearing on various motions filed by defendant Carl Tisthammer, pro se. After hearing argument and ruling on several of the motions, the Court inquired of the parties as to when they would be prepared to proceed to trial. Defendant responded that he wanted to proceed to trial as soon as possible after the previously set January 4, 2010 motions hearing, and asked for a trial date in February or early March 2010. The Court then set a trial date of March 9, 2010.

The following facts justify the continuance of the trial date ordered by this Court and a finding of excludable time under the Speedy Trial Act for the period from December 8, 2009, to March 9, 2010:

1. The indictment in this case was filed on January 16, 2008. Defendant Tisthammer first appeared before a judicial officer on December 18, 2007, when he made his initial appearance on a criminal complaint in this case. The Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., originally required that the trial commence on or before March 26, 2008.

2. On January 22, 2008, defendant was arraigned on the indictment. Trial was set for March 11, 2008, at 9:30 a.m.

3. On March 7, 2008, a federal grand jury returned a first superseding indictment against defendant, charging him with production of child pornography, in violation of 18 U.S.C. § 2251(a), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

4. On April 1, 2008, this Court issued an order finding the time period from March 10, 2008, to March 31, 2008, inclusive, to be excludable under 18 U.S.C. §§ 3161(h)(1)(F), (h)(8)(A), and (h)(8)(B)(iv), and the time period from March 31, 2008, to April 4, 2008, inclusive, to be excludable under 18 U.S.C. §§ 3161(h)(8)(A) and (h)(8)(B)(iv).

5. On April 2, 2008, this Court issued an order finding the time period from March 10, 2008, to May 6, 2008, inclusive, to be excludable time pursuant to 18 U.S.C. §§ 3161(h)(1)(F), (h)(8)(A) and (h)(8)(B)(iv).

6. On April 24, 2008, this Court issued an order finding the time period from May 6, 2008, to October 14, 2008, inclusive, to be excludable time pursuant to 18 U.S.C. §§ 3161(h)(8)(A) and (h)(8)(B)(iv).

7. On August 18, 2008, defendant filed the following motions: (1) Motion for Discovery of Investigation Materials, (2) Motion for Discovery of Grand Jury Minutes, and (3) Motion for Discovery of Search Warrant Activities, Execution and Returns.

8. On August 19, 2008, defendant filed the following additional motions: (1) Motion for Discovery of Superior Court of California Case Transcripts and Materials, and (2) Motion for Discovery of Department of Childrens [sic] Family Services Case Materials.

9. Defendant withdrew all of the above-referenced motions at a hearing that took place on October 1, 2008. At that same hearing, this Court granted defendant's request to continue the trial from October 14, 2008, to February 17, 2009, at 9:30 a.m., in part based on the necessity of hiring a computer forensics expert to examine the computer data in the case.

10. On October 20, 2008, this Court issued an order finding the time period from October 14, 2008, to February 17, 2009, inclusive, to be excludable time pursuant to 18 U.S.C. §§ 3161(h)(1)(F), (h)(8)(A) and (h)(8)(B)(iv).

11. On January 23, 2009, a federal grand jury returned a second superseding indictment against defendant, charging him with three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); four counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

12. At a hearing that took place on January 26, 2009, defendant was arraigned on the second superseding indictment.

13. On February 5, 2009, a hearing was held at the request of defense counsel, Larry Bakman. Over the objection of defendant, defense counsel requested a continuance of the trial date to July 14, 2009, based on, among other things, the recent filing of the second superseding indictment and the administrative delay in securing approval of a defense application for funds ...


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