The opinion of the court was delivered by: Judge Honorable Lawrence J.
STIPULATION TO VACATE STATUS DATE AND TRIAL DATE; ORDER OF DENIAL THEREON
IT IS HEREBY STIPULATED by and between the parties hereto through their respective counsel, BRIAN ENOS, Assistant United States Attorney, attorney for Plaintiff, and MARK J. REICHEL, Esq., attorney for defendant, that the present date for the status hearing be vacated and re calendared for March 12, 2010.
It is further stipulated that the trial date of March 15, 2010 be vacated. The parties further stipulate that a new and different trial date will be set at the March 12, 2010 hearing.
This continuance is requested as defendant is substituting in new retained defense counsel, with this court's permission, due to a breakdown in the attorney client relationship with appointed counsel. New defense counsel advises in this stipulation as follows, and that the following matters will taken place in the time period from the date of this stipulation until the date of March 12, 2010:
i. Defense counsel will not be able to attend a status conference as currently set for February 12, 2010 due to other commitments; as well, he is not available for any Fridays until March 12, 2010 based upon other cases which will be closing out through sentencing in federal court in Sacramento;
ii. He needs adequate time to prepare for this case and has not yet received discovery. However, in the time frame set forth above he will review all discovery, conduct pertinent legal research, interview and assess witnesses, and retain experts for trial, if necessary;
iii. The parties are in negotiations to possibly resolve the matter;
iv. Defense counsel starts a 10 day jury trial in District Court in San Jose on March 23, 2010, and needs to continue to prepare adequately for same.
If the court endorses this stipulation by way of formal order, counsel for the United States plans on asking the court to set a new trial date at the next status conference. If the court does not find this stipulation to be supported by good cause, counsel for the United States requests that this Friday's status conference be changed to a trial confirmation hearing so that the parties can learn of pre-trial deadlines in time to properly adhere to them.
Accordingly, all counsel and defendant agree that time under the Speedy Trial Act from the date this stipulation is lodged, through March 12, 2010 should be excluded in computing the time within which trial must commence under the Speedy Trial Act, pursuant to Title 18 U.S.C. § 3161 (H)(7)(B)(iv) and Local Code T4.
DECIDING TO RETAIN A NEW LAWYER IS NOT ITSELF GOOD CAUSE TO VACATE A TRIAL DATE. THERE IS A TRIAL DATE OF MARCH 15, 2010 THAT IS INTACT AND WILL REMAIN ON CALENDAR. THE CONCLUSORY STATEMENT THAT ATTORNEY-CLIENT RELATIONS HAVE BROKEN DOWN IS INSUFFICIENT TO ESTABLISH THE REQUESTED RELIEF. IN THAT IT APPEARS THAT REQUESTED COUNSEL IS UNABLE TO TRY THE CASE ON THE DATE SET, THE SUBSTITUTION WILL BE DENIED. THE STATUS CONFERENCE WILL ALSO REMAIN INTACT FOR AN UPDATED POSITION OF COUNSEL AND THE DEFENDANT IN LIGHT OF THIS ORDER.
Lawrence J. O'Neill UNITED STATES ...