IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 14, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
The opinion of the court was delivered by: Hon. William B. Shubb
STIPULATION AND ORDER CONTINUING STATUS CONFERENCE DATE, TRIAL DATE, AND EXCLUDING TIME UNDER THE SPEEDY TRIAL ACT
Time: 8:30 a.m.
It is hereby stipulated and agreed by and between plaintiff United States of America, on the one hand, and defendant Joaquin Betancourt-Mendoza, on the other hand, through their respective attorneys, that: (1) the presently set February 14, 2011 trial confirmation hearing shall be continued to February 22, 2011, at 8:30 a.m.; and (2) the presently set March 1, 2011, trial date shall be continued to March 15, 2011; and (3) time from the date of the parties' stipulation, February 11, 2011, through, and including, March 15, 2011, shall be excluded from computation of time within which the trial of this matter must be commenced under the Speedy Trial Act, pursuant to 18 U.S.C. § 3161(h)(3)(A), (7)(A), and (B)(iv) and Local Codes M (unavailability of essential witness) and T4 (continuity of defense counsel and reasonable time for both counsel to prepare).
Defense counsel represents that he is unavailable for a trial confirmation hearing in Sacramento, California, on February 14, 2011, as he was previously set for court matters in the State of Washington on that date and he has been unable to continue those other court matters to another date.
The United States represents that it has contacted its approximate fourteen prospective witnesses and learned that the proposed March 1, 2011, trial date is not convenient for three witnesses. One witness is scheduled for gall bladder surgery the approximately five days before the scheduled March 1, 2011, trial and will need additional time to recover before testifying. Another witness, who resides in southern California, has Hodgkin Lymphoma, a cancer of the immune system, and has been undergoing chemotherapy since December 2010. As to this second witness, the United States will attempt to schedule a deposition of this witness with defense counsel in southern California at a time when the witness can undergo a deposition in lieu of traveling and testifying at trial in Sacramento. A third witness, has prepaid vacation plans with his family around the March 1, 2011, trial date, but can be available for a later trial date. All three of these witnesses are essential to the prosecution's case as they are expected to testify regarding the number of marijuana plants eradicated from defendant's marijuana garden.
The parties note that on February 7, 2011, defendant advised the Court that he declined a plea offer from the United States and desired to proceed to trial. Previous to that time, defendant indicated that he intended to accept the United States' plea offer. Accordingly, both the prosecutor and defense counsel had postponed their respective trial preparation. However, in light of defendant's recent choice of proceeding to trial, both counsel need additional time to March 15, 2011, to prepare for trial and the parties stipulate that the March 1, 2011, trial date should be continued to March 15, 2011.
Accordingly, the parties stipulate that there is good cause to continue the presently set March 1, 2011, trial date, to the alternate trial date proposed by the Court of March 15, 2011.
Based on these facts, the parties stipulate and agree that the trial delay and exclusion of time requested herein is necessary to provide both counsel reasonable time to prepare for trial taking into account due diligence and to accommodate the unavailability of essential witnesses. The parties further stipulate and agree that the ends of justice to be served by granting the requested continuance outweigh the best interests of the public and the defendant in a speedy trial.
Dated: February 11, 2011 GEORGE TREJO Attorney for Defendant Joaquin Betancourt-Mendoza (per email authorization)
Dated: February 11, 2011 BENJAMIN B. WAGNER UNITED STATES ATTORNEY By: SAMUEL WONG Assistant U.S. Attorney
The Court, having received, read, and considered the stipulation of the parties, and good cause appearing therefrom, adopts the stipulation of the parties in its entirety as its order. Based on the stipulation of the parties and the recitation of facts contained therein, the Court finds that the failure to grant a continuance in this case would deny both counsel reasonable time necessary for effective preparation, taking into account the exercise of due diligence. The Court also finds that the continuance is necessary to accommodate the schedules of essential witnesses. The Court finds that the ends of justice to be served by granting the requested continuance outweigh the best interests of the public and the defendant in a speedy trial. The Court orders that the March 1, 2011, trial date shall be vacated and rescheduled to March 15, 2011, at 9:00 a.m.
The Court orders that the time from the date of the parties' stipulation, February 11, 2011, to and including the new March 15, 2011, trial date shall be excluded from computation of time within which the trial of this case must be commenced under the Speedy Trial Act, pursuant to 18 U.S.C. § 3161(h)(3)(A), (7)(A) and (B)(iv), and Local Codes M (unavailability of essential witnesses) and T4 (reasonable time for defense counsel to prepare). It is further ordered that the February 14, 2011 trial confirmation hearing shall be continued to February 22, 2011, at 8:30 a.m.
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