IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 27, 2011
UNITED STATES OF AMERICA,
ANTHONY SMERNES, DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
BENJAMIN B. WAGNER United States Attorney JASON HITT Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2751
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 Anthony SMERNES, by and through his counsel Donald Dorfman, Esq., that good cause exists to extend the preliminary hearing currently set for July 20, 2011, at 2:00 p.m. to September 20, 2011, 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 discovery has been provided to the defense and the parties are engaged in talks regarding a pre-indictment resolution of the case against the defendant. As a result, the defendant agrees that a continuance of the preliminary hearing date will not prejudice him because a pre-indictment resolution could result in an overall sentencing exposure that is significantly reduced for the defendant. The defendant is out of custody.
Counsel further stipulate that an exclusion of time from July 20, 2011, to September 20, 2011, is appropriate under the Speedy Trial Act because the government has provided discovery and has agreed to draft a plea agreement for the defendant. In addition, the defendant and his counsel are working toward mitigation of any ultimate federal sentence imposed in this case. As a result, counsel for both parties stipulate that the ends of justice are served by the Court excluding such time, so that counsel for the 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) and therefore time should be excluded under 18 U.S.C. § 3161(h)(7)(A) and Local Code T4.
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 July 20, 2011, to September 20, 2011, at 2:00 p.m. pursuant to Federal Rule of Criminal Procedure 5.1(d);
2. Based upon the above representations and stipulation of the parties, the Court further finds that the ends of justice outweigh the best interest of the public and the defendant in a speedy trial. Accordingly, time under the Speedy Trial Act shall be excluded through September 20, 2011. 18 U.S.C. § 3161(h)(7)(A); Local Code T4.
Counsel are directed to either have this case resolved by the next hearing, or be prepared to proceed with the prosecution.
IT IS SO ORDERED.
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