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United States of America v. Francisco Magallon-Lupian

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 9, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
FRANCISCO MAGALLON-LUPIAN, AKA RAMON MAGALLON-LUPIAN,
AKA RAMON MAGALLON,
DEFENDANT.

BENJAMIN B. WAGNER United States Attorney MICHELE BECKWITH Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2700

STIPULATION, REQUEST, AND SETTING A BRIEFING SCHEDULE ORDER CONTINUING TRIAL DATE, AND HEARING ON DEFENDANT'S MOTION TO DISMISS

On August 3, 2011, the defendant filed a motion to dismiss the indictment. Although untimely under the Local Rules, the defendant has submitted a statement setting forth reasons for its untimeliness and requesting that the Court reach the merits of the motion. In this case, the government does not oppose this request.

After meeting and conferring, the parties hereby request that the Court hear the defendant's motion, which presents relatively complicated legal issues and may require an evidentiary hearing. Accordingly, the parties ask the Court to (1) continue the trial date currently set for August 22, 2011 to November 7, 2011, and (2) adopt the proposed briefing schedule with regard to the defendant's motion to dismiss.

The parties request that the government be required to file its opposition by no later than September 1, 2011, and that defendant's reply, if any, be due on September 15, 2011. The parties ask that a hearing on the motion be set for September 29, 2011. The parties will confirm with the Court by September 15, 2011 as to whether the hearing will be evidentiary in nature. Pursuant to 18 U.S.C. § 3161(h)(1)(D), time between the filing of the defendant's motion and the hearing set for September 29, 2011, shall be excluded from the computation of time within which the trial of this matter must be commenced under the Speedy Trial Act.

In the event that after the September 29, 2011 hearing, the Court determines that the trial should proceed, the parties request that it be set for November 7, 2011, to be preceded by a trial confirmation hearing on October 6, 2011. The parties further request that time be excluded from September 29, 2011 through November 7, 2011, so that counsel 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).

If the Court adopts the parties' proposed schedule and continues the trial date, the parties also ask that the Court vacate the previously set deadlines for filing motions in limine, trial briefs, and other trial documents.

Respectfully submitted,

ORDER

UPON GOOD CAUSE SHOWN and the stipulation of all parties, it is hereby ordered that the jury trial previously set for August 22, 2011 is continued to November 7, 2011. Accordingly, this Court's previous minute order setting deadlines for the filing of motions in limine and trial materials is vacated. The Court hereby adopts the parties' proposed briefing schedule, and orders the government to file its opposition to the defendant's motion to dismiss no later than September 1, 2011. The defendant's reply, if any, shall be filed no later than September 15, 2011. The parties shall advise the Court no later than September 15, 2011 whether the hearing will be evidentiary in nature. The Court will hear arguments and any evidence needed to resolve the motion on September 29, 2011 at 10:00 a.m. Pursuant to 18 U.S.C. § 3161(h)(1)(D), time between the filing of the defendant's motion on August 3, 2011 and the hearing set for September 29, 2011, is excluded from the computation of time within which the trial of this matter must be commenced under the Speedy Trial Act.

Pending this Court's ruling on the defendant's motion to dismiss, the jury trial is continued to November 7, 2011, and a trial confirmation hearing is set for October 6, 2011 at 10:00 a.m. Based on the representations of counsel and good cause appearing therefrom, the Court hereby finds that the ends of justice to be served by granting a continuance outweigh the best interests of the public and the defendant in a speedy trial. Accordingly, it is ordered that time from September 29, 2011, to and including November 7, 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)(7)(B)(iv) and Local Code T-4.

UNITED STATES DISTRICT JUDGE

20110809

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