IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 8, 2011
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Judge: Hon. Frank C. Damrell, Jr.
Date: September 12, 2011 Time: 10:00 a.m.
MOTION TO CONTINUE DISPOSITIONAL HEARING; ORDER
Mr. Scanio moves the Court for an order continuing the dispositional hearing to a date no earlier than mid-November, 2011, for the following reasons. Counsel has been unable to ascertain the government's position on this request because government counsel has not responded to messages sent yesterday by email and voice-mail.
(1) On Tuesday, defense counsel received probation's dispositional memorandum. The memorandum contains numerous false or misleading factual assertions - too many to adequately address in the time remaining between today and Monday. It also omits information defense counsel wished to have included in the report because the probation officer, after agreeing to meet with defense counsel before writing her memorandum, canceled the scheduled meeting without explanation. Consequently, the memorandum requires defense counsel to file his own formal objections and dispositional memorandum. The objections may necessitate a further evidentiary hearing. Also, defense counsel has yet to have an adequate opportunity to review the memorandum with Mr. Scanio, who received it in the mail yesterday.
Defense counsel cannot prepare objections, write a dispositional memorandum, or perform other necessary tasks in the case until late October because counsel begins scheduled family medical leave on September 13 and will not return to work until October 17. See Decl. Of Counsel (filed under seal). Counsel regrets that his absence may require reassignment of the case to a different judge, but the evidentiary hearing has been transcribed by the court reporter.
(2) Mr. Scanio and his wife are presently occupied full-time trying to regain custody of their daughter who was taken from them one day after the evidentiary hearing based on misleading reports about the hearing delivered (at least in part) by Michelle or Eric Toner - the Toners are the persons who prompted their child to make a false allegation against Mr. Scanio (dismissed charge 7) in an effort to strike at Mr. Scanio's wife, Jennifer. Lawyers have been appointed to represent all three Scanios and defense counsel has spent much of the past week consulting with those lawyers so that the child may be returned before she suffers psychological harm in foster care.
(3) Defense counsel intends to bring a motion to dismiss charge 9 of the second superseding petition (alleging violation of a local Lake Tahoe ordinance and added a few days before the hearing) on constitutional grounds and because the charge relates to conduct that was both permissible under this Court's conditions of release and had been repeatedly sanctioned by Mr. Scanio's probation officer. Time is needed to research and write the motion and to afford the government an adequate opportunity to respond.
Accordingly, defense counsel asks the Court to continue sentencing to a date in mid-November. A proposed order is attached for the Court's convenience.
Respectfully submitted, DANIEL J. BRODERICK Federal Defender
Dated: September 8, 2011 /s/ T. Zindel TIMOTHY ZINDEL Assistant Federal Defender Attorney for JOSEPH SCANIO
Defendant's motion to continue the dispositional hearing is granted. The dispositional hearing will be rescheduled by minute order for a date in mid-November and the Clerk of the Court is directed to notify the parties and the probation officer of the new date.
IT IS SO ORDERED.
HON. FRANK C. DAMRELL, JR. United States District Judge
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