IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 2, 2013
UNITED STATES OF AMERICA,
GREGORY THOMAS PHELAN, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
BENJAMIN B. WAGNER United States Attorney MICHAEL D. McCOY Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2700
STIPULATION AND ORDER CONTINUING PRELIMINARY HEARING
IT IS HEREBY STIPULATED BY AND BETWEEN Assistant United States Attorney Michael D. McCoy, counsel for the plaintiff United States of America, and defendant Gregory Thomas Phelan, by and through his counsel Timothy Zindel, that good cause exists to continue the preliminary hearing currently set for May 6, 2013, at 2:00 p.m., to May 20, 2013, pursuant to Federal Rule of Criminal Procedure 5.1(d).
On March 13, 2013, defendant Gregory Thomas Phelan was charged by Criminal Complaint with knowingly and intentionally manufacturing and possessing with the intent to distribute marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), and knowingly possessing a firearm in relation to and in furtherance of the above referenced drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On March 18, 2013, defendant Gregory Thomas Phelan was arrested and appeared in front of Magistrate Judge Dale A. Drozd for his initial appearance. At the initial appearance, Magistrate Judge Drozd ordered the defendant temporarily detained and set the preliminary hearing for April 1, 2013. At the defendant's subsequent detention hearing, which was held on March 21, 2013, the defendant waived his right to a speedy preliminary hearing and requested a continuance of the preliminary hearing to April 15, 2013.*fn1
On April 9, 2013, defendant Gregory Thomas Phelan and the Government requested a one month continuance of the preliminary hearing. On April 10, 2013, Magistrate Judge Edmund F. Brennan granted the request and ordered that the preliminary hearing be continued to May 6, 2013, excluding time under 18 U.S.C. § 3161(h)(7)(B)(iv) and Local Code T4.
The 30 day period for filing an information or indictment in this matter, pursuant to 18 U.S.C. § 3161(b), ran on April 12, 2013. However, under 18 U.S.C. § 3161(h)(7)(A), periods of delay in computing the time within which an information or an indictment must be filed shall be excluded when the "delay result[s] from a continuance granted by any judge . . . at the request of the defendant or . . . the Government, if the judge grant[s] such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." One of the factors that a judge shall consider in determining whether to grant a continuance under 18 U.S.C. § 3161(h)(7)(A) is "whether the failure to grant such a continuance . . . would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(7)(B)(iv).
On April 3, 2013, the Government provided the defendant with over 350 pages of advance discovery, which included video and photographic evidence. Since then, both the Government and counsel for the defendant have communicated regarding a potential pre-indictment resolution of this matter. Both parties are still in communication about, and actively negotiating, a pre-indictment resolution of this matter. Both parties agree that they need an additional two weeks to negotiate and make a final decision regarding this matter.
The government and defendant agree that the combination of discovery review, attorney preparation, and consideration of a possible pre-indictment resolution to this matter constitute good cause to extend the time for preliminary hearing under Federal Rule of Criminal Procedure 5.1(d), as well as under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(B)(iv). This exclusion of time includes the period up to and including May 20, 2013.
Timothy Zindel agrees to this request and has authorized Assistant United States Attorney Michael D. McCoy to sign this stipulation on his behalf.
IT IS HEREBY ORDERED:
1. The preliminary hearing set for May 6, 2013, is continued to May 20, 2013, at 2:00 p.m.
2. Based on the stipulations and representations of the parties, the Court finds good cause to extend the time for the preliminary hearing, and time is excluded up to and including May 20, 2013, 18 U.S.C. § 3161(h)(7)(B)(iv) and Local Code T4 (reasonable time to prepare)) because it results from a continuance granted by the Court on the basis of the Court's findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.
IT IS SO ORDERED.