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United States v. Smith

United States District Court, Ninth Circuit

May 9, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC DEMETRIUS SMITH, Defendant.

STEVEN G. KALAR, Federal Public Defender, ANGELA M. HANSEN, Assistant Federal Public Defender, RODNEY C. VILLAZOR, Assistant United States Attorneys, Oakland, CA, Counsel for Defendant SMITH.

STIPULATION AND [PROPOSED] ORDER TO CONTINUE HEARING DATE TO JUNE 24, 2013 AND TO EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT

CLAUDIA WILKEN, Chief District Judge.

The above-captioned matter is set on May 13, 2013 before this Honorable Court for motion or trial setting. This would be the first appearance before the District Court. The parties jointly request that the Court continue this matter to June 24, 2013, at 2:00 p.m., and that the Court exclude time under the Speedy Trial Act, 18 U.S.C. § 3161 so that the defense can have more time to assess the discovery in this case, to investigate a related case that has not yet been indicted, and based on defense counsel's unavailability for three weeks in June 2013.

On March 21, 2013, the Grand Jury charged Eric Smith as a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g). He faces a maximum sentence of 10 years on this charge. Mr. Smith is also charged in a criminal complaint (case number X-XX-XXXXX mag), with conspiracy to commit sex trafficking of a minor. This related case is more complicated than the gun case and will require an extensive amount of defense investigation. The defense requests additional time to complete that investigation. Moreover, the defense needs additional time to research the Sentencing Guidelines applicable to this related case and to collect Mr. Smith's prior conviction records to estimate his Guidelines' range for both cases.

The defense does not anticipate filing any motions at this time and believes that the parties may be in a position to present the Court with a plea agreement that will resolve both of Mr. Smith's pending cases. In other words, the parties anticipate that this case may resolve short of trial. In the meantime, however, the defense requests additional time to prepare, and the parties agree that it is appropriate to continue this case until June 24, 2013.

The parties further request a continuance until June 24, 2013 because defense counsel assigned to this case is unavailable between June 3 and June 21, 2013. In counsel's absence, a defense investigator will continue to work on Mr. Smith's investigation.

The parties stipulate and agree that the ends of justice served by this continuance outweigh the best interest of the public and the defendant in a speedy trial. The parties further agree that the failure to grant this continuance would unreasonably deny defendant continuity of counsel and it would deny counsel for defendant the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

Accordingly, the parties agree that the period of time from May 13, 2013 until June 24, 2013, should be excluded in accordance with the provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161(h)(7)(A) and (B)(iv), for continuity of defense counsel and for effective preparation of defense counsel, taking into account the exercise of due diligence.

ORDER

Based on the reasons provided in the stipulation of the parties above, the Court hereby finds:

1. Given that defendant made his initial appearance in late March on this gun case and that defense counsel needs additional time to review the discovery and to investigate a pending federal sex trafficking case that has not yet been indicted;

2. Given that the defense needs additional time to collect records and to research and assess the Guidelines and defendant's criminal history category;

3. Given that these above-listed tasks are necessary for the defense preparation of the case and that the failure to grant the requested continuance would unreasonably deny counsel for defendant the reasonable time necessary for effective preparation, taking into account the exercise of due diligence;

4. Given that defense counsel is unavailable for three weeks in June 2013; and

5. Given that the ends of justice served by this continuance outweigh the best interest of the public and defendant in a speedy trial;

Based on these findings, it is hereby ordered that the motion or trial setting date of May 13, 2013, scheduled at 2:00 p.m., is vacated and reset for June 24, 2013 at 2:00 p.m. It is further ordered that time is excluded pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A) and (B)(iv), from May 13, 2013 until June 24, 2013.


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