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United States v. Hu

United States District Court, Ninth Circuit

June 7, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT KEJENG HU, Defendant.

JERRY Y. FONG, ESQ., (SBN 99673) THE LAW OFFICE OF JERRY FONG, PALO ALTO, CA, Attorney for Defendant ALBERT KEJENG HU.

STIPULATION BY THE PARTIES TO JOINTLY REQUEST THAT THE RESTITUTION HEARING BE CONTINUED TO JULY 8, 2013, AND THAT THE U.S. MARSHAL KEEP DEF. ALBERT HU AT THE LOCAL JAIL OR WITHIN THE BAY AREA UNTIL THE JULY 8 HEARING & [] ORDER RE SAME.

RONALD M. WHYTE, District Judge.

Plaintiff, the United States of America, and Defendant, Albert Hu, hereby stipulate to jointly request that the Court continue the restitution hearing for this case, from June 10, 2013, to July 8, 2013. Furthermore, the parties jointly request that the Court issue an order for the United States Marshal to keep Mr. Hu in custody at the Santa Clara County Main Jail in San Jose, CA (or any other suitable detention facility in the Bay Area) until the completion of his appearance at the restitution hearing on July 8, 2013.

Currently, the restitution hearing of this case is scheduled on June 10, 2013, at 9:00 a.m., before the Honorable Ronald M. Whyte, Judge of the United States District Court for the Northern District of California, San Jose Division. On June 4, 2013, counsel for Mr. Hu, Attorney Jerry Fong, learned that the U.S. Marshal's Office has transported Mr. Hu from his present place of incarceration (at the Federal Correctional Facility at Lompoc, California), with the final intended designation of San Jose, in order for Mr. Hu to attend the restitution hearing set on June 10. Mr. Fong also learned that the Marshal's Office's best estimate is that Mr. Hu will not arrive in San Jose in time for the June 10 restitution hearing and that Mr. Hu will likely not arrive in San Joses until sometime late next week, after June 10.

For this reason, the parties jointly request that the Court continue the restitution hearing from June 10, 2013 to July 8, 2013, at 9:00 a.m., the first mutually available date for the parties and the Court.

Furthermore, to ensure that Mr. Hu will be physically available to appear before the Court at the restitution hearing, the parties jointly request that the Court order that the U.S. Marshal's Office keep Mr. Hu, temporarily, in a detention facility in San Jose (or in the Bay Area) once he arrives from the transportation from Lompoc, until after the completion of the July 10, 2013 hearing.

The July 8, 2013 date proposed by the parties is outside the 90 day limit for the determination of restitution under 18 U.S.C. §3664 (d)(5). However, the parties both acknowledge that the time frame set forth by 18 U.S.C. §3664 (d)(5) is procedural and not jurisdictional, that the time frame was established for the benefit of potential victims and not for the benefit of the defendant, and that the District Court has the power to impose a restitution award more than 90 days after sentencing. See, e.g., Dolan v. US , 130 S.Ct. 2533 (2010); US v. Moreland , 622 F.3d 1147, 1172 (9th Cir. 2010).

In addition, on behalf of Defendant Albert Hu, his counsel, Jerry Fong, hereby stipulates that a continuance of the restitution hearing beyond the 90 day deadline is appropriate and necessary and that he agrees, on behalf of Albert Hu, that Mr. Hu will not raise any challenges to the restitution order based on the hearing being conducted beyond the 90 day deadline imposed by 18 U.S.C. §3664 (d)(5).

It is so stipulated by the parties.

[] ORDER

Pursuant to the parties' stipulation and good cause appearing herein, it is hereby ordered that the restitution hearing shall be continued from June 10, 2013, to July 8, 2013, at 9:00 a.m.

Furthermore, it is further ordered that the United States Marshal's Office shall maintain Albert Hu in custody, until the completion of the July 8, 2013 restitution hearing, at a detention facility in San Jose or at another suitable facility located in the Bay Area so that he will be available to attend the July 8, 2013 hearing. After the completion of the hearing on July 8, 2013, the Marshal's Office may return Mr. Hu to the detention facility designated by the Bureau of Prison.

It is so ordered.


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