January 23, 2014
UNITED STATES OF AMERICA, Plaintiff,
LIVIA LILL, Defendant.
MARK ROSENBUSH, CSB 72436 San Francisco, California, Attorney for Defendant LIVIA LILL.
KYLE WALDINGER Assistant United States Attorney.
STIPULATED EX PARTE MOTION TO CONTINUE STATUS CONFERENCE [N.D. Cal. Crim. Local Rule 47-3]
THELTON HENDERSON, District Judge.
Based on the declaration of defense counsel Mark Rosenbush filed herewith and the stipulation of the United States Attorney, by counsel for the government Kyle Waldinger, defendant LIVIA LILL hereby moves the Court, on an ex parte basis pursuant to Criminal Local Rule 47-3, to continue the date for the status conference in Ms. Lill's matter from January 27, 2014, to March 10, 2014, at 2:30 p.m. This continuance is necessitated by the unavailability of defense counsel.
Defendant Lill and the government further stipulate that the Court exclude time under the Speedy Trial Act to March 10, 2014, pursuant to 18 U.S.C. sections 3161(h)(7)(A) and 3161(h)(7)(B)(iv) in order to allow defendant Lill to maintain continuity of defense counsel, and that defendant Lill's interest in maintaining her current counsel outweigh the interests of the public and the defendant in a speedy trial.
IT IS SO ORDERED.
DECLARATION OF COUNSEL
I, Mark Rosenbush, state the following:
1. I have been appointed by the Court to represent defendant Livia Lill in this matter. Ms. Lill is out of custody on pre-trial release.
2. Ms. Lill's case is currently set for a status hearing on January 27, 2014, at 2:30 p.m.
3. For the past four weeks I have been unavailable to work on Ms. Lill's matter due to my wife's emergency medical condition and subsequent passing. I have not yet returned to work and do not expect to do so prior to January 27, 2014, the date of Ms. Lill's next hearing.
4. Tim Finnegan of my office has informed AUSA Kyle Waldinger of this motion and Mr. Waldinger indicated the government agrees to the proposed continuance and the exclusion of time to March 10, 2014. Mr. Waldinger further informed Mr. Finnegan that I could represent in this motion that the government so stipulates.
6. Though this motion has been filed on an ex parte basis, Mr. Finnegan has delivered a copy of this motion via email to Mr. Waldinger for his review.
I declare, under penalty of perjury under the laws of the United States, that the foregoing is true and correct. Executed this 22nd day of January, 2014, in San Francisco, California.
MEMORANDUM OF POINTS AND AUTHORITIES
The Criminal Local Rules state:
An ex parte motion is a motion filed and submitted for immediate determination by the assigned Judge without giving an opposing party the amount of advance notice which is otherwise required by statute, federal rule or local rule. Unless relieved by these local rules or by order of a Judge for good cause shown or unless being filed under seal pursuant to a statute or federal or local rules, a party making an ex parte motion shall nevertheless give reasonable advance notice of the motion to an opposing party.
Northern Dist. of Cal. Crim Local. Rules, Rule 47-3(a). Motions to continue are not specifically authorized under the local rules as motions for which relief may be sought on an ex parte basis. Leave of the Court is therefore required before a continuance motion can be submitted and decided pursuant to Rule 47-3. Defendant hereby requests that the Court decide this matter on an ex parte basis. The parties previously discussed the matters addressed herein and agree that due to the unavailability of defense counsel, as well as the parties' agreement on the matter, a hearing on this motion is not necessary.
In deciding whether to grant a defendant's motion to continue, the Court must consider, among other factors, (1) the extent of the defendants' diligence in readying the defense; (2) the likelihood that the requested continuance would satisfy the defendant's needs; (3) the inconvenience to the court, the opposing party, and witnesses; and (4) the extent to which the defendant may be prejudiced by denial of the requested continuance. See United States v. Tham, 960 F.2d 1391 (9th Cir. 1992).
The continuance proposed herein will not inconvenience the parties or any witness, and defense counsel is unavailable due to circumstances beyond defendants' control. The proposed continuance and exclusion of time are therefore justified.
For the foregoing reasons Ms. Lill requests that this Court continue the date for sentencing to March 10, 2014, at 2:30 p.m.