Opinion
BENJAMIN B. WAGNER, United States Attorney, KAREN A. ESCOBAR, Assistant United States Attorney, Fresno, CA, Attorneys for Plaintiff, United States of America.
GOVERNMENT'S MOTION FOR CONTINUANCE OF HEARING DATE AND EXCLUDABLE TIME PERIODS UNDER SPEEDY TRIAL ACT; DECLARATION OF AUSA ESCOBAR; FINDINGS AND ORDER
LAWRENCE J. O'NEILL, District Judge.
Plaintiff United States of America, by and through its counsel of record, hereby moves to continue the hearing date and to exclude time to and through November 30, 2015, for the reasons set forth below.
1. On August 3, 2015, U.S. Magistrate Judge Sheila K. Oberto set a pretrial motions schedule with a hearing date of October 13, 2015.
2. Thereafter, Monica Bermudez, counsel for the defendant, contacted AUSA Karen Escobar by email to seek additional time for the filing of motions. The government indicated that it was not opposed to a further continuance; however, a new hearing date was not discussed. Ms. Bermudez indicated she was in Wyoming and would have her legal assistant prepare the stipulation.
3. On September 17, Ms. Bermudez's assistant filed a stipulation and proposed order continuing the matter to November 23 without first clearing a hearing date with AUSA Escobar.
4. In July, 2015, the government scheduled annual leave, for which she has use or lose hours, for the week of November 23. AUSA Escobar immediately contacted Ms. Bermudez to request a new hearing date in light of her leave and reminded her several times thereafter that she needed a new hearing date and requested that she refile a new stipulation.
5. Ms. Bermudez filed a stipulation on October 15 continuing the hearing date to November 30.
6. The Court denied the request on the same day.
7. Counsel for the government is unavailable on November 23. Counsel for the government is available on any day before November 20. The government requests that the hearing date be reset to ensure continuity of counsel, which is a right entitled to some protection under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(8)(B)(iv); United States v. Richardson, 421 F.3d 17, 30-31 (1st Cir. 2005) (government's need for continuity of counsel is a valid ground for granting a continuance in the interest of justice).
8. Based on the foregoing, the ends of justice served by continuing the case, if necessary to ensure the continuity of both parties and in accordance with the availability of the Court, as requested outweigh the interest of the public and the defendant in a trial within the original date prescribed by the Speedy Trial Act.
e. For the purpose of computing time under the Speedy Trial Act, 18 U.S.C. § 3161, et seq., within which trial must commence, the time period of November 23, 2015, to November 30, 2015, inclusive, is excludable pursuant to 18 U.S.C.§ 3161(h)(7)(A), B(iv) because it would result from a continuance granted by the Court at the defendant's early request and the government's current request on the basis of the Court's finding that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.
DECLARATION
I, Karen A. Escobar, declare as follows:
1. I am the Assistant United States Attorney assigned to the above-captioned matter.
2. The above-stated facts are known to me based on personal knowledge.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 29th day of October, 2015.
ORDER
IT IS SO ORDERED, that the hearing currently set for November 23, 2015, shall be reset for November 30, 2015, at 8:30 a.m..
IT IS SO ORDERED.