Opinion
BENJAMIN B. WAGNER, United States Attorney, KIMBERLY A. SANCHEZ, Assistant U.S. Attorney, Fresno, CA,
STIPULATION AND ORDER FOR EXTENSION OF TIME FOR GOVERNMENT TO FILE RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS AND CONTINUANCE OF SUPPRESSION HEARING
LAWRENCE J. O'NEILL, District Judge.
IT IS HEREBY STIPULATED by and between Benjamin B. Wagner, United States Attorney and Kimberly A. Sanchez, Assistant U.S. Attorney and Andras Farkas, Assistant Federal Defender, attorney for defendant, that the due date of March 1, 2013 for the government's response to defendant's motion to suppress be extended to March 8, 2013; that the due date of March 7, 2013 be extended to March 14, 2013; and that the hearing on said motions be moved from March 11, 2013 to March 18, 2013.
The undersigned Assistant U.S. Attorney has been off of work due to having the flu since Tuesday, February 26, 2013. She went to her primary care physician on February 26, and was diagnosed with the flu. Due to deteriorating symptoms, she returned to the doctor today, and has developed an ear infection most likely due to the flu but possibly a bacterial infection. The doctor also suggested that counsel may not be well enough to return to work on Monday. As such, the government requests the extra time to complete its response to the defendant's motion to suppress evidence.
The parties further request the Court to enter an Order finding that the "ends of justice" served by a continuance outweigh the interest of the public and the defendant in a speedy trial, and that the delay occasioned by such continuance is excluded from the Act's time limits pursuant to 18 U.S.C. § 3161(h)(7)(A). In determining whether such a continuance is warranted, the judge must consider, among other things, "[w]hether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice." 18 U.S.C. § 3161(h)(7)(B)(I). In the instant matter, if the court fails to grant the requested continuance, it will result in a miscarriage of justice. The government should have an opportunity to respond to the defendant's motion, and failure to be given that opportunity because of an unanticipated illness would be a miscarriage of justice. Thus, the time should be excluded.
IT IS SO ORDERED.