Opinion
CR.-S-08-00397---LKK
10-21-2011
UNITED STATES OF AMERICA, PLAINTIFF, v. ADOLFO F. ABARCA, et al., DEFENDANTS.
BENJAMIN B. WAGNER UNITED STATES ATTORNEY Jason Hitt by e mail authorization Jason Hitt ASSISTANT UNITED STATES ATTORNEY ATTORNEY FOR THE PLAINTIFF Hayes Gable by e mail authorization Hayes Gable Attorney for Defendant Adolfo F. Abarca James R. Greiner Attorney for Defendant Jose F. Abarca
JAMES R. GREINER, ESQ.
CALIFORNIA STATE BAR NUMBER 123357
LAW OFFICES OF JAMES R. GREINER
ATTORNEY FOR DEFENDANT
JOSE F. ABARCA
STIPULATION AND ORDER TO CONTINUE STATUS CONFERENCE TO NOVEMBER 15, 2011
Plaintiff United States of America, by its counsel, Assistant United States Attorney, Mr. Jason Hitt, and defendant ADOLFO F. ABARCA, by his attorney Mr. Hayes Gable and defendant JOSE F. ABARCA, by his attorney Mr. James R. Greiner, hereby stipulate and agree that the status conference calendared for Tuesday, October 25, 2011, at 9:15 a.m. before the Honorable Senior United States District Court Judge, Lawrence K. Karlton, may be continued to Tuesday, November 15, 2011, at 9:15 a.m..
The Court's courtroom deputy, Ms. Ana Rivas, has been contacted to ensure the Court's calendar was available for that date and the Court is available on Tuesday, November 15, 2011.
The defendants are in custody. There is no trial date set.
The Court has previously made a finding that this case, from the record made with factual support, should have time excluded under local code T-4, that time is to be excluded for the reasonable time necessary for effective preparation by defense counsel and Title 18 U.S.C. section 3161(h)(7)(B)(iv), of the speedy trial act and that the interest of justice outweighs both the public's right and the defendants' right to a speedy trial. (See Docket Entry # 9, 10, 17, 20, 21, 23, 29, 31, 33, 36, 39, 41, 43, 45, 47 and 49).
FACTUAL BASIS FOR CONTINUANCE
The parties are continuing their good faith efforts in attempting to resolve this case short of trial, which if accomplished would be a cost savings to all involved and would allow the Court and the government to expend its resources on other matters.
All of the parties are acting in good faith attempting to accomplish this resolution short of trial, and agree that this period of time is both reasonable and necessary and outweighs all other factors for a speedy trial on behalf of both the government and the defendants.
Defense counsel Hayes Gable began the Death Penalty trial at the beginning of August, 2011, and is now engaged in the penalty phase of that trial. It is the good faith belief of all the parties that Mr. Gable will be finished with the penalty phase prior to November 15, 2011, the date requested for the Status Conference.
In addition, the defense is still investigating the case facts, the defense is still reviewing all possible leads with the individual defendants, the defense is still reviewing the discovery while conferencing with the individual clients, and the defense is still reviewing both the proposed plea agreements and the advisory Sentencing Guidelines with the individual defendants.
Counsel for all parties stipulate that the ends of justice served by granting this continuance outweigh both the public's right to a speedy trial in this matter and both defendant's right to a speedy trial in this matter and that the Court by excluding such time, allows that counsel for each defendant may have reasonable time necessary for effective preparation, taking into account the exercise of due diligence, Title 18 U.S.C. section 3161(h)(7)(B)(iv), and therefore the parties agree that time should be excluded under Title 18 U.S.C. section 3161(h)(7)(A) and Title 18 section 3161 (h)(7)(B)(iv) and Local Code T-4.
The parties stipulate and agree that time under the Speedy Trial Act shall continue be excluded up to and including Tuesday, November 15, 2011, under the Speedy Trial Act under Title 18 U.S.C. section 3161(h)(7)(A) and Title 18 section 3161 (h)(7)(B)(iv) and Local Code T-4 (time for defense counsel preparation).
Respectfully submitted,
BENJAMIN B. WAGNER
UNITED STATES ATTORNEY
Jason Hitt by e mail authorization
Jason Hitt
ASSISTANT UNITED STATES ATTORNEY
ATTORNEY FOR THE PLAINTIFF
Hayes Gable by e mail authorization
Hayes Gable
Attorney for Defendant
Adolfo F. Abarca
James R. Greiner
Attorney for Defendant
Jose F. Abarca
ORDER
THE COURT MAKES THE FOLLOWING FINDINGS:
The Court finds that the ends of justice in granting this continuance in this case outweighs both the public's right to a speedy trial and both defendants' right to a speedy trial in this case based on the following findings of facts made by the Court:
1- The individual defense counsel are continuing to review the discovery in this case, continuing to have discussions with their individual client's about the facts of the case and the discovery in the case, the defense counsel are still investigating the case based on the
discovery and the conferences with their individual clients, so that counsel for each defendant may have reasonable time necessary for effective preparation, taking into account the exercise of due diligence;
2- The individual defense counsel are doing legal research into the advisory Sentencing Guidelines as they may apply to the individual facts of this case so as to adequately advise and counsel their individual clients;
3- Defense counsel Mr. Hayes Gable is continuing the Death Penalty trial that began in August, 2011, and is in the penalty phase of such trial which the parties in good faith believe will be done prior to November 15, 2011;
4- Each party is actively engaged in plea negotiations in a good faith attempt to resolve this case short of trial;
5- Based on the facts of this individual case the time requested is reasonable in light of the exercise of due diligence by counsel;
Therefore, based on the representations of counsel as set forth above and adopted by the Court and the findings made by this Court, time is excluded under the Speedy Trial Act from Tuesday, October 25, 2011 to and including Tuesday, November 15, 2011, under the Speedy Trial Act under Title 18 U.S.C. section 3161(h)(7)(A) and Title 18 section 3161 (h)(7)(B)(iv) and Local Code T-4.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT