Opinion
BOERSCH SHAPIRO LLP, David W. Shapiro, Martha Boersch, Lara Kollios, Oakland, CA, Attorneys for Dominic Gabriel Grissett.
DEFENDANT GRISSETT'S UNOPPOSED EX PARTE MOTION TO WAIVE APPEARANCE AT STATUS CONFERENCE
WILLIAM ALSUP, District Judge.
I. INTRODUCTION
Pursuant to Criminal Local Rule 47-3, Defendant Dominic Gabriel Grissett respectfully requests that the Court waive his appearance at the August 24, 2015, status conference and allow Mr. Grissett to attend the conference by telephone. Requiring Mr. Grissett, who lives in South Carolina, to attend the conference would result in an undue financial hardship. The government has informed counsel for Mr. Grissett that it does not object to Mr. Grissett's telephonic appearance.
In the alternative, if the Court will not allow Mr. Grissett to appear telephonically, Mr. Grissett has simultaneously filed an Ex Parte Application to have the United States Marshals pay for his travel expenses pursuant to 18 U.S.C. § 4285, and respectfully requests that the Court grant that application. The government objects to Mr. Grissett's application to have the United States Marshals pay for his travel expenses.
II. ARGUMENT
After a glitch with the ECF system engendered a scheduling issue, Mr. Grissett moved before the Court to have his appearance waived at the initial status conference for this matter (Dkt. No. 193). The Court granted Mr. Grissett's motion (Dkt. No. 192) but required that Mr. Grissett attend the August 19, 2015 hearing at which several motions would be argued. Mr. Grissett, using his own scarce funds he has earned since on pretrial release, paid for a plane ticket to San Francisco to ensure his attendance at that hearing. On July 31, 2015, however, the Court moved the hearing from August 19, 2015 to August 24, 2015 at 8 a.m. ( see Clerk's Notice, Dkt. No. 221). In order for Mr. Grissett to attend the August 24, 2015 hearing, Mr. Grissett will incur hundreds of dollars in airplane fees to change his plane flight, in addition to the cost of a hotel room for at least one night.
Mr. Grissett was released to his home in South Carolina pending trial. Since on pretrial release, Mr. Grissett has obtained part time employment at a local restaurant. Moreover, Mr. Grissett has a 9-month old daughter, Kaydence, for whom he provides care, along with Kaydence's mother. Requiring Mr. Grissett to attend the August 24, 2015 status conference would require Mr. Grissett to take leave from both his job and his role as caretaker for his young daughter. Also, as noted in Mr. Grissett's financial affidavit submitted for appointment of counsel, he is not a man of means, and incurring the cost of traveling to San Francisco from South Carolina would impose a significant burden. At Mr. Grissett's detention hearing, counsel represented to United States Magistrate Judge Corley that given the expense of travel, Mr. Grissett intended to waive appearance at all non-mandatory hearings.
Federal Rule of Criminal Procedure 43(b) provides that a defendant need not be present at a proceeding that involves "only a conference or hearing on a question of law." The August 24, 2015 status conference meets this requirement. See, e.g., United States v. Astacio Espino, 748 F.Supp.2d 131, 133 (D.P.R. 2010) ("the status conference... falls clearly in to the category of proceedings at which a defendant's presence is not required").
A waiver is also appropriate here because Mr. Grissett is not a flight risk. He self-surrendered to the United States Marshals to travel to San Francisco for his arraignment. He was released on pretrial release to his parents' home in South Carolina without incident and promptly reported to his pretrial services officer. Mr. Grissett has never missed an appointment with his pretrial services officer nor violated any condition of his pretrial release. He has used his time on pretrial release to obtain gainful employment and care for his baby daughter. Mr. Grissett has been informed of the pending motions for misjoinder and for bill of particulars and his counsel will be prepared to argue those motions without Mr. Grissett's attendance. WAIVE APPEARANCE
While Mr. Grissett and his counsel appreciate the significance of the August 24, 2015, conference, for the foregoing reasons we respectfully submit that the Court should waive Mr. Grissett's physical appearance and allow him to appear by telephone If the Court declines to allow Mr. Grissett to attend the conference telephonically, we have separately submitted a motion for an order requiring the United States Marshal's Service to pay the cost of the change fee for Mr. Grissett's ticket and a hotel room for the evening of August 23, 2015.
[PROPOSED] ORDER GRANTING DEFENDANT GRISSETT'S UNOPPOSED EX PARTE MOTION TO WAIVE APPEARANCE AT STATUS CONFERENCE
The Court having duly considered Defendant Dominic Gabriel Grissett's Ex Parte Motion to Waive Appearance at Status Conference, good cause appearing therefore, and for reasons stated in the defendant's Motion, the Motion is hereby GRANTED. Defendant Dominic Gabriel Grissett may appear telephonically at the August 24, 2015 status conference.
IT IS SO ORDERED.