Opinion
No. 1:11-cr-00186 LJO
01-26-2012
UNITED STATES OF AMERICA, Plaintiff, v. JUAN HERRERA, RAFAEL VELASCO, AND FELIPE GUTIERREZ Defendants.
KIMBERLY A. SANCHEZ Assistant U.S. Attorney TONI CARBONE Attorney for Felipe Gutierrez DAN KOUKOL Attorney for Juan Herrera ERIN RADIKEN Attorney for Rafael Velasco
TONI H. CARBONE (SBN 210119)
ATTORNEY AT LAW
Attorney for Defendant
FELIPE GUTIERREZ
STIPULATION AND ORDER CONTINUING STATUS CONFERENCE
AND MOTION SCHEDULE
IT IS HEREBY STIPULATED by and between Benjamin B. Wagner, United States Attorney and Kimberly A. Sanchez, Assistant United States Attorney and Dan Koukol, attorney for Juan Herrera, Erin J. Radiken, attorney for Rafael Velasco and Toni Carbone, attorney for Felipe Gutierrez to move for the status conference and motion hearing currently set for March 12, 2012 at 8:30 a.m. to be set for June 18, 2012 at 8:30 a.m. with a motion schedule set far enough out to be realistic, as set forth below, and an intervening status conference in front of United States Magistrate Judge Sheila K. Oberto on March 19, 2012 at 1:00 p.m. to confirm status of discovery and confirm the motion schedule. Counsel requests the intervening status conference date and the extended motion schedule and hearing in light of the case management plan set out by the Court and effective January 23, 2012.
The discovery has come in stages and currently stands at 3079. Additionally, there are 22 CDs of wiretap conversations in this matter and an anticipated 34 CDs of wiretap conversations that are related to 1:11 USA v. Salas relative to Felipe Gutierrez but that have not been received as of yet. Furthermore, Felipe Gutierrez extended a counteroffer to the Government in November and also on December 21, 2012 that the Government has not yet been able to evaluate due to complexities in the case. The counteroffer issued by Mr. Gutierrez would directly affect the question of whether Mr. Gutierrez would be filing motions in this matter. Should Mr. Gutierrez be required to file a wiretap motion, there is a possibility of utilizing an expert that is anticipated to be retained in another case involving Mr. Gutierrez which would allow for a more efficient and cost-effective use of an expert should one be needed. As the status of Mr. Gutierrez' counteroffer and the other case in which he is charged becomes clearer, Mr. Gutierrez will be in a better position to evaluate the realistic necessity of motions in this matter.
It is anticipated that additional discovery will be forthcoming as Assistant U.S. Attorney Sanchez responds to discovery requests in this matter and in 1:11-cr-00188 USA v. Esquivel. As of this date, Ms. Sanchez is still working through the discovery requests and does not have an estimate of when and what discovery will be provided. All counsel have indicated that more time is necessary to evaluate the discovery that has been provided and all indicate a desire to look into whether joint motions, specifically a joint wiretap motion, would be possible to balance the best interest of each client with judicial economy.
Additionally, Ms. Radekin, counsel for Mr. Velasco, has had medical issues recently that have slowed her ability to work through the case. Ms. Radekin had surgery for a foot fracture on December 9, 2011. As of January 17, 2012, her status remains on restricted work duty because she has to keep the foot elevated. She has been unable to visit her client to discuss the possibility of motions due to a limited work schedule, recovering from surgery and being unable to travel. Her next doctor's appointment is January 31, 2012 and she is hoping to be released to work a full schedule at that time.
In addition, plea negotiations and further investigation is ongoing and may shape the necessity for pretrial motions. Counsel suggests that, if it were reasonable and practical for the Court, a status date be set in front of U.S. Magistrate Sheila K. Oberto to determine the status of discovery and confirm the motion schedule requested herein.
Counsel have conferred, and further stipulate to and request that the Court order the following status dates, motion schedule and hearing date:
Status Conference in front of U.S. Magistrate Judge Sheila K. Oberto on March 19, 2012 at 1:00 p.m. to confirm status of discovery and motion schedule
Motions to be filed on or before May 2, 2012,The parties further stipulate and agree that should any party request an evidentiary hearing on any motion, the party will indicate such request in his/her pleading after consulting with the other parties as to their availability and whether there is any opposition to such a request.
Responses to be filed on or before June 4, 2012,
Replies to be filed on or before June 11, 2012,
Motion hearing/status conference: June 18, 2012 at 8:30 a.m.
Counsel agree that the time between the signing of the requested order and June 18, 2012 will be excluded from the speedy trial calculation pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B) in that defendants' and the public's interest in a speedy trial are outweighed by the interests of justice in permitting counsel adequate time to prepare for motions, and further action in the case, conduct additional investigation, engage in further plea negotiations, and for continuity of counsel such that all defendants' counsel may appear. Moreover, the parties previously agreed that due to the nature of the prosecution and the amount of discovery resulting from the investigation involving multiple wiretaps, pursuant to 18 U.S.C. § 3161(h)(7)(B), the case is complex.
BENJAMIN WAGNER
Kimberly A. Sanchez
KIMBERLY A. SANCHEZ
Assistant U.S. Attorney
Toni Carbone
TONI CARBONE
Attorney for Felipe Gutierrez
Dan Koukol
DAN KOUKOL
Attorney for Juan Herrera
Erin Radiken
ERIN RADIKEN
Attorney for Rafael Velasco
ORDER
The Court finds good cause and grants the request. Time is excluded for the reasons stated in the request. That said, however, in June when the case comes before the undersigned, it is so far into the future, that either changes of plea will occur, or the matter will be scheduled for trial.
IT IS SO ORDERED.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE