Opinion
1:19-CR-00041-DAD-BAM
09-16-2021
UNITED STATES OF AMERICA, Plaintiff, v. LITZY MICHELLE OSTOS-IRIGOYEN, Defendant.
PHILLIP A. TALBERT Acting United States Attorney LAUREL J. MONTOYA Assistant United States Attorney Attorneys for Plaintiff United States of America MCGREGOR W. SCOTT United States Attorney LAUREL J. MONTOYA Assistant United States Attorney ROGER BONAKDAR Counsel for Defendant LITZY MICHELLE OSTOS-IRIGOYEN
PHILLIP A. TALBERT Acting United States Attorney LAUREL J. MONTOYA Assistant United States Attorney Attorneys for Plaintiff United States of America
MCGREGOR W. SCOTT United States Attorney
LAUREL J. MONTOYA Assistant United States Attorney
ROGER BONAKDAR Counsel for Defendant LITZY MICHELLE OSTOS-IRIGOYEN
STIPULATION REGARDING EXCLUDABLE TIME PERIODS UNDER SPEEDY TRIAL ACT; FINDINGS AND ORDER
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
This case is set for status conference on September 22, 2021. On May 13, 2020, this Court issued General Order 618, which suspends all jury trials in the Eastern District of California until further notice. This General Order was entered to address public health concerns related to COVID-19. Further, pursuant to General Orders 614, 620, 624, 628, and 630 and the CARES Act., this Court's declaration of judicial emergency under 18 U.S.C. § 3174, and the Ninth Circuit Judicial Council's Order of April 16, 2020 continuing this Court's judicial emergency, this Court has allowed district judges to continue all criminal matters to a date after May 1, 2020.
A judge “may order case-by-case exceptions” at the discretion of that judge “or upon the request of counsel, after consultation with counsel and the Clerk of the Court to the extent such an order will impact court staff and operations.” General Order 618, ¶ 7 (E.D. Cal. May 13, 2020).
Although the General Orders address the district-wide health concern, the Supreme Court has emphasized that the Speedy Trial Act's end-of-justice provision “counteract[s] substantive openendedness with procedural strictness, ” “demand[ing] on-the-record findings” in a particular case. Zedner v. United States, 547 U.S. 489, 509 (2006). “[W]ithout on-the-record findings, there can be no exclusion under” § 3161(h)(7)(A). Id. at 507. Moreover, any such failure cannot be harmless. Id. at 509; see also United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir. 2000) (explaining that a judge ordering an ends-of-justice continuance must set forth explicit findings on the record “either orally or in writing”).
Based on the plain text of the Speedy Trial Act-which Zedner emphasizes as both mandatory and inexcusable-General Orders 611, 612, and 617 require specific supplementation. Ends-of-justice continuances are excludable only if “the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Moreover, no such period is excludable unless “the court sets forth, in the record of the case, either orally or in writing, its reason or finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” Id.
The General Orders exclude delay in the “ends of justice.” 18 U.S.C. § 3161(h)(7) (Local Code T4). Although the Speedy Trial Act does not directly address continuances stemming from pandemics, natural disasters, or other emergencies, this Court has discretion to order a continuance in such circumstances. For example, the Ninth Circuit affirmed a two-week ends-of-justice continuance following Mt. St. Helens' eruption. Furlow v. United States, 644 F.2d 764 (9th Cir. 1981). The court recognized that the eruption made it impossible for the trial to proceed. Id. at 767-68; see also United States v. Correa, 182 F.Supp. 326, 329 (S.D.N.Y. 2001) (citing Furlow to exclude time following the September 11, 2001 terrorist attacks and the resultant public emergency). The coronavirus is posing a similar, albeit more enduring, barrier to the prompt proceedings mandated by the statutory rules.
In light of the societal context created by the foregoing, this Court should consider the following case-specific facts in finding excludable delay appropriate in this particular case under the ends-of-justice exception, § 3161(h)(7) (Local Code T4). If continued, this Court should designate a new date for the status conference. United States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010) (noting any pretrial continuance must be “specifically limited in time”).
The parties note that General Order 612 acknowledges that a district judge may make “additional findings to support the exclusion” at the judge's discretion. General Order 612, ¶ 5 (E.D. Cal. March 18, 2020).
STIPULATION
Plaintiff United States of America, by and through its counsel of record, and defendant, by and through defendant's counsel of record, hereby stipulate as follows:
1. By previous order, this matter was set for status on September 22, 2021.
2. By this stipulation, defendant now moves to continue the status conference until January 26, 2022, and to exclude time between September 22, 2021, and January 26, 2022, under Local Code T4.
3. The parties agree and stipulate, and request that the Court find the following:
a) The government has represented that the discovery associated with this case includes investigative reports and photographs. All of this discovery has been either produced directly to counsel and/or made available for inspection and copying. Additionally, the parties have actively engaged in plea negotiations.
b) Prior to the beginning of the COVID-19 pandemic, the parties were in active plea negotiation discussions. In order to finalize plea negotiations, the parties anticipate needing the opportunity to meet and confer in-person. As a result of current state-wide social distancing policies resulting from the COVID-19 pandemic, the parties anticipate that more time will be needed in order to facilitate such a meeting and to ultimately finalize plea negotiations in this case.
c) Based on the above-stated findings, the ends of justice served by continuing the case as requested outweigh the interest of the public and the defendant in a trial within the original date prescribed by the Speedy Trial Act.
d) 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 September 22, 2021 to January 26, 2022, inclusive, is deemed excludable pursuant to 18 U.S.C.§ 3161(h)(7)(A), B(iv) [Local Code T4] because it results from a continuance granted by the Court at defendant's 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.
4. Nothing in this stipulation and order shall preclude a finding that other provisions of the Speedy Trial Act dictate that additional time periods are excludable from the period within which a trial must commence.
IT IS SO STIPULATED.
ORDER
IT IS SO ORDERED that the status conference is continued from September 22, 2021, to January 26, 2022, at 1:00 p.m. before Magistrate Judge Barbara A. McAuliffe. Time is excluded pursuant to 18 U.S.C.§ 3161(h)(7)(A), B(iv).
IT IS SO ORDERED.