United States v. Avalos Castro
1:20-cr-00093
E.D. Cal.
Feb 18, 2021
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UNITED STATES OF AMERICA v. JOSE AVALOS-CASTRO, ET AL.

CASE NO. 1:20-CR-00093-NONE-SKO

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 18, 2021

Hon. Sheila K. Oberto

STIPULATION REGARDING EXCLUDABLE TIME PERIODS UNDER SPEEDY TRIAL ACT; FINDINGS AND ORDER

MCGREGOR W. SCOTT

United States Attorney

JUSTIN J. GILIO

Assistant United States Attorney

2500 Tulare Street, Suite 4401

Fresno, CA 93721

Telephone: (559) 497-4000

Facsimile: (559) 497-4099

Attorneys for Plaintiff United States of America

This case is set for a status conference on March 3, 2021. This Court has issued a series of General Orders to address public health concerns related to COVID-19 and to suspend jury trials in the Eastern District of California. By stipulation, the parties now move to continue the status conference to June 2, 2021, and to exclude time between March 3, 2021 and June 2, 2021.

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. . “[W]ithout on-the-record findings, there can be no exclusion under” § 3161(h)(7)(A). . Moreover, any such failure cannot be harmless. ; see also (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. . The court recognized that the eruption made it impossible for the trial to proceed. ; see also (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).1 If continued, this Court should designate a new date for the status conference. (noting any pretrial continuance must be “specifically limited in time“).

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 March 3, 2021.
  2. By this stipulation, defendant now moves to continue the status conference until June 2, 2021, and to exclude time between March 3, 2021, and June 2, 2021, under Local Code T4.
  3. The parties agree and stipulate, and request that the Court find the following:
    1. The government has represented that discovery associated with this case includes investigative reports, numerous photographs and videos, hundreds of hours of recorded telephone conversations pursuant to wiretap order, cellular phone extractions, and large amounts of cellular telephone precise location data. This discovery has been either produced directly to counsel and/or made available for inspection and copying. Additionally, the government anticipates providing a small amount of supplemental discovery in the coming weeks.
    2. Counsel for defendant desires additional time consult with their clients, conduct further investigation, review the voluminous discovery, prepare for a possible trial, and to continue to explore a potential resolution of the case.
    3. Counsel for defendant believes that failure to grant the above-requested continuance would deny him/her the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
    4. The government does not object to the continuance.
    5. 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.
    6. 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 March 3, 2021 to June 2, 2021, inclusive, is deemed excludable pursuant to 18 U.S.C. § 3161(h)(7)(A), B(ii), (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.

Dated: February 18, 2021

MCGREGOR W. SCOTT

United States Attorney

/s/ JUSTIN J. GILIO

JUSTIN J. GILIO

Assistant United States Attorney

Dated: February 18, 2021

/s/ Emily Harue Takao

Emily Harue Takao

Counsel for Defendant Jose Avalos-Castro

Dated: February 18, 2021

/s/ Richard A. Beshwate, Jr.

Richard A. Beshwate, Jr.

Counsel for Defendant Max Ruiz

Dated: February 18, 2021

/s/ Eric Vincent Kersten

Eric Vincent Kersten

Counsel for Defendant Russell Williams

Dated: February 18, 2021

/s/ Robert Conrad Lamanuzzi

Robert Conrad Lamanuzzi

Counsel for Defendant Joe Corrales-Enriquez

FINDINGS AND ORDER

IT IS SO ORDERED.

Dated: February 18, 2021

/s/ Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

Notes

1
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).
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