Case Information
Darryl E. Young, SBN #255894
Law Office of Darryl E. Young
650 West 20th Street
Merced, California 95340 Telephone:
( 20 9) 354 - 35 0 0
Facsimile: ( 20 9) 354 - 3502
Attorneys for Defendant
Derrick Gage
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. 1: 22 -CR-002 4 5-JLT
Plaintiff, STIPULATION REGARDING EXCLUDABLE
TIME PERIODS UNDER SPEEDY TRIAL ACT; v. [PROPOSED] FINDINGS AND ORDER DERRICK GAGE , DATE: July 1 0 , 202 3 TIME: 9:00 a.m. Defendant. COURT: Hon. Jennifer L. Thurston
This case is set for sentencing on July 0 , 202 3 . On May 13, 2020, this Court issued General 17 Order 618, which suspends all jury trials in the Eastern District of California “until further notice.” 18 Further, pursuant to General Order 611, this Court’s declaration of judicial emergency under 18 U.S.C. 19 § 3174, and the Ninth Circuit Judicial Council’s Order of April 16, 2020 continuing this Court’s judicial 20 emergency, this Court has allowed district judges to continue all criminal matters to a date after May 2, 21 2021. [1] This and previous General Orders, as well as the declarations of judicial emergency, were 22 entered to address public health concerns related to COVID-19.
23 Although the General Orders and declarations of emergency address the district-wide health 24 concern, the Supreme Court has emphasized that the Speedy Trial Act’s end-of-justice provision 25 “counteract[s] substantive openendedness with proced ural strictness,” “demand[ing] on-the-record 26
27
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, 617, and 618 and the subsequent declaration of judicial emergency 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 and declaration of judicial emergency 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 1 for the sentencing. United States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010) (noting any pretrial 2 continuance must be “specifically limited in time”).
3 STIPULATION
4 Plaintiff United States of America, by and through its counsel of record, and defendant, by and 5 through defendant’s counsel of record, hereby stipulate as follows:
6 By previous order, this matter was set for sentencing on July 1 0 , 202 3 . 1.
7 By this stipulation, defendant now moves to continue the sentencing until September 2. 5 , 2023. 8 The parties agree and stipulate, and request that the Court find the following: 3.
9 Counsel for defendant desires additional time to further prepare for sentencing. a) 10 Counsel for defendant believes that failure to grant the above-requested b) 11 continuance would deny him/her the reasonable time necessary for effective preparation, taking 12 into account the exercise of due diligence. 13 c) The government does not object to the continuance.
14 IT IS SO STIPULATED. 15
16 Dated: May 11 , 202 3 PHILLIP A. TALBERT
17 United States Attorney 18 /s/ JUSTIN J. GILIO
19 JUSTIN J. GILIO Assistant United States Attorney 20
21 Dated: May 11, /s/ DARRYL E. YOUNG
22 DARRYL E. YOUNG Counsel for Defendant 23 DERRICK GAGE 24
25
26
27
28
[PROPOSED] FINDINGS AND ORDER
IT IS SO ORDERED this 18th day of May , .
THE HONORABLE JENNIFER L. THURSTON UNITED STATES DISTRICT JUDGE
[1] A judge “may order case-by-case exceptions” at the discretion of that judge “or upon the 28 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).
[2] 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).