JOINT MOTION AND PROPOSED ORDER TO SET A TELEPHONIC INITIAL APPEARANCE

STANLEY A. BOONE, Magistrate Judge.

JOINT MOTION

Plaintiff United States of America ("the government"), by and through its counsel of record, Mia A. Giacomazzi, and defendant, by and through defendant's counsel, Charles Lee, Assistant Federal Defendant, who is making a special appearance on behalf of the defendant for this purpose until appointment of counsel can occur at the initial appearance, hereby jointly move the court to set a telephonic initial appearance in this matter. This joint motion is based on the following:

1. In In Re Health Emergency, 14-MC-003 LJO (January 14, 2014), the district court ordered that "for seven calendar days (the incubation period for H1N1) from the date of this order until 5 p.m., no Federal inmate housed at the Fresno County Jail is to be transported to the United States District Court." Id. at 2:7-9.

2. Defendant Moises Cruz-Gonzalez was housed at Fresno County Jail beginning January 14, 2014 by Immigration and Customs Enforcement in anticipation of criminal prosecution for a violation of Title 8, United States Code, sections 1326(a) and (b)(2).

3. The United States Magistrate Judge signed a criminal complaint and arrest warrant for defendant in this matter on January 15, 2014. The In Re Health Emergency order, however, prevented the United States Marshal Service from transporting the defendant from the Fresno County Jail to the federal courthouse for his initial appearance on the criminal complaint on January 15, 2014 and will continue to prevent transport of the defendant to the federal courthouse until January 22, 2014 at the earliest.

4. In an effort to present the defendant to a magistrate judge without unnecessary delay, the Assistant United States Attorney contacted the Fresno County Jail to determine whether an initial appearance could be effectuated without violating In Re Health Emergency. The Assistant United States Attorney learned that the Fresno County Jail did not have the capability to do a video-conference between the defendant and the court, but that there was a possibility to have the defendant appear in court telephonically.

5. The government and counsel for defendant both agree that under these exceptional circumstances, and because the parties do not anticipate there to be disputed matters at the initial conference in this 8 USC § 1326 case, a telephonic appearance would satisfy Fed. R. Crim. P. 5 and In Re Health Emergency.

For the forgoing reasons, the government and counsel for defendant jointly move the court to set a telephonic appearance on January 16, 2014, as soon as practicable thereafter, for the defendant's initial appearance.

IT IS SO STIPULATED.

[PROPOSED] ORDER

For good cause appearing, this Court SETS a telephonic appearance in this matter on January 16, 2014 or as soon as practicable thereafter. The parties shall contact the clerk of court to arrange an agreeable time and manner for the telephonic appearance no later than January 16, 2014 at noon.