REQUEST FOR RULE 43 WAIVER (TELEPHONIC APPEARANCE) FOR PLEA AND SENTENCING; ORDER THEREON

MICHAEL J. SENG, Magistrate Judge.

Pursuant to Federal Rule of Criminal Procedure 43(b)(2), Benjamin Howe, having been advised of his right to be present at all stages of the proceedings, hereby requests that this Court permit him to waive his right to personally appear for his change of plea and sentencing, and that he be allowed to appear telephonically. Mr. Howe agrees that his interests shall be represented at all times by the presence of his attorney, the Office of the Federal Defender for the Eastern District of California, the same as if Mr. Howe were personally present, and requests that this Court allow his attorney to represent his interests at all times. The government has no objection to Mr. Howe not being personally present, but does object to a telephonic appearance and requests a video appearance. This Court has the discretion under Rule 43(b)(2) to allow Mr. Howe to appear by telephone or to be absent from the proceedings.

Mr. Howe is charged with one count of failure to obey the directions of a traffic control device in violation of 36 C.F.R. §4.12 and three counts of possession of a controlled substance in violation of 36 C.F.R. §2.35(b)(2). On August 31, 2016, Mr. Howe will be entering a guilty plea to count 2 pursuant to a plea agreement. Count 2 charges him with possession of a controlled substance (psilocybin mushrooms). Pursuant to the agreement, the government will recommend that the remaining counts be dismissed, that Mr. Howe pay a fine of $1,000, that he be on one year of court probation and that the Court defer entry of judgment for one year at the end of which the government will recommend dismissal if the defendant has complied with all of the conditions.

Mr. Howe is a student at Columbia University in New York City. He works as a tutor to earn extra money. It would be a serious hardship for Mr. Howe to travel to Yosemite. Given that he is a student and that the case is a misdemeanor with a likely disposition of probation with a fine, this Court should exercise its discretion under Rule 43.

Defense counsel has contacted the courtroom deputy who has indicated that a video conference would only be allowed on a secured federal court network. For this to happen, defense counsel would have to contact the federal court in New York City and find out who would make those arrangements. Mr. Howe would have to appear in federal court in New York City and, at a minimum, a court IT person would have to be present. A video appearance would involve a significant amount of work for counsel as well as court staff in New York City. Counsel would prefer not to ask for this given the relatively minor nature of this case. Lastly, it is counsel's experience that while the quality of video conferencing in federal court has vastly improved over the past couple of years, there is no guarantee that there will not be issues with the equipment or the connection on the court date.

Mr. Howe has appeared by telephone without incident for his arraignment on April 19, 2016 of this year. Defense counsel will be able to recognize Mr. Howe's voice and would be able to represent to the Court that Mr. Howe is on the phone.

Accordingly, Mr. Howe respectfully requests the Court grant a waiver of his right and obligation to be personally present and that he be permitted to appear via telephone. Counsel will provide the telephone number to the courtroom deputy in advance of the hearing

ORDER

Good Cause Appearing, the Court grants Defendant's request for waiver of his personal appearance at the plea and sentencing hearing in this case, but only on and subject to the condition that Defendant and his counsel take all steps necessary to arrange for and ensure Defendant's appearance at the said hearing via video conferencing using this Court's existing video conferencing network and equipment.

IT IS SO ORDERED.