STIPULATION AND PROPOSED ORDER TO CONTINUE THE STATUS CONFERENCE FROM AUGUST 24, 2018 TO SEPTEMBER 7, 2018 AND EXCLUSION OF TIME

GARLAND E. BURRELL, JR., Senior District Judge.

STIPULATION

IT IS HEREBY STIPULATED AND AGREED between the parties and their attorneys, Audrey Hemesath, Assistant United States Attorney, and Robert M. Wilson, attorney for John DiChiara, that the status conference date of Friday, August 24, 2018, should be continued to Friday, September 7, 2018, and time should be excluded under the Speedy Trial Act. The parties further stipulate as follows:

1. On September 11, 2017, defendant John DiChiara filed a Notice of Hospitalization and Request to Continue the Trial in this matter. (ECF 250, 253). Thereafter, this Court continued the trial set for September 12, 2017, to November 28, 2017, and found excludable time pursuant to Local Code N from September 12, 2017, to November 28, 2017. (ECF 265) Unfortunately, Mr. DiChiara's medical condition did not improve, and a further Status Conference was held on October 27, 2017, wherein this Court determined Mr. DiChiara would not be available for the November 28, 2017, trial due to his medical condition, and granted the government's request to sever Mr. DiChiara from his co-defendant and set a further status conference for February 23, 2018 ( ECF 277).

2. Prior medical records have been provided to the government, and the government has previously spoken with Mr. DiChiara's cardiologist and confirmed that Mr. DiChiara has multiple medical co-morbidities which have made him severely deconditioned and would preclude him from participating in a trial for at least the next six months. Specifically, Mr. DiChiara's co-morbidities are a recent triple cardiac bypass, heart failure, deconditioning, falls and history of strokes. His current diagnosis is coronary artery disease, heart failure, and strokes followed by a triple bypass. Additionally, Mr. DiChiara suffers from kidney disease and is being followed by a nephrologist. A letter provided to the government from the nephrologist indicates that Mr. DiChiara suffers from chronic kidney disease and his comorbidities preclude him from participating in any trial work for at least six months. Based on the above information the parties stipulated to continue the matter until July 20, 2018.

3. On July 20, 2018, this Court signed a Stipulation and Order continuing this matter to August 20, 2018, because additional updated medical records had been sought, but not yet been provided. Counsel for Mr. DiChiara had spoken with Mr. Dichiara and was advised that Mr. DiChiara was in frail health and was referred to a hematologist for evaluation of blood disorder.

4. On August 22, 2018, counsel for Mr. DiChiara was advised that Mr. DiChiara had been admitted to the hospital following an emergency room visit evidencing signs of another stroke. On August 23, 2018 counsel for Mr. DiChiara contacted the hospital and confirmed that Mr. DiChiara had been admitted to the hospital TCU following a visit to the Emergency Department and was undergoing an evaluation, among other things, to determine whether he had another stroke. The nature and extent of Mr. DiChiara medical condition remain unknown at this time.

In light of the recent hospitalization, additional time required to obtain medical information necessary to assess Mr. DiChiara's health condition and his ability for Mr. DiChiara to assist counsel in preparation for trial, the parties wish to continue the current status conference set for August 24, 2018 to September 7, 2018.

4. The defendant, John DiChiara, is currently out of custody.

5. The parties stipulate that such continuance on the basis of that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. The parties further stipulate the continuance is necessary, as Mr. DiChiara is currently physically incapable of attending and participating in trial, such that time exclusion is again appropriate under Local Code N, 18 U.S.C. 3161(h)(4). Furthermore, defense counsel is still reviewing discovery, trial transcripts, meeting with his client, and investigating information as well as conducting additional research and as such time exclusion is appropriate under Local Code T-4.

7. Nothing in this stipulation and order shall preclude a finding that other provisions of the Speedy Trial Act dictate that additional time periods be excludable from the period within which a trial must commence.

The parties stipulate that the time between August 24, 2018 and September 7, 2018 should be excluded from the Speedy Trial calculation pursuant to 18 U.S.C.§§ 3161(h)(7)(A), B(iv) [Local Code T4] and 3161(h)(4) [Local Code N] for defense preparation and due to Mr. DiChiara's recent hospitalization, comorbidities and inability to assist counsel with the preparation for trial or participation in trial and his necessity to participate in medical rehabilitation. The parties stipulate that the ends of justice served by granting this continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A).

IT IS SO STIPULATED.

IT IS SO ORDERED.

The status conference presently set for August 24, 2018 at 9:00 A.M., is hereby continued to September 7, 2018 at 9:00 A.M., and time under the Speedy Trial Act will be excluded from August 24, 2018 through September 7, 2018 pursuant to 18 U.S.C.§§ 3161(h)(7)(A), B(iv) [Local Code T4] and 3161(h)(4) [Local Code N] due to the unavailability of the defendant and further representations of the parties in their stipulation. The Court finds that the ends of justice served by granting this continuance outweigh the best interests of the public and the defendant in a speedy trial.