Filed: Mar. 28, 2019
Latest Update: Mar. 28, 2019
Summary: STIPULATION AND PROPOSED ORDER TO CONTINUE THE STATUS CONFERENCE FROM March 29, 2019 TO OCTOBER, 2019 AND FINDING OF EXCLUDABLE TIME GARLAND E. BURRELL, JR. , 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, March 29, 2019, should be continued to Friday, November 15, 2019, and time should be e
Summary: STIPULATION AND PROPOSED ORDER TO CONTINUE THE STATUS CONFERENCE FROM March 29, 2019 TO OCTOBER, 2019 AND FINDING OF EXCLUDABLE TIME GARLAND E. BURRELL, JR. , 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, March 29, 2019, should be continued to Friday, November 15, 2019, and time should be ex..
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STIPULATION AND PROPOSED ORDER TO CONTINUE THE STATUS CONFERENCE FROM March 29, 2019 TO OCTOBER, 2019 AND FINDING OF EXCLUDABLE TIME
GARLAND E. BURRELL, JR., 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, March 29, 2019, should be continued to Friday, November 15, 2019, and time should be excluded under the Speedy Trial Act. The parties further stipulate as follows:
1. On September 28, 2018, this court held a status conference as to defendant DiChiara and set a trial date of May 14, 2019, and a trial confirmation hearing for April 5, 2019. and a trial date of May 14, 2019. The court further found excludable time under the Speed Trial Act from September 28, 2019, through May 14, 2019 (ECF 481). On February 22, 2019, this court held a further status conference concerning the medical condition of defendant DiChiara and set a further status conference for March 29, 2019. (ECF 511) .
2. The defense now requests to vacate the March 29, 2019 status conference, April 5, 2019 trial confirmation hearing and the May 14, 2019 trial date, and the government does not oppose. The reason for the defense request to continue is that Mr. DiChiara's health condition would prevent his assistance in his defense and his attendance at trial.
3. On February 22, 2019, defendant DiChiara executed medical records releases for the benefit of the government and defense counsel. Since that time, the FBI has interviewed health care providers for Mr. DiChiara and has shared a report of those interviews with the defense.
4. On March 8, 2019, the FBI interviewed nurse Mandy Stanton form Dr, Chris Shin's office, Physical Medicine and Rehabilitation Department, UC Davis Medical Center. Nurse Stanton indicated the Mr. DiChiara was seen on March 4, 2019, in the Emergency Department complaining of chest pains with a history of a triple 2017 by-pass surgery. Nurse Stranton described Mr. DiChiara's health as "a mess".
5. On March 20, 2019, the FBI interviewed Dr. Chris Chin, who indicated that Mr. DiChiara likely had multiple strokes and likely has some deficits, including memory, but that his major issue is cardiovascular and kidney related. Dr. Chin describes his cardiac condition and kidney (stage 3 chronic kidney disease) status as "bad".
6. On March 12, 2019, the FBI interviewed Dr. Mossa Haider, Mr. DiChiara's cardiologist. Dr. Haider indicated that Mr. DiChiara needs to have his heart re-studied because he is still complaining of chest pain. Because of a recent fall reportedly suffered by Mr. DiChiara, further cardiac studies, including an angiogram, could not be performed until Mr. DiChiara undergoes a CT scan. Dr. Haider indicated that if Mr. DiChiara proceeded to trial on May 15, 2019, the Court would have to accommodate Mr. DiChiara's ongoing medical treatment, including cardiac rehabilitation schedule. Mr. DiChiara will schedule and undergo this CT scan as soon as possible.
7. On March 16, 2019, the FBI interviewed Dr. Tony Tsai of Retinal Consultants Group. Dr. Tsai last saw Mr. DiChiara in November of 2018 and confirmed that Mr. Dichira is suffering from diabetic retinopathy.
8. Given the current and ongoing medical treatment of Mr. DiChiara, the defense requests to vacate all upcoming dates and set this matter for a further status conference in October, 2019. The government does not oppose this request.
9. The defendant, John DiChiara, is currently out of custody.
10. 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.
11. 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.
IT IS SO STIPULATED that the time between March 29, 2019 and November 15, 2019 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 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 trial confirmation hearing set for April 5, 2019, and the trial date of May 15, 2019, are vacated. The status conference presently set for March 29, 2019, at 9:00 A.M., is hereby continued to November 15, 2019 at 9:00 A.M., and time under the Speedy Trial Act will be excluded from March 29, 2019 through November 15, 2019 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.
