Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 265

Cygnus Systems, Inc. v. Microsoft Corporation, et al

Doc. 265

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) Plaintiff, ) ) vs. ) ) Jorge Valente Cano, ) ) Defendant. ) ___________________________________ )

CR-08-220-PHX-DGC FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE UPON A PLEA OF GUILTY AND ORDER

Upon Defendant's request to enter a plea of Guilty pursuant to Rule 11 of the

14 Federal Rules of Criminal Procedure, this matter was referred to the Magistrate Judge 15 by the District Court and came on for hearing before U.S. Magistrate Judge Edward C. 16 Voss on March 20, 2008, with the written consents of the Defendant, counsel for the 17 Defendant, and counsel for the United States of America. 18

The undersigned magistrate judge accepted Defendant's waiver of indictment

19 after inquiry was made of the Defendant as to his understanding of the right to 20 prosecution by indictment that he was waiving. Thereafter, the matter came on for a 21 hearing on Defendant's plea of guilty in full compliance with Rule 11, Federal Rules of 22 Criminal Procedure, before the undersigned magistrate judge in open court and on the 23 record. 24

In consideration of that hearing and the statements made by the Defendant under

25 oath on the record and in the presence of counsel, and the remarks of the Assistant 26 United States Attorney and of counsel for Defendant, 27 28

(A) I FIND as follows:

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(1) that the Defendant understands the nature of the charge against him to

2 which the plea is offered; 3

(2) that the Defendant understands his right to trial by jury, to persist in his

4 plea of not guilty, to the assistance of counsel at trial, to confront and cross-examine 5 adverse witnesses, and his right against compelled self-incrimination; 6

(3) that the Defendant understands what the maximum possible sentence is,

7 including the effect of the supervised release term, and defendant understands that the 8 sentencing guidelines are only advisory and that the court is free to exercise its 9 discretion to impose any reasonable sentence allowed by law; 10

(4)

that the plea of Guilty by the Defendant has been knowingly and

11 voluntarily made and is not the result of force or threats or of promises apart from the 12 plea agreement between the parties; 13 14

(5) that the Defendant is competent to plead guilty; (6) that the Defendant understands that his answers may later be used

15 against him in a prosecution for perjury or false statement; 16

(7) that the Defendant understands that by pleading guilty he waives the right

17 to a trial, the right to a direct appeal, and the right to a collateral attack; and, 18 19

(8) that there is a factual basis for the Defendant's plea; and further, (B) I RECOMMEND that the Court accept the plea agreement and the

20 Defendant's plea of guilty to the Information. 21 22

ORDER IT IS ORDERED that any objection(s) to the guilty plea proceedings and any

23 request(s) for supplementation of those proceedings be made by the parties in writing 24 and shall be specific as to the objection(s) or request(s) made. All objections or requests 25 for supplementation shall be filed within ten (10) days of the date of service of a copy of 26 these findings unless extended by an Order of the assigned district judge. 27

IT IS FURTHER ORDERED that any letters, documents, or other matters

28 defendant would like the sentencing judge to consider before sentencing (including the

1 English translation of any writings not in English) must be submitted in paper form with 2 the original to the probation office and copies to the sentencing judge and opposing 3 counsel no later than seven (7) business days prior to the sentencing date or they may 4 be deemed untimely by the sentencing judge and not considered. (ECM Manuel, II § N 5 at 19) 6

IT IS FURTHER ORDERED that any motions for upward or downward departures

7 or any sentencing memoranda must be filed at least seven (7) business days prior to the 8 sentencing date. Responses are due three (3) business days prior to the sentencing 9 date. Any motion to continue the sentencing date shall be filed at least three (3) 10 business days prior to the sentencing date. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Copies to: AUSA, Defense Counsel 27 28
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DATED this 21st day of March, 2008.