Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 771

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M o t i o n Picture Association of America v. CrystalTech Web Hosting Inc. Do c. 771 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICE OF NEIL C. LABARGE N E IL C. LABARGE S t a te Bar No. 13920 O n e Renaissance Square T w o N. Central Ave., Ste. 735 P h o e n ix , AZ 85004 ( 6 0 2 ) 252-4090 F A X (602) 252-2111 n la b a r g e @ c o x . n e t A t to r n e y for Defendant Orozco-Cortes U N I T E D STATES DISTRICT COURT D IS T R IC T OF ARIZONA U n ite d States of America, P l a in tif f , v. H u g o Orozco-Cortes, a .k .a .: Hugo Orozco-Cortez a .k .a : Hugo Orosco-Cortez a .k .a .: Hugo Orozco D e f e n d a n t. T h e above-named defendant, HUGO OROZCO-CORTES, who is accused of Reentry After D e p o rta tio n in violation of 8 U.S.C. 1326, being advised of the nature of the charges and o f his rights in this matter, hereby moves this Court, pursuant to 18 U.S.C. 3161(h)(8)(A), f o r a single 30-day extension of the United States' deadline to indict this matter, under the S p e e d y Trial Act. 18 U.S.C. 3161. The United States, for the reasons set forth below, joins in this motion. The government has made a plea offer in this matter, which requires the defendant to w a iv e specific rights and hearings in exchange for a sentence substantially below the se n te n c in g guidelines range, that will be withdrawn if it is not timely accepted before this M A G IS T R A T E NO. 09-6540M J o i nt Motion for Extension of Time to In d ic t (R e e n try After Deportation) D e c 15, 2009 - 1159 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m a tter is indicted in compliance with the Speedy Trial Act. 1/ The defendant requests the U n ite d States' deadline to indict be extended for several reasons. First, the defendant needs a d d itio n a l time to review discovery and to investigate potential defenses, which will dictate w h e th e r the defendant accepts the plea agreement. Second, the defendant is housed at CCAC A D C in Florence, AZ which is located approximately 64 miles from Phoenix, AZ. This d i sta n c e makes it difficult to schedule a visit with defendants immediately, as counsel must re s e r v e at least half a day, and often a full day, to visit CCA-CADC including travel time. For the foregoing reasons, the defendant asserts that the ends of justice will be served by e x te n d in g the United States' deadline to indict by 30 days and that the ends of justice " o u tw e ig h the best interest of the public and the defendant in a speedy trial." 18 U.S.C. 3161(h)(8)(A). The United States joins in this motion for a 30-day extension of time to indict for the f o llo w in g reasons. Public records on file with the Administrative Office for the United States C o u rts reveal that, for each of the last three years, immigration case filings have exceeded 2 ,0 0 0 defendants in the District of Arizona. 2/ In fact, during each of those time periods, the im m ig ra tio n filings in Arizona were the highest of any district in the entire Ninth Circuit. D u e to the high number of cases and limited resources, particularly in the areas of pretrial d e te n tio n space and availability of judicial officers to accommodate the numerous hearings r e q u ir e d in a normal criminal case, the United States Attorney has developed an early d isp o sitio n program for immigration cases, authorized by the Attorney General pursuant to th e PROTECT ACT of 2003. The early disposition program for immigration cases is d e sig n e d to: (1) reduce the number of hearings required in order to dispose of a criminal case; ( 2 ) avoid having more cases added to the court's trial calendar than the judicial system can 1 Should the defendant be indicted and the plea offer withdrawn, any subsequent plea o f f e r made by the United States will be less favorable to the defendant. For the twelve month period ending December 31, 2005, the Administrative Office reports that 2,254 defendants were charged with immigration offenses in Arizona. For the same period ending December 31, 2006, the Administrative Office reports that 2,101 defendants were charged with immigration offenses in Arizona. Finally, for the twelve month period ending December 31, 2007, the numbers increased, with 2,354 defendants being charged with immigration offenses in Arizona. D e c 15, 2009 - 1159 2 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e f f e c t iv e l y handle, while still discharging the government's duty to prosecute federal crimes; (3 ) ameliorate the shortage of pre-trial detention space by reducing the amount of time b e tw e e n complaint and sentencing; and (4) avoid adding significant additional time to the g ran d jury calendar to seek indictments in immigration cases, which in turn reduces court c o s ts . T o accomplish the goals of the early disposition program, the United States Attorney's O f f ic e provides discovery at the outset of the case to defendants charged with violations of 8 U.S.C. 1326. Thereafter, an early plea agreement is offered, pursuant to U .S .S .G . 5K3.1, that provides for a sentence substantially below the sentencing guidelines ra n g e , if the defendant enters a guilty plea and agrees to waive all motions, defenses, probable c a u se determinations, and objections which the defendant could assert to the information or i n d ic tm e n t, or to the court's entry of judgment against the defendant and imposition of s e n te n c e upon the defendant, provided that the sentence is consistent with the agreement. The d e f en d a n t also agrees to waive any right to appeal the court's entry of judgment, any right to appeal the imposition of sentence upon the defendant under Title 18, United States Code, 3742, and any right to collaterally attack the defendant's conviction and sentence under T itle 28, United States Code, 2255, or any other collateral attack. However, as discussed above, the plea offer expires upon the defendant being indicted. O c c as io n a lly the defendant needs additional time, prior to the matter being indicted and the p le a expiring, to investigate the case and to make an informed decision regarding the plea o f f e r and the associated waiver of rights. The extension of time is particularly necessary in im m ig ra tio n cases because most defendants charged with immigration crimes require the a ss is ta n c e of an interpreter when speaking to defense counsel and analyzing the merits or d e f ic ie n c ie s of the case. Although it may appear contradictory to an early disposition program to allow a d e f en d a n t an extension of time to investigate the case, the United States Attorney has found th a t an extension granted for the defendant's benefit actually results in the case being resolved e a r lie r , with fewer filings and fewer hearings. D e c 15, 2009 - 1159 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / / / A proposed order is submitted herewith for the court's consideration. E x c lu d a b le delay under 18 U.S.C. 3161(h)(8) would be found to commence on J a n u a r y 13, 2010 for a total of 30 days. s/ NEIL C. LABARGE NEIL C.LABARGE C o u n se l for Defendant. s/ Leta Hollon Leta Hollon A s s is ta n t U.S. Attorney D a te : December 15, 2009 D e c 15, 2009 - 1159 4

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