Petition for Writ of Certiorari — James Christopher Castle, Petitioner v. United States District Court for the Eastern District of California

Supreme Court briefJun 2, 2021

Ask Donna

What actually matters in this document.

Text

Case 2:15-cr-00190-MCE Document 677 Filed 04/23/21 Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In re: JAMES CHRISTOPHER CASTLE;

REGINALD LAMONT THOMAS.

No.

JAMES CHRISTOPHER CASTLE;

REGINALD LAMONT THOMAS,

D.C. Nos.

2:15- cr-00190-MCE-2

2:20-cr-00012-MCE

Eastern District of California,

Sacramento

21-70683

Petitioners,

ORDER

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

CALIFORNIA, SACRAMENTO,

Respondent.

Before: CLIFTON, MILLER, and BRESS, Circuit Judges.

Petitioners have not demonstrated that this case warrants the intervention of

this court by means of the extraordinary remedy of mandamus. See Bauman v.

U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied.

Petitioners’ motion to proceed in forma pauperis (Docket Entry No. 3) is

denied as moot.

No further filings will be accepted in this closed case.

DENIED.

-Z3-

Page 1 of 1

§ 3174. Judicial emergency and implementation

£(a)^ln the event that any district court is unable to comply with the time limits set forth in section 3161(c) [18

USCS § 3161(c)] due to the status of Its court calendars, the chief Judge, where the existing resources are being

efficiently utilized, may, after seeking the recommendations of the planning group, apply to the judicial council of

evaluate the capabilities of the district, the availability of visiting judges from within and without the circuit, and

make any recommendations It deems appropriate to alleviate calendar congestion resulting fro.m the lack of

resources.

fbjlif the judicial council of the circuit finds that no remedy for such congestion is reasonably available, such

couitefl may, upon application by the chief Judge of a district, grant a suspension of the time limits in section 3161

earTpjsrlodt During such pertod'of suspension, !

indictments..or I nformations^are^led durlngfsuc

MWSSbs § 3161(b)], shall not be reduced, nor shall

limits I rorn arrest to indictment, set forth In secll

the sanctions set forth In section 3162 [18 USCS § 3162] be suspended; but such time limits from Indictment to

trial shall not be increased to exceed one hundred and eighty days. The time limits for the trial of cases of

detained persons who are being detained solely because they are awaiting trial shall not be affected by the

provisions of this section.

group convened In the district, that the district Is prepared to Implement the provisions of section 3162 [18 USCS

§ 3162] In their entirety, he may apply to the judicial council of the circuit in which the district Is located to

Implement such provisions. Such application shall show the degree of compliance in the district with the time

limits set forth in subsections (b) and (c) of section 3161 [18 USCS § 3161] during the twelve-calendar-month

period preceding the date of such application and shall contain a proposed order and schedule for such

implementation, which Includes the date on which the provisions of section 3162 [18 USCS § 3162) are to

become effective In the district, the effect such Implementation will have upon such district's practices and

procedures, and provision for adequate notice to ail interested parties.

(2) After review of any such application, the judicial council of the circuit shall enter an order Implementing

the provisions of section 3162 [18 USCS § 3162] In their entirety In the district making application, or shall return

such application to the chief judge of such district, together with an explanation setting forth such council's

reasons for i efuslng to enter such order.

(d) (1) Tpe approval of any application made pursuant to subsection (a) or (o) by a Judicial council of a circuit

shall be reported within ten days to the Director of the Administrative Office of the United States Courts, together

with a copy of the application, a written report setting forth In sufficient detail the reasons for granting such

application, and, In the case of an application made pursuant to subsection (a), a proposal for alleviating

congestion In the district.

(2) The Director of the Administrative Office of the United States Courts shall not later than ten days after

receipt transmit such report to the Congress and to the Judicial Conference of the United States. The judicial

council of the circuit shall not grant a suspension to any district within six months following the expiration of a prior

suspension without the consent of the Congress by Act of Congress. The limitation on granting a suspension

made by this paragraph shall not apply with respect to any judicial district In which the prior suspension Is In effect

on the date of the enactment of the Speedy Trial Act Amendments Act of 1979 (enacted Aug. 2,1979],

*f(e)\ the chief |udge of the district court concludes that the need for suspension of time limits in such district

exce

untieftlhl s section

’ __ 1_.....................

Within ten days of entry of such order, the chief judge shall apply to the judicial council of the.,circuit, for a

suspension pursuant to subsection (a).

HISTORY:

Added Jan. 3, 1975, P. L. 93-619, Title 1, § 101, 88 Stat. 2085; Aug. 2, 1979, P. L. 96-43, § 10, 93 Stat.

331

file://C:\Program Files\LexisNexis\LNCD4xKiosk\Print\kiosk5-15d95444.html

2/24/2021

Page 2 of 47

Page 1 of 47

section 3162 [18 USCS § 3162] apply to this subsection.

§ 3161. Time limits and exclusions

(a) In any case involving a defendant charged with an offense, the appropriate judicial officer, at the

earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for

the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term

trial calendar at a place within the judicial district, so as to assure a speedy trial.

(b) Any information or indictment charging an individual with the commission of an offense shall be

filed within thirty days from the date on which such individual was arrested or served with a summons

in connection with such charges. If an individual has been charged with a felony in a district in which no

grand jury has been in session during such thirty-day period, the period of time for filing of the

indictment shall be extended an additional thirty days.

Kihforrimtion

or indictment with the commission of an offense shall commence within seventy.days from

the filing date (and making public! of the information or indictment, or framjhe_date.thejdefendant has

aERMredftee^XwSiSftiSiSiSAsIS^aiK^^SpWgejl^pending, whichever daie last

occurs. If a defendant consents in writing to be tried before a magistrate [United States magistrate judge]

on a complaint, the trial shall commence within seventy days from the date of such consent.

(2) Unless the defendant consents in writing to the contrary, the trial shall not commence less than

(f) Notwithstanding the provisions of subsection (b) of this section, for the first twelve-calendarmonth period following the effective date of this section as set forth in section 3163(a) of this chapter

[18 USCS § 3163] [,] the time limit imposed with respect to the period between arrest and indictment by

subsection (b) of this section shall be sixty days, for the second such twelve-month period such time

limit shall be forty-five days and for the third such period such time limit shall be thirty-five days.

(g) Notwithstanding the provisions of subsection (c) of this section, for the first twelve-calendarmonth period following the effective date of this section as set forth in section 3163(b) of this chapter

[18 USCS § 3163(b)], the time limit with respect to the period between arraignment and trial imposed

by subsection (c) of this section shall be one hundred and eighty days, for the second such twelve-month

period such time limit shall be one hundred and twenty days, and for the third such period such time

■"Tifnit-wqth respect to the period between arraignment and trial shall be eighty days.

[

(h) The following periods of delay shall be excluded in computing the time within which an

''x information or an indictment must be filed, or in computing the time within which the trial of any such

Oftenee'rfiust commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but

not limited to—

(A) delay resulting from any proceeding, including any examinations, to determine the mental

competency or physical capacity of the defendant;

(B) delay resulting from trial with respect to other charges against the defendant;

counsel and, electsjftp_r.QCeeAm.Q-Se.

(2) If the defendant is to be tried upon an indictment or information dismissed by a trial court and

reinstated following an appeal, the trial shall commence within seventy days from the date the action

occasioning the trial becomes final, except that the court retrying the case may extend the period for trial

not to exceed one hundred and eighty days from the date the action occasioning the trial becomes final if

the unavailability of witnesses or other factors resulting from the passage of time shall make trial within

seventy days impractical. The periods of delay enumerated in section 3161(h) [18 USCS § 3161(h)] are

excluded in computing the time limitations specified in this section. The sanctions of section 3162 [18

USCS § 3162] apply to this subsection.

(e) If the defendant is to be tried again following a declaration by the trial judge of a mistrial or

following an order of such judge for a new trial, the trial shall commence within seventy days from the

date the action occasioning the retrial becomes final. If the defendant is to be tried again following an

appeal or a collateral attack, the trial shall commence within seventy days from the date the action

occasioning the retrial becomes final, except that the court retrying the case may extend the period for

retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial

becomes final if unavailability of witnesses or other factors resulting from passage of time shall make

trial within seventy days impractical. The periods of delay enumerated in section 3161(h) [18 USCS §

3161(h)] are excluded in computing the time limitations specified in this section. The sanctions of

file://C:\Program Files\LexisNexis\LNCD4x Kiosk\Print\KIOSK3-87846314.html

9/10/2020

(d) (1) If any indictment or information is dismissed upon motion of the defendant, or any charge

contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a

complaint is filed against such defendant or individual charging him with the same offense or an offense

based on the same conduct or arising from the same criminal episode, or an information or indictment is

filed charging such defendant with the same offense or an offense based on the same conduct or arising

from the same criminal episode, the provisions of subsections (b) and (c) of this section shall be

applicable with respect to such subsequent complaint, indictment, or information, as the case may be.

(D) delay resulting from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such motion;

(E) delay resulting from any proceeding relating to the transfer of a case or the removal of any

defendant from another district under the Federal Rules of Criminal Procedure;

(F) delay resulting from transportation of any defendant from another district, or to and from

places of examination or hospitalization, except that any time consumed in excess of ten days from the

date an order of removal or an order directing such transportation, and the defendant’s arrival at the

destination shall be presumed to be unreasonable;

(G) delay resulting from consideration by the court of a proposed plea agreement to be entered

into by the defendant and the attorney for the Government; and

(H) delay reasonably attributable to any period, not to exceed thirty days, during which any

proceeding concerning the defendant is actually under advisement by the court.

(2) Any period of delay during which prosecution is deferred by the attorney for the Government

pursuant to written agreement with the defendant, with the approval of the court, for the purpose of

allowing the defendant to demonstrate his good conduct.

(3) (A) Any period of delay resulting from the absence or unavailability of the defendant or an

essential witness.

(B) For purposes of subparagraph (A) of this paragraph, a defendant or an essential witness shall

be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid

apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of

file://C:\Program Files\LexisNexis\LNCD4x Kiosk\Print\K10SK3-87846314.html

9/10/2020

’

C.nn^Mi »"i,)nr> rtf 4k#. Un'4ftflL Slctfea.

OIK

* !£n ft jj tff\fn,n&! gfto&feU^'or^. the Ch.lUi.tecL SMI ..tojoy

^ <*/

HHhe. nak^ Vh> a..

lti.ru af 4he.

fnc.

&nnf piibl? £. Tp>

- ^ '4,' f

. Qu &r» ity>D(Aril flu

Sfocfie Anal cLstrict_kjb

‘

Css mm itbo /L. t »ik, n>k Aj sin eb , s b a /s ba v/f,

■aye

kM&Aaln4£

pfe\Aa?LsIu

anA

I mi it. and, "ts be. *nSar*rr>fldL fff

;

•flv>. Mmse, s4 Ike

^\.XVV. tka t.n4rw»j£&AJg>

^/*DC^LSS -for 6bfgun>^:.3

fm , A^s&buitfu erf

> tb be CoMreAd,

Him ; fg ba^e^

----------^

, Arid. t®hMA

us tfroeSj-Sag*!—bLs f IV- -,,f". -j——---------------4>r b/.S

----------------------------

-r

APPFNhlk

Soowel v/ore.

!Wni

qT'C/.wSfc

THOMSON REUTERS

WFSTI AW FDfjF

All content

Search Tips

Advanced

U.S. SCT,...

Enter terms, citations,

Sign out

United States v. Henning

United States District Court, C.D. California, Southern Division. • January 19,2021 « — F.Supp.3d— • 2021WL222355 (Approx. 31 pages)

Document

Filings (23)

Negative Treatment (0)

History (23)

Citing References (1)

Table of Authorities

Fullscreen

2021WL 222355

Only the Westlaw citation is currently available.

United States District Court, C.D. California, Southern Division.

UNITED STATES of America, Plaintiff,

Justin Marques ^HENNING, Defendant.

Case No.: SACR16-00029-CJC-7

Signed 01/19/2021

Synopsis

Background: Following grant of new trial following conviction on robbery charges, defendant filed motion to dismiss

alleging that indefinite suspension of jury trials during COVID-19 pandemic violated Sixth Amendment and Speedy

Trial Act.

Holdings: The District Court, Cormac J. Carney, J., held that:

1 “ends ofjustjce” expegtipn setting forth time periods that could be excluded from the 70-day deadline of Act (^id^not^

2 exception under Act applicable when holding earlier trial was impractical did not apply; and

3 dismissal with prejudice was appropriate remedy.

Motion granted.

Procedural Posture(s): Pre-Trial Hearing Motion.

West Headnotes (28)

Attorneys and Law Firms

Jeffrey M. Chemerinsky, Julia L. Reese, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, Scott D.

Tenley, AUSA - Office of US Attorney Santa Ana Branch Office, Santa Ana, CA, for Plaintiff.

Jennifer Leigh Williams, Summa LLP, Reuven L. Cohen, Cohen Williams LLP, Los Angeles, CA, for Defendant Darrell

Cedric Dent.

Gary Paul Burcham, Burcham and Zugman, San Diego, CA, Matthew Powell Fletcher, Law Office of Matthew P Fletcher,

Long Beach, CA, for Defendant Robert Wesley Johnson.

James R. Tedford, II, Tedford and Associates, Pasadena, CA, for Defendant Justin Marques Henning.

nawiH I Kalnwani/Hoc nawirl I D tfal/wanirtac ADI C /“hinrt CL fr\r Dafanrlant Cvan Wu/an C/rvl+

AffeMDIK 'E'l

THOMSON REUTERS

WFFTI AW FDCF

All content

U.S. SCT,...

Enter terms, citations,

Search Tips

Advanced

Sign out

United States v. Henning

United States District Co^^COC^lifomia^i^em Division. pg^'^^gp^g^fg^g^g^fJ^c^jg^s^cj^perationSOfTl'ief Court,” the most

necessa

Documei5%senfSWria)on-^€§?ttHM5^lftftfl(Pfels-it^awMisp(fiii,aWbRffi9@,iWf^lV. Id. aF&® of Authorities

Fullscreen

Though 10 months have passed since the Central District suspended jury trials, it remains completely uncertain when

the Central District will resume them.3 The Chief Judge has stated that "decisions on resuming operations are being

made in light of state government orders.” 4 Those orders include California Governor Gayinijewsom's.fourjier, colorcoded system. That system does not apply to the stateJudiciarv.i]or_doesJLrestrJct_essential.businesses-in sectors

v/-

including healthcare, emergency services, food, energy, transportation, and communications-from operating.5

Indeed, employees in those sectors have been displaying extraordinary courage and dedication by going to work every

day during the pandemic, knowing the risks, while protecting themselves and others as best they can. They refuse to

let the coronavirus prevent them from providing vital services and supplying essential goods to the public.

The Governor's tier system applies only to non-essentlalbusinesses. That system outlines when and how nonessential businesses may operate during the pandemic by ranking each California county in one of fourtiers “based on

its test positivity and adjusted case rate.” In tier 1, also known as purple or widespread, many non-essential indoor

businesses are closed. In tier 2, also known as red or substantial, some non-essential indoor businesses are closed. In

tier 3, also known as orange or moderate, some non-essential indoor businesses are open with modifications. In tier 4,

also known as yellow or minimal, most non-essential indoor businesses are open with modifications. The Chief Judge

has stated that the Central District will start summoning jurors in Orange County once the county reaches tier 3, and

that jury trials will begin approximately 7 weeks later because "that's how long it takes to summon jurors.” (Article at

l.)6

[*J Throughoutthe pandemic,-thegovernment has supported the Central District's indefinite suspension of jury trials.

This Court, however, has vehemently opposed it, believingthe indefinite suspension is unconstitutional and in

/Violation of the Speedy Trial Act. The Court has five times asked the .Chief Judge to summon jurorsjoijurytriab in

jy/

}

cases where defendants refuse to waive further time under the Speedy Trial Act. Alt of the Court s requests—includin

its request in this case-haye.been.denied, 7

MftJdenning was one of 12 defendants charged with committingoyttemptingto cdrrimitnumerous jewelry store

robberiesTmost of which were armed, in Orange and Los Angeles counties. In 2017, the Court held a contentious 4week trial for Mr. Henning and 5 other defendants. (See Dkt. 537 [Third Superseding Indictment].) On September 22,

2017, the jury found Mr. Henning guilty of conspiracy to interfere with commerce by robbery, Hobbs Act robbery at Ben

Bridge Jeweler in the Del Amo Mall in Torrance, California (“the Del Amo Robbery”), and brandishing a firearm in

furtherance of a crime of violence during the Del Amo Robbery. (Dkt. 1009 [Verdict Form].) The jury found Mr. Henning

not guilty of charges associated with robberies at three other jewelry stores: Rolex Boutique Geary’s in Los Angeles,

Manya Jewelry in Woodland Hills, and Westime in West Hollywood. (Id.)8

Mr. Henning moved to set aside the jury's guilty verdict, arguing that there was insufficient evidence to support it The

Court concluded that the government’s evidentiary showing-that Mr. Henning was present at two planning meetings

for the Del Amo robbery, present in the general vicinity of the robbery, affiliated with those involved in that robbery,

and knewthatthe robbery would occur—was insufficient to prove guilt beyond a reasonable doubt. (Dkt 1126.)

Consequently, the Court set aside the jury's guilty verdict and entered a judgment of acquittal on all three counts. (Id.)

In the alternative, the Court granted Mr. Henning a new trial. (Id.) On November 21,2019, the Ninth Circuit reversed the

judgment of acquittal but affirmed the grant of a new trial. (Dkt. 1571.) The Ninth Circuit's mandate issued about a year

later. (See Dkt. 1639.)

3 On remand, Mr. Henning argued that his retrial must begin within 70 days of the date that the mandate issued, and

indicated that he is not willing to waive additional time under the Speedy Trial Act. (See Dkt. 1646 at 2.) The

government, on the other hand, contended that Mr. Henning's retrial must begin not within 70 days of the mandate,

...............•........................................................................» .............................

*•.........................................J ...

£-3

......... -.........

Tn^SiTAWFnr.F

All content

••^51 87 S Ct. 988,18 LEd.2d 1 (IfjpT). Indeed,

Search Tips

Advanced

U.S. SCT,...

Enter terms, citations,

Sign out

. A

V<Jo$tar* ^

... ....»«>■'■»* j ^Wi/ United States 644F.2d 764,

.......

rate

acco

from, a

rSSftnhe right to a spee

Caparella, 716 F.2d 976,981 (2d Cir. 1983) (“It mu

rotection it accords to society’s interest in bringing

to preserve the rights of defendants. Just as significant is the P

criminals to justice promptly.).

is 14 is “The guaranty of trial by jury contained in the Constitution

state of peace; and is equally binding upon rules and

at 3. The constitutionalj^ad^l^jagi^SJg!^SS&

505,78 L.Ed. 940 (1934) (describingthe holding in Milligan), o

was intended for a state of war as well as a

drcumstanCes

.” Milligan, 71 U.S.

York, 291 U.S. 502,545,54 S.Ct.

^ v!giiant to protect and enforce it.

Sefi Roman Cothoiic Diocese, 141S.

. ,

^ „entassertsth^

Butnothing in the Speedy Trial Act excuses the Central 0istnft^s.-ind. ^^^n^ -~^^^_^ pub. L

Trial Act in 1974

Furlow, 644 F.2d at 768-69 (describingthe Speedy Trial

p f

33.5^9. see

The Act

indict.ment-orth?^dant's initial court

■v

3161'."fliMlMS)- The specific category °f ^

action outweigh the best interest of the

u. ...me when a judge finds that *

public and the defendant in a speedy trial.

fcr

eK-ftwr «-«* * MTO”F-M3Sf

~ K „ C1 (hW7HAl Congress intended th^ejidjj^c^icg^rovismn

legislative history). To

•»»«¥—,

courts must consider in

... may not be invoked in such a tjgjp'

25 f.3d 824,329 (9th Cir. 1994) (explainingthm “me^ndsof ]ushce^exclusion..

----------- 48E*.

,oci,oumven,the,rnrelrn,te.ronsscto |||^rBiit|>fce-,»

continuancejolhegroceedingwoui

§ 3161(h)(7)(B)(i).

miscarriage of justice.»18U.SC.

(M 0

£-5"

'S'h-Kh k

JSSfiMVFnnF

All content

U.S.SCT,...

Enter terms, citations,

United States v. Henning

Search Tips

Advanced

Sign out

19 2021 . _F.suop.3d- • WSiTaTtobe^uarantined.14 But the

Fullscreen

Docume<3ran

Fi" Quite frankly, the Court is at a loss to un

District's indefinite suspension of jury trials whenthe^

had the Central District not pro hibited it. From June 24,

courthouse where Mr. Henning's retrial would **

^ ^ ^ ^ people Qn it_regulariy convened in person ,n

2020 through December 9,2020, the grand jury

seeks t0 have his jury trial. The grand jury heard

the very Orange County federal court ouse in w

i dictments in that time with no coronavirus

testimony from witnesses deliberated together, andretu™^ contends that it was impossible to conduct a jury trial

outbreak. (See Ex. 1.) Nevertheless, the government someni

f\a*.

M.-ivS

during all of these months in the exact same courthouse.

mment continues to citeth^Judgrt

The

gove

eecep.lonsnouidbe.poiied.oe^dS^S^^t^^^^SXHi#******^

does not say that conducting a jury ■trial x> <mp<*

^ ^ peop(e continue to be infected, hospitalized, and-

jujyjrials unsafe. The General

■ trials wUl likely put people at an increased risk of

tragically—die due to the coronavirus, and th^^hold ”® J V^

^ourt 0f course, acknowledges the public

contracting the coronavirus. C.D. Cal. General Order No.

^ ^ & a * 68

health risk the coronavirus poses to people. See oma

public health experts,_andwe should respect t e ju g ^

area.”). The Court also is acutely aware of the stab k

—tragically—die due to the coronavirus every day al

considerations. Instead, to protect t|leJunda|n®|'

defendant's objection if holding the trial is impossible. And

Particularly troubling, the General OrdePs

des^edTo^terrnPiel'ocal COV1D-19

District will determine when to resume jury trials using g

V”

^ wjth special expertise and responsibility in this

e continue t0 be infected, hospitalized, and

Butthe Constitution does not turn on these

^ guaranteed by the Sixth Amendment, the

spreadj and community restrictions.” C.D. Cal.

exposure risks based on 14-day trends of

repeatedly admonished that “an ends of justice exclusion must

General Order 20-09 *12. However the Ninth Circuit h J J ^ ^ u49> u54 {9th cir. 2000) (quoting Lloyd,

be'specifically limited in time.' ” © United States v.Rm,r ^ ^

would be unacceptable). In keeping

125 F.3d at 1268); see Furlow, 644 F.2d at 76 (no ing

^ Speedy Triai Act due to previous natural disasters

with this requirement, the periods of time cou exc

days). Correa, 182 F. Supp. 2d at 329 (20

and other exigencieswerebriefanddggyee^ ^

months without jury trials, the Central District's

days)!Hcb™n,™F.2d.«2*P^

suspension of‘ury

implications of a

unacceptably uncertain end date.

g speedy trial—do not make sufficiently cartain what is otherwise an

... FFMppsn.o,,an-e<»l«fiua«cj^dus^^

th0 particular case as offhetimeth^^

justice continuance was nrtafficwn^j^^w ^

cS«^*7piFTcular case, instead check g

the actual need for a

on pre.printed forms without making findings on

ting blanket continuances”). By its very nature, the

Back;to top

THOMSON R6UTERS

Wpqtl AW Fnr.F

All content

United States v. Henning

U.S. SCT, ...

Enter terms, citations,

Sign out

Search Tips

Advanced

, JlnB,19iM .-mw*-.- S^feaentfalsmtcesin OrangeCounty

united state^«^ jj^j^^ppeciseiy

Orange (^oimty SuP^^r

Fullscreen

the ^eehW>W^"ge c°unty

Docume^rfave

............ "superior

HM»«*HIWn— migS!***?TL>nd« in oranis*count,MH

the Socia

hiave continu

Hospitals and me

to work. Grocery

employees have

closed for jury trials.

,,i,l,„otln,Eaalalfortt»OtonE..Count,Sup«norC»^

rMr,mp,OJ««st„oontinueto«o*.*iono<

S&B&r&SSi'* * rr^TJU Sleniflcunt attention and caution w«l havo to be devoted

trial. There will be starts and stops, ere

.Butnoneofthosechallengesjust,^ .

to safety and protection

jury

j ’

Centra( District’s indefinite suspe nsion of a

thispandemic.it annot become a

;

70(Gorsuch,J„concurring).21

sabbatical.” Roman Catholic Diocese,

==s=s:“s:»s~ij;~~£szz?

mlbdngsa motionto dartathe-etmift^ M u65 , ^Htowineanappealdoenotcotnmenc.

I (Medlnoi 524 F.3d 974,980 (9th Cir.

*^eindictment must be disttiissed either with or without

'within seventy days, not counting excludable do l'*

^ (e<pUi„,„e that if Congress stmt time

. “in determining

27 fn The only question remainingiswhether^m,^

others, each of the following

whether to dismiss the case with or without prejudice, the ^°^mstances 0f the case which led to the

factors- 111 the seriousness of the offense; [2] the facts an

"ctofa.prosecu—

administration of justice. 18 U.S.C.

3162(a)(2).22 A court's decision of whrtherto^ism^^^ ^ p

^ 831.

_ ighsinfavor of a dismissal without prejudice. There is

app lication” of these factors to ep

Admittedly, the first factor-the seriousness of the offense_W

jngtocomnlitand participatingin armed robbenes,

nodoubtthatthecrimesofwhichMr.Henningisac^us

^ ^^52,^at986-87(explain.ngtha

including by hrandishing a firearm himself-are ext

v. stewart, 390 F. App’x 657,658 (9th Or.

"Tru«tu”»n,id«.

does not outweigh the ot er wo

, The Central District decided to

*fc*i—• —~:rr,X«I,.OTdnu,tha.po.,c,:tth»S

Mostimpo

trialsduringthis p.nd™* f“d

’

ial „ 0,ang„ Count, rs powbil H

indefinitely suspend jury

deits decisions knowmgthat Jsablett^conduct jury trials. it made its decisions

time and again decided to do so . Itma

County Superior

de its decisions knowingthatthe Orange

(r~

jjfjm***

©>

All content

U.S. SCT, ...

Enter terms, citations,

United States v.

♦ January 19,2021 •

united slatespD^ifcTnformation office

— F.SuppJd —

History (23)

Sign out

Search Tips

Advanced

. 2021WL 222355 (Approx. 31 pages)

Citing References (1)

Fullscreen

Table of Authorities

PlO@occourts.org

elation Week October 26-30,2020

Oct. 20,2020

ur county's citizens who answered

ciation Week from

October 26 to October 30.

f*15 ‘‘The fact that we held 100 jury trials since

the great response of our citizens

j^^g^'g^tegrai part of our justicejystem,

" he added.

ss to Justice Initiative,” a program designed to

mbers of the public who enter

Is in May, kicking off the “Safe Acce

The Court resumed criminal tria

utions in order to proteetjurors and all me

strict enforcement of safety preca

assure

es,” said

Court facilities.

------------------------- ■—

dneSs fromthedeputiesattheentrancetothe

in the courthouse showed kin d

’

if they were doing it for the first

Greenbaum added.

-It wasn't justthe judges. Everyone

nd explained simple directions as

workers, who smiled, cleaned down the courtroom

time,” she stressed.

Judge Thomas Delaney, who leads the “Safe Access to^Ju^dceJnitiative/^notedtheCourtscomm^^

Meanwhile, the Court is cap

italizingon the

t „ff,dencieS that will allow the Court to reduce the

to serve.

David Yamasaki. “We will be able to

j^caUedto serve no more than once every two years,

who serves in Orange County can exp

As the p

con,

the Court recently implemented a

rding physical distancing,

choose to skip

seat directly in the jury assembly room, - obile device, they can self-check-in

the check-in line altogether and have a

rt network for jurors on their m

mberthat is printed on their

“By accessing a dedicated Cou

ed to use is their 9-digit juror ID nu

Hernandez, adding

ss to the free WiFi. All they ne

for service and obtain acce

It's

simple

that.

summons

statewide participated in jury service .Last year:

,n pre-COVID times, millions of Californians

THOMSON REUTERS

WF«rn aw Fnr.F

All content

U.S. SCT, ...

Enter terms, citations,

Search Tips

Advanced

Sign out

United States v. Henning

United States

eRi^ie CouWKqM^ ip'i'n^lilgourthouse’S.ore^ifr. ttlngsb^Iciuld attend the hearing on his

Fullscreen

Document

The General Order stated that to determine when jury trials will resume, the Chief Judge will use "gating criteria” from the

Administrative Office of the United States Courts “designed to determine local COVID-19 exposure risks based on 14-day trends of

facility exposure, community spread, and community restrictions.” Id. «l 2. Administrative Office of the U.S. Courts, Federal Judiciary

COVID-19 Recovery Guidelines (Apr. 24,2020), available at https://www.fedbar.org/wp-content/uploads/2020/04/Federal-Judiciary-

COVID-19-Recovery-Guidelines.pdf.

Daily Journal, Central District could soon begin callingjurors in Orange County (Sept. 23,2020), available at

https://www.dailyiournal.com/articles/359682-cental-district-could-soon-begin-calling-jurors-in-orange-county (the "Article”).

Blueprint for a Safer Economy, available at https://covidl9.ca.gov/safer-economy/.

Though Orange County was in tier 2 for months and seemed dose to reaching tier 3, it has since moved back to tier 1. On December 3,

2020, Governor Newsom issued an additional Regional Stay at Home Order requiring “(a]ll individuals living in the Region [to] stay

home or at their place of residence except as necessary to conduct activities associated with the operation, maintenance, or usage of

critical infrastructure, as required by law, or as specifically permitted in th[e] order.”

(Dkt. 1656); United States v. Juan Carlos Reams, Case No. 2:19-cr-00724-CJC, Dkt 58 (Aug. 19,2020); United States v. Jeffrey Olsen,

Case. No. 8:17-cr-00076-CJC, Dkt. 68 (Sept. 3,2020); United States v. Steven Nicholson, Case No. 2:16-cr-00470-CJC-l, Dkt 155 (Nov. 13,

2020); United States v. Ronald Bernard Ware, Case No.8:20-cr-00110-CJC, Dkt. 38 (Dec. 3,2020).

Several of the other defendants were found guilty of the charges associated with those robberies.

In its opposition, the government argues for the first time that 21 days should be excluded in computing the time within which Mr.

Henning's retrial must commence. Specifically, the government contends that the days between when it filed its motion to continue

(December 7,2020) and the Court’s hearing and decision on that motion (December 17,2020) are excludable, and that the days

between when Mr. Henning filed his motion to dismiss (January 8,2021) and the Court's hearing and decision on it (January 19,2021)

are excludable. (Dkt. 1691 at,7-3^-The-gWemment is wrong. The Speedy Trial Act makes excludable “delay resulting from any pretrial

motionTfrom thefjjirtfofthe motion through theco'nclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C.

^316i(h)(l){D}.sdontrary to the government’s assertions’, this exclusion appii.es.onlv to..pretriai delay "resulting from”_a pretrial_.

terms,[this section]"' applies onlyTwhen thedelay in bringing the case to trial is the result of the pendency of a pretrial motion”). No

delay in Mr. Henning's retrial resulted from the government's motion to continue the trial or Mr. Henning's motion to dismiss.

Mr. Henning is one of at least six defendants before the Court challenging the Central District's indefinite suspension of jury trials. See

United States v. Juan Carlos Recinos, Case No. 2:19-cr-00724-CJC; United States v. Jeffrey Olsen, Case. No. 8:17-cr-00076-CJC; United

States v. Steven Nicholson, Case No. 2:16-cr-00470-CJC-l; United States v. Ronald Bernard Ware, Case No. 8:20-cr-00110-CJC; United

States v. Jose Reyes, Case No. 2:19-cr-00740-CJC.

In Harvest Rock Church, both the district court and the Ninth Circuit had concluded that the church in question failed to show a

likelihood of success on the merits of its free exercise challenge to California's restrictions on religious service attendance, citing

Harvest Rock Church,

evidence in the record regarding the risk of spreading the coronavirus in indoor congregate activities. See

Inc v. Newsom, 977 F.3d 728,730-31 (9th Cir. 2020).

Other cases confirm that actual impossibility is key to applying the ends of justice exception. See United States v. Richman, 600 Fad

286,294 (1st Cir. 1979) (finding no Speedy Trial Act violation where trial was continued three weeks after the “paralyzing... Blizzard of

'78” that made it so that '‘[tjrial could not commence on” the scheduled date); United States v. Scott, 245 Fed. Appx. 391 (5th Cir. 2007)

(concluding without substantial analysis that there was no Speedy Trial Act violation where some delay was attributable to Hurricane

Katrina).

Sufficient courthouse staff are also available to facilitate a trial. Indeed, Mr. Henning's status on bond means that even less

courthouse staff will be required to facilitate his trial than would be needed to hold a trial for a defendant in custody.

In light of the recent surge in coronavirus cases in Orange County, the Orange County Superior Court decided to extend the statutory

time period for holding criminal jury trials “by not more than 30 days in cases in which the statutory deadline otherwise would expire

from January 11,2021 to February 5,2021.” (Ex. 4, attached to this order.) The Orange County Superior Court extended the statutory

deadline for this limited period to avoid having to dismiss a case if an in-custody defendant could not be transported to the

courthouse because of a quarantine at the Santa Ana Jail, or if it turns out there is a temporary shortage of jurors. The Orange County

Superior Court, however, fully intends to hold criminal jury trials during the surge. In stark contrast, the Central District indefinitely

suspended them (ong before the surge, in fact nearly 10 months before it.

.ib

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 1 of 22

Yasin M. Almadasi (Cal Bar No. 242798)

Aimadani Law

14742 Beach Blvd., Suite 410

La Mirada, California 90638

-(213) 335-3935 f YMA(2feawAlmcom

Attorneyfor Defendant

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

DEFENDANT’S' MOTION TO DISMISS FOR

SPEEDY TRIAL EOLATION

Plaintiff.

.11

Case No. 2:i8-CR-119-WBS-l

UNTIED STATES OF AMERICA

Hearing Date: October 1, 2020

Hearing Time: 10:00 a.m.

FIRDOS SHEIKH,.

Trial Date;: TBD

Defendant

IB-

badge: Horn William B. Shubb

Courtroom: Five (14th Floor)

.IS.

At fee hearing on September 15,2020, the Court ordered fee Parties to fee cross motions requiring

briefing on : (i) a precise calculation of speedy trial time feat has elapsed: (ii) fee challenges in bringing

Dr. Sheikh to trial within the remaining speedy trial time; and (iii) how fee individual factors in this case

bearhponDr. Sheikh's constitutional and statutory speedy trial rights, including a balancing offee.endsofijustice finding fee government requests and resulting prejudice to.Dr. Sheikh and fee public in granting

fee government continuance. Defendant therefore files this motion to dismiss for speedy trial violation,

which is based upon fee attached memorandum ofpoints and authorities, fee files and records in this case,

and further evidence and argument fee Court may permit

Dated: September 17,2020

Respectfully submitted,

ALMADAMLAW

/si Yasin MAhmdcmi

Yasin M. Ahnadani, Esq.

Attorneyf07' Defendant

e*'

• i

■A

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 2 of 22

TABLE OF CONTENTS

Introduction

The Speedy Trial Clock Has Already Expired

#»»»*»**»**»»**»#«»»**t»»»»*»*«»M*»*»*#»***«**t»*#**#M»*M»»«*M**«»»*»M*«»«»»»««»*»**»««#»»»»»**«*****«««***««*»**»»*««»**»*»»«»

>***ll*««M*»«««**l***t«*(M'»*««t»**»*t*(

The Indisputable Periods of Non-Exclndable Time (74 to 77 Days in Total) Require Dismissal...... 1

Additional Period of.Nun—Excludable Time

Sheikh’s Constitutional Speedy Trial Bights

IV.

The Government’s Negligence in Meeting Its Brady Obligations Also Violated Dr.

The Ends of Justice Are Not Served by Granting a Continuance..........—........................... 9

The Ends-of-Justice Continuance Was Intended to Be Rare and Requires Specific Findings

The General Orders Are Insufficient for an Ends-of-Jnstice Continuance.

^ Dr. Sheikh’s Case Is Beyond the Statutory Reach of the Ninth Circuit’s Judicial Emergency

The Continuance Should Not Be Granted Because a Dismissal in This Case Would Not Result in a

Miscarriage of Justice

»♦»»****♦*•

E. ; Dr. Sheikh Will Continue to Suffer Extreme Prejudice If This Case Is Continued.

The Indictment Should Be Dismissed with Prejudice *•••••*«•«

*****••••*••<

VI.

Conclusion .*»*•»»**#**••**•••••

f-l

Defendant’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CR-119-WBS-l

Case 2:l8-cr-00119-WBS Document 145 Filed 09/18/20 Page 3 of 22

TABLE OF AUTHORITIES

CASES

In re Approval of the Judicial Emergency in the Eastern District of California.

956 F.3d 1175 (2020).......... ............................ ..................

United States v. Engstrom,

7 F.3d 1423 (9th Cir. 1993) ..... ............. ......... ......... .

United States v. Hardeman.

2491.3d 826 (9th Or. 2000) .... ..................... ........... .

...........

3.5,15

United States v. Lloyd,

125 F.3d 1263 (9th Cir. 1997) ............. ..............................

6,7,15

United States v. Medina,

524 F.3d974 (9th C&. 2008) ...... ....... ................ ...... .......

United States v. Mendoza,

530 F.3d 758 (9th Cir. 2008) ......... ....... ........ ....... .........

7.8,9

United States v. Olsen,

No. S:17-cr-00076, Doc. 67 (C.D. Cal September 2,2020)

..L.... 10,11

United States v. Perez-Reeeles,

715 F.2d 1348 (9th Cfc. 1983) .... ....... .............. ................

1,10

United Stales v-. Pollo ck,

726 F.2d 1456 (9th Cir. 1984) .................................... .......

United States i?. Ramirez-Coiiez,

213 F.3d 1149 (9th Cir. 2000) ....... ........ ...... ................I....

1,10

STATUTES

18 U.S.C. § 3161..........

passim

18 U.S.C. § 3162...........

18U.S.C. §3174....... .

............. 10,11

Defendant ’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CR-ll9-WBS-l

Case 2:18-cr-00ll9-WBS Document 145 Filed 09/18/20 Page 4 of 22

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Defendant Firdos Sheikh’s (“Defendant” or “Dr. Sheikh”) case presents multiple reasons for a

speedy trial dismissal. First, the case must be dismissed under die Speedy Trial Act (“STA”) (18 U.S.C.

§ 3161) because the speedy trial clock has already expired. The government allowed 77 to 125 days of

speedy trial time to elapse. Second, the case must be dismissed also on constitutional grounds. The

government's negligence in complying with its constitutional Brady- obligations delayed the case into the

pandemic in the first place, thereby depriving Dr. Sheikh ofher Sixth Amendment right to a speedy trial.

Third, die ends-of-justice continuance the government seeks—a moot point given die statutory and

constitutional violations requiring dismissal—must be denied because granting the continuance would

not serve the ends ofjustice but would result in a miscarriage ofjustice to both Dr. Sheikh and the public.

THE SPEEDY TRIAL CLOCK HAS ALREADY EXPIRED

Upon die Court's order, the Defense has re-reviewed the record thoroughly and found that there

have been several periods of non-excludable STA time that were previously not addressed. The 'Defense

corrects the record here.

The Indisputable Periods of Non-Excludable Time (74 to 77 Days in Total) Require

Dismissal

The Ninth Circuit holds that an STA ‘“ends ofjustice’ exclusion must be (I) specifically limited

in time and (2) justified [on the record] with reference to the facts as of the time the delay is ordered

United States v. Ramirez-Coriez, 213 F.3d 1149. 1154 (9th Cir. 2000) (internal citations and quotation

marks omitted) (emphasis- in original). Moreover, “monitoring of the limitations period is not the

^21

exclusive burden of the district judge. The Government shares the responsibility for speedy trial

enforcement.” United States v. Perez-Reveles, 715 F.2d 1348. 1353 (9th Cir. 1983) (emphasis added).

The government did not fulfill that responsibility in this case.

U I1J.V

On April 19,2019, the Court entered an ends of justice exclusion limited in time (from May 20,

2019, to June 24, 2019) and with reference to the facts as of the time the delay was ordered, as Ramirez26

Defendant’s Motion to Dismiss for Speech’ Trial Violation

Case No. 2J8-CR-119-WBS-1

Case 2:l8-cr-00119-WBS Document 145 Filed 09/18/20 Page 5 of 22

Cortez requires. (DE 33.)1 At this time, three motions were pending: (i) motion for disclosure of grand

jury proceedings (DE 28), (ii) motion to suppress evidence seized in July 2013 from both the warrantless

and warrant-based searches (as fruit of the poisonous tree) (DE 29), and (iii) motion to suppress

statements (DE 30), On June 24, 2019, the Court held a hearing on these motions, denying the first,

ordering supplemental briefing on the latter two, and setting a hearing on July 29,2019, (DE 53.) On July

29, 2019, the Court ordered additional briefing and reset the hearing date to September 30, 2019. The

speedy trial clock remained stopped from June 24, 2019, to September 3Q, 2019, under section

3161(h)(1)(D) because motions were pending.2 The hearing went forward on September 30, 2019, but

had to be continued mid-hearing because the Parties were still taking testimony at the end of the day. The

Court and the Defense were available to come back on October 7, 2019, but the government took a 49-

day continuance because one of the two government counsel were not available. The Defense submits

that, undo: Ninth Circuit precedent, this long continuance based exclusively on the unavailability of one

government lawyer (whose presence turned out to be unnecessary) violated Dr. Sheikh’s speedy trial

rights. This issue is briefed at the end of this section because other non-excludable periods caused the

15 || clock to expire regardless of this issue.

On December 18, 2019, the Court denied the motions to suppress evidence and statements.

' 17 || However, the: agent’s testimony led defense counsel to notice that there may be a Franks issue with the

warrant (which had not been briefed) and counsel highlighted That issue for the Court. The government

objected that the issue had not been briefed and was not properly before the Court, (R/T 12/18/2019 at

371,) The Court thus set a motions schedule on the Franks issue with Dr. Sheikh’s motion to be filed on

January 13, 2020. There was no motion pending at this time and the government did not ask for an STA

ends of justice time exclusion. Therefore, between the dates of December 18,2019 (when the Court ruled

upon the first set of motions to suppress statements and evidence), and January 13.2020 (whenDr. Sheikh

1 “DE” denotes “docket entry” followed by a docket control number.

2 While Dr. Sheikh filed an ex parte application to continue time through September 30, 2019,

based upon pending motions and an ends-of-justice finding (DE 59), the proposed order was not

entered. Rather, the Court reset the hearing by minute order. This has no effect on the calculation,

however, because the Defense agrees that time should be excluded until September 30. 2019. But there

was no ends of justice agreement or finding after that date for the relevant period when the speedy trial

clock ran and expired.

•»*»

2*"

Case No. 2:18-CR-119-WBS-1

Defendant’s Motion to Dismiss for Speedy Trial Violation

Case 2:18-cr-0Gll9-WBS Document 145 Filed 09/18/20 Page 6 of 22

filed her Franks motion), twenty-six (261 days of speedy trial time elapsed.

On February 25,2020, when the Franks hearing was scheduled, the Court learned that there had

seen a number of undisclosed Brady items bearing upon the Franks issue. The Franks motion was thus

taken off calendar and the Court stated, “I hate to do this again, but Til let you file new briefs on the

Franks issue, and I’ll ask that you put it all together in one place . . . We’ll start from scratch on the

Franks motion.” (R/T 2/25/2020 at 26.)3 The Court ordered the Parties to file supplemental briefing on

the Defense’s discovery requests to deal with that issue first; the Brady violations would be addressed

second; the Franks briefing schedule and hearing would be reset after that. The government confirmed:

MR. NOLAN: And then at that time, is it at that time we’ll then set out a schedule for Franks?

THE COURT: Right. We're going to break it down the way I said.

(R/T 2/25/2020 at 34). The government did not request an STA ends of justice time exclusion and no

such exclusion with appropriate findings was entered.

While the Franks motion was no longer pending. Dr. Sheikh had renewed her motion for Brady

materiaL Atihis point die government was already 20 months late in its self-executing Brady' obligation

with respect to a number of significant Brady items relating to both Franks and trial. The government

filed its response to the renewed discovery requests on March 2,2020, agreeing to the discovery demands

{see DE 90), leaving no issue for the Court to decide, and the Court confirmed this on March 16, 2020,

ordering that the government’s response had rendered the discovery motion moot. (DE 94.) Under

prevailing Ninth Circuit precedent, the speedy trial clock runs during the pendency of a discovery motion

■when there is nothing left for the district court to decide. United States v. Hardeman, 249 F.3d §26, 828

(9th Cir. 2000) (holding that even during the pendency of a discovery motion, the speedy trial clock runs

when there is nothing left for the district court to decide). Therefore, the speedy trial clock ticked for at

least another eight ffiV davs between March 2, 2920 and March 10, 2020, because the government’s

response to the discovery motion left no discovery dispute for the Court to decide.

It is questionable whether die clock restarted on March 10, 2020, when the Defense requested a

SratA-based dismissal as part of its reply brief, but the requestwas not entertained by the Court, as there

5 “R/T” denotes “record transcript” followed by the date of hearing and a page number.

Defendant’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CB-1J9-WBS-1

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 7 of 22

was no properly noticed motion. Rather, on March 16.2020, the Court ordered a fresh briefing schedule

2 II for the Parties to file new briefs on the Brady issue (DE 94). Regardless of whether the clock ticked

between March 10 and 16, 2020, it certainly started ticking again on March 16, 2020, when the Court

ordered a fresh briefing schedule on the Brady issues. There was no motion pending between the dates

of March 16,2020, and March 24,2020. and counsel for the government did not request a time exclusion

between those dates; the clock thus continued to tick for at least an additional eight (81 daws, and was

stopped only by the filing of Dr. Sheikh's motion to dismiss under Brady, on March 24,2020. (See DE

95.) The Court ruled on that particular motion (DE. 9,5) on June 3,2020. (DE 104). The government did

not request a time exclusion and so the STA clock resumed ticking on June 3,2020. At this point, at least

fortv-two (421 days of speedy trial time (26 + 8 + 8) had already elapsed. That left 28 days on the clock.

But with no motion or ends of justice exclusion oh the record, the clock continued to tick until July 8,

2020, when Dr. Sheikh filed her Franks:motion (DE 110), which means that thirty-five (35) additional

13 | days elapsed during this time, making it a total of 77 days that had elapsed.

Two points must he addressed here. First, on June 22,2020, the Court entered an. order setting a

15 || new briefing schedule and hearing date for the Franks motion. In that order, the Court stated, "Speedy

trial time shall be excluded from the date of this Order to August 11, 2020, pursuant to 18 U.S.C. §

316X(h}(l )(D)T However, section 3161 (h)(l )(D) did not permit that entire period of exclusion; it permits

exclusion of time only for, “delay resulting from any pretrial motion, from the filing of the motion through

the conclusion of the hearing on, or other prompt disposition of. such motion.” Id. (emphasis added). The

government did not request, and the parties never agreed to a time exclusion under any other STA

provision. Therefore, pursuant to section 3161(h)(1)(D), the Court’s order stopped the clock July 8,2020,

22 || when Dr. Sheikh’s motion was filed, but not before that.

Second, the government may argue that the time period between June 19 and June 22, 2020 (;

24 II days) was tolled because on June 19, 2020, Dr. Sheikh filed an application to reset the Franks briefing

schedule and hearing date, which the Court granted on June 22, 2020. While that argument would not

save the government from the speedy trial violation, it must be rejected. That is because, on June 3, 2020,

the Court had ordered the Parties to work with the Clerk to set up a briefing and hearing schedule on the

Defendants Motion to Dismissfor Speedy Trial Violation

Case No. 2:18-CR-119-WBS-1

Case 2:18-cr-001l9-WBS Document 145 Filed 09/18/20 Page 8 of 22

Franks motion. (DE 104). The government provided dates of availability but refused to file a stipulation

setting a Franks bearing date, despite the Court’s clear order to do so. Dr. Sheikh thus filed an application

simply to get dates on calendar to which both parties had agreed. However, because the Court’s previous

order was clear that a Franks hearing would be set there was no actual controversy for fee Court to

resolve; Dr. Sheikh’s application was merely a vehicle to get dates on calendar. Therefore, the application

should not be considered a motion for purposes of speedy trial time. See United States a. Hardeman, 249

F.3d at 828 (holding feat even during fee pendency of a discovery motion, fee speedy trial clock runs

when there is nothing left for the district court to decide). Even if fee Court does exclude these three days,

9 || the government is still out of time.

Additional Period of Non-Exdudable Time

For completeness of fee. record, Dr. Sheikh now returns to the 49-dav delay feat occurred during

12 || fee pendency of the suppression hearing, from September 30, 2019, to November 25, 2019. This

unjustified delay also violated Dr. Sheikh's constitutional and statutory speedy trial rights.

The record shows feat the 49-day delay in fee middle of the proceeding was caused by fee

15 || unavailability of one government lawyer, Mir. Nolan (whose presence, as it turned out, was, not even

required), mid who insisted on the lengthy delay even after fee Court stated. "The Government is always

available .” The basis for fee long delay was captured in two statements; (l) ‘This being a recusal case and

mining from DC., if s not as easy as asking an AUSA,” and (ii) “/ have cases indicted all over fee

country. So my schedule is a little bit difficult.” (R/T 9/30/2019 at 99-100) (emphases added). There was

no discussion about Mr, Reese’s schedule, who was fee other prosecutor there with Mr. Nolan, or anyone

else in his office who could have handled the case. The government ultimately agreed to proceed on

November 25,2019, after which the hearing was reset another time to December 17,2019. However, fee

time period Dr. Sheikh complains of here is the period from October 7,2019, to November 25. 2019—

fee 49-day period feat Dr. Sheikh was required to wait in the middle of an evidentiary hearing at Mr.

Nolan's insistence.

hi the Ninth Circuit, the general rule feat speedy trial time is tolled during the pendency of a

motion is not without exception. See United States ?. Medina, 524 F.3d 974, 979 (9th Cir. 2008)

Defendant's Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-€R-119-WBS-1

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 9 of 22

(identifying two exceptions to the general rote). The Ninth Circuit’s holding in United States v. Lloyd,

125 F.3d 1263, 1271 (9th Cir. 1997). which addresses delays for continuity of government counsel, is

3 I instructive. In Lloyd, the Ninth Circuit held that:

While continuity of counsel for die prosecution may he generally desirable,

whether it is a sufficient basis to warrant a delay in any individual case will

depend upon a number of factors, including, (1) the size of die prosecutor’s

office, (2) whether there is another qualified prosecutor available, (3) how

much special knowledge the fust prosecutor has developed about the case,

(4) how difficult the. case is, and (5) how different it is from other cases

generally handled by the particular United States Attorney’s office.

8 || 125 F.3d at 2271. The Ninth Circuitreyersed the conviction and dismissed the indictment in that case on

the basis of an STA violation, because the government had not provided die district court a sufficient

basis for “any of the relevant factors, and most of the necessary information [did] not appear on the

record. Thus, the district court had no basis for determining whether the government’s interest in

12 | continuity' ofcounsel was sufficient to necessitate a eontLnuance.:” Id,

The situation here is worse than the scenario m Lloyd. Here, the record shows that, not only did

14 || the government not provide a sufficient basis for the 49-day delay^ the delay itself was completely

unnecessary. None of die Lloyd factors were addressed by the government, which is problematic in and

of itself. Nothing in the record indicates that the Court, Dr. Sheikh, defense counsel, or Mr. Reese (who

is also an indicting prosecutor) could not have been available to resume the hearing on October 7, 2019.

In fact, upon resumption of the hearing in December 2019, it turned out that Mr. Nolan’s presence was

19 || not necessary, which was a major factor to consider under Lloyd. Mr, Nolan conducted some minimal re20

page transcript Mr. Nolan substantive participation after the 49-day continuance was less than 14

pages—he was mostly an observer. Mr. Nolan’s part could have easily been handled by Mr. Reese, who

conducted the cross examination of Dr. Sheikh and her son (the Defense's two primary witnesses) and

delivered the government’s argument at the conclusion of the hearing. Moreover, contrary to Mr, Nolan's

representation to the Court, the U.S. Attorney’s Office (“USAO”) could have actually made an

appearance. As it turned out, the reason for the “recusal” Mr. Nolan identified was long over and the

27 || USAO did Miter the Case just a few months later. The USAO appeals to have taken the lead since hen,

Defendant ’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CR-119-WBS-1

Case 2:18-cr-00119-WBS Document 145 Filed G9/18/20 Page 10 of 22

along wife Mr. Reese, and Mr. Nolan’s participation has been minimal. On this record, fee 49-day delay

for Mr. Nolan’s sake is completely unjustified and violated Dr. Sheikh’s speedy trial rights. See Lloyd,

125 F.3d at 1271.

Adding this 49-day violation to the 77 days calculated above would mean feat 125 days of speedy;

trial time have elapsed. What is worse is that fee government’s unjustifiable continuance delayed fee case

into fee pandemic, also implicating more general Sixth Amendment protections. Indeed, had fee hearing

resumed on October 7. 2019, it would have been over by October 8. 2019, and fee Franks motion could

have been brought in early November 2019 (or in April 2019 if fee Brad\> violations had not occurred),

leaving plenty of time to conduct fee trial prior to fee pandemic.4 This unnecessary delay also provides

yet another reason to find feat granting fee government’s ends of justice continuance would result in a

miscarriage of justice . See infra § IV.

HI.

THE GOVERNMENT’S NEGLIGENCE IN MEETING ITS BRADY OBLIGATIONS

ALSO VIOLATED DR. SHEIKH’S CONSTITUTIONAL SPEEDY TRL4L RIGHTS

The Sixth Amendment also compels dismissal. In United States v. Mendoza, the Ninth Circuit

underscored, “The Sixth Amendment guarantees that criminal defendants ‘shall enjoy the right to a

speedy and public trial.. . .’” 530 F.3d 758, 762 (9fe Cir. 2008) (citing U.S. Const amend. VI). To

determine whether a defendant’s Sixth Amendment speedy trial right has been violated, courts, balance

fee following four factors: (i) length of delay, (ii) fee reason for fee delay, (in) fee defendant’s assertion

of her right, and (iv) prejudice to fee defendant. Id. (citing Barker v. Wingo, 407 U.S, 514. 530 (1972)).

“None of these four factors are either necessary or sufficient, individually, to support a finding feat a

defendant’s speedy trial right has been violated. Rather fee factors are related and must be considered

together wife such other circumstances as may be relevant Further, the balancing of these factors, and

other relevant circumstances, must be carried out wife full recognition feat fee accused’s interest in a

speedy trial is specifically affirmed in fee Constitution.” Mendoza, 530 F.3d at 762 (internal citations

and quotation marks omitted). A case must be dismissed if government negligence violates a defendant’s

speedy trial rights. Mendoza, 530 F.3d at 762 (emphasis added).

The government was in violation of Brady this entire time, which deprived Dr. Sheikh’s

counsel of fee ability to properly identify and brief the Franks issue in April 2019 along wife fee other

suppression issues. This argument is discussed in detail in fee next section.

Defendant's Motion to Dismiss for Speedy Trial Violation

F-lo

Case No. 2:18-CR-fl9-WBS-l

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 11 of 22

Length and Reasons for Delay. This case was investigated in My 2013 andytadicted in June

2 I ^l^The government’s Brady obligation was triggered at that time, especially with respect to Brady

material relating to pre-trial motions such as Franks, which Defendant has a right to receive at the outset

so that pre-trial motions can speedily be brought and the case can speedily move to trial. Here, due to

5 government negligence, the Brady material bearing upon Franks was not disclosed for a period of almost

6 lp?^0"^o after indictment, which renders tile dfiatoiy disclosure presumptively prejudicial Mendacxtj

7 N 530 F.3d at 762 (holding that a delay of more than one year is generally presumptively prejudicia^/

Prejudice. This late disclosure deprived defense connseLpf the benefit of the full breadth of

9 II significant Brady material relating to the Franks issue. Indeed, ihe government wus so derelict in meeting

its constitutional Brady obligation that It required a Court order in July 2019, over a year into the case,

and months of subsequent Brady discovery litigation. After that, the Court found that numerous

undisclosed items were material and significant to the Franks, issue. (DE 104.) Those items should have

been disclosed at the. outset of the ease. In April 2019, defense counsel did challenge the evidence seized

pursuant to the warrant based on a ftuit-of-the-poisonous-tree theory, but counsel was deprived of the

benefit of the undisclosed Brady material relating to the Franks issue. And. it was not until testimony

16 || started coming put at the December 2019 suppression hearing that defense counsel began to truly

appreciate the Franks issns. As defense counsel explained to the Court on December 18, 2019, when

18 II asked why the Franks issuewm not raised earlier, “Once he testimony started coming out and yesterday,

I went home and started going through all the testimony and reports, [T| felt like there were lots of things

in the warrant that.I really did need to point out to the Court.” (R/T 12/18/2019 at 371.) But had the

government timely made the Brady disclosures—which should have been at or near the inception of the

case because it bore upon Franks issues—defense counsel would have had a significantly more complete

record impeaching the warrant affidavit and would surely have briefed the issue in April 2019 along with

the other suppression issues that were briefed at the time. Undersigned counsel again highlighted this

exact problem at the February 25, 2020 hearing when the Brady violations were first discovered. (R/T

2/25/2020 at 22 (“If w:e had these notes earlier, we could have potentially brought the Franks motion

quite a bit earlier.”).) There can be no dispute that Dr. Sheikh should have had the Brady materials at or

S 5

ij£&

Defendant’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CR-119-WBS-1

Case 2:18-cr-001l9-WBS Document 145 Filed 09/18/20 Page 12 of 22

near the beginning of the case and not having the materials deprived her counsel of die ability to

adequately assess die breadth of suppression issues, especially relating to Franks, causing significant

delays in the case. Indeed, die materials disclosed were so contradictory to the warrant affidavit that no

competent defease attorney would have missed the Fratiks issue with the materials in hand. All

suppression issues, including Franks, could have been briefed earlier and resolved together in December

2019, and the case could have been set for trial long before the pandemic-based closure, without the need

, for months of unnecessary Brady litigation. That did not happen because the government was at least

negligent inmeeting its Brady obligations.

The prejudice of these delays and the delay the government now seeks- is amplified by the

possibility of memories being dimmed and toss of witnesses and evidence. It goes without saying that a

11 ! person of Dr. Sheikh's accomplishments: Stature;, and position within fee community has suffered aid

continues to suffer incredible anxiety, embarrassment, and ridicule, and,her family suffers along with her

; 13

because of this case. See infra pp. 14-15,

r—i/.

. /

,14

Defendant's Assertion ofSpeedy TrialSight. Dr. Sheikh has rigorously asserted her speedy trial

rights, and any continuance previously agreed to was predicated upon fee Defense's belief that the

-Id

government had met its Brack obligations (which turned out to be untrue) and that the government was

y-- "17 |, dealing with Dr. Sheikh in good faith (which also turned out to be untrue). Moreover, because the length

of delay, reason for delay, and ensuing prejudice are so grave and significant, no STA waiver can justify

maintaining this case. See Mendoza, 530 F.3d at 7'64 (case dismissed despite numerous requests for

continuances by the defendant because fee other factors were significant). Therefore, fee case should be

........................ /’^

21CJ ..dismissed, under both the STA and fee Sixth Amendment of the United States CnnstirntT^i

-^>22

IV.

THE ENDS OF JUSTICE ARE NOT SERVED BY GRANTING A CONTINUANCE

The STA and constitutional violations described above render fee government’s ends-of-justice

request a moot point Nevertheless, there are additional reasons to deny the request

-----

The Ends-of-Justice Continuance Was Intended to Be Rare and Requires Specific

Findings

“The discretion granted to the trial court to invoke, the. ends of justice exception is narrow.

Realizing that broad discretion would undermine fee mandatory time limits of fee Act, Crmin-sss intended

Defendant's Motion to Dismissfor Speedy Trial Violation

Case No. 2:18-CR-119-WBS-1

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 13 of 22

US v

SttEtKH

that the ends of justice continuance be rarely used.” United States v. Perez-Reveles, 715 F.2d at 1351

(internal citations and quotations marks omitted). In making an ends-of-justice finding, the Court must

engage in a balancing test and make findings specific to the case to determine whether the “ends ofjustice

served by [granting the continuance] outweigh the best interest of the public and the defendant in a speedy

trial.” IS U.S.G. § 3161<h)(7)(A). The STA further states that: “No continuance under subparagraph (A)

of this pafagraphshafibegranied because of general congestion ofthe court’s calendar, or lack of diligent

preparation or failure to obtain available witnesses on the part of the attorney for the Government.” 18

U.S.C. § 3161(h)(7)(C).

The General Orders Are Insufficient for an Ends-of-Justice Continuance

The government's reliance on the District's General Orders is insufficient. An" ends of justice

exclusion must be justified with reference to specific factual circumstances in die particular case as of the

time tlie delay is ordered. United States v. Ramirez-Cortez, 213F.3d at 1154 (concluding that an ends of

justice continuance was not sufficiently justified where the judge, made no inquiry into the actual need

for a continuance in the particular case, instead checked off boxes on pre-printed forms without making

findings on the statutory factors, and the record showed that the judge “was granting blanket

continuances”); United States w Pollock, 726 F2d l456, 1461 (9th Cir. 1984) (stating that the “ends of

justice” exclusion “was to be based on specific underlying factual circumstances” and “cannot be invoked

without specific findings in the record”); United States v, Engstrom, 7 F.3d 1423, 1426 (9th Cir. 1993)

(“No exclusion is allowed ‘unless the court sets forth in the record of the case, either orally or in writing,

its reasons.’”). By their very nature, the General Orders do not justify delays as of the time they are

ordered in any particular case and are thus contrary to the Sixth Amendment and the “ends of justice.

22 II See United States v. Olsen, No. 8:17-cr-00076, Doc. 67 (CD. Cal. September 2, 2020).

Dr. Sheikh’s Case Is Beyond the Statutory Reach of the Ninth Circuit’s Judicial

Emergency Declaration

In Eh. Sheikh’s case, the government also cannot te^pn^eNm&^Cgc^’s^approyalofjudidal

|| emergency ent^dpursuantto ISILS.C. §

9^ II

...

^oaagpiicg^mby the c^efjudgeofadistnc^ ^gDtajpspensiofl

Defendant’s Motion to Dismiss for Speedy Trial Violation

F-13

Case No. 2:18-CR-119-WBS-1

Case 21 l8-cr-00119-WBS Document 145 Filed 09/18/20 Page 14 of 22

us v/ swam

of the time limits in section 3161(c) in such district for a period of time not to exceed one year for the

rial of cases for which indictments or informations are filed during such one-year period.” 18 U.S.C.

§ 3174(b) (emphasis added), Because die indictment in this case was filed prior to the commencement of

he one-year judicial emergency period, this case fells outside the reach of section 3174, Furthermore,

even if this case fell within the reach of the statute (which it does not), the statute is clear that “such time

limits from indictment to trial shall not be increased to exceed one hundred and eighty [180] days.” Id.

I 7

Finally, because the purpose of the statute is “to alleviate calendar congestion resulting from the lack of

resources,” 18 U.S.C. § 3174(a), it is not clear whether the Ninth Circuit even had statutory authority in

the .first place to declare an emergency under section 3174 on the basis of.a pandemic. The pandemic is

1 ^

not causing court congestion-it may in fee toe after courts open backup, bid it currently is not

The Continuance Should Not Be Granted Because a Dismissal in This Case Would

Not Result in a Miscarriage of Justice

Based on the foregoing, in order to grant the government's request for a continuance and exclude

time, the Court must make findings specific to this case- that the ends of justice served by granting the

continuance affirmatively outweigh Dr. Sheikh’s and the public’ s interest in a speedy trial. Here, neither

a continuance nor a trial would serve the best interest of the public or Dr. Sheikh. The ends of justice

compel dismissal.

r" '

Among the factors the Court must consider is “[wjhetiier the failure to grant such a continuance

ih the proceeding would be likely to make a continuation of such proceeding impossible., or result in a

U 20

miqp.arriaffft of justice.” 18 U.S.C, :| 316:l(h)(7)(B).Cj). The remaining throe factors—complex ease,

preindictment delay, and continuity of counsel—are not at issue. This is not a complex case and counsel

have previously expressed that they are wiling and ready to try the case.

Impossibility. Conducting trial in this case may be dangerous but it is not impossible—after all,

there is business being conducted throughout fee coinitry. See United States v. Olsen, No. 8:17-cr-0OO76,

Doc. 67 (CD. Cal. September 2, 2020). hr tins case, the government points to fee safety risks to its

witnesses but is also agreeable to go to trial, which means that fee government’s witnesses can appear.

Defense counsel and Dr. Sheikh are also ready to go to trial. However, Dr. Sheikh’s greatest concern,

which the government shares, is feat going to trial would put the trial participants, including numerous

Defendant’s Motion to Dismissfor Speedy Trial Violation

F-H

Case No. 2:1S-CR-H9-WSS-1

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 15 of 22

_ urors chosen from the pubic, at risk for serious infection potentially leading to mortality. The present

wildfires have added to that risk by adversely affecting air quality. The inhalation of the poor-quality air

for extended periods can create and/or exacerbate respiratory issues thereby amplifying the threat of

mortality from die novel coronavirus, a virus that attacks the lungs. At voir dire and trial, the virus may

easily be transmitted given the number of people that would be required to congregate in a limited space

with virus particles Being aerosolized even with free coverings for a trial that is expected to last two to

three 'Weeks. Therefore, while not impossible conducting a trial is dangerous. And as such, the Couif

must determine, taking into account the specific circumstances in this case, whether not: granting a

! 10

continuance and dismissing fee case would result in a miscarriage ofjustice. It would not In fret, granting

fee continuance would cause fee miscarriage ofjustice.

Miscarriage of Justice. Dr. Sheifch maintains: her innocence vigorously—-she has good reason

to, as the Court has observed at past hearings—and she desperately wants: to go to trial without delay. But

as a physician, it is difficult for her accept the idea of putting so many people at risk. In determining fee

ends of justice and whether not granting a continuance would cause a miscarriage of justice, fee Court

should take this into account—feat Dr. Sheikh is frying to do the right thing, the selfless thing. Moreover,

it cannot be ignored that, at fee Franks hearing, Dr. Sheikh presented strong evidence to show that she is

not a human trafficker and feat fee government's alleged victims (Prakash and Alfredo) are clearly lying

and exaggerating their stories against Dr. Sheikh to obtain T-Visas and ©feer benefits, which amounts to

immigration fraud on the part of these alleged victims. After fee Franks hearing, fee Court commented:

When we finally do get back to trying cases, the experience in other

districts has been no matter how many judges you have, no matter how

many courtrooms you have, you try one at a time. You basically use the

whole courthouse to try a case. You use one courtroom for the jury to

deliberate, you use another courtroom for them to come in, in the morning.

You spread them throughout the courtroom. Even when we get back to jury

trials, it's going to be very, very limited....

.28

[Wjhat you have to consider here is who this defendant is, fee financial and

reputational injury that she's already suffered as a result of this

prosecution, fee strength of your evidence on the major charge that you

started out thinking you were going to be able to prove, obtaining labor by

force or threats of force, how strong feat is, and whether you really want to

go on a 1001 case or a harboring case, whether that's your priority here.

Nowf, Im going to stop there.

Don’t get involved in any discussion. I wouldn’t have this discussion wife

Case No. 2:18-CR-119-WBS-1

Defendant ’s Motion to Dismiss for Speedy Trial Violation

P-15

Case 2:18-cr-001l9-WBS Document 145 Filed 09/18/20 Page 16 of 22

you if it wasn't for the peculiar situation that we find ourselves in, but I just

thought it had to be said. So well leave it at that

(R/T 8/13/20 at 388-89.)

Hie Court was very gracious to note some salient issues but not put any pressure on any party.

However, the Court’s observations are highly relevant to the issue of whether a dismissal here would

result in a miscarriage of justice; they must be factored into the ends of justice analysis. With no time

remaining on the speedy dial clock, die government is asking the Court to put Dr. Sheikh’s life on hold

for an incredibly long period of time in order to bring her to trial, while she and her family continue to

endure the cost, stigma, and emotional damage of incredibly weak criminal charges.

The continuance is neither in the best interest of Dr. .Sheikh nor in the best interest of the public.

Any objective observer can see, as this Court lias, that it is hot just Dr. Sheikh who is suffering prejudice

while this unsupported ‘human trafficking” ease continues to huger. The public, the Court, and even the

government.itself are suffering prejudice. In assessing whether a dismissal -would cause a miscarriage of

justice, tiae Court must examine the value of the continuance to the people in this District who pay the

price of the resources this case continues to consume. Court records demonstrate that, as of March 31,

2020, this District had over 1,800 defendants with pending felony charges. (See Ex. 1.) When the Court

opens back up. there will be a backlog of cases ready for trial, ^ significant number of those cases would

involve defendants charged with dangerous crimes and/or in custody. Since the STA does not .allow for

court Congestion to serve as a basis for a continuance, many of these cases would heed to be prioritized

for trial lest dangerous individuals be released back into the District or individuals who are innocent be

3I 20

detained for prolonged periods of time. Dr. Sheikh is not willing to waive any more time, so her case

would be dismissed either now or then, unless the government is prepared to allow the clock to expire on

defendants who may be a true danger to the public or prolong the detention of potentially innocent

defendants whose liberty is unduly being compromised—such a result would not serve the best interest

of tile people in this District. The reality is that the pandemic has changed the landscape for everyone

and, in this case, there is simply no basis to find that granting a continuance as opposed to dismissing this

case serves the ends of justice or is in the interest of the public.

P 14

Defendant 's Motion to Dismiss for Speedy Trial Violation

Case No. 2.18-CR-119-WBS-1

Case 2:18-cr-00ll9-WBS Document 145 Filed 09/18/20 Page 17 of 22

Dr. Sheikh Will Continue to Suffer Extreme Prejudice If This Case Is Continued

This case has caused Dr. Sheikh to suffer depression, anxiety, embarrassment, and even stress-

induced physical effects like body rashes and hives. Her diabetes has gone from moderate to severe. Since

the inception of the case, which was widely publicized in the Sacramento area, Dr. Sheikh has regularly

received phone calls from blocked numbers, telling her that she is a criminal. She is constantly slandered

on social media and many friends and colleagues have distanced themselves from her due to the federal

human trafficking charges. The case has also drained her financially, and the ranch that she worked so

hard to build has fallen into complete disrepair due to the mental and.financial stress. Once a self-made

woman, she is now forced to ask friends and family for money to pay her legal bills.

Dr. SheiklTs two adult children have also been deeply affected, having people in the community

label their mother a criminal. The children have lost friends and opportunities as people have distanced

themselves due to this case. Both children were forced to take a break from their higher education as a

result of the stress, especially because they know first-hand that Prakash and Alfredo are lying, and their

mother is innocent It has been difficult for them to see their mother unjustifiably dragged'through the

criminal process for years.

Furthermore, the government put lis pendens on numerous properties Dr. Sheikh owns (in

addition to the ranch) on the basis of Prakash and Alfredo's bald allegations that they mowed a lawn here

and there. The Court has seen evidence that Dr. Sheikh was not even around Prakash and Alfredo six

days a week,; sixteen to eighteen hours a day, and Prakash and Alfredo did not havea car to drive around

to any of these other properties. Nevertheless, on the basis of the paltry allegations, the government

obtained numerous, unsubstantiated lis pendens that are as abusive as the charges against her. Dr. Sheikh

is unable to sell or refinance the properties and is behind on many mortgage payments.

Dr. Sheikh is an accomplished neurologist who worked tremendously hard her entire life to

achieve the American dream. The devastation of this case on her life cannot be overstated. A dismissal

will not have a negative effect on the government but it will go a long way in beginning the restoration

of Dr. Sheikh's life from a prosecution she never deserved.

Defendant's Motion to Dism iss for Speedy Trial Violation

Case No. 2.18-CR-l 19-1FBS-1

Case 2:18-cr-OO 119-WBS Document 145 Filed 09/18/20 Page 18 of 22

THE INDICTMENT SHOULD BE DISMISSED WITH PREJUDICE

Dr. Sheikh has demonstrated that anywhere from 77 to 125 days of speedy trial time have elapsed.

In such a case, the indictment “shall be dismissed,” and the district court must coraider whether to dismiss

the case with or without prejudice taking into account the factors described in 18 U.S.C. § 3162(a)(2).

See, e.g., Lloyd, 125 F.3d at 1271; Hardeman, 249 F.3d at 829. Section 3162(a)(2) provides: “hi

determining Whether to dismiss the case with or without prejudice, the court; shall consider, among others,

each of the following factors: the seriousness of the offense; the facts and circumstances of the case which

led to the dismissal; and the impact of a re-prosecution on the administration of this chapter and on the

administration ofjustice.” 18 U.S.C. § 3162(a)(2).

Seriousness ofthe Offense. While human trafficking is a serious offense, here the government

has no genuine human trafficking case, as the Court itself has surmised. The harboring and false

statements/obstmction charges, especially the way they have been charged here, are not all that serious,

and also have significant evidentiary shortcomings." Indeed, were these charges considered serious,

almost every person in this District would be at risk for prosecution, which is an absurd proposition. This

factor compels dismissal with prejudice.

Circumstances That Led to Dismissal The circumstances that have led to dismissal involve

years of delay in producing significant J?ra<# material that bore upon both pre-trial motions and trial, and

a 49-day mid-hearing delay on the insistence of a government attorney whose presence was. actually not

necessary for the remainder ofthe hearing. The government bears significant fault and so this factor also

compels dismissal with prejudice.

Impact ofRe-Prosecution on the Administration ofJustice. In this case more than any other, it

goes without saying feat re-prosecution -would offend justice in every way. Dr. Sheikh has been punished

enough for no good reason. See supra pp. 1-2. It is not just to allow' Prakash and Alfredo to continue

5 The pre-trial motions focused on fee weaknesses in the human trafficking charges because

those have been fee gravamen of the government’s case since its inception and were relevant to fee

motions. Indeed, it cannot be lost that fee case was brought bv the “Human Trafficking Section” of fee

Civil Eights Division, and that section would not have brought a simple harboring or false statements

case. Nevertheless, fee Defense submits feat trial w'ould demonstrate feat even fee harboring and false

statements/obstmction charges are notweli-supported by fee evidence. It will not benefit the public, fee

government, fee Const, or Dr. Sheikh a single iota to litigate these charges. Going to trial simply

because fee government does not like to lose is in fee interest of only ego, not justice.

Defendant’s Motion to Dismiss for Speedy Trial Violation

Case No. 2:18-CR-l 19-WBS-1

F-l*

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 19 of 22

taking advantage of die system at the expense of Dr. Sheikh. Her life has been destroyed for years and

the Court cannot allow the injustice to persist District courts are gatekeepers given discretion to dismiss

with prejudice precisely these types of unusual cases that slip through the cracks. The prosecutor's office

normally does wonderful work, but we are all human: mistakes happen every now and then. This case

was a mistake and even the government lawyers would benefit by moving onto prosecutions that actually

merit their valuable time, All three factors compel a dismissal 'with prejudice.

7 | VI.

CONCLUSION

For the foregoing reasons, Dr. Sheikh requests that die Court dismiss the case with prejudice.

^ I! Dated: September 17, 2020

Respectfully submitted,

ALMADANI LAW

fsf Yasin M Almadani

Yasin M. Almadani, Esq.

Attorney for Defendant

Defendant’s Motion to Dismissfor Speedy Trial Violation

Case No. 2:18-CR-J 19-WBS-l

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 20 of 22

r£>

f~2fi

Case 2:18-cr-00119-WBS Document 145 Filed 09/18/20 Page 21 of 22

s ‘ • « ~~

•S • •" ■ •

“ • s

- "- S

S ’ T. •

S' = 65 - • ' * 8.8««!:»'

|« =

5SB * • * r, 05 s

|»8-8««s».8* s«|S —*•-* *fca

§8 S'

fl pi«S:||;8«||R8 Pfllil JtpItll'SSi ffllSSSIil |§§1R|||8.| ||SSIIi5 S|SSISfp«8 flf

|*-g|fSs |B|I|W ppsipts |S.«ss8|s|.|

&•*»** jpg-situs* p

« - * -*

•• N —

«:n ■ «•

*- «»

•

■

* - s '

r*-

• ■ - f~- -a-

* , 5

- -»

---------- res •*■--£ • ■

- .

£-*r-

■

6 • •

*-**».*,*»*•**•* jj •§*»««!

. 4N

- • f

•

» —

a s-e

s s

S'’®

|S8 5^j!’5| 8»8S*«-S88*r *#«»•• T? I'Sf *5 SS =-S;5S g~ f

i <1

|t psj&egfp-Bfta

|tsiu&ttf g ft

.pfrissp fpsjrigtti® p|

|S pg«f |

ffl&ff? |fl'Bl«|B:SS gS«-fet:J8§| fSffSJSgag

- « '

f- *

S> W ~

S' '

fJfSf f.pf.88. g«|

. « .« »-• - -

►. w >

■

75 ■ T

- ' r^ '

"S ' - ' '

' ' *

§•

5? »

' ‘

' “

•« £ «

i&pm |t.isigi*8i

|« p^SI'l p,Sfi'p-8 jr§s-5:s?

SSiliptfg 'p««S*SS;f.t*«i|*|

I ,f« I'^st pj'ffS'i |««SS

«8 |SS*rSff5| |*.f8 8«.*i*8 fl.Sg-5S4S:ps tir|a|S'l I*

3rg;

I;n

pistil*ffiMflifi-si |§|

11:

s:m

iis

■at /■I ' - •

8 • •‘■*9 ‘ ■

fv Xfi

' 8 £1' ' s

S" = ' * - =

•

S-.~

. -w

S«'

I* *<»'“•» -r Besss*-" 8'5'?ESSS

I ii

“I

?'*«» • “**ea

■ **=■**’•■■ | £3 ft

§.»8.**| |f?||8S I si IfSt |sp*f|M« !'essg'l|||||g|pll|il ||8SB«S8 ||ISI«||lSi |I|

'£

|*§!|.rg. Iipsiprs |?sfgEf||! i*If 88If 68 ffrrriw §fS8«t|pr8 |«f

g;s"

sis

|S i ■

g sag*e 3'Ilsts ssttlj

£.

siii«llli silliml llsllllll 5321111 liissii s = g

;§»■

£;

Case 2:18-cr-OO 119-WBS Jptgcument 145 Filed 09/18/20 Page 22 of 22

» $

|V>

s ? . |«e|S«t«f |taufg§if.

[

r»j

cs .

r?i

^2-----

■eXa

**»

- ;fi«M***»«* • !*!«»• g.s-jj |_se'*#8gf>

f'O

*•»**»" - Ql

• .»»*«"* «• * —a »*»-

3T'

»T~

ZS"

tvj

«S3»

<an»

tr-

Slfi«S|a?I*^f5i«85.|B.g iV»«*gfM*

’v

.-Jr-

s*$

rt-

6,0

«o

- - R- • “

' *

5 « -•

• - ~S'53~ ' «■ '••£•=

5*aii!'*';i'Ei|-- f *£»*'»»gs-* § •» -es-aijs

it-

:|lspEf f* f£«tiffs*!

5f «•.-"' ' • « » - ’

•

C-°

—•

c***

vs-

_ | «

£ 5

«■» -ST

<4>

42*

S s

«■

§.

<p.Jk

8 * ' - *ap«-

:»*

■*T

S J

"6?5f SP.S-fff8 * pi|ft.«1l s !?f *1 ff-iif-

<rcr

r> I U"> "Zi

3- <v>

lltlalliSSs”- |ifltS‘«f 6 plttllKS

«-«•'

vg~

t«3

->1

—■

\s)

-4__

tv|

* £-.<? - •«• r. *•

••

• - *r-—

- ;•:.— a

> •

' «

I %r.-~> / •-«

t1 I

«/« >

«S.

j£iEs» •||'6 5.s* lartjs

iBIfSfSf S-g|V£ fl^pVfp p.i StipsS

^ n

s« «

«f.

I «i

.s*'ffes-ss it#*« ffei-ps-gif :ft'S'ei§|gss |I

- £ 2o

■=.T

-sl

^<1

•

in *

III

V-

■f« I

''IlllssSSsifli

SslUl-ss

iff

III

gfl

?lat§§l!l ill

■

>»■

3<?

•Sk

.9 ra.

vSP

3r-

*>o

0®

CN3

trt

<?o

o'!

<s~

•T

cn3

■3

e«*

e»&

® tr

^ ^

- 5 Vs3^2

® gj.

p *•

</j

‘

rs- ’

v-S

«S

■s>.

'VO <J 12

4 d.

v_/

-t;C*

r»

xjS$ ~r*:

fltn «*

V} Ji 5- =*•

4«.

g ft

n **

£r»

C»t

•<

-si. %n

F—

r- v>

e"»

%'f

III ^

•ISIIsspe p**e!;S.*es

s^.

<£ 1

III

|f||85-5fi.iS6«« |68:pltll |est*tt|.M

sits

<asi..

3 °i ^

IIl 3^5

' pis®,'E#.S |4*»s**tE8 fl

i\|

f> €

!rs

I f J «4

Slfpilslifs* fiSffSfil .|S«Sf||:m 1

« . .3* , . « « - - a ».«-

.S’

£'

Page 1 of 1

IN RE APPROVAL OF THE JUDICIAL EMERGENCY DECLARED IN THE EASTERN DISTRICT OF

CALIFORNIA

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

956 F.3d 1175; 2020 U.S. App. LEXIS 14079

[NO NUMBER IN ORIGINAL]

April 16,2020, Decided

Judges: {2020 U.S. App. LEXIS 1}Before: THOMAS, Chief Circuit Judge, BYBEE, IKUTA, N. R. SMITH,

MURGUIA, and CHRISTEN, Circuit Judges, HAMILTON, MARTINEZ, PHILLIPS, and SEABRIGHT, Chief District

Judges, and LEW, Senior District Judge.

Opinion

Opinion by:

Sidney R. Thomas

Opinion

{956 F.3d 1177} ORDER

On March 17,2020, Chief District Judge Kimberly J. Mueller declared a judicial emergency In the

Eastern District of California pursuant to 18 U.S.C. § 3174(e). Finding no reasonably available remedy,

the Judicial Council agreed to continue the judicial emergency for an additional one*year period and

2021.

The attached Report of the Judicial Council of the Ninth Circuit Regarding a Judicial Emergency in the

Eastern District of California constitutes the findings of fact and conclusions of law of the Judicial

Council justifying a declaration of judicial emergency pursuant to 18 U.S.C. § 3174. This report was

submitted to the Dlrectoi of the Administrative Office of the U.S. Courts, See jJLULSJ<^iUX4(d).

Adopted: April 16,2020

Isl Sidney R. Thomas

Hon. Sidney R. Thomas, Chair

file://C:\Program FiIes\LexisNexis\LNCD4x K.iosk\Print\kiosk5-81769892.html

2/24/2021

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

5011 STREET, SUITE 15-220

SACRAMENTO, CA 95814

Chambers of

KIMBERLY J. MUELLER

Chief United States District Judge

(916) 930-4260

Via e-mail

April 8, 2020

Chief Judge Sidney R. Thomas

Judicial Council of the Ninth Circuit

c/o Libby A. Smith, Circuit Executive

United States Courts for the Ninth Circuit

James R. Browning United States Courthouse

95 Seventh Street

San Francisco, California 94103

RE: Eastern District of California’s Request for Suspension of Speedy Trial

Act Deadlines Given Judicial Emergency Due to Coronavirus Disease-2019

(COVID-19) Pandemic (18 U.S.C. § 3174)

Dear Chief Judge Thomas:

I writeron_behalf of the Eastern District of Califomiaforeguest that the Judicial

Council of the Ninth Circuit granXa„su§p^sion.of thietime limits provided by the

Speedy Trial Act, 18 U.S.C. § 3161(c), for a period of time not to exceed one year

>/r

as allowed by 18 U.S.C. §J3174(b). This letter serves as my certification that the

S' Eastem District of California is unable to comply with the time limits set forth in

section 3161(c) due to our longstanding emergency circumstances reflected in the

status of our court calendars and the limited capabilities of our district with our

insufficient number of district judges, despite our efficient use of existing

resources. The COVID-19 pandemic has exacerbated our pre-existing emergency

such that there simply are no_ other^options for alleviating our calendar congestion,

despite the many steps we have been taking to manage the current crisis since itsT"

onset.

AfPEm*

fn W

H-I

) L sv cLsio^-enuoui

<xs, fOu^iW* cfoei, noi" axp‘H-^5

Jfp* 4 §3*79 uJhtUi s**

,lV W

of W

su‘“£i, 77 ^‘r -r

WAM fer

•«-'jiiI^P^SS(on

^ dttW.oo <M>pl/ts

<dl

not to

^rt.

Chief Judge Sidney R. Thomas

April 8, 2020

Page Two

Because I know you and the Judicial Council are keenly aware of the

circumstances created by the COVID-19 pandemic and the responses of

governmental and public health organizations, I refrain from a review of relevant

prior events. As of today, however, it is clear that the pandemic is currently

advancing in the 34 counties making up the Eastern District of California. In

Sacramento County alone, the County Public Health Officer reports 580 confirmed

cases and 22 deaths so far; yesterday he extended Sacramento’s shelter-in-place

order to May 1, 2020, with the possibility of further extensions, and further

tightened restrictions to severely limit activities outside residential homes. Fresno

County has 156 cases with 3 deaths and also has a shelter-in-place order in effect.

Kern County has a total of 309 cases and 2 deaths, and has declared a local health

emergency based on COVID-19. Earlier today, we have learned two federal

detainees housed in the Kern County Sheriffs Lerdo Detention Facilities have

tested positive for the virus. Given the rapid progress of the disease within our

district in just the last week, and the best public health information available to us,

we expect that our numbers will continue to rise throughout this month, with a

plateau beginning on or about May 1, representing a best-case scenario.

Crisis Management: General Orders and Other Initiatives

Along with other districts throughout the Ninth Circuit, the Eastern District of

California took steps beginning in mid-March in an effort to respond to public

health advisories and get ahead of the curve. Specifically, we have taken the

following formal actions, which we have reported on our court’s web page,

www.caed.uscourts.gov, in an effort to keep the public apprised:

1. On March 12, 2020, in my capacity as Chief Judge, I issued General Order

610, placing restrictions on certain visitors to our courthouses depending on

their travel history, health condition or exposure to persons who had traveled

to countries experiencing coronavirus outbreaks. The order, which has since

been superseded by General Order 612, was intended to protect the safety of

courthouse staff and visitors, in light of the coronavirus pandemic and the

best available public health information available at that time.

1 I

Chief Judge Sidney R. Thomas

April 8, 2020

Page Three

¥y

tTS

2. On March 17, 2020,1 issued General Order 611, placing limitations on

court proceedings by suspending civil and criminal jury trials through .May

1, 2020, and providing judges with the flexibility to hold hearings to the

extent possible by telephone and video conference. In this order I made a

general finding that time under the Speedy Trial Act was excluded under 18

U.S.C. § 3164th)(7)(A) to May 1, 2020, given the circumstances created by

the pmdsrm^yl issued this order after receiving a request from our Federal

Defender that our court immediately suspend in-person court appearances in

criminal cases until May 1, 2020. I made clear that grand juries were not

suspended, but would be convened at the discretion of the U.S Attorney.

3. On March 18, 2020, in light of the quickly evolving public health landscape,

I issued General Order 612 closing all federal courthouses in the Eastern

District of California to the public through May i, 2020. Persons having

official court business could still enter a courthouse with a judge’s approval.

As relevant here, this order provided that criminal matters remained on

calendar unless continued by agreement or by a judge with a Speedy Trial

Act exclusion of time; to the extent possible under the law those matters

maintained on calendar would be heard by telephone or video conference.

On March 20, 2020,1 provided an interpretation of General Order 612,

defining “persons having official court business” and clarifying methods for

members of the media to gain access to court proceedings.

4. On March 25, 2020,1 joined with all members of our Magistrate Judge

bench to issue General Order 613, providing temporary procedures for

providing pretrial services reports by email to assigned counsel appearing at

a criminal proceeding telephonically or by video.

1 While this exclusion serves as a gap-filler covering the period during which we

were transitioning to teleworking and virtual court proceedings, individual judges

continue to make narticularized findings to support exclusions of time in the cases

over which they preside.

Chief Judge Sidney R. Thomas

April 8, 2020

Page Four

5. On March 30, 2020, following enactment of the Coronavirus Aid, Relief,

and Economic Security Act (“CARES Act”), I issued General Order 614

making the findings required by that Act and authorizing the use of

videoconferencing, or teleconferencing if videoconferencing is not

reasonably available, for the events specified in section 15002(b) of the Act.

6. On April 6, 2020, after several hearings in which we provided audio access

to members of the public, we adopted a protocol for public access and

posted detailed instructions on our webpage.

7. Regarding grand jury proceedings, I have remained in close consultation

with our United States Attorney’s Office and have continued to leave any

summoning of the grand jury to that office’s sound discretion. Our court has

signaled we would allow proceedings, if required in Sacramento, to be held

in our large ceremonial courtroom in the Robert T. Matsui Courthouse to

promote physical distancing, while at the same time expressing our concerns

about the ability for proceedings to go forward without jeopardizing public

health and safety, including the health and safety of grand jurors, witnesses,

counsel and court reporters. To date our court has not needed to consider

overriding any decision of the United States Attorney with respect to grand

juries.

Copies of our General Orders are attached, for ease of reference.

Behind the scenes, our Clerk of Court and I have continually monitored what other

courts are doing, participated in the helpful Circuitwide and nationwide telephone

conferences set up to allow information sharing, monitored the messages and

orders issuing from the federal government, State of California and multiple

County Health Offices, and stayed in touch on a regular basis with our bench,

chambers and Clerk’s Office staff, as well as our Chief Probation Officer, Chief

Pretrial Services Officer, U.S. Marshal and Chief Bankruptcy Judge. We have

responded to innumerable email messages from the U.S. Attorney and Federal

Defender and other stakeholders as we facilitate efforts to maintain consensus

Jb) si!

t> ■

duj' n fc'V.ff

<5.04

fhqrit.

(Uo'K

■fhe.

,<$ i

t* 3*4

tjt Hu.

'■ * 4 -j) Ikyi'-L x1-1

it Ji

'\ofrUL

-J

Chief Judge Sidney R. Thomas

April 8, 2020

Page Five

regarding the design and functionality of our virtual court setup, which has taken

longer to deploy than anticipated given the decidedly mixed capabilities at the

many local jails in which our federal pretrial detainees are housed. We have

piloted telephonic court hearings and videoconference proceedings in which all

participants appear remotely, and have recruited other members of the bench and

the Clerk of Court’s staff to expand the bandwidth of our crisis management team.

The Clerk’s Office IT staff in particular has worked nonstop to transition us not

only to virtual court proceedings but to full teleworking for all staff, helping to

address hundreds of infrastructural needs for equipment and the achievement of

remote network access. Our IT staff also has helped solve many new problems,

such as finding an electronic court reporting (ECRO) solution to ensure a good

record for remote court hearings when a live court reporter is not available to

telephone in.

Planning Group Consultation: Reasons for Request

' /

v. N

As required by 18 U.S.C. § 3174(a), I have consulted with those persons identified

/ by the statute as members of a court’s Speedy Trial Planning Group to seek their

recommendation. All recommend that our court submit this application requesting

suspension of the Speedy Trial Act’s time limits. One member observed that

ideally the suspension could be revoked, or no longer relied upon, if and when the

court is able to return to normal functioning. Having considered the entirety of our

court’s circumstances, in consultation with Planning Group members and our Clerk

of Court, I have concluded the suspension is necessary given that no other remedy

for.our current greater congestion.^ reasonably available. The primary reasons for

my conclusion are summarized below.

The Eastern District of California is operating with severely limited capabilities

during the COVED-19 pandemic. Almost all of our judges and members of court

staff are working remotely, dispersed across an extremely large geographic area.

As noted all of our courthouses are closed to the public. We are holding only those

proceedings that are essential in criminal cases, and only very few time sensitive

civil hearings between now and May 1, 2020, a date that appears likely to be

extended. While we have functioning telephone and videoconferencing

capabilities, conducting our trial court hearings in this way can be very challenging

H-

Chief Judge Sidney R. Thomas

April 8, 2020

Page Six

under the best of circumstances, and does not begin to approximate the quality of

proceeding for which we regularly strive. In terms of submitted matters that we

can resolve on the papers, while we all are set up now to telework and are getting

work done, it is difficult to attain the same level of productivity as we do in

chambers, given some remaining technological challenges including intermittent

internet connections, many employees’ ergonomically inadequate home office

setups, and the understandable distractions that can arise in a home where others

are sheltering in place as well. As we are adjusting to work in new and imperfect

physical circumstances, we are beginning to see a rising stream of new motions

and petitions seeking immediate release from confinement in light of COVED-19,

for which no established law guides the resolution and there often are no easy

answers, particularly given the equitable considerations implicated. These new

matters require attention now, with submitted motions set aside in the meantime.

Even once we can return to our courthouses, as wdall Hcrpc to do as soon as we

can, we expect then to need time to regroup. W^nticipara a significant backlog of

trials, given that at least 52 trials districtwide have'BeBITcontinued since midMarch. The first trials will likely not be held until at least two weeks after our

doors open again, given that jury administrators will need time to identify jury

pools and summon them in. Realistically, our preexisting backlog of motions and

old cases will have grown given the wave of new motions occasioned by the

pandemic, making it unlikely we will have been able to use enough of our time

away from the courthouse to whittle the backlog down in any meaningful way.

No Other Reasonable Remedy Available Against Backdrop of Pre-existing

Emergency

As you know, our district has enjoyed the services of visiting judges on occasion

over the last several years. While we appreciate the work these judges have

performed for us, it has been clear for some time that there is no visiting judge

program that can address our longstanding need for judicial resources; what we

need is resident judges that own full caseloads. Under the current circumstances,

with the accompanying severe restrictions on travel and movement in the

community, obtaining visiting resident judges simply is not a reasonable possibility

in any respect. Even if a cadre of visiting judges were available to assist us by

•; -6

i i

Chief Judge Sidney R. Thomas

April 8, 2020

Page Seven

working remotely, our existing staff and technological resources are currently

overtaxed to the extent we simply,cannot support a visiting judge program at this

time.

Even apart from the emergency created by the COVID-19 pandemic, our court

has been operating with increasingly limited resources for many years now. All of

the crisis management tasks summarized above are in addition to the traditional

work of our court, which already is burdened by heavy criminal and civil caseloads

with too few judges. Our preexisting dearth of judicial resources is heightened by

recent transitions: the taking of active senior status by one judge, District Judge

Morrison C. England, and inactive senior status by another, District Judge Garland

E. Burrell, at the end of last year. My predecessor, Chief District Judge Lawrence

J. O’Neill, also has departed the court, taking inactive senior status at the

beginning of February 2020. The two judicial openings created in our Fresno

Division as a result of these career transitions continue to remain vacant, with no

nominations pending. As the Judicial Council well knows, the Eastern District of

California’s plight is nothing new. The population of our district is approaching

8.5 million and yet we have only 6 active district judgeships, including our two

vacancies. Currently, there is only one active District Judge assigned to our Fresno

dLd Division and that judge, District Judge Dale A. Drozd, is the only judge hearing

criminal cases. Because of the many pleas and sentencings he must handle, Judge

Drozd currently holds two full criminal calendars a week, with trials conducted on

. the other three days of the week, eliminating his ability to hold civil law and

motion calendars. Additionally, Judge Drozd alone reviews all Title III wiretap

rsWeiapplications and related proceedings, a not insignificant task in light of the high

1 number 0f complex, gang-related investigations and prosecutions arising in our

Fresno Division.

tA'

Even if our two vacancies are filled at some point during this election year, and the

particularly severe congestion in our Fresno Division somewhat relieved, we still

will qualify for five additional district judgeships, as the Judicial Conference has

once again recommended in its most recent report to Congress. A more complete

picture of our District’s pressing needs, even before anyone had any sense of the

disruptions COVID-19 would cause, is painted in our 2021 Biennial Survey of

Article III Judgeships Response, attached.

9 isJUfiJ'adsxHAj" prMaui

FILED

March 17, 2020

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN RE:

FINDINGS AND ORDER

AS TO COURT PROCEEDINGS

IN LIGHT OF COVID-19,

ALSO KNOWN AS CORONAVIRUS.

GENERAL ORDER NO. 611

)

or un'Vi I

)

i(a

O/t, ‘rf»

O-iVsmg

)

'iiti

WHEREAS, the President of the United States of America has declared a national

emergency in response to COVID-19, also known as “Coronavirus,” and encouraged limitations

on gatherings of more than 10 persons;

WHEREAS, the Governor of the State of California has declared a public health

emergency throughout the State in response to the spread of COVID-19, and strongly encouraged

certain segments of the population to remain at home at the current time;

WHEREAS, the Centers for Disease Control and Prevention, California Department of

Public Health and other public health authorities have advised the taking of precautions, including

limiting gathering sizes and practice social distancing, to reduce the possibility of exposure to the

virus and slow the spread of the disease;

WHEREAS local health officials in the Eastern District of California in particular have

declared local health emergencies in light of the presence of persons infected with the coronavirus

in their jurisdictions, including in Sacramento and Fresno Counties where the court’s two main

courthouses are located, and the outbreak of COVID-19 in the Eastern District has reached the

point where court operations are affected in that many persons at higher risk of serious or fatal

I " l

l\ps,S

illness are involved in court proceedings as attorneys, parties or court staff or being asked to serve

the court as jurors;

WHEREAS slowing the transmission of the virus in the community is an important part of

mitigating the impact of the disease on vulnerable individuals and reducing the immediate burden

on the health care system and the community at large, including members of the federal bar and

their clients as well as pro se litigants;

WHEREAS the Eastern District court maintains a robust capacity for conducting business

remotely, and essential court operations can and will continue unimpeded, but not all of the

court’s work can be completed at a distance; and

WHEREAS the need for in-court hearings and trials must be balanced against the risk

stemming from the associated interpersonal contact; jury proceedings are inadvisable in the

current environment to protect public health and ensure that when juries are seated they represent

a cross-section of the community and constitute the required jury of one’s peers to which criminal

defendants in particular are entitled, see Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) (“The

American tradition of trial by jury, considered in connection with either criminal or civil

proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the

community.”); Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (“[T]he Sixth Amendment affords

the defendant in a criminal trial the opportunity to have the jury drawn from venires

representative of the community[.]”); and even if a jury that meets these requirements could be

seated at this point notwithstanding public officials’ urging certain populations to remain home,

there is no assurance the jury’s deliberations would be unaffected by continuing health and safety

concerns and evolving pnblieTiealfft mandates and protocols.

• Accordingly, with the concurrence of a majority of the District Judges of the court, in S

order to protect public health, reduce the size of public gatherings and unnecessary travel, ,and

/////

..-......... 1

pate*

ensure the ability to deliver fair and impartial justice to all those who come before the court, the

court orders as follows:

1. The United States Courthouses in Sacramento, Modesto (with hearings held in

Sacramento during ongoing remodeling), Fresno, Bakersfield, Yosemite and Redding

will remain open for business, subject to the following limitations.

2. Effective immediately, the court will not call in jurors for service in civil or criminal

jury trials until May 1, 2020. All civil and criminal jury trials in the Eastern District of California

scheduled to begin during this time period are continued pending further order of the court. The

court may issue other orders concerning future continuances as necessary and appropriate.

3. All courtroom proceedings and filing deadlines in a case will remain in place unless

otherwise ordered by the Judge presiding over that case.

4. The time period of any continuance entered in a criminal case as a result of this order

12 /

shall be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), as the court finds based

*xl4

on the recitals above that the ends ofjustice served by taking that action outweigh the interests of

'•'s.

the parties and the public in a speedy trial. Absent further order of the court or any individual

judge, the period of exclusion shall be frorri March 17, 2020, to May 1, 2020. The court may

N**,__

- - ---- -—•—

extend the period of exclusion in a subsequent order as evolving circumstances warrant.

5. Individual judges may continue to hold hearings, conferences and bench trials in the

exercise of their discretion, including by teleconference or videoconference, consistent with this

order.

6. Criminal matters before Magistrate Judges, such as initial appearances, arraignments,

detention hearings and the issuance of search warrants, shall continue to take place in the ordinary

course, subject to the parties’ established ability to seek continuances or, as allowed by law, the

holding of telephonic or videoconference appearances.

7. The Bankruptcy Court, Clerk’s Office, Probation Office, Pretrial Services Office and all

other court services shall remain open pending further order of the court, although the method of

providing services may be modified to account for COVID-19 and attendant public health

advisories.

8. This order does not affect grand juries, which are convened by the U.S. Attorney and

shall continue to meet as scheduled by his office.

9. This order may be modified, expanded or superseded at any time to account for the

developing nature of the COVED-19 public health emergency.

IT IS SO ORDERED.

DATED: March 16, 2020.

y Jc t.

CHIEBtl

STATES DISTRICT JUDGE

2T -4

cs>r>e.

v Op’*'

FILED

Ot-’k*' <$&£■.3dl i/TT

April 17, 2020

IIUJIWIW— I II

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN RE:

EXTENDING TEMPORARY

RESTRICTIONS ON COURTHOUSE

ACCESS AND IN COURT HEARINGS

GENERAL ORDERNO. 617

)

WHEREAS, the court previously has issued General Orders addressing the national,

regional and local public health emergency posed by the coronavirus (COVTD-19) outbreak by

continuing all trials and closing its courthouses to the public until May 1,2020;

WHEREAS, since the issuance of the court’s prior orders circumstances related to the

outbreak have continued to evolve, with state and local public agencies instituting still further

enhanced measures to manage the spread of the virus and limit the potential for the illness and

death it can cause;

WHEREAS, this week the President of the United States has announced federal

guidelines for reopening the economy, while at the same time deferring to governors to

determine when states will resume normal operations;

WHEREAS, this week the Governor of California has outlined six steps for reopening

public and private sector operations and lifting restrictions in place throughout the state, without

providing a definite date by which restrictions will be lifted;

AND WHEREAS, the Judges of the United States District Court for the Eastern District

of California, in consultation with the Clerk of Court, continue to closely monitor developments

and balance the various interests implicated by the COVTD-19 outbreak and the court’s response

to the outbreak, including: the health ofjurors, witnesses, parties, attorneys, the public whom it is

our privilege to serve, Clerk’s Office and all court staff, Probation and Pretrial Services staff,

chambers staff and judges; the constitutional rights of criminal defendants and other parties; and

the public’s interest in, and the court’s duty to ensure, the effective and expeditious

administration ofjustice;

NOW THEREFORE, in light of the best information available to the Judges of the

Eastern District of California at this time, effective immediately through June 1,2020,1 hereby

issue the following Order on behalf of the Court to supplement the prior orders issued on March

12,17,18 and 30,2020, with the findings relied on in those orders incorporated in full herein:

1. In light of the current coronavirus (COYID-19) outbreak, all courthouses of the United

States District Court for the Eastern District of California'shall remain closed to the public. Only

persons having official court business as authorized by a Judge of the District Court or the

Bankruptcy Court, or a healthy building tenant having official business on behalf of a tenant

agency, may enter courthouse property. This order applies to the following divisional locations:

(1) The Robert T. Matsui United States Courthouse, 5011 Street, Sacramento;

(2) The Robert E. Coyle United States Courthouse, 2500 Tulare Street, Fresno;

(3) The Redding Federal Courthouse, 2986 Bechelli Lane, Redding;

(4) The Bakersfield Federal Courthouse, 510 19th Street, Bakersfield;

(5) The Yosemite Federal Courthouse, 9004 Castle Cliff Court, Yosemite; and

(6) Tne Modesto U.S. Bankruptcy Court, 12001 Street, Second Floor, Modesto.

2. The court will not call in jurors for service in civil or criminal jury trials until June 15,

2020, at the earliest, if courthouses reopen to the public on June 1,2020. All civil and criminal

jury trials in the Eastern District of California scheduled to begin before June 15,2020 are

further continued pending further order of the court.

3. All of the court’s civil matters will be decided on the papers, or if the assigned Judge

believes a hearing is necessary, the hearing will be by telephone or videoconference. This applies

X~ fc

FILED

May 13;:2020

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN RE:

)

FURTHER EXTENDING TEMPORARY

RESTRICTIONS ON COURTHOUSE

ACCESS AND IN COURT HEARINGS

UNTIL FURTHER NOTICE

)

GENERAL ORDER NO. 618

)

WHEREAS, the court previously has issued General Orders addressing the national,

regional and local public health emergency posed by the coronavirus (COVID-19) outbreak by

continuing all trials and closing its courthouses to the public until June 1,2020;

WHEREAS, since issuance of the court’s prior orders, the President of the United States

has provided guidelines for reopening public institutions, businesses and the economy generally,

accompanied by proposed gating criteria for states or regions to satisfy before proceeding to a

phased resumption of services and operations;

WHEREAS, the Governor of California has announced that the statewide stay home

order he issued on March 19,2020 remains in effect until further notice, with modifications as of

May 8 and 12 effecting a gradual reopening of lower-risk workplaces, with further reopening

subject to compliance with defined readiness criteria;

WHEREAS, many of the 34 counties within the Eastern District of California continue to

maintain local public health orders supplementing the State of California’s stay home order and

requiring measures to manage the spread of the virus and limit the potential for the illness and

death it can cause;

AND WHEREAS, the Judges of the United States District Court for the Eastern District

of California, in consultation with the Clerk of Court, continue to closely monitor developments

and balance the various interests implicated by the COYID-19 outbreak and the court s response

to the outbreak, including: the health ofjurors, witnesses, parties, attorneys, the public whom it is

our privilege to serve, Clerk’s Office and all court staff, Probation and Pretrial Services staff,

chambers staff and judges; the constitutional rights of criminal defendants and other parties; and

the public’s interest in, and the court’s duty to ensure, the effective and expeditious

administration ofjustice;

NOW THEREFORE, in light of the best information available to the Judges of the

Eastern District of California at this time, until further notice, on behalf of the Court, I hereby

issue the following Order superseding the prior General Order issued on April 17, 2020:

1. In light of the ongoing coronavirus (COVID-19) pandemic, all courthouses of the

United States District Court for the Eastern District of California shall remain closed to the

public. Only persons having official court business as authorized by a Judge of the District Court

or the Bankruptcy Court, or a healthy building tenant having official business on behalf of a

tenant agency, may enter courthouse property. This order applies to the following divisional

locations:

(1) The Robert T. Matsui United States Courthouse, 5011 Street, Sacramento;

(2) The Robert E. Coyle United States Courthouse,.2500 Tulare Street, Fresno;

(3) The Redding Federal Courthouse,-2986 Beckelli Lane, Redding;

(4) The Bakersfield Federal Courthouse, 510 19th Street, Bakersfield;

(5) The Yosemite Federal Courthouse, 9004 Castle Cliff Court, Yosemite; and

(6) The Modesto U.S. Bankruptcy Court, 12001 Street, Second Floor, Modesto.

2. The court will not call in jurors for service in civil or criminal jury trials until further

notice.

3. All of the court’s civil matters will continue to be decided on the papers, or if the

assigned Judge believes a hearing is necessary, the hearing will be by telephone or

videoconference. This applies to all matters including motion hearings, case management

conferences, pretrial conferences and settlement conferences.

4. In civil matters and bankruptcy matters in which parties represent themselves (pro se

litigants), those parties are strongly encouraged to file documents by mail. For those unable to

file by mail the court is providing drop boxes for filing inside the entrances to the Sacramento,

Fresno mid Modesto courthouses, where Clerk’s Offices otherwise previously have accepted

hand-delivered pro se filings.

5. In the court’s criminal matters all initial appearances, arraignments and other essential

proceedings will continue to be held before the duty Magistrate Judges, unless the parties agree

to continue them; to the full extent possible matters that are maintained on calendar shall be

conducted by telephone or video conference as provided by General Order 614, which remains in

effect.

6. In criminal cases before the District Judges, the assigned District Judge may exercise

his or her authority to continue matters, excluding time under the Speedy Trial Act with

reference to the court’s prior General Order 611 issued on March 17,2020, the court’s

subsequent declaration of a judicial emergency based on 18 U.S.C. § 3174, and the Ninth Circuit

Judicial Council’s Order of April 16,2020 continuing this court’s judicial emergency for an

additional one-year period and suspending the time limits of 18 U.S.C. § 3161(c) until May 2,

2021, with additional findings to support the exclusion in the Judge’s discretion; if any criminal

matters are maintained on calendar, to the full extent possible they shall be conducted by

telephone or video conference, also as provided by General Order 614.

7. Any Judge may order case-by-case exceptions to any of the above numbered

provisions at the discretion of that Judge or upon the request of counsel, after consultation with

counsel and the Clerk of the Court to the extent such an order will impact court staff and

operations.

aX.

I®

ITIS SO ORDERED.

DATED: May 13,2020.

FOR THE COURT:

KIMBHRO J. MUELLER.

CHIEFjtolED

IKS STATES DISTRICT JUDGE

EASTERN DISTRICT OF CALIFORNIA

fZ&bruw j

JL$&£

C^afKot* Couri ”

---------------------- f

—j

£x Ijuit^if5

___________________________ :____________

Urn H-dL St eC^S Ceurh? ^af jhi hlmih Cj r tuxf__________________________________

vJ&re&S R» Sr^i^'ivr;^ ttfiiW. -Skjka f^UrthojAl^ arset Ipr

U.V fcaifthau

tZ'S S > 5if^^ Av&«

“9 S S&v^rlK Stf^-£T

trail e* m&

TW<r fckrRa^

-I

h? &■ :U

&„

hVsA t.r>&loM^

■>■

iTlarulfes tnA.il hft* lu bm •■ s 3» an

}

tA.'J' ftuir kvj, fhft

’'* Ci t^jjuJT,.

■*t

~TV\ &aU'

six

Viif" jjiauf

{

K; fid aJ^faoHsaii

-Hite r^ugsWi mjig j

QifiQ&34\kBu. u&urs t

-for

&nff

WaJ^iaJ-|^ aJ^

^ifrofcS fcHtorqjP^e. t/lSiTLE

AfPEMblX

gW^imiiniujw) .Naim

T-i

I Uqc A&

Arvl

EASTLg

uw&r rmmh

I ^o <o5\ X SfrrW’ ' ?g^px.

sI'

^Ci?AW£MT&, £A 9581*1

;'o

S€,

i*L

III;

HtCULlT

LIMITED STATES

3Am£i> fcttftSTaPHEft LASTlE

ftrrmadEflS

a^L

fi&i t^iao-SAS

WfriT oF maMDAmyis

Fod ASUEf OF qs& £ 3i insflalp)

2. 1

and GgMgfoQL OftbE#& 6l)^nw4)I

e ii

RgQiiviALL LAfojsK.fr TH&mftS

JLi

£4S7ggAl biSTiiirrr dF CAuFt&tltA.

S' !

SACftAmENTo tiM&yati

^■e|%nd&rd

Q i

-J-n Affih o-£ -/h-e. Ir* r> rarxXl/' t r U 5> “ i9 {g-OVtSM5*) pQrwaU»vVt& ..fln fll */• K&, AubWJjU’tn'f

“the. ^(XS^rn T^i 5Tn' cf

rfe&dKaas Ku

Le.

Cedi Ps>rn iik. -” •S&C/'&yvxAv^Le T)» vij I'od QaUf^K

j'l'anar j> hoLve. Cjone.luals>.a/ ‘hhcdt QrnwraJ Qfek.r'S 6/0 “falS, hui“ .^pgiL-P(VaJLa

G^s.mf'aJ 'Dpisb-^s £0 j &H j Col1^ j &f£- ^expi r-eii.___________________________________

Th-fe.-PplU\uioa U/r\4 gf fyi^niAmnS asks -fhib c/{>..j^ndarr^. To J$uppQfrt its

iz.

l-l

ftoplwsai iQrf) nha ~H*>& Judipi’oJ Qjaunpi) aj 4°Kl 9^h LmWrf,___________________

t^lxrjhj rr^?arc t pti"t~Har>»f i r-flL^i l i

l£

&iftA -|i p oJ' ian trnm

pi(L^'GhcJ&ni' &nd..

z<o n ~tht£ PjnMCH

haiO 9£T6 £ 3t^ L7S iWdO) L4fi

r\«*

Z.7 il

fo/i * i flkr&el V&/( fl? given

Wf^iV ®f /^s/*4{amyJ»

p I ©4 ^

~Php application tKafr /joivs, r'\£& to this ppobr iqa3 \Asi (L upon arp w&i

4o -hVwa tT\ i/iiVi'aJ faunfiiJ sP

ra:

~th&r&p'Gr&.

>____________________________________

U. jhu UJr'.-f o-^ jOPaoz^a nrjuJ Ts

. ou&sh /~ws\&t<d.

thfi- Tuii&W CaLinali <5^ thfl. 9^ Qj rfjtt"

& /1? > . rtnrtl

£ 2d rns(p,£}%&) /S3U&4. tpr l lh}2D!Q 4or gtppr>ap^Qdvu ■Pof^Lj — is \Jp,?s&4^

OrA&ra & > > . 60

;

UOare j’hL.-fiaeJ'S ? r>>ij’hor'Ai ig &t-)0( pQ/Vt-S C?Sofg)uA&i..KiLr^iO Q.:A.d_.

Pu. rtK&P ’ejL/i'oUi^ffl-,

Araa.rvsa.rd’ -Prvk doprl m&u pajrrn^._________

F-giar u&ru

^ 2P2.4

•j

l/w> Siihrritfitef

?fe?.

;

— // y

axumi

ps»r arijj oofes&Jh&l^ <s-|’

"fbr (X-n^ on WJUa^ 4 cs4

gE&mftlb i/W^TOVW&4

JftrogS fcttRSTWEft E#SH&

P*4fH

ii i

2.7

J-3

S$Jr\b o-f fTlar^maS-

p 2~

nt&rx&s*

TAAl£

of AarmfiftstS

F~ 3><L/l?& (z&7.o)......................................... .... .......... ..............................

V UnAoeL

^ SI? S •

1^34 ^ ZoZ^’ZO^---------------------^Auir.J4ua^^QiimLs.v v. (intfed-S-^alea s 5^ f. 2d.

(VhCir, v

Rauf k&r sf Wi'naQ

QV S.c*. Z\l^(wt)

"BjCuAPOOL-n \j

CjOLK^

STS'? f, 2*^- (£5*4” CSS

f^oHeg.. v liW^Au-ai ~I5yAu-^ria^ LojXn-Cg££.l i

M ■S. O. /ZZI (l 1Sl')

(IrSi fad S'fois-g, v CWU^ a,M5-cjr-ooiqo-mtE (b&qC)

Uncial SfroJia v L&ujiis, s 5>2 Fv 3aLn?S (^^Ctreu^L)----------

)

*'ii iii iin i«m»/Ti»i run

"~'"ini-riir"—*--■■• ■■—

'"'* '‘"""' •**

■*

lA>n\i$A ,%Als v fft'thrmani&b , taSZ> P, 2A

)

/9ib)

w Shlekh , *u&-cr-oom-wss___________

]

Qoi^odi S'foCTfts. v Sm>ih }

P. £>gpp. /^/o3 (^E>. Mitur?i9B4)

ULride.ot .Sfaiks i/ ‘Thames > 2! 2o ” s/ ” pgps%*~ ry>6fc ( stisC)_____

■

Ufa fast Stflkja v1 Zepfn&f ^ /3& S * Ci\ 19%

-----------------

UuSkC,* I SOM

&>^ IS LLS.L §A>&j(^Yl)

i<ai4> ft-L R€.PoKT4l

J2-.Q l "art*. <?<><■ .

4i w -% (m<f)________

;

hb R.' I?ilb , Mo. 92r)3d^ T

^ 2^% ihej&.

« iiriII

k>o-feW

tit 1!

&)i

- m&r&h n .to2o

~/W1 ld>. 2020

~ fOttreJi }9 - m&c$k$Q , ZoXQ

Wn^ o*¥ )Tid.riamuJ ^5

TAmss aCiSToPifeR. CASTtS

REGimLh 1.4/y)OAlT TtiQ^S

%>&SI X $sfr<yd\ 7£^t

/V> pAa &&■>

r>.tc-dluJf Csturf' o~f 4hg.

ibirrib smrZh

ZAmtA tMi^tfk£SL £AjTl£ W

Q.£&.ittALh LAretsHT THOflOfli

P&rifiaAtea&

ftEUEF Qf gas, .f.SAins(nao)

dundl fitfiNlii&fllrf S>$3&HLR,2i 4^;

¥*

r% M

i s1

4 ITII

■f*

I I

S ii

j£A*n&m &i5>m*cr of cal\?m\A

a rn£fdTQ ratals i&sl

'k 11

NkfifiV-fe "b fefej

i iwa ‘

WRiT af mA^bAmu5

P^*irha>n«tr !§ Suiamif Tl"W‘a WK'Ta£ fTlkniAinuS lArtd.eJ* 2JHt iiiA ,&.t IhS"!

t (*.& T,h^,

Ta,fcJ*A JaUffeofAm fW, d&jm a/fo,

oa^Aswi^?) »

1*#

feigum iSJSiS .$&"£> 14 ife.S *tk)4L. /ytfty’yjfl/ynl *?

^ ffemACT’ au&.

EjT 1I

& I

___________ I I

3cL

A ^/v

Li p*

^ fra a fTsb'«■>&<«*_[ &t6ufns * &

fhsL- tLi'£<%&$" teu^i" Hm mdjL

£a. v Lh$., S *19 P>

S«\/ /^)f.Krm^rig4K » feT& f 2Jl l&h

«**

a I

' «*S L

\aV«V<>Y

^ Hof lS

191^1^1

(Rftft!> aw f % i>S'Al aKquj ftp oft iW tfLiiiLt U CbujtiijlJ. of

^pro\/aJ cftj-

jbo^Wrr; ^rAri

~Ws1ajLlsJ Or<hsr(£Sei)

~l* )b»j«^ .

Cj-Vuui^

al- Cai'T^rOiV (EhaC^

Tar° is.roftrj'tn^

Af>r< I tk>} Zp>2&^3>sLlll5^) <3 a cJm^r misb&k&.

Rftftion-S-TJs fiffsiftanft

ftpphpaftgsn 3>ixlarry 44<> a) ftp

% QnoeAfedbAraJ arfsr cmd fth&, hLad- &fen&jraJ QraUcg {&&} &I1 cental Cal&

’

"”

—’-.m-nT, T^-

- ■"

ft. (pmtsrrs i*4)

rvco „ ^loJn orfaf erlp IoulaJ- Otc, ry

}

■f

!3Uftt5E»CX*0*i

}

u t'i4

—^b,br«1 <.g^i‘-ar\ fta ftKsu.

ftaJ<s. !s a|

no 13

/ of*

;S ftjppr,>Tpp ! <&Ja tO

or^b-ra

f».g

uf l? :ftKpL. n&vi&uJ p&upf

i^KaUq

ft-fjktj"

i nfta Qjir'Dl^pft s4 4Ka KnJLr1) 4s a-4 ftk^ r>g4ion Qnfl/ ~?ao /

Ta biL-

jLoao Corp, .,

S . Cih /22)

V U-^,^7 3.Tjt. PdS1^2e>3^-^clffi~jj)

9S& K 3<j jnS(Zft|0j i a Sutk fit

a-r

■ 32

f~nriha.rtv^gn. i jn

oau,i/m.n

rn^Kp^nn^AK n

™*T5TgB»jlpB*SMJiiiaymgatnL-i'iuMi<w ii.imit-'" n ■ n'*Ufi ^

§dU.r fmd uifaJ ftp aJl £h»L 'fKftii .

l^tVrAJ- fWi . gf7 F.

b_j

PlJftrfv., Par 4h^Lr-4ASsnS S^j-pariK i'n

aA&.ftii.oJfe- nuAftA a?

no o

— ^

ag... ■TOA.P&iiP dAywi.y.-o/ )io a. u^&ij

{

5ftd">sn r,

~ftyp . p44\^oraf& K/w

ca^ Ouv-n ftH&- ) i

ib@'£ss

p^tioruj*.1^ ,^AfM,3.y m

{ir*id. "thu* LdJ!

nsT Lofc&ti&ksh.is on n pp&iJ jVgr^ /a

ol” ^S<-i~^inrtpoS'Sikfa, ~/q Ajpn i*h&,.

L©

44^appr&y/(4^»jo€il aff.noanflh.miLS

fiftAAroaoo fruj obit*w>\ )

£*.'<• ) A-S

g ani/j aft i&n

‘fad.F Jti ‘fe

aA 8&&h h&veu

fcsfilL

ftfipr^pp/ah. i‘a /'f fk,

C Ii

o/ppffr^fs & M,

£ir fPvptd’&d Jpht'S rrwoe>f A^^Pfed/u

~#u> i£2>* C ( p

(Le>ATmU4S } d<jj'L ^ t® SUSfitUvL

sH I

l£J

t,- puiwiu aft ft Jilt--. lAr)hxJiAsflJ.I

9SL ZZdLins(tpZ»)&t'<Ljr.

^ A

^or'bK^

HAi! W V> l

QLp&fbprv&kfvgiA

m.4^mu>A as rft&j

tjf ^4

^-f rAaruitmtS

ft D 9-t

--- ^^—----» 1M06f

dbste’tsJ'* &e>wrt' J> ertbt-f f Raj* am -Wfl*** UrtixM awbrI cqq'mJ* n-Ous CumL

to* —

R*«d" ^r^y.3jmJ , af illUlS §? ienAgf £,<*& tnnpWi an ,,

ii/njLS

-^a<*

&Jf~bS&k

irt

KmL -

Jr rn5>S^ °7W» vttJyt. stLyirfllon

J2»

mnA Li & /JeLSi/a. exampk.'fitrmanch^aS <

iE&sW5^ ~T^t sVR tj” g.flJh S^i4 j ft.) I r^ctUi

it tJfftCL

__________ CAU.SS________________________

P.»J*^ioftW.S PAAiij f a, At-^LmdlikAi*

& B&ul

~bhfc- Ap^ 1 % t <L&1Q)

far £3*0 /s Hej* /n plou/% It for &&_fi*i*a

i!i

i©0'

ULS*tL,i?3^^ A-J..

Li M. Sbft

iAu

SHsy fc&H§»£

C^/i-hiW /Palm )3;aato^

qftf /n prys^^jaLurai E/Taf* arad Oii'gl

5 ^

igu.vt.lsiTJlV).

5, Q.fc is r 4sm*i f a [.v.f^ #*&- ftyr^Tr DftaVi flUi -£af- tA

P«fl^ ASartflJJ

EftllAg. KeVJ&

^&Q 611^) art(J..'&Mbn

»Vla<VL &AA-S/ $J£j ma »

;

Mslc-v Thfe- cia- rT

rr\e\A..i •$>* fi>n e^d&r’

■

?J " ‘

,j ?

fau 4, <SuDfij%&sf!_t .10

foSubrjul tA^&at lau ~^Ka^

•RRa -'^.AmA.

£f*<a£&j'.g

h 'wg

Ul.L^Ma 4—""—

,, ■ -t“ 7^

— aa^mif.gfcjyt

V ••.;

£ __.

fi aJ fiLpp/ i gaitavn C&Q

• aP

RjJ'l^oyu.r'g fomute,

rjl

C»

«jp°

CtjaUupt 3£s §Jbt&>-

&Q&) '■ rid^\on

MikJg- uaVti i "tk&if j^g r< I If Bs'So

pat- <6^Q U^I-3 ft&t )n4'$lTri&n&Uu r^i

■•J

Urns./.

)

L>^ >4K iJK jrOeafa^5.

<w.

l\ kS4te£lASt &e>lA

<WLfrk<4W

JiHaw &AU3£ pQjfefTl_________________

^Jo M$U>.idhair> £sL t&a.d£-d ^h&,. irf-^i la<4 a^gh

I %

^ j,h4’3Vdtf^i^>J r^tnsU ea^

^ Cj. f CLul^ ®?;

BLO

J luA a4 i^ai88'

t. n

»S5UAne&#a^ i°h£Lf*

rtOAf ah 17 a Zssio} S Q 6 H .1 (gxrti<srrJ2J)

S*a»!?a /rt

t'S tl4&f mAssiiVys tTulfl

‘

s4>

t m&.

ew. )«.^i)klrajr^

S. i

U. ?< v iLgdLrvflr^ J &6

ani ft.OAt/’i 'BiaJ' gjau.f4l

rVi U gt

i)? ma&^g. cx.ng(.

^dLJ^.

atigaii f

...g'l’iiuide

Whayi Jtf\4,ua&f^3

XsOr^ «s£ 'O

'fKirt f

gAnon (S also 'fh&, last 'J ^uAi&lcJI mQlLif'ij

/? aSCMllJsjdmrand un&mhifrU&Li$. “"TTyfe, r&SulTinjs gjarjfcjuSiso 'bi^

’iVv.s tcaturt rmxJT U-phsld 'fhA*- fg»nnami

fcii4’Arv5l ? ri^e/sjr in&hidiusl *

~Th^L <52)aC< OOp^i £<xA^m "ho ~th^ ^TC^^Q'r par-

^ A^r’tl. 2;2<02O; IASlS

rl-PGkdi b_por> faro \za-i cvS iJ- ~pA > IvaL ~h=> £\cAh&r^ Ap 'tWa^ rrgrYjaJt^/ ~£ty>

OLppl ifeaiuan

< n -p&d~

(23 dWl) (E

& IT j YgXH IS it s’ V_____________

2) dn G>n, ftp^^iLaJUu afrafais

o*c,fta/AW ~)~koj~

ibtj 130*1°.

aL&TtOP

ifyqur

•0

QO To -bho^ &rdU.r& in^ofpor&JkjL t'n -PuJI K&n&j‘n.

( &*\ks% rT £)________________________________________________________________

TKU\MjrWi^L

r«,|Wei^

■^W/nouJi Subm i-frWfit s

£h»(L inf^xd* “ihsJt &0 th)$ mod.j-Pu

Qao I'pjshLn ~hs

•■$ il __..... fjaiA fcL-ri^ir

4 ii

anofsA.

r^nA -puLr^^r ug^-figA bij Lt-S /^uonci-

<Zj/

pX , tsna^ 1^9)

Apr".I,

956 £*• 3d i 17& (z&%&) - CTC^^r ^ppr^^j

.7020)

CJ1 ri-ppK'g.ai’iQn<

fgxrt»&rT zVexrtiSni)__________

»7 l

GlO

\ SimnilaLril^ s§>

h-tft&hu -ijSuutL "B"te- ^eifauitV^

4p^;i 17-. zoza/f&O

Al&rrk&f fSO &0 v na? Qo

O- mocU ~Pt tjsTl&r^ (kS UlmA-I S’^aJ’i1 n s

J -¥

, Wil)

fKa^ fic/ar £lO tiAu-ajd!

.4)

uhgrjf’ iVtfau^K 3”1 ^Cv <=

< As

mo^Ltyi‘L.sd.i ans 4% bjViedr u\q£ (s..ffl>ra.\MsL hsu -JC3^~^tL> e an

rf ; oqulI d lae- nvec^j^A

23L

n©

ftCtzt.s&Aufld 4JP&F-- C £XMi6rr £)(uM.i&n b)

&At^ And

n%%di 0^014. lb fi^y^pftA lASi'th /$ U.2, C< §337^ (&)(h)(&), "TH.vt >*.

VlWU^ sq\a^

KiAgin nrvftka^ ii* ei<&af bdfh do feH

Akin

^06iS. &t4~

/mod,) -fi cal; ans v

muuS>^r

~tKa dt-T^v^A^ tni’&ndud

^Vm-oirk&r cJ-htn<ah'uA, &.S LlMJI' 1~r¥

&,r-d

T id'&nd aJ&n^ rifaiA

jr^ST^^ iLp&r^ fHu -g&mjL/

* g-fitgip

L^Plild

•of ush>ek.ua&s so^iudW, jH ikksu Mb&H a^fiKasdan -4af 25To doJfeA Apri l,

2oao 3 Th^se. re,c^iu r-fcimsun:ts

4-Kl dL.sVidh

H /yr attaJ’ u.

-, ^

%«

^““i rrrn7"‘mW*

■-

—

t,liay?;:~.rc»aa _

Kgjn dou^ja

" r" •"'^'■*myw

bajaaoca

ftm, edvJudy_„ ffhaii

fec-aa

A*3t

"jjjEflu.Vuffif

u ’fa jH^mu.dic^auneuJ

g\ Af foan-Sietn pu f?MOfCj~ H*

(oi\

son

4 I

■, ^Ajk^^h-a f*(_b)l

'«

gte^X>(« g.qJT9 0^ yaf ^-y^fcs^/esi &-S

it o

«'

(tPn^iii^ freMasQ £<

a on'CHAto^”’

madr^r GO *€$t% AftM (ai(a as umI! I

Sf#l-4„al fe.biav'fc, fr^fA,

li&Wtk

C-W^Kj kiii^ nnd)

fei—3> ear

"Hmua

4^n

l.fJM

d&i a g

ma»

•J

!Le^jJLLrs4^

i4.f *thj}j r»

sqi^.

At?ckih. d&n- naf ahs&nSi

ftiiau/ "ler mooL’ ■! i &ajf» aw.J .

L2,

•®a at s>n&^^hhir^ imp^^-S

gALLj.g fSs’s o|- af\^bar~.

-3

yirij aUa^Iu

-S”

st’

&iu.3lariTa im. d..ra,itsn is Th^ i4-a..,sa, &Q

_cm4htof ^kAA.W OLfoe^tftdLuneJ tff&r gr

,1&mK

/——MB

*>»■ '^u.., mplfQaJ'^/i.i'e 'f^4L>T£,yfcCir > AoP LL^h&, ^fkaf jjfa»/y*y.

»*

4 f&ft

"^issS

/VA^hstr (2^, (a.1? nor Go. (tit ?iJOat

••fcd'SMb- mfeJLudUtj

ei> p&f°Ud

r'")"

u al gutA oreLr*.

(^A^ e f*

t m rv\ §jia ^p-ojblT TKa^ ) ■ ivj it? jg’yyfljs&j^fja-J /<

y »

y-wf Ta ■€&? ajugi -fk iVlu diouA g.

'*“aB®

sfi€.CL8^ cLa.{L

r^p iunt^-Hrsd*

^U-SCbgjfgtain Op fKa. 4"i ma_, m SusjK eta frhvs/ft’

prowidW /o

3To|^/f)i£t.' 1 /iT|4 the ^Kigrf .judha.

CuS

GO ^

guJ

{&Q 6ll.

Th4, -g*

f Bf;sosm

M^eul" /s miAil4b S-^tjLrd §k. A-O battaA^/

‘6

a,^h / 1<l \/>s n.A

A tltOLrlu €o; ALu,cb^s -thiL. &h'>l! A* j& rr&fl 8?**./

>' f

d^L^S 6 /"Tfiurxsl G 0 6 i$ ft-fg, Vot'd, j^ar plaup <jrttC*4eijutaJ grfar.

ihiriu d tsiu s a ! ‘fi'tJ

h->

U3r'.4 o4 V^ar)4«mts P I 4 IS

4f])^^~ps<a£4.fii 3—i, IaJ H ' tft, *$&&£.*-i*t &a iL

4a t ? U , g, £L<f II

^ '

Hr C^ogjysSu aw! frJ 4)*Hl jim'th&j apafs^'mL

Qg-J n®f&ti$,t-i. b£.

s mp>'!I'- e^iien bdi’ns "H"U cam ^

v^ra ». Vy^ t&itH; W -Hu. ^ei°ian

d&n&r

■w»

Kiftatesiktlu . LMi Hi i^alu &iftJ ! rihf ythWwa?I u

(*>aurA»-r p/^t4.uftj» Ui.

Ufrt4h “Hfta...

aVftA-ms

7j'

pShary?' sth 'ik "fha., a cJ“i \ aJ S4.eiijetft l&ft ^uftge- &.S Ur cLonT-6u <15; pcohi b*< t iv*g. an>4

4a 'j'biur &nd a<a&l a 4?

Imrb

Su^Q^Si-gQi &&■ aJJ Jufu -fn‘4j m -h)ml £ oS-h^ftlhiS^righ &■* Cai/’&frtta. tA~&ll

l r**> Q PeiO&£*

4Lnds al*» j Ul-%'fi‘g4» .

feb&htftd. IX.

Ghrd&.m\t, i

th&.t’npJ&C gASU

a. 4-

u&H i

I a frb fmssf*t^art-3

i ft jit &i“ ^

oLarms lit&is

ik ifg^

'X Lchi,. »J4J)/lgU.S.f,f3m/bti

£44 __

v ■v

v '/

„La S 4« aflt. 4hL £T\> H &|3p h P .aj)

i'ru n f_ g>f 4f’h&.fvfebu obyVujfi-a'?’< i

4hlL A#lTn pJhkrV:; <s4

guS&ArtSiaft s^-'hma, lim?4g 4fttki?

£A fiVuJI

tV O. Q&fi&d sf fift-O.. •/%6tja& fV. EAftM S/U.’-MtAf

V4ll of ^nfi-XOsA5

fir t M's >h ^hsL teurf sUig,. 4i®

n C4 kJi I

4 LL C/tSES

fejfi.tmiftsi ) ft

>ort aj^1 ^Wlimt-fo QVJ4r

tK&^

r&safi^jcu «f! us k^.

t^jkd&z

JfYTSSfift8 f*S£j$ fefi /

ftaf 4aa «sjg fcaec/

•j mib

sn4(«.

lift i*hft.

£Ba!l ^ aft^awn*

-j

taogxH>&rr

autf

j“ turn, ! 1^4 .^ugp4ftJian 'fa &.VOid

ft, /4lC.4L?5»;>/u of

a?| fat

f-fe.3^ dflmiS-tUt t^i^h OnuiAdLi^ atd/ar m&ni&hJ

'“

■fa-SiXL

4-5

£&

0 Rfe.J-tftaAii'S

f>mA.})m'if

<m. d€■ f«

kin

m .jzfc&CL Lumie fr/ai

iUffttfuAifl/

^-10

U>“ f .^f

a ^ IS

ftl

z) P-dvKtorst^S

re.lu-i in 4Kp. ^ cm

fifj.nmisVk/ ^i4K pPij-'jJj .?•<£.

&Uor&.)fi'j, to llo't.il3nV(bj ^ bafh & B. Id(i

£,D( k>I? ^ &xq >nm

•?

OlS a |:__April i§\?5E53 dfssl ^g<j /S', ZoZDj

^4- ttiiiW

Thus nullTuf

, ~fHjp»pr^, A^TaTmij \c%jg.jdjA fri ni eb th3 i. i) kgii^ejtALT

On }\\L dotMd io fyaJdW

•V

g*v>f

la S^fTu EAUh gAiruiaiVart

i.i

Coo-iD-jQ ar

* 1

&3h^arvfi-r£ t 4Kpi'f &JaiLk~ he,via,

f least

fag-4tn ftUViin >. 3>m£g.. Hi

IZ, Z&ZQ . (ov4f 7s> d&iyl £.3 C4& u.ir<*j.

,=J

<k&P.an4a T *K»

•«?

ft lilLlsuJMi).

i oAar j rayittgh fh^ ten/1/ ^ULailn Q-P 3 fen &.nal lalg aortal

■i

6w^-A

f*A-k^-rt fesu tKa ?v.)~>iik4 j

■3

!■;

Suf f ardhrif^ ii^Vk

rpiJl

a>.rif4

*i) P^KI;lan^t r^f-st 956 £ 3al Hisftezo) h^. rescinded and all

/KaJ fcJaa&£ ih

M-a £rps d. rtlfartoA ^ evp fiOn^k 27; 2a2a;

na IftJ&r /fc&n Apr/i /6.2£>2j0.

i::

Far dll fHa,<■*<■>. paAAanS hejWn

gouff a r.4rlf fh>6L

r^eJcfl *

f~-&bnj&ni Z,(e>y

HgJifcF TdW

Th-a. HofthAntjrs rteAm\{ #v.

■

i ■

i\n^a ,

J'j\1> I

AJLSk ikJlu J^uhnn, 'bf^A . <,

^va^ o.nd aft jai.-KAl-V' ar/i

}

3^m£S tH^lST<fti£R tASHJi

o\ fAarsdamiiS

P- 10 ©I IS

fe&/MLh jJWmff f$zm%

Foq v notes

diiSCfttiAj aft ?n tore ^ She- rr>o^u

Yjii~at4-3S ftllfllrfr.3_S-a.af ddcu^ Oil Cl iprsteU_r^ > n

4s mSUP-3-

Yhfl-r^ jj^ou-lei fe>&- ne ooa^pa&dvj 'hnai.^,:

The., major’'~L split dfl£o'iar"> ronoiatrkcl 4he- dg.ft.nahftt4 d-<W rof pajj f’/Mu______

^gj)-

TOf"

fej-pW- St 3m.4H amg.nck.i).»f 5pfc&flUj TftcaJ gJWm Tf^u^j- m ijftcfc&f VI

93 S i C4

tan o

197&) * CO itmih

£i

/i<9

-«

.'""J

) Hm, -| gpj-s

I A.pJt cia;^ 4&gds»r34 (O StftieuS rytSS S' 4 Yhe-

EirEu.ftft2»Kr>tag uih\ ch kd 4aTh4. cUs^issaJ y(32) irnpikdr

Si A andl j usKtfc.

/j.S. V

LWSs Slg f.3d im(VWr ZO^)

Thex^lc^ 0r(4:iF,nr>t'r'4 4h&- taa-fY pcs > ton 4Kai" inf-^riQ w-jktb.ft u

upon

.;S

^a-fee-glu ~W\

»2.

4 Sp4&dt^ 4rvbd p\\hY {‘4’} ppg.jUi&iLgj ” a.nd M^+bra&Yerr-oS &f fftludj'cA

Dx+VmW^ .or rv

aLii&y ^3 ra&Sso lar tHl A&I&m (3^

dPp^&Js fc>&$4g

ffi, owl Ciloams ar-^ UnoT P&jJofvafll. . UUS, v fiourrutf'S &3Z

(^fri-v 1980)

IWam.v^s ppt>4rV&A p&aW- sh 4Kij> losWatA t& AppropW&fe- exi; evl&&n£t@L

~tH(S nftftnd&rfttiSi.

Wh4f€&.S

Ka4V~h.3m.r4 Ond 0,1 { JE.t)a L*

dt,J€tid&nf 5

Q4jh d,i n& ftinX UJitl tnr&\ n u

»9

K^...

4b bt- h 0lT/MjiI. S*hQ\JA this n^&r'Ji\mu$ nSt

]

pf’t'&r' 4°e» 4*r/aJ. \

a~ C»Q6^S io3P>f-4ci,

Yri'oJ 6jaJ*fe. s4 /ier^ 1*9, Z0ZtJ

2& !

■j

fix-iL-p jaAiU l®rr?p!'gi,^r-YH&. Uajm 4(l-3 cL.cli^i'on ns4 fe€, $i/nft/^L ^ btd~ &

33 I

4i a aJ dl <

ti £F) fVi&4 IiWj j/j

msfyel

ioya^r^L

m§,nf 3 (l)

6'3S4jaW^ to b&r Id.l4 >rp4 st&f'&hiij r^- c-ay^t^

s-f

«4

/* w

TKa., jixdtejoJ h\ IS '&T

N N\

\LLd.^€-S

«af

^;f iiMxi-^Qr P.^ai

J »{/,

&f>Acinus-

p H ®4 15

m &D

•

£.yA dfLpfcgA- faij 4htt --jpf fatsos

” 2 US-cr -

1_______________________ :

, AotJt*± S8& . daie_i OLJu 3P, 2^25

(gxHi6rr7\

vShavAB, fao£h Q-^>flJ AttK, fjMS Mf° fcf Aflf il t9,Z®21 ) iMcM is Visual-for

' i

an^. or g&gJi of -fho_<V>a fs,&s@f}£ 1

3o) d^uxl

j 1

ft-g-KiLf t^A A)auAt3.aa2Q Ustiftnaa., ~3vjuf>a,U, 2ote 4 And/,ac._^ So ill

va/d

d-a^.i afia-p

ts>ni\iejMi£L & mod t ^i^hS.ii sr

&ti&fij? e.ajbVs a d-OLui-yiAvd* fa “#S4, G vD-%^ adr

fo -fhfe, JL^&V lijaa rrukdhtu,

9rfe r. Sa IH5 fWisj) as as &c

fif UlHaj1. 13. fis_UJ

'/ar a. am,a U4Af ^sdWvl‘ tar*> «

Tftua tnaJj daha. Ij

(heU-^-mj^tcb tou ry>&dLfc- pi\hh% ik 2&sUS?

allahtei? 4a lag*

jpM'feeitdr “hmfc. fgt fa

s_u

•rVidr^miAJts of

1 11

{‘tjmPhaSi's 4^-dgiJ) £.<' $Sis

iirtdb-f

«£

Bl.P'Q... f

fiu’th

': "i

;

.gtm

.4uf fe&uaJla

■'7

J r

/iLloi i.aI. &. fW «i

&'U>mtr - DQQiZ* mtlt

£>

abvitausb IS b^ajSAgf 4*kil

~-r

"f v

rttf >ca.)? ai»i

•g

l*S6LS /r3:

^ Oil

&?l

)

if'4.- "fkA* M

0T\!e>f

ihk rs&rfaui

^54

inS,*- $)tS bouriA

/y^lkkiv^

ia^4^1?u QUflh^dkb

of ft UMMm(^

7^. I

in&wna*. *Hkl

f<eoK ll Ltaar> ’’tkiffi

fs npakc fhs

«L

•Tyi\ft^r<.,fen.

Z3 i

as “fkftM piee&fe I ft

&n IlnAmbt AliOU^

Ulii

ZJS1

2^7

"JllLr remi-t r-gjm&ni^ j^Str 0,0 ^ fhsrri&d pOf^

'^Ka.m&gl.'lcar SUSpATfc3*an

ydrt a-fi !

Tfn^ Omi^ ^ * [Wj Q P

7^9

r£ej™ Li P'a<sn&i4 /<

are > l) ufcn iSSuiftftCjA- x fKk && >3 mo I

’fhirfufepj

•J

£kO nne^ ^l, 'axj^dU.gj ^’or Ckn QL^isUTionai ona.'-cje&r'_______

^ hr oilfluStr&aL ?

p-ftTipoi. The- rJ~>>-fc^-.juoiy.

)

L£>i •I'hun

^d) ^ajjA

G.0> j^u^ndjg,^ muST

iaauA exfferrhoo ih -bh&i? U rtiuu'b Ju rli fi&i A aiind I ()2 ll»

r>pp^u

~}a no^R^... Appli g'ftTiare ~far eji’H’l&r (~»_Q fell

^urlh^rmora.

TAJ fy-ra

dcuj5 (X-jr~Htf- 'fhaif IJ-XSUt^

-i —

JuKa ^ zazo,

-j

r\r ejlu4 kmct orstoTJi

)hv-5 pouIu.f4^ n^r>d&-r<ejl ’koth &Q Cs)7 Cmol

£LQ ColM s_____

ttS.CU §3 il^f maJl-a-S rv^ praVi s'uanS> •Htafr oilatAi ~fK^ infitur'ior

'disfr'tsfc toliri fa hrrrtund or fTtodifiu

Jli7V(eS)

£q/q axptO^L

P4.q u j N oa fhfi- ~fPt cJ alai^ „ g^f

£■' ilg - &f *£0^0° f^t-t (dotkik’

‘

£XP[\^n '¥)vb±s£t&

*•r

far ofiaratAucaJ errors

t !

U.s, y ShelkK ^ z»l8‘cr-aoiH-W6& (&*

s LH

e'^zii 4- =*pmP I t.*JL

3&dhon °ftT

^ub^AjhartS

CA) do&keJ" ! ^S

A , 8 ouW ts&iLCLL&Jb C, m

T^h&ir

*»

> c4^m .

Pt A-rHur g| \ ^aa\‘<i' tan

of 1*^1 .5. r & to UM3

95k A ScLinStz&s) , spicifilUL

Sp4jfeel^

£>^oa)/»‘aaj lo^v^gA^

^iuditcXaJ J^na^^anCtj T^u^- 'fea (jd fonx1”_____

i g-gLenga-^ ^ ^ COV/ a - r!^J P&naLijfyi ? fc

[!>£>£* 4*51

^jpp't I ^i

P ; > St

£&.£> ^a.su,tst 4f Jki^sU-1

1>P)

bLftjV SLLbmt'H^ eL ^

etoi^ sho\^^ ql

olfto

befiimyi G>0 6/1

"Itaf'JlSjD.

/33UATi<Sg^

(rnpiCth n. z®2&) {xad -hk^ Apt\ l f„ gago < (iff I' £-*J’

TKt-S is

fij\ I3s% b'Uj&>*)d lA3’t, §3}y^(&S f’-^.n (io) dcuj

2£

&) 3hauls Ql. ppif’ipo.SgJ^ ~trun<LaJ\d.

taCn^ a^kj4»

}& Ll>$, t<§3l7^(b) lb 6b|uiJtdi°t> fh^- dl

UmAmblanaug naffauJ pA.<*>S r^UliW Q

is.

g,AAcl Q-X>&\( t.&fi&rt , “TK^. f Vsi(

j j r^vlins

g> ubm

f i/u 5 .

i Aj ! h tlxt 3 \ an &

» A

jgj'i&rtA

> ft fib jd’mjt,!-^ &f- m-ra/v>

S’-H

b-t

p. 13 of IS

prior i°s

flQ

eA£:

(\n/)l

.3^

aJ.

Gfy&F U4lfcJ

't’h 15 Sa4/^&jV><L iS \Afe/i IWdhart 'HtP

/£ba (L

Ui&.S Ajl- IL

” ”* 'j

)ri‘ai. v'tal^-ianj?

i on«

fltodftNL 6

loowVmo m m&13 &ni Ijfe oLsifa, ’fa Oj^ftalViu.

*BB^

* \yse>rk SiPeunet

S^Art^fio ’far 'f/vtHhiVftJ &nk-/fr A V.

T».»i4L *

£ a-F ^Kj»- /4pp i I 2, uyn&

fSfi

ha AS

fiatirlT

\ i

<firbad^

/% +>*, rraa^V

$ S3»n

*■

TKulS

tat% <

^ajnek e| Ios4»g<fl,

tJp^A.g,&- in

AlimSTeKi-S f,&.f*a4 >S ftjft t^raf" s-^ \ su^ f\& “HVtS

V^-.Iua ^aT

is!

/ft

jSS.!ljrtS<*>aul

jgjwItfHs* L<BP?<S4J^i»gm {,.£ ftj ft»l nsaad t

--■

m Ui

. Kaja, 1$S'

n iU

i i.

/t H

i j

¥i

u: l

& It !

■1 li

•If 11

VL !

M i

v»**

«8Sf*

#8?

\a)N¥

y7^dtatfnu& P l

£xM6fT2>

i) >

tk ?J- CloJi

r~“

|i2 *

956 f.Sd^lllS (Ordar Qj^-fg^nA

i%. App I■ id"t&n -har jksm&cmia

yn <tu Judh£±tJ QtdsJ > ^g.d.

**r

jQpfttg.asao^

‘

kHz (i!sT2\£*\ tft ) Apr.I l&?lDtcj)

* 1

*1* A&AunsJ DtNgUf &?§

tA. May 13,2020)

l|6*

/S li.S,&..f 3<l4

fibril i<^oUmiu<d‘,s3’<.&n x

^is

(jtidugiai £m^s

It ii

HCs*

G-slaitaJ €)rdu/* Call

(^£. t)i?rh st CA> ^ ffiWttK 17^202^)

✓

r-j

[[

IHv

i pi

( jaUWnft ^TtU doJ’O

#7 18*

*8 ii

H ill'

■

5 *?

tTfi.

SK iaJhk 4 3rfe&..2ST. &ubAfcef/anLa A } 8>. L faa&.x

#Bsfe

g.2. M

25JJ

frS1

Iftg43& §Mhibifts &f-& n®T meJudjui &j gJ( partn*nvf

ft. a

&Wf.44u

£1

kS4 aSr! 1 \&?4

6.f.4

At&,

Page 2 of 14

Page 1 of 14

Civil Procedure > Class Actions > Prerequisites > Adequacy of Representation

Holly W. BAUMAN et al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil

Company, Real Party in Interest

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

557 F.2d 650; 1977 U.S. App. LEXIS 12609; 15 Fair Empl. Prac. Cas. (BNA) 279; 14 Empi. Prac. Dec. (CCH)

P7700; 23 Fed. R. Serv. 2d (Callaghan) 990

No. 76-2156

July 1,1977

In the conduct of actions to which this rule applies, the court may make appropriate orders requiring, for the

protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such

manner as the court may direct to some or all of the members of any step In the action, or of the opportunity of

members to signify whether they consider the representation fair and adequate, to intervene and present claims

or defenses, or otherwise to come into the action. Fed. R. Civ. P. 22(d)(2).

Civil Procedure > Remedies > Writs > General Overview

Editorial Information: Prior History

{1977 U.S. App. LEXIS 1) Petition for Writ of Mandamus from the United States District Court for the Northern

District of California, Hon. Samuel Conti, U.S. District Judge.

The remedy of mandamus is a drastic one, to be involved only in extraordinary situations. Only exceptional

circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.

Civil Procedure > Remedies > Writs > General Overview

van

Disposition:

WRIT DENIED.

Counsel

Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus

Mary C. Dunlap, Attorney, San Francisco, California, for Petitioners.

U.S. Attorney, San Francisco, California, for Respondents.

Judges: Hufstedler, Goodwin and Wallace, Circuit Judges. Hufstedler, Circuit Judge, specially concurring.

There are five specific guidelines in determining a party’s entitlement to mandamus relief: (1) The party seeking

the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The

petitioner will be damaged or prejudiced in a way not correctable on appeal. (3) The district court's order is clearly

erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent

disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of

first impression.

CASE SUMMARY

Civil Procedure > Remedies > Writs > General Overview

PROCEDURAL POSTURE: Petitioner class representatives sought a writ of mandamus commanding

respondent, United States District Court for the Northern District of California (trial court), to delete from its order

conditionally certifying the class provisions which permitted class members to opt out of the action for injunctive

relief and required class members to opt in by making individualized allegations of discrimination in order to be

represented.Petition for a writ of mandamus was denied, because class representatives failed to show that their

right to a writ was clear and indisputable where they could appeal trial court's order and if trial court had erred, its

error was anything but clear.

The availability of direct appeal weighs strongly against a grant of mandamus.

Civil Procedure > Remedies > Writs > General Overview

Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus

OVERVIEW: The class representatives filed a motion for class certification in their action alleging sex

discrimination in real party in interest employer’s employment practices. The trial court issued an order which

conditionally certified the class. The class representatives sought a writ of mandamus commanding the trial court

to delete provisions that permitted class members to opt out of the action for injunctive relief, and required them to

opt in by making individualized allegations of discrimination. The court denied the petition, because the class

representatives failed to show that their right was clear and indisputable. It reasoned that: (1) the class

representatives might be able to appeal the order directly; (2) requiring the class representatives to appeal would

not result in irreparable damage; (3) if the trial court's order contained error, given a split in authority on opt-out

provisions, it was anything but clear error; (4) there had been no showing of persistent disregard of the federal

rules; and (5) even if the court assumed that the opt-out provisions raised new and important problems and issues

of first impression, review then would have been unwise and premature.

A mandamus petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and

indisputable.

OUTCOME: The court denied the petition for a writ of mandamus, because the class representatives failed to

show that their right was clear and indisputable. The court reasoned that they could appeal the trial court's order

directly; requiring appeal would not result in irreparable damage; the trial court's error, if any, was not clear error;

there was no showing of persistent disregard of the rules; and review then would have been unwise and

premature.

Civil Procedure > Remedies > Writs > General Overview

LexisNexis Headnotes

Civil Procedure > Class Actions > Judicial Discretion

file://C:\Program Files\LexisNexis\LNCD4x Kiosk\Print\KIOSK3-330fbele.html

Civil Procedure > Remedies > Writs > General Overview

Civil Procedure > Class Actions > Notices

Any injury occasioned by an order of the district court which effectively reduces the size of a certified class may

be corrected on appeal after a final judgment and hence is not irreparable.

Civil Procedure > Class Actions > Appellate Review

The orderly and efficient administration of justice is not promoted by using the extraordinary writs to correct

ordinary errors or to serve as an alternative to ordinary appeals. The writ is not to be used as a substitute for

appeal even though hardship may result from delay and perhaps unnecessary trial.

Opinion

5/5/2021

file://C:\Program Files\LexisNexis\LNCD4x Kiosk\Print\KIOSK3-330fbele.html

5/5/2021

Page 5 of 14

Page 6 of 14

Moore, Federal Practice para. 110.28, at 302. In addition, as the Supreme Court twice stated in Will,

review by mandamus does not "run the gauntlet of reversible errors." Will v. United States, supra,

389 U.S. at 98 n.6,104, 88 S. Ct at 275.

plaintiffs of the pending actions. Direct appeal under section 1291 or section 1292 was not available to

petitioners. Also, as we noted, the petitioners would be severely prejudiced In that they could not "be

relieved [on appeal] of the burden of actions filed in response to such notice." Id. at 1076. Further, we

characterized the trial judge's proposed action as "extraordinary" in that it was both novel and not

authorized by any rule.

Although this admonitory language is helpful in framing the boundaries of section 1651 power, it

serves at most only as a starting point in the effort to develop a specific framework which can assist

when practical application of the generalities is required. Even more helpful in that task are the judicial

directions discernible{1977 U.S. App. LEXIS 11} from an analysis of the cases dealing with mandamus.

From those cases we have identified five specific guidelines: (1) The party seeking the writ has no

other adequate means, such as a direct appeal, to attain the relief he or she desires. Kerr v. United

States District Court, supra, 426 U.S. at 403,96 S. Ct. 2119; Roche v. Evaporated Milk Ass’/?., 3.11-U^

21, 26, 27-29, 63 S. Ct 938, 87 L. Ed. 1185 (1943); Arthur Young & Co. v. United States District Court,

supra, 549 F.2d at 691-692: American Fid. Fire Ins. Co. v. United States District Court, §M.E2d..l3Il>

1374 (9th Cir. 1976); Pan American World Airways, Inc. v. United States District Court, 52^.Od 1073,

1076 (9th Cir. 1975); Kerr v. United States District Court, supra, 511 F.2d at 196: Belfer v. Pence, 4.35.

F.2d 121f 123 (9th Cir. 1970). (2) The petitioner will be damaged or prejudiced in a way not correctable

on appeal. (This guideline Is closely related to the first.) Arthur Young & Co. v. United States District

Court, supra, 549 F.2d at 691-692: Pan American World Airways, Inc. v. United States District Court,

supra, 523 F.2d at l676:(1977 U.S. App. LEXIS 12} Kerr v. United States District Court, supra, SllE.Sd.

at 196: Belfer v. Pence, supra, 435 F.2d at 123. (3) The district court's order is clearly erroneous as a

matter {557 F.2d 655} of law. Arthur Young & Co. v. United States District Court, supra, 549f.,2d at

691-692.692-697; Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir. 1976); Green v. Occidental

Petroleum Corp., 541F,2dJ33(5 (9th Cir. 1976); Commercial Lighting Products, Inc. v. United States

District Court, 537 F.2d 1078.1079 (9th Cir. 1976); Pan American World Airways, Inc. v. United States

District Court, supra, 523 E2d at 1076, 1077-81; McDonnell Douglas Corp. v. United States District

Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911.96 S. Ct. 1506, 47 L. Ed. 2d 761 (1976);

Kerr v. United States District Court, supra, 511 F.2d at 196. (4) The district court's order is an oftrepeated error, or manifests a persistent disregard of the federal rules. LaBuy v. Howes Leather Co.,

supra, 352 U.S. at 255-60, 77 S. Ct. 309;{1977 U.S. App. LEXIS 13} McDonnell Douglas Corp. v. United

States District Court, supra, 523 F.2d at 1087. (5) The district court's order raises new and important

problems, or issues of law of first impression. Schlagenhauf v. Holder, 379 U.S. 104.111,85 S. Ct. 234,

13 L. Ed. 24152 (1964); Pan American World Airways, Inc. v. United States District Court, supra, §23

F.2d at 1076.

Although these guidelines are helpful, they of course do not always result in bright-line distinctions.

First, the guidelines often raise questions of degree: How clear is it that the lower court's order is

wrong as a matter of law? How severe will damage to the petitioner be if extraordinary reiief is

withheld? Second, rarely if ever will a case arise where ali the guidelines point in the same direction or

even where each guideline is relevant or applicable. The considerations are cumulative and proper

disposition will often require a balancing of conflicting indicators. This last point is borne out by a

review of four of the most recent Ninth Circuit cases granting extraordinary relief.

In Green v. Occidental Petroleum Corp., supra, 541 F.2d 1335. the{1977 U.S. App. LEXIS 14} defendant

successfutiy petitioned for mandamus to reverse certification of a class under Rule 23(b)(1). In

granting the extraordinary relief, we noted that the class certification decision was not appealable

under either 28 U.S.C. § 1291 or § 1292. Further, the district court's decision, as a matter of law, was

quite clearly erroneous, and without extraordinary relief the petitioner would have been prejudiced by

"erroneous notice and opt-out procedures."

In Hartland v. Alaska Airlines, supra, §443L243.92, we issued a writ of mandamus directing the district

judge to release to the petitioners money they had previously been required to pay to a Plaintiffs’

Discovery Committee fund. The district judge's assumption of jurisdiction over the petitioners was

ciearly erroneous and amounted to judicial usurpation of power. Regarding the question of finality,

and hence appealability, the majority found the issue close and declined to resolve It, but a concurring

member of the panel concluded that the petitioners ciearly had no avenue of appeal.

In Pan American World Airways, Inc. v. United States District Court, supra, 523 F.2d 1073.(1977 U.S.

App. LEXIS 15} we prohibited the district judge in an airline crash case from notifying potential

file://C:\Program Files\LexisNexis\LNCD4x Kiosk\Print\KIOSK3-330fbele.html

5/5/2021

, we ordered the trial

In McDonnell Douglas Corp. v.

judge in an air crash case to vacate his certification of a class action under Rule 23(b)(1)(A) - (B) and

(b)(2). We found the certification decision clearly wrong in light of a prior case. We also stated our

awareness "that the district court has re

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.