Order Granting Request for Continuance of Preliminary Hearing Date — United States v. Middlebrook (Dkt. 21, C.D. Cal.)

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An order granting a request for continuance of the preliminary hearing date in United States v. Keith Lawrence Middlebrook, Case 2:20-mj-01341, in the U.S. District Court for the Central District of California, signed by Magistrate Judge Charles F. Eick and filed April 7, 2020 as Document 21. It finds that the complaint filed March 25, 2020 charged attempted wire fraud under 18 U.S.C. § 1349 and that the defendant was granted pretrial release on a $150,000 bond. It continues the preliminary hearing set for April 9, 2020 to May 22, 2020 at 4:30 p.m.

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Case 2:20-mj-01341-DUTY Document 21 Filed 04/07/20 Page 1 of 5 Page ID #:131
          2:20-mj-01341-DUTY Document 19-1 Filed 04/07/20 Page 1 of 5 Page ID #:109



 1    NICOLA T. HANNA
      United States Attorney
 2    BRANDON D. FOX
      Assistant United States Attorney
 3    Chief, Criminal Division
      VALERIE L. MAKAREWICZ (Cal. Bar No. 229637)
 4    JAMES C. HUGHES (Cal. Bar No. 263878)
      Assistant United States Attorneys
 5    Major Frauds Section
           1100 United States Courthouse
 6         312 North Spring Street
           Los Angeles, California 90012
 7         Telephone: (213) 894-0756/2579
           Facsimile: (213) 894-6265
 8         E-mail:    valerie.makarewicz@usdoj.gov
                      james.hughes2@usdoj.gov
 9
      Attorneys for Plaintiff
10    UNITED STATES OF AMERICA

11                              UNITED STATES DISTRICT COURT

12                       FOR THE CENTRAL DISTRICT OF CALIFORNIA

13    UNITED STATES OF AMERICA,                No. 20-mj-1341

14                 Plaintiff,                  [        ] ORDER GRANTING REQUEST
                                               FOR CONTINUANCE OF PRELIMINARY
15                      v.                     HEARING DATE

16    KEITH LAWRENCE MIDDLEBROOK,             CURRENT HEARING DATE: 04/09/2020
                                              PROPOSED HEARING DATE: 05/22/2020
17                 Defendant.

18

19            Having considered the parties' stipulation, incorporated herein,

20    and good cause appearing, the Court hereby FINDS AS FOLLOWS:

21            1.   On March 25, 2020, the United States filed a complaint

22    against defendant charging him with a violation of 18 U.S.C. ~ 1349,

23    attempted wire fraud.       A warrant for defendant's arrest was issued by

24    the Hon. John E. McDermott at approximately 4:00 p.m. on March 25,

25    2020.

26         2.      Defendant was arrested on March 25, 2020 at approximately

27    6:00 p.m., and made his initial appearance before the Court on March

28    26, 2020.     On March 27, 2020, the Court granted defendant pretrial

     Case 2:20-mj-01341-DUTY Document 21 Filed 04/07/20 Page 2 of 5 Page ID #:132
        e 2:20-mj-01341-DUTY Document 19-1 Filed 04/07/20 Page 2 of 5 Page ID #:110




 1    release upon the posting of a $150,000 bond secured by any affidavit

 2    of surety signed by defendant's mother, with $50,000 of that amount

 3    to be secured by real property held by defendant's mother. At the

 4    time of this stipulation, defendant has not posted the bond and

 5    remains in custody.

 6         3.    At the initial appearance on March 26, 2020, the Court set

 7    a preliminary hearing date in this case for April 9, 2020, pursuant

 8    to Fed. R. Crim. P. 5.1(c).

 9               a.    Rule 5.1(c) of the Federal Rules of Criminal Procedure

10    provides that a magistrate judge must hold the preliminary hearing

11    within a reasonable time, but no later than 14 days after the initial

12    appearance if the defendant is in custody and no later than 21 days

13    if not in custody.

14               b.    The time can be extended.      Rule 5.1(d) of the Federal

15    Rules of Criminal Procedure provides as follows: `With the

16    defendant's consent and upon a showing of good cause -- taking into

17    account the public interest in the prompt disposition of criminal

18    cases -- a magistrate judge may extend the time limits in Rule 5.1(c)

19    one or more times."

20         4.    On March 13, 2020, following the President's declaration of

21    a national emergency in response to COVID-19, the Court entered a

22    General Order suspending jury selection and jury trials scheduled to

23    begin before April 13, 2020.      C.D. Cal. General Order No. 20-02, In

24    Re: Coronavirus Public Emergency, Order Concerning Jury Trials and

25    Other Proceedings (March 13, 2020).        The same day, the Court entered

26    another General Order imposing health- and travel-related limitations

27   i on access to Court facilities.      C.D. Cal. General Order No. 20-03, In

     ~ Re: Coronavirus Public Emergency, Order Concerning Access to Court

     Case 2:20-mj-01341-DUTY Document 21 Filed 04/07/20 Page 3 of 5 Page ID #:133
     :ase 2:20-mj-01341-DUTY Document 19-1 Filed 04/07/20 Page 3 of 5 Page ID #:111



 1    Facilities (March 13, 2020).      On March 19, 2020, by Order of the

 2    Chief Judge, the Court instituted its Continuity of Operations Plan

 3    (~~COOP"), closing all Central District of California courthouses to

 4    the public (except for hearings on criminal duty matters) and taking

 5    other emergency actions.      C.D. Cal. Order of the Chief Judge No. 20-

 6    042 (March 19, 2020).     On March 29 and 31, recognizing COVID-19's

 7    continued spread in the community, the Court took further action:

 8    implementing video-teleconference and telephonic hearings, and

 9    suspending all grand-jury proceedings until May 4, 2020.           C.D. Cal.

10    Orders of the Chief Judge Nos. 20-043 (March 29, 2020) and 20-044

11    (March 31, 2020).

12         5.    These orders were imposed based on (1) the California

13    Governor's declaration of a public-health emergency in response to

14    the spread of COVID-19, as well as (2) the Centers for Disease

15    Control's advice regarding reducing the possibility of exposure to

16    the virus and slowing the spread of the disease.          See General Order

17    20-02, at 1.    The Chief Judge has recognized that, for at least eight

18    weeks, all gatherings should be limited to no more than 10 people and

19    elderly and other vulnerable people should avoid person-to-person

20    contact altogether.     See Order of the Chief Judge No. 20-042, at 1-2.

21         6.    A grand jury was last called into session in the Central

22    District of California on March 25, 2020 and adjourned on such day at

23    approximate 4:30 p.m., before defendant was arrested at 6:00 p.m.               No

24    grand jury been has called into session in the Central District of

25    California after March 25, 2020.

26         7.    As noted above, on March 31, 2020, in order to protect

27    public health and reduce the size of public gatherings and

28    unnecessary travel, the Chief Judge of the Central District of

                                           3

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           2:20-mj-01341-DUTY Document 19-1 Filed 04/07/20 Page 4 of 5 Page ID #:112



 1    California entered Order 20-044, suspending grand juries in the

 2    Central District of California until May 4, 2020, pending further

 3 ( Order of the Court.

 4              8.   Defendant's preliminary hearing date, pursuant to Fed. R.

 5   ~ Crim. P. 5.1, is hereby continued by 43 days to May 22, 2020 at 4:30

 6   ~ P.m. 1

 7              9.   The continuance is based upon the following facts, which

 8    demonstrate good cause to support the appropriate findings under Fed.

 9 ~ R. Crim. P. 5.1(d).

10                   a.   Defendant is currently charged with a violation of 18

11    U.S.C. § 1349 (attempted wire fraud).

12                   b.   Counsel for both the government and defendant,

13 ~ together with office personnel for both parties, have been instructed

14    b y their supervisors to telework to minimize personal contact to the

15    greatest extent possible.       Although the parties are working

16    diligently within these constraints, these restrictions and others

17    imposed by current public-health concerns make it unreasonable to

18    expect adequate preparation for pretrial proceedings, including the

19    preliminary hearing currently scheduled for April 9, 2020, within the

20    time limits set by Fed. R. Crim. P. 5.1(c).

21

22

23         1 Pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(b), an
      information or indictment charging an individual with the commission
24    of an offense shall be filed within 30 days from the date on which
      such individual was arrested but "[i]f an individual has been charged
25    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
26    of the indictment shall be extended an additional thirty days." No
      grand jury will be in session in the Central District of California
27    for the 30-day period after the arrest of the defendant in this case
      (between March 25, 2020 and April 24, 2020), and the period of time
28    for filing of the indictment is therefore extended to 60 days
      pursuant to 18 U.S.C. § 3161(b), namely until May 24, 2020.
                                       4

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 1               c.    In particular, current limitations on visitations, and

 2    health concerns regarding in-person meetings, will hamper defense

 3    counsel's ability to meet with defendant and prepare for the hearing

 4    currently scheduled for April 9, 2020.

 5               d.    Under these unusual circumstances, and given the

 6    emergency procedures that have been implemented by the Court and the

 7    parties to address the current COVID-1,9 pandemic, failure to continue

 8    the preliminary hearing date is likely to deny all counsel reasonable

 9    time necessary for effective preparation, taking into account the

10    exercise of due diligence.

11               e.    The COVID-19 pandemic, the emergency procedures

12    implemented by the Court to address it, and the teleworking

13    arrangements mandated by the United States Attorney's Office and the

14    Office of the Federal Public Defender are extraordinary circumstances

15    justifying delay of the preliminary hearing beyond the time limits of

16    Federal Rule of Criminal Procedure 5.1(c).

17         10.   Accordingly, the Court find that, for good cause shown, the

18    Preliminary Hearing currently set for April 9, 2020, should be

19    continued to May 22, 2020 at 4:30 p.m.

20         IT IS SO ORDERED.

21     Dated: ylf/2✓

22

23                                         HONORABLE CHARLES F. EICK
                                           United States Magistrate Judge
24

25

26

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