Order Granting Request for Continuance of Preliminary Hearing Date Current Hearing Date — No. 2:20-mj-01341 (Dkt. 32, C.D. Cal.)

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Order Granting Request for Continuance of Preliminary Hearing Date, Document 32 filed May 5, 2020 in United States v. Keith Lawrence Middlebrook, No. 20-mj-1341 in the Central District of California. The court finds that a complaint filed March 25, 2020 charges Middlebrook with attempted wire fraud under 18 U.S.C. § 1349, that he was arrested that day and made his initial appearance March 26, 2020, and that he was granted pretrial release on March 27, 2020 on a $150,000 bond he had not yet posted. The preliminary hearing was first set for April 9, 2020 under Fed. R. Crim. P. 5.1(c); the court's COVID-19 General Orders of March 13, 2020 and its Continuity of Operations Plan of March 19, 2020 make preparation within the rule's limits unreasonable. The order moves the hearing from May 22, 2020 to the proposed date of June 26, 2020.

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     Case 2:20-mj-01341-DUTY Document 32 Filed 05/05/20 Page 1 of 5 Page ID #:168



 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:      05/22/2020
17               Defendant.                   PROPOSED HEARING DATE: 06/26/2020
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.
24         2.    Defendant was arrested on March 25, 2020 at approximately
25   6:00 p.m., and made his initial appearance before the Court on March
26   26, 2020.    On March 27, 2020, the Court granted defendant pretrial
27   release upon the posting of a $150,000 bond secured by any affidavit
28   of surety signed by defendant’s mother, with $50,000 of that amount
     Case 2:20-mj-01341-DUTY Document 32 Filed 05/05/20 Page 2 of 5 Page ID #:169



 1   to be secured by real property held by defendant’s mother. At the

 2   time of this Order, defendant has not posted the bond and remains in

 3   custody, but the parties have recently stipulated to modify

 4   defendant’s conditions of his bond. CR 29.

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

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

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

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

 9   provides that a magistrate judge must hold the preliminary hearing

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

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

12   if not in custody.

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

14   Rules of Criminal Procedure provides as follows: “With the

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

16   account the public interest in the prompt disposition of criminal

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

18   one or more times.”

19         4.   On March 13, 2020, following the President’s declaration of

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

21   General Order suspending jury selection and jury trials scheduled to

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

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

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

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

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

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

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

                                           2
     Case 2:20-mj-01341-DUTY Document 32 Filed 05/05/20 Page 3 of 5 Page ID #:170



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

 2   (“COOP”), closing all Central District of California courthouses to

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

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

 5   042 (March 19, 2020).     On March 29 and 31, recognizing COVID-19’s

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

 7   implementing video-teleconference and telephonic hearings, and

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

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

10   (March 31, 2020).     The Court has since extended these orders through

11   June 1, 2020.    See General Order No. 20-05.

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 all gatherings
18   should be limited to no more than 10 people and elderly and other
19   vulnerable people should avoid person-to-person contact altogether.
20   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
     Case 2:20-mj-01341-DUTY Document 32 Filed 05/05/20 Page 4 of 5 Page ID #:171



 1   California has suspended grand juries in the Central District of

 2   California until June 1, 2020, pending further Order of the Court.

 3         8.     On April 7, 2020, the parties stipulated to continue the

 4   preliminary hearing originally set for April 9, 2020 to May 22, 2020.

 5   CR 19.     On the same day, the Court granted the parties’ stipulation

 6   and continued defendant’s preliminary hearing.          CR 21.

 7         9.     Defendant’s preliminary hearing date, pursuant to Fed. R.

 8   Crim. P. 5.1, is hereby continued from May 22, 2020 to June 26, 2020

 9   at 4:30 p.m.

10         10.    The continuance is based upon the following facts, which

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

12   R. Crim. P. 5.1(d):

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

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

15                b.   Counsel for both the government and defendant,

16   together with office personnel for both parties, have been instructed

17   by their supervisors to telework to minimize personal contact to the

18   greatest extent possible.      Although the parties are working

19   diligently within these constraints, these restrictions and others

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

21   expect adequate preparation for pretrial proceedings, including the

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

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

24                c.   Under these unusual circumstances, and given the

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

26   parties to address the current COVID-19 pandemic, failure to continue

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

28

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