Stipulation Regarding Request for Continuance of Preliminary Hearing Date — No. 2:20-mj-01341 (Dkt. 19, C.D. Cal.)

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A six-page Stipulation Regarding Request for Continuance of Preliminary Hearing Date, Document 19, filed 04/07/20 in United States v. Keith Lawrence Middlebrook, No. 20-mj-1341, in the U.S. District Court for the Central District of California, signed on 4/6/20 by Assistant United States Attorneys Valerie L. Makarewicz and James C. Hughes and Deputy Federal Public Defender Ijeoma Eke. The complaint of March 25, 2020 charges attempted wire fraud under 18 U.S.C. § 1349; Middlebrook was arrested that day, appeared on March 26, 2020, was granted release on March 27, 2020 on a $150,000 bond he had not posted, and had a preliminary hearing set for April 9, 2020 under Rule 5.1(c). Citing the court's General Orders of March 13, 2020 and the COVID-19 emergency as extraordinary circumstances, the parties ask under Rule 5.1(d) that the hearing be continued to May 22, 2020.

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     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 1 of 6 Page ID #:103



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,                    STIPULATION REGARDING REQUEST FOR
                                              CONTINUANCE OF PRELIMINARY HEARING
15                    v.                      DATE

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

18

19         Plaintiff United States of America, by and through its counsel
20   of record, the United States Attorney for the Central District of
21   California and Assistant United States Attorneys Valerie L.
22   Makarewicz and James C. Hughes, and defendant KEITH LAWRENCE
23   MIDDLEBROOK (“defendant”), by and through his counsel of record,
24   Deputy Federal Public Defender Ijeoma Eke, hereby stipulate as
25   follows:
26         1.   On March 25, 2020, the United States filed a complaint
27   against defendant charging him with a violation of 18 U.S.C. § 1349,
28   attempted wire fraud.     A warrant for defendant’s arrest was issued by
     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 2 of 6 Page ID #:104



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

2    2020.

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

4    6:00 p.m., and made his initial appearance before the Court on March

5    26, 2020.    On March 27, 2020, the Court granted defendant pretrial

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

7    of surety signed by defendant’s mother, with $50,000 of that amount

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

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

10   remains in custody.

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

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

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

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

15   provides that a magistrate judge must hold the preliminary hearing

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

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

18   if not in custody.

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

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

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

22   account the public interest in the prompt disposition of criminal

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

24   one or more times.”

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

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

27   General Order suspending jury selection and jury trials scheduled to

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

                                           2
     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 3 of 6 Page ID #:105



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

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

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

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

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

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

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

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

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

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

11   042 (March 19, 2020).     On March 29 and 31, recognizing COVID-19’s

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

13   implementing video-teleconference and telephonic hearings, and

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

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

16   (March 31, 2020).

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

18   Governor’s declaration of a public-health emergency in response to

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

20   Control’s advice regarding reducing the possibility of exposure to

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

22   20-02, at 1.    The Chief Judge has recognized that, for at least eight

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

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

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

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

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

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

                                           3
     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 4 of 6 Page ID #:106



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

2    California after March 25, 2020.

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

4    public health and reduce the size of public gatherings and

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

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

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

8    Order of the Court.

9          8.   By this stipulation, the parties move to continue

10   defendant’s preliminary hearing date, pursuant to Fed. R. Crim. P.

11   5.1, by 43 days to May 22, 2020. 1

12         9.   The parties request the continuance based upon the

13   following facts, which the parties believe demonstrate good cause to

14   support the appropriate findings under Fed. R. Crim. P. 5.1(d):

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

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

17              b.    Counsel for both the government and defendant,

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

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

20   greatest extent possible.      Although the parties are working

21   diligently within these constraints, these restrictions and others

22

23         1Pursuant 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
     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 5 of 6 Page ID #:107



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

2    expect adequate preparation for pretrial proceedings, including the

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

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

5               c.    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-19 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              d.    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   //

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     Case 2:20-mj-01341-DUTY Document 19 Filed 04/07/20 Page 6 of 6 Page ID #:108



1          10.   Accordingly, the parties stipulate and agree, and request

2    that the Court find that, for good cause shown, the Preliminary

3    Hearing currently set for April 9, 2020, should be continued to May

4    22, 2020.

5          IT IS SO STIPULATED.
6     Dated:                              Respectfully submitted,

7                                         NICOLA T. HANNA
                                          United States Attorney
8
                                          BRANDON D. FOX
9                                         Assistant United States Attorney
                                          Chief, Criminal Division
10
                                                                   4/6/20
11
                                          VALERIE L. MAKAREWICZ
12                                        JAMES C. HUGHES
                                          Assistant United States Attorneys
13
                                          Attorneys for Plaintiff
14                                        UNITED STATES OF AMERICA

15

16    04/06/20
     Dated:                               IJEOMA EKE
17                                        Deputy Federal Public Defender
                                          Attorney for Defendant
18                                        KEITH LAWRENCE MIDDLEBROOK
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