Free Stipulation - District Court of California - California

Case 5:08-mj-70443-HRL

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Filed 07/23/2008

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JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney BRIAN J. STRETCH (CABN 163973) Chief, Criminal Division EUMI L. CHOI (WVBN 722) Assistant United States Attorney 150 Almaden Boulevard San Jose, California 95113 Telephone: (408) 535-5079 Facsimile: (408) 535-5066 Email: [email protected] Attorneys for the United States of America UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES OF AMERICA, Plaintiff, v. ERIC MARTIN LAMB, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CR 08-704443 HRL STIPULATION AND [PROPOSED] ORDER AMENDING JULY 21, 2008 ORDER OF DETENTION PENDING TRIAL,18 U.S.C. § 3142

The above-captioned matter is a prosecution arising from the District of the District of Columbia. The defendant was arrested in this district in connection with an arrest warrant and a criminal complaint charging him with one count of 18 U.S.C. § 2252(a)(1) issued by the District of the District of Columbia. On July 21, 2008, the parties appeared before the Court for a detention and identity and removal hearing in this matter. At that time, the government requested, and Pretrial Services recommended, that the defendant be detained pending trial. In making its request for detention, government counsel noted that, subject to rebuttal by the defendant, in light of the charged offense, it was to be presumed that no condition or combination of conditions could reasonably assure the defendant's appearance as required and the safety of

STIP. AND [PROPOSED] ORDER AMENDING ORDER OF DETENTION PENDING TRIAL

Case 5:08-mj-70443-HRL

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Filed 07/23/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the community, see 18 U.S.C. § 3142(e)(1). Pretrial Services recommended detention based upon both grounds: to assure the defendant's appearance and the safety of the community. Defense counsel agreed that a rebuttable presumption applied. Aside from noting that the defendant's earlier conviction in the State of Washington was a misdemeanor rather than a felony, defense counsel submitted the matter. Defendant also signed a written waiver of identity hearing and requested that the preliminary hearing be held in the prosecuting district. The Court ordered the defendant detained pending trial, finding that no condition or combination of conditions could reasonably assure the defendant's appearance as required and the safety of the community. The Court also ordered the defendant removed to the prosecuting district. // // // // // // // // // // // // // // // // // //

STIP. AND [PROPOSED] ORDER AMENDING ORDER OF DETENTION PENDING TRIAL

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Case 5:08-mj-70443-HRL // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July 23, 2008

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Subsequently, on July 21, 2008, the Court issued a written order of detention which the parties received via e-filing. The parties have reviewed the written order and agree that the Order erroneously states that no presumption applied in this matter (see Part I of the Order), when there is a rebuttable presumption as described above; therefore, the first box of Part II of the Order (Rebuttal of Presumptions, If Applicable) pertains instead. Part III of the Order is likewise inapplicable to this matter (Proof Where Presumptions Rebutted Or Inapplicable).1 Wherefore, the parties respectfully request that the Order of Detention Pending Trial be amended to reflect that there was a rebuttable presumption of detention that the defendant did not rebut.

JOSEPH P. RUSSONIELLO United States Attorney ______________/s/_______________________ EUMI L. CHOI Assistant United States Attorney ______________/s/_______________________ CYNTHIA LIE Attorney for Defendant

The detention statute, 18 U.S.C. § 3142(f), provides the government the opportunity for a detention hearing since the charged offense,18 U.S.C. § 2252(a)(1), is defined as a crime of violence under 18 U.S.C. § 3156(a)(4)(C) (crime of violence is any felony under chapter 109A, 110, or 117; Chapter 110 includes 18 U.S.C. §§ 2251-2260A). The detention statute also creates a rebuttable presumption of detention that no condition or combination of conditions could reasonably assure the defendant's appearance as required and the safety of the community for many child exploitation offenses such as the one charged here, see 18 U.S.C. § 3142(e).
STIP. AND [PROPOSED] ORDER AMENDING ORDER OF DETENTION PENDING TRIAL

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Case 5:08-mj-70443-HRL

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE IT IS SO ORDERED. ORDER Based upon the stipulation of the parties, and for good cause shown, the Court HEREBY ORDERS that the Order of Detention Pending Trial issued July 21, 2008 be amended to reflect that there was a rebuttable presumption of detention that the defendant did not rebut.

STIP. AND [PROPOSED] ORDER AMENDING ORDER OF DETENTION PENDING TRIAL

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