Free Proposed Order - District Court of California - California

Case 3:07-xr-90419-EDL

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Filed 10/15/2007

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SCOTT N. SCHOOLS (SCSBN 9990) United States Attorney BRIAN STRETCH (CABN 163973) Chief, Criminal Division DENISE MARIE BARTON (MABN 634052) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7359 Facsimile: (415) 436-7234 Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. GILSON ARAUJO and WANDER CARLOS DE ARAUJO, Material Witnesses.

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No. 07-90419 MISC EDL

STIPULATION AND PROPOSED ORDER

On September 19, 2007, upon the filing of a Material Witness Application by the United States, the Honorable Elizabeth D. Laporte ordered that arrest warrants be issued for Gilson Araujo and Wander Carlos De Araujo as a material witnesses pursuant to Title 18, United States Code, Section 3144 and further ordered that the parties take the depositions of the material witnesses pursuant to Fed. R. Crim. P. 15(a). In the interests of proceeding to depositions
STIPULATION AND [PROPOSED] ORDER, No. CR 07-90419 MISC EDL

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expeditiously, counsel for the Araujo and De Araujo each waived the right to a detention hearing in light of the fact that each witness was detained on pending criminal matters and subject to an immigration detainer. On October 12, 2007, material witnesses Gilson Araujo and Wander Carlos De Araujo were deposed pursuant to the September 19, 2007 Order. Also, on October 12, 2007, Gilson Araujo and Wander Carlos De Araujo each were sentenced on their respective criminal matters, 07-536 MAG and 07-575 MAG, and received time-served sentences.

9 10 11 12 13 14 15 16 17 18 19 Araujo, was secured by deposition on October 12, 2007. Accordingly, the parties jointly move to 20 21 22 23 24 25 26 27 28 // // //
STIPULATION AND [PROPOSED] ORDER, No. CR 07-90419 MISC EDL

Once a material witness has given testimony, he may seek release from detention on the material witness arrest warrant. Courts have routinely held that continued detention of a material witness pending trial constitutes an "exceptional circumstances" as contemplated by Fed. R. Crim. P. 15(a) and is a basis to permit the taking of a deposition. United States v. Lai Fa Chen, 214 F.R.D. 578, 580 (N.D. Ca. 2003). Further, this Circuit has held that "No material witness shall be detained because of inability to comply with conditions of release if the testimony of such witness can adequately be secured by deposition ..." Bacon v. United States, 449 933 (9th Cir. 1971). The testimony of both material witnesses, Gilson Araujo and Wander Carlos De

recall the Material Witness Arrest warrants, dismiss this Material Witness matter, and release the // // //

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material witnesses, Gilson Araujo and Wander Carlos De Araujo, FORTHWITH to the custody of Immigration and Customs Enforcement.

Dated: October 13, 2007

Respectfully submitted, SCOTT N. SCHOOLS United States Attorney

__________/s/ ________________ DENISE MARIE BARTON Assistant United States Attorney

_______/s/______________________ ALAN DRESSLER Attorney for GILSON ARAUJO

_____/s/________________________ GEORGE BOISSEAU Attorney for WANDER CARLOS DE ARAUJO

[PROPOSED] ORDER For the reasons stated in the foregoing Stipulation, IT IS HEREBY ORDERED that the Material Witness Arrest warrants are recalled, this Material Witness matter is dismissed, and the Material Witnesses, Gilson Araujo and Wander Carlos De Araujo shall be released FORTHWITH to the custody of Immigration and Customs Enforcement.

Dated: _______________

____________________________ HON. EDWARD M. CHEN United States Magistrate Judge

STIPULATION AND [PROPOSED] ORDER, No. CR 07-90419 MISC EDL

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