Free Motion to Continue - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 3 Telephone: (602) 382-2727 4 MILAGROS A. CISNEROS State Bar # 020410 5 [email protected] Asst. Federal Public Defender 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. Bella Ben-Henry, et al., Defendant. Defendant, Bella Ben-Henry, by and through undersigned counsel, United States of America, Plaintiff, No. CR 04-1018-PHX-JAT MOTION TO CONTINUE TRIAL (Sixth Request) (Unopposed) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 respectfully requests that this Court continue the trial date for a period of at least 17 thirty (30) days from the current date of November 15, 2005. 18 Defense counsel makes this request for two reasons: (1) because it is 19 unclear yet whether co-defendant Pat Chee Miller will be available for a deposition; 20 and (2) because undersigned counsel will be out of the country the week of November 21 14, 2005, returning November 19, 2005. The instant request is supported by the 22 attached memorandum. 23 Undersigned counsel has contacted Daniel Drake, the Assistant U.S. 24 Attorney assigned to this case, and Mr. Drake has no objection to the requested 25 continuance. 26 . . . 27 . . . 28 . . .

Case 2:04-cr-01018-JAT

Document 95

Filed 10/28/2005

Page 1 of 5

1 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

Excludable delay under Title 18 U.S.C. § 3161(h)(8)(A) and (h)(1)(F) Respectfully submitted: October 28, 2005. JON M. SANDS Federal Public Defender s/Milagros A. Cisneros MILAGROS A. CISNEROS Asst. Federal Public Defender

2 may result from this motion or from an order based thereon.

2

Case 2:04-cr-01018-JAT

Document 95

Filed 10/28/2005

Page 2 of 5

1 2

MEMORANDUM As the Court is aware, co-defendant Pat Chee Miller recently regained

3 consciousness after several months of being unconscious following a very serious 4 automobile accident. Mr. Miller is a patient at Kindred Hospital in Albuquerque, 5 New Mexico. According to a letter provided to the Court by counsel for Mr. Miller 6 on October 13, 2005, Mr. Miller: 7 8 9 10 11 remains seriously ill with a multitude of problems. He is a new incomplete quadraplegic from his accident. He has a wound that requires a specialty negative pressure wound device for treatment of his Stage IV wound (the most serious type). He continues to suffer with fever and an elevated white blood cell count. He has repeatedly had secretions from his lungs that have caused him to effectively stop breathing. He has required daily deep suctioning of his lungs to help clear the secretions.

12 In addition, according to this same letter, Mr. Miller recently changed his "code 13 status," which means that he does not want to be put on life support, should he need 14 it. 15 The investigation in defendant Bella Ben-Henry's case has revealed that 16 Mr. Miller may be aware of exculpatory evidence. He is intimately familiar with the 17 events that led to the allegations in this case. Specifically, he is alleged to have 18 signed documents certifying that certain work that he was hired to perform was 19 completed when it was not in fact completed. Ms. Ben-Henry is alleged to have 20 processed for payment such certification while knowing that the work was not 21 complete. For these reasons, it is critical to Ms. Ben-Henry's defense to be able to 22 take Mr. Miller's deposition and to preserve his testimony for future use in the event 23 he may pass away. 24 Undersigned counsel has contacted Brian Russo, counsel for Mr. Miller. 25 Mr. Russo has advised that he has contacted Mr. Miller's daughter to relay 26 undersigned counsel's desire to take Mr. Miller's deposition. As of the time of this 27 28 3

Case 2:04-cr-01018-JAT

Document 95

Filed 10/28/2005

Page 3 of 5

1 filing, Mr. Russo had not yet heard from Mr. Miller's daughter. Mr. Russo has also 2 advised that, due to previously scheduled court appearances, he will be unavailable 3 to participate in a deposition until early December. Moreover, undersigned counsel 4 will be out of the country the week of November 14, 2005. Accordingly, in the 5 abundance of caution and in the exercise of due diligence, Ms. Ben-Henry comes 6 before the Court to request that the Court grant a 30-day continuance and set a new 7 trial date in mid-December. 8 9 10 11 12 13 Copy of the foregoing transmitted via 14 CM/ECF this 28th day of October, 2005, to: 15 DAN DRAKE 16 Assistant United States Attorney Two Renaissance Square 17 40 North Central Avenue Suite 1200 18 Phoenix, Arizona 85004-4408 19 BRIAN F. RUSSO 111 W. Monroe Street, Ste. 1212 20 Phoenix, Arizona 85003 Attorney for Co-Defendant Pat Chee Miller 21 TIMOTHY C. HOLTZEN 22 245 W. Roosevelt Street Phoenix, Arizona 85003 23 Attorney for Co-Defendant Frederick Marianito 24 JOANNE F. LANDFAIR 331 N. First Avenue, Ste. 103 25 Phoenix, Arizona 85003 Attorney for Co-Defendant Ed Preston 26 ... 27 28 4 Respectfully submitted: October 28, 2005. JON M. SANDS Federal Public Defender s/Milagros A. Cisneros MILAGROS A. CISNEROS Asst. Federal Public Defender

Case 2:04-cr-01018-JAT

Document 95

Filed 10/28/2005

Page 4 of 5

1 Copy mailed to: 2 BELLA BEN-HENRY Defendant 3 4 s/Milagros A. Cisneros M. Cisneros 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:04-cr-01018-JAT

Document 95

Filed 10/28/2005

Page 5 of 5