Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-mj-02266-LSP

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1 SARA M. PELOQUIN California Bar No. 245956 2 JOHN C. ELLIS, JR. California Bar No. 228083 3 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 4 San Diego, California 92101-5008 Telephone: (619) 234-8467 5 [email protected], [email protected] 6 Attorneys for The Accused 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LEO S. PAPAS) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08MJ2266-LSP Date: August 7 , 2008 Time: 9:30 a.m. NOTICE OF MOTION AND MOTIONS TO 1) STAY ORDER OF REMOVAL

11 UNITED STATES OF AMERICA, 12 13 v. 14 THE PERSON CHARGED AS EUGENE GEORGE WARNER 15 16 17 18 19 TO: Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY;AND, GEORGE MANAHAN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that as soon as counsel may be heard, The person charged as

20 Eugene George Warner, by and through counsel, Sara M. Peloquin, and Federal Defenders of San 21 Diego, Inc., will ask this Court to enter an order granting the motion listed below. 22 // 23 // 24 // 25 // 26 // 27 // 28 //

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MOTIONS The person charged as Eugene George Warner, by and through his attorneys, Sara M.

3 Peloquin, and Federal Defenders of San Diego, Inc., pursuant to the United States Constitution, the 4 Federal Rules of Criminal Procedure, and all other applicable statutes, case law and local rules, 5 hereby moves this Court for an order to: 6 7 1)Stay The Execution of the Order of Removal This motion is based upon the instant motions and notice of motions, the attached statement

8 of facts and memorandum of points and authorities, and any and all other materials that may come 9 to this Court's attention at the time of the hearing on these motions. 10 11 12 Dated: August 13, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 08MJ2266-LSP /s/ Sara M. Peloquin SARA M. PELOQUIN JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for the accused. Respectfully submitted,

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1 SARA M. PELOQUIN California Bar No. 245945 2 JOHN C. ELLIS, JR. California Bar No. 228083 3 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 4 San Diego, California 92101-5008 Telephone: (619) 234-8467, ext.3716 5 [email protected] 6 Attorneys for the accused 7 8 9 10 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LEO S. PAPAS) ) ) ) ) ) ) ) ) ) ) ) Case No. 08MJ2266-LSP STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF THE ACCUSED'S MOTIONS

12 UNITED STATES OF AMERICA, 13 14 v. 15 THE PERSON CHARGED AS EUGENE GEORGE WARNER, 16 Defendant. 17 18 19 20 Plaintiff,

I. STATEMENT OF FACTS The accused in this case was arrested on July 24, 2008, on a warrant issued out of the District of

21 Alaska. The warrant commands the arrest of Eugene George Warner to answer an indictment charging tax 22 evasion, attempt to interfere with the administration of internal revenue law, false tax returns, bankruptcy 23 fraud and mail fraud. On July 25, 2008, the accused appeared before this Court. The Court scheduled a 24 hearing for August 7, 2008, to determine whether the accused is the person named in the out-of-district 25 warrant and indictment. On August 7, 2008, this Court found by a preponderance of the evidence that the 26 accused was the Eugene George Warner wanted in the District of Alaska. The accused requested bail and 27 the government moved to detain him. On August 12, 2008, this Court held a detention hearing and set a 28 personal appearance bond in the amount of $75,000 with a ten percent cash deposit, to be secured by the

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1 signatures of the accused and two financially responsible adults. The prosecutor expressed the government's 2 intent to appeal this Court's decision to the presiding District Judge in Alaska. The accused asked for a stay 3 of the execution of the order of removal pending a decision in Alaska regarding the matter of bail. 4
As of the time of the filing of this motion the prosecutor in Alaska has not entered a notice of appeal

5 of this Court's order setting conditions of release. 6 This motion follows. 7 8 9 10
II. MOTION TO STAY EXECUTION OF THE ORDER OF REMOVAL PENDING THE APPEAL OF THE ORDER SETTING CONDITIONS OF PRE-TRIAL RELEASE. A stay of execution of an order of removal is an appropriate remedy where one of the parties has

11 taken an appeal of an order of the Court in the jurisdiction of arrest. Frost v. Yankowich, 254 F.2d 633 (9th 12 Cir. 1958); Galloway v. United States, 302 F.2d 457 (10th Cir. 1962); Roba v. United States, (2nd Cir. 1979). 13
In Frost v. Yankowich, the Court issued a stay of execution of an order of removal pending litigation

14 of the question of whether an order of removal is properly issued under Fed. R. Crim. P. 40 for an out-of15 district order to show cause alleging civil contempt of court. 254 F.2d 633, 634. The order of removal was 16 stayed in Roba v. United States, where the accused asserted that his medical condition did not permit his 17 removal to the charging jursidiction. 604 F.2d 215. Roba appealed to the District Judge's refusal to stay the 18 order of removal based and the determination that the question of his medical competency to be removed be 19 addressed in the charging district rather than in the district of arrest. Id. The Second Circuit held that Roba 20 had the right to litigate his claim in the jurisdiction of arrest and stayed the execution of the order of removal. 21 Id., 219. In so doing, the Court acknowledged the "Catch-22 aspect in requiring a defendant in New York 22 to litigate in California the issue of whether his health prevents him from being brought to California to face 23 trial." Id., 219 24
Here, a stay of the order of removal is appropriate pending the outcome of the government's appeal

25 of this Court's order setting conditions of release. As similar Catch-22 exists in this case as in Roba. If the 26 accused is removed to Alaska pending the outcome of the government's appeal of the order setting bond, then 27 the appeal will become moot and the government will have been able to circumvent the Court's determination 28 2 08MJ2266-LSP

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1 that a bond is appropriate simply by taking an appeal. The accused will have no opportunity to post a bond 2 set in the Southern District of California if he is transferred and held in custody in Alaska. If the Court's 3 power to set a conditions of release for an out-of-district defendant is to have any effect the Court must also 4 have the power to stay the execution of the removal order pending the government's appeal. 5 6 7 8 9 10 Dated: August 13, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 08MJ2266-LSP
s/ Sara M. Peloquin SARA M. PELOQUIN JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for the accused III. CONCLUSION For the foregoing reasons, The accused respectfully requests that the Court grant the above motions. Respectfully submitted,

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. ) ) ) ) ) )

Case No. 08MJ2266-LSP

CERTIFICATE OF SERVICE

THE PERSON CHARGED AS EUGENE GEORGE WARNER,
Defendant. ____________________________________

)
) ) ) )

Counsel for Defendant certifies that the foregoing pleading, is true and accurate to the best of her information and belief, and that a copy of the foregoing has been electronically served this day upon: George Manahan, Assistant United States Attorney 880 Front Street San Diego, CA 92101

Dated: August 13, 2008 /s/ Sara M. Peloquin SARA M. PELOQUIN Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) Email: [email protected]