Free Waiver - District Court of California - California

Case 5:07-cr-00610-JF

Document 42

Filed 06/29/2008

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Mark R. Vermeulen [CSBN 115381] Law Office of Mark R. Vermeulen 755 Florida Street #4 San Francisco, CA 94110.2044 Phone: 415.824.7533 Fax: 415.824.4833 Attorney for Defendant BERNADETTE ESCUE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES OF AMERICA, Plaintiff, v. BERNADETTE ESCUE, Defendant. ) No. CR 07-00610 JF ) ) NOTICE OF DEFENDANT'S WAIVER RE: ) 90-DAY RULE UNDER 18 U.S.C. § 3664(d)(5) ) ) ) )

Defendant Bernadette Escue, through counsel, hereby submits the attached waiver. This is submitted as a result of defense counsel's discussions with AUSA Joe Fazioli in connection with the requested continuance of the sentencing hearing regarding restitution (see Motion to Continue Sentencing Hearing Re: Restitution (Doc. 41) and the corresponding request for records in connection with the hearing (see Application for Issuance of Subpoenas Duces Tecum (Doc. 39)). Dated: June 29, 2008 Respectfully submitted,

/S/ Mark R. Vermeulen Attorney for Defendant BERNADETTE ESCUE

Case 5:07-cr-00610-JF

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Filed 06/29/2008

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Mark R. Vermeulen [CSBN 115381] Law Office of Mark R. Vermeulen 755 Florida Street #4 San Francisco, CA 94110.2044 Phone: 415.824.7533 Fax: 415.824.4833 Attorney for Defendant BERNADETTE ESCUE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES OF AMERICA, Plaintiff, v. BERNADETTE ESCUE, Defendant. ) No. CR 07-00610 JF ) ) DEFENDANT'S WAIVER ) ) ) ) )

I, Bernadette Escue, declare: 1. I have discussed the matter thoroughly with my attorney, and I request that the restitution

hearing in this case be continued to September 3, 2008. In support of this request, I make the following acknowledgments and representations. 2. I was sentenced on May 8, 2008. On that date, the Court scheduled an evidentiary

hearing on July 16, 2008 pursuant to 18 U.S.C. § 3664(d)(5) to address disputed issues regarding restitution. The date set by the court was within 90 days after sentencing permitted by § 3664(d)(5). 3. I understand that the Court, the Government, and the Probation Office are fully prepared

for the evidentiary hearing to take place within the 90-day limit permitted by § 3664(d)(5). 4. I have further been advised that an argument could be made for the proposition that the

90-day limit set forth in 18 U.S.C. § 3664(d)(5) is "jurisdictional" ­ meaning, if this were so, that the Court would have no authority to enter a restitution order against me unless the order was entered within 90 days of the date of sentencing. I disagree with this view and after consulting with my attorney, agree that the 90-day limit is not jurisdictional for purposes of this case. -1-

Case 5:07-cr-00610-JF

Document 42

Filed 06/29/2008

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If my requestto continuemy restitutionhearingpastthe 90th day is grantedby the Court,

however,I herebyknowingly andvoluntarily waive any right to claim in the future, in anyproceeding, includingan appealor collateralchallenge, that the restitutionorderedby the Court is void, illegal,

baseduponthe order havingbeenentered beyondthe 4 withoutjurisdiction, or otherwiseunenforceable

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90-daylimit set forth in 18 V.S.C. § 3664(d)(5). I herebyexpressly waive any challenge whatsoever to anyrestitutionorderenteredagainstme in the above-entitled casebasedon the timelinessof suchorder. 6. I understand agreethat the purposefor the 90-daylimit set forth in § 3664is to and

protectvictims from the dissipationof defendants' assets.Accordingly, I herebyagreethat, shouldmy request a continuance granted,I will not dissipate, for be disposeof, assignor encumber assets any that

9 would otherwise availableto pay restitution,exceptthoseassets be necessary pay my ordinaryand to 10 necessary living andmedical expenses attorney'sfees. and 11
7. I confirm that I havehad adequate time to discussthis requestfor a continuance, the and

12 waiversI am makingherein,with my attorney,andthat he hasprovidedme with thoroughlegal advice 13 in this regard. 14
8. I confirm that while I considered signingthis waiver, and at the time I signedit, I was not

15 underthe influenceof any alcohol,drug, or medicine. 16 17 18 19 20
I havefully explainedto my client all the rights that a criminal defendant regardingthis has Dated: Julie 28, 2008

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Bernadette Escue

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21 waiver andall the termsof this waiver andthe waiverscontainedherein. In my opinion, my client 22 23 24 25
understands the tenIlSof this waiver and all the possibleclaims sheis giving up by makingit. Based all on the infonnationnow known to me, I believethat my client's decisionis knowing andvoluntaryand in her bestinterests.

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