United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEHOIAH M. FINE UNITED STATES MAGISTRATE JUDGE
HONORABLE SUSAN M. BRNOVICH, U.S. DISTRICT JUDGE:
for the parties requested that a change of plea hearing be
set in this matter. Thus, a change of plea hearing was set on
undersigned's calendar for this morning at 11:30 a.m.
Upon undersigned reviewing the matter in preparation for the
set change of plea this morning, undersigned discerned that
the record in this matter was not adequate for a change of
plea hearing to proceed. Further, no request had been made by
defense counsel to have a Spanish interpreter present for the
change of plea hearing or extended time set aside for the change
of plea hearing, which was set for 11:30 a.m. on defense
counsel's request for a late morning hearing. Given the
caseload in Phoenix and Tucson in which Spanish interpreter
services are currently needed, undersigned was unable to
secure an interpreter this morning to be present at the
hearing set for 11:30 a.m.
a change of plea hearing may take place, the competency
evaluation needed to be filed and a hearing/determination
regarding the Defendant's competency needs to take place.
See Docs. 25, 26, 33, 34. Upon the status hearing
this morning, the competency evaluation has now been filed.
Because District Judge Brnovich signed the Order for the
competency evaluation, either District Judge Brnovich needs
to conduct a hearing to determine the Defendant's
competency or refer such specifically to a United States
Magistrate Judge to conduct such hearing. Id. As
there may be agreement of the parties that the Defendant is
competent based on the competency evaluation, the competency
hearing may be very short and perhaps can be avoided if
counsel promptly file a stipulation and proposed form of
Order for Judge Brnovich.
undersigned's discerning the above procedural posture and
that the necessary requirements for a change of plea hearing
could not be met this morning, undersigned's staff
communicated to counsel for both parties that the change of
plea would not proceed this morning, a status hearing would
take place instead, and that defense counsel could choose to
waive the Defendant's presence or have Defendant present.
Defense counsel informed that the Defendant had already begun
to undertake what undersigned believes is an approximately
four hour drive to Phoenix for her court hearing this
morning. The Defendant lives in Somerton, Arizona, and the
closest federal court to the Defendant is in Yuma, Arizona.
Undersigned notes that based on the Pretrial Services Status
Report for Change of Plea, the Defendant has adjusted well to
supervision and is compliant with all of her release
conditions, including that she has employment (Doc. 38). The
Defendant and several of her family members were present at
this morning's hearing, which was conducted without a
Spanish interpreter and as a status hearing.
chambers has contacted Magistrate Judge Metcalf's
chambers in Yuma and Magistrate Judge Metcalf is willing and
able to conduct the necessary hearings in Yuma, Arizona.
Given that the Defendant has already once embarked on the
long drive to Phoenix for the change of plea hearing set
today on request of her counsel, given the need for an
extended time period for hearings to be conducted and with a
Spanish interpreter so that the Defendant may understand and
communicate during the proceedings, and Judge Metcalf's
willingness and ability to accommodate such, undersigned
respectfully recommends in these unique circumstances that
District Judge Brnovich consider ordering that the
Defendant's hearings before a United States Magistrate
Judge be set in Yuma and her defense counsel Elisse Larouche
of the Federal Public Defenders Office in Phoenix be ordered
to personally appear in Yuma to represent the Defendant at
such hearings. Of course, undersigned is also willing to set
the hearings on undersigned's calendar in Phoenix.
IT IS THEREFORE RECOMMENDED that the matter
be set for a hearing to determine competency in front of
Judge Brnovich or that Judge Brnovich issue an Order of
Referral to undersigned or to Magistrate Judge Metcalf in
Yuma to set and conduct a hearing to determine competency.
Alternatively, if the parties deem such to be
constitutionally and legally sufficient, the parties shall
file and submit a stipulation regarding the Defendant's
competency and a proposed form of Order for Judge Brnovich
within two business days.
IS FURTHER RECOMMENDED that should the Defendant be
determined competent, thereafter the matter be set for a
change of plea before undersigned in Phoenix or the matter be
referred to Magistrate Judge Metcalf in Yuma for a change of
plea hearing. Forty-five minutes to an hour should be set
aside for any change of plea hearing (or longer on
counsel's timely and reasoned request).
IS FURTHER RECOMMENDED that a Spanish interpreter be
present to assist at all Court proceedings at which the
Defendant appears and that consecutive rather than
contemporaneous interpreting be considered so that the
Defendant may better understand the proceedings.
IS FURTHER RECOMMENDED that if this matter proceeds
to a sentencing hearing, that counsel shall make a request
filed with the Court for a specific sentencing time allotment
and shall make such request at least three weeks before the
IS FURTHER RECOMMENDED that defense counsel Elisse
Larouche of the Federal Public Defenders Office in Phoenix be
ordered to personally appear in Yuma to represent the
Defendant at any hearing set in Yuma for continuity of
counsel and for the reasons outlined in the competency
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
should not be filed until entry of the District Court's
judgment. The parties shall have 14 days from the date of
service of a copy of this recommendation within which to file
specific written objections with the Court. See 28 U.S.C.
§ 636(b)(1); Fed. R. Crim. P. 59(b)(2). Failure to
timely file objections to the Magistrate Judge's Report
and Recommendation may result in the acceptance of the Report
and Recommendation by the District Judge without further
review. See United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003). Failure to timely file
objections to any factual determinations of the Magistrate
Judge will be considered a waiver of a party's right to
appellate review of the findings of fact in an order or
judgment entered pursuant to the Magistrate Judge's
recommendation. See Fed. R. Crim. P. 59.