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United States v. Rivera-Ramirez

United States District Court, D. Arizona

November 18, 2019

United States of America, Plaintiff,
v.
Wendy Rivera-Ramirez, Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE DEHOIAH M. FINE UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE SUSAN M. BRNOVICH, U.S. DISTRICT JUDGE:

         Counsel 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[1] or extended time set aside for the change of plea hearing[2], 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.

         Before 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.

         Upon 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.

         Undersigned's 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.

         Accordingly, 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.

         IT 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).

         IT 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.

         IT 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 sentencing date.

         IT 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 evaluation report.

         This 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.

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