Case 2:11-cr KJM Document 142 Filed 06/19/12 Page 1 of 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA. --o0o-- Plaintiff,

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1 Case :-cr-00-kjm Document Filed 0// Page of 0 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA --o0o-- UNITED STATES OF AMERICA, Plaintiff, ) Case No. :-cr-00-kjm ) formerly :-mj-00-kjn ) ) Sacramento, California vs. ) Thursday, October, 0 ) : A.M. BRYAN R. SCHWEDER, et al., ) ) Hearing re: initial Defendant. ) appearance. ) TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE APPEARANCES: 0 For Plaintiff: For Defendant Schweder: For Defendant Niemi: For Defendant Juan Olivera-Madrigal: For Defendant Manuel Olivera-Madrigal: SAMUEL WONG U.S. Attorney's Office 0 I Street, Suite -0 Sacramento, CA () -00 MARK J. REICHEL Attorney at Law Capitol Mall, Suite 0 Sacramento, CA () - MATTHEW BOCKMON Federal Defender's Office 0 I Street, rd Floor Sacramento, CA () - DINA LEE SANTOS Law offices of Dina L. Santos J Street, Suite Sacramento, CA () -00 CLEMENTE M. JIMENEZ Law Office of Clemente Jimenez J Street, Suite Sacramento, CA () -0

2 Case :-cr-00-kjm Document Filed 0// Page of 0 ii 0 APPEARANCES (Cont.): For Defendant Holmes: For Defendant Rodriguez: For Defendant Camacho-Reyes: For Defendant Lopez-Barron: Court Recorder: Transcription Service: MICHAEL D. LONG Law Office of Michael D. Long 0 H Street, Suite 0 Sacramento, CA () -0 STEVEN D. BAUER Attorney at Law J Street, Suite 0 Sacramento, CA () - MICHAEL E. HANSEN La Offices of Michael E. Hansen Ninth Street, Suite 0 Sacramento, CA () - CHRISTOPHER HAYDN-MYER Chris Haydn-Myer Law Offices Stone Point Drive, #00 Roseville, CA () -0 JONATHAN ANDERSON U.S. District Court 0 I Street, Suite -00 Sacramento, CA () 0-0 Petrilla Reporting & Transcription 00 - st Street Sacramento, CA 0 () - Proceedings recorded by electronic sound recording; transcript produced by transcription service.

3 Case :-cr-00-kjm Document Filed 0// Page of 0 SACRAMENTO, CALIFORNIA, THURSDAY, OCTOBER, 0, : A.M. 0 THE CLERK: Calling Magistrate Case --KJN, United States v. Bryan Schweder, Karen Niemi, Juan Olivera- Madrigal, Manual Olivera-Madrigal, Fred Holmes, Effren Rodriguez, Rafael Camacho-Reyes, and Homero Lopez-Barron. This matter is on for initial appearance, Your Honor. (Pause, awaiting defendants and counsel.) THE COURT: Let's wait till all the defense counsel are ready. (Pause.) THE COURT: All right. Are we ready to state appearances for the record? MR. WONG: Your Honor, good -- actually, good morning, Your Honor. Samuel Wong, Assistant United States Attorney, appearing on behalf of the United States. THE COURT: Good morning, Mr. Wong. MR. REICHEL: Good morning, Your Honor. Mark Reichel, seeking appointment from the Court for Mr. Bryan Schweder, who is the first named in the criminal complaint. Mr. Schweder qualifies for the appointment of counsel, and I'd ask to be appointed. THE COURT: All right. Thank you, Mr. Reichel. Good morning, Mr. Schweder. MR. BOCKMON: Matthew Bockmon, Federal Defender's

4 Case :-cr-00-kjm Document Filed 0// Page of 0 0 Office, number two on the calendar, Karen E. Niemi, and likewise in regard to what Mr. Reichel said. THE COURT: All right. Good morning, Mr. Bockmon. Good morning, Ms. Niemi. MS. SANTOS: And good morning, Your Honor. Dina Santos for Juan Olivera-Madrigal, who is seated second from the right. He does appear to qualify for services. I would ask to be appointed. THE COURT: Good morning, Ms. Santos. Good morning, Mr. Olivera-Madrigal. MR. HAYDN-MYER: Good morning, Your Honor. Chris Haydn-Myer, seeking appointment for Mr. Lopez-Barron. He is present in custody, he does appear to qualify, and he's being assisted by the Spanish interpreter. THE COURT: Good morning, Mr. Haydn-Myer. Good morning, Mr. Lopez-Barron. MR. BAUER: Good morning, Your Honor. Steve Bauer, and I will be seeking appointment to represent Effren Rodriguez. Mr. Rodriguez is present in court in custody, and he does speak English. THE COURT: All right. And does he qualify for appointment of counsel? MR. BAUER: I'm sure that he will, Your Honor. I will complete the financial declaration by tomorrow morning. THE COURT: All right. Thank you, Mr. Bauer.

5 Case :-cr-00-kjm Document Filed 0// Page of 0 0 Good morning, Mr. Rodriguez. DEFENDANT RODRIGUEZ: Good morning. MR. LONG: Good morning, Your Honor. Michael Long, seeking appointment for Fred W. Holmes III. He is the fifth person on your list. I have not yet had a chance to meet him downstairs, so I have not gone over the financial affidavit with him, but I will do so as soon as I can. THE COURT: All right. Thank you, Mr. Long. And good morning, Mr. Long. Good morning, Mr. Holmes. MR. JIMENEZ: Good morning, Your Honor. Clemente Jimenez, seeking appointment on behalf of Manuel Olivera-Madrigal. He is present in custody, being assisted by the Spanish interpreter. I have not had the opportunity to review the financial affidavit with him thoroughly, but I did ask him some questions here. He does appear to qualify. THE COURT: Good morning Mr. Jimenez, thank you. And good morning, Mr. Olivera-Madrigal. DEFENDANT MANUEL OLIVERA-MADRIGAL: Same. MS. RADEKIN: Good morning, Your Honor. Erin Radekin, seeking appointment for Mr. Filiberto Espinosa-Tapia. I did meet with him, and he does appear to qualify. I do not see him -- THE COURT: Let me interrupt, Ms. Radekin, because I think you -- we've actually divided the number of -- because of

6 Case :-cr-00-kjm Document Filed 0// Page of 0 0 the number of defendants, we've divided them into two groups, so he's going to be in the second group called. MS. RADEKIN: Okay. Yeah, I'd just like -- THE COURT: So he's not here. So I think the only other one we have left is Mr. Camacho-Reyes, who I understand his real name is Rafael Reyes-Mojica. And, Mr. Hansen, I think you may be seeking appointment for him. MR. HANSEN: I am, Your Honor. Good morning. I'm seeking appointment on behalf of Mr. Reyes. He -- I have met with him, and he does appear to qualify for appointment. THE COURT: All right. Good morning, Mr. Hansen. Good morning, Mr. Reyes-Mojica. THE INTERPRETER: And good morning, Your Honor. Yolanda Riley-Portal, previously sworn Spanish interpreter. I'm interpreting for Mr. Olivera-Madrigal, Juan; Olivera- Madrigal, Manual; Mr. Rafael Camacho-Reyes; and Mr. Homero Lopez-Barron. THE COURT: Good morning. Let me -- to all defendants and to all counsel and to Pretrial, let me make a preliminary comment and apology, which is the -- ordinarily, as you all know, the defendants have got notice, but ordinarily we have the hearing on these sorts of matters at :00 o'clock in the afternoon. And because of the court's business today, we moved this matter up, the court

7 Case :-cr-00-kjm Document Filed 0// Page of 0 0 calendar up to :00 o'clock. Wouldn't you know, that's the day on which we have a complaint with sixteen defendants, which becomes very difficult for all of you, for defense counsel, for Pretrial Services. Unfortunately, this is something that had just been signed off on this morning. So I apologize to all of you that you did not have a greater opportunity to review everything, to meet with your clients, and to Pretrial. And I certainly do not want to have any situations where everything is just being shorthanded and everything has not been addressed. So to the extent you either need time now or to the extent that we want to, for example, put things on tomorrow because you feel like you have not had adequate time to address things, you can certainly make that request, and I will be happy to accommodate you in that regard. But I wanted to make that preliminary comment, and understand that in many ways I have made it more difficult for everyone here. So I apologize for that. To each of the defendants, you are here because a criminal complaint has been filed against you. Before turning to the charges in that complaint, I want to advise you that you have certain rights. The first is, you do have the right to be represented by counsel. That includes the right to retain an attorney of your own choosing if you can afford an attorney, but if you

8 Case :-cr-00-kjm Document Filed 0// Page of 0 0 cannot afford counsel, counsel will be appointed for you. And based upon the requests and representations of counsel and then the financial affidavit that you either have filled out or it's anticipated that you will fill out, I find that, at this point, that you do all qualify for appointment of counsel. But I also direct counsel, as officers of the court, if information comes to your attention and you haven't had the filled-out financial affidavits, and there is different information, to have it brought back before the court for a review of appointment of counsel. But at this point, I am going to appoint counsel for each of you. Mr. Schweder, I am going to appoint Mark Reichel to represent you throughout this case. Ms. Niemi, I am going to appoint Matthew Bockmon of the Office of the Federal Defender to represent you in this case. Mr. Olivera-Madrigal, I'm going to appoint Ms. Santos to represent you in this case. Mr. -- I'm sorry; that's Juan Olivera-Madrigal. Mr. Manuel Olivera-Madrigal, I'm going to appoint Mr. Jimenez to represent you in this case. Mr. Fred Holmes III, I'm going to appoint Michael Long to represent you in this case. Mr. Effren Rodriguez, I'm going to appoint Mr. Bauer

9 Case :-cr-00-kjm Document Filed 0// Page of 0 0 to represent you in this case. Mr. Reyes-Mojica, named as Mr. Rafael Camacho-Reyes, I'm going to appoint Mr. Hansen to represent you in this case. And Mr. Lopez-Barron, I'm going to appoint Mr. Haydn-Myer to represent you in this case. Additionally, you each have the right to remain silent. You are not required to make any statements here today. And in fact, I must caution you, if you make any statements, they could be used against you, not only today, but in future proceedings in this case. So, now that you are all represented by counsel, I'd advise you to let -- have them let -- let you have them speak on your behalf. Additionally, you have the right to a preliminary examination in this matter within fourteen days from today's date, unless you waive that right. At that preliminary examination, the government would be required to present evidence establishing probable cause to believe that the charged offense was committed and that you committed it. However, as your counsel will explain to you, if a grand jury returns an indictment against you, that takes the place of a preliminary examination. And I know time has been short, but let me ask counsel: if you and your clients have had an opportunity, have you received the complaint and affidavit, have you had an opportunity to review it? If not, would you -- can you make a

10 Case :-cr-00-kjm Document Filed 0// Page of 0 0 representation on the record that you will do so with your client following this hearing? Or would you prefer to put this matter over with regard to the informing your client about the charges in the complaint and the maximum penalties? But I want to see if, otherwise, you would waive a formal reading, and I would just advise them of the charges and maximum penalties. But how would you like to proceed in that regard? Mr. Reichel. MR. REICHEL: Your Honor, on behalf of my client, Mr. Schweder, I would waive a reading of the allegations in the complaint, deny the allegations, waive a reading of constitutional and statutory rights, and ask to set the matter for a preliminary examination within the time frame. And I'm also going to submit the matter of detention. THE COURT: All right. Mr. Bockmon. MR. BOCKMON: Your Honor, my reply is with regard to Ms. Niemi. However, I'm not going to submit detention. I believe the government is going to move to -- THE COURT: Well, we'll come back to the detention issues; that will be fine. At this point, I just want to discuss first the complaint and the lengthy affidavit, and whether -- how people want to proceed in that regard. Ms. Santos. MS. SANTOS: Same as to Mr. Juan Olivera-Madrigal.

11 Case :-cr-00-kjm Document Filed 0// Page of 0 0 However, I'd ask to put detention over to Tuesday so we can adequately look into things. THE COURT: Unless I say we'll take up the detention issue with regard to everyone. Mr. Jimenez. MR. JIMENEZ: Likewise, Your Honor. THE COURT: All right. Mr. Long. MR. LONG: Likewise, with detention for Tuesday. THE COURT: All right. Mr. Bauer. MR. BAUER: Your Honor, I have not had a chance to review the complaint with my client, but it is very simple: I will have no trouble explaining it to him. I will do so over the -- probably tomorrow morning, and will represent on that basis that he would waive further reading. THE COURT: All right. And Mr. Haydn-Myer. MR. HAYDN-MYER: Yes, Your Honor, the same for Mr. Lopez-Barron. THE COURT: All right. Consequently, what this means -- MR. HANSEN: You didn't call Mr. Reyes, Rafael Reyes. THE COURT: Oh, I did not. I apologize. MR. HANSEN: But the answer is the same.

12 Case :-cr-00-kjm Document Filed 0// Page of 0 0 THE COURT: Oh. Thank you, Mr. Hansen. MR. HANSEN: You're welcome. THE COURT: Gentlemen, what this means is, you will see, if you have not already, that the criminal complaint itself, the face sheet, is quite short, but there is a -page affidavit. I am not going to read that entire thing to you now, but you will have an opportunity to go over all of that with your counsel in this matter. But I do want to advise you with regard to the charges in that criminal complaint and the maximum possible penalties you face as a result. Count of the complaint charges each of you with knowingly and intentionally conspiring with each other to manufacture at least,000 marijuana plants, in violation of Title, United States Code, Sections (a)() and. If any of you is convicted of this charge, the maximum penalties you face are a mandatory minimum ten years' imprisonment, up to life imprisonment, a fine of up to $ million, a term of supervised release of from five years up to life, and a $0 special assessment. Additionally, you are charged in Count of the complaint with knowingly and intentionally manufacturing at least,000 marijuana plants, in violation of Title, United States Code, Section (a)(). If convicted -- any of you are convicted of this offense, the maximum penalties you face are a minimum of ten years' imprisonment, up to life imprisonment, a

13 Case :-cr-00-kjm Document Filed 0// Page of 0 0 fine of up to $ million, a term of supervised release of a minimum of five years, up to life, and a $0 special assessment. Additionally, you are charged in Count of the complaint with possessing firearm -- firearms, in furtherance of a drug-trafficking crime, in violation of Title, United States Code, Section (c)()(a)(i). And if convicted, any of you are convicted of this offense, the maximum penalties you face are from five years' imprisonment, a minimum, up to life imprisonment, a fine of up to $0,000, up to a five-year term of supervised release, and a $0 special assessment. But I must caution you that these are the charges in this complaint, and may or may not be the charges that are eventually brought against you in this case. And the next thing I know counsel wanted to address is the issue of release or detention, and I would note that I have received a few Pretrial Services reports in this matter. But again, due to the timing, et cetera, I've not received Pretrial reports on each of the defendants. And I also note that in some of those I have received, Pretrial concedes that they have, given the time constraints, not had an opportunity to verify quite a bit of the information. Mr. Wong, what is the government's position in this matter? MR. WONG: Your Honor, the United States would move

14 Case :-cr-00-kjm Document Filed 0// Page of 0 0 for detention against all these defendants, on the grounds that they -- all of these defendants are flight risks and dangerous to the community. We would rely on the probable cause finding in the cert- -- excuse me; in the criminal complaint affidavit and the Pretrial Services bail studies that have been completed so far. I'd ask also, Your Honor, that the court allow the government to have a three-day continuance until Tuesday of next week to actually have the -- any detention hearings held. This case involves sixteen defendants. There's still a lot of work to be done in this case. It looks like quite a few of these defendants are illegal aliens. A lot of these defendants also have prior criminal records, and there needs to be a lot of research in this case. I've talked to Pretrial Services; they need additional time to perform their work. I've heard from some defense counsel they need to meet with their clients and they've not had that opportunity yet. So I think going to Tuesday next week is the proper thing to do. THE COURT: Let me, then, ask each of the defense counsel whether you would join a request to have the issue of release or detention taken up on Tuesday, or whether it's something you feel should be addressed now or submitted, just how you want to proceed in that regard. Mr. Reichel. MR. REICHEL: We would submit it for today, Your

15 Case :-cr-00-kjm Document Filed 0// Page of 0 Honor. 0 THE COURT: All right. And so, not putting it over for Tuesday at this point, just for my -- MR. REICHEL: That's correct, Your Honor. THE COURT: All right. Let me address, then, Mr. Schweder for a moment. Mr. Schweder, based upon the information in the complaint and affidavit in this case and the probable cause determination, as well as the information that's contained in the Pretrial Services report, including the -- your prior criminal record, I find that you should be detained as both a flight risk and a danger to the community, that there is no condition or combination of conditions that could reasonably assure your appearance at future court proceedings, or the safety of the community. So I'm going to order you detained on both those bases. But as Mr. Reichel will discuss with you, if circumstances come to light that he feels could address the court's concerns, then he can work with you and Pretrial, put that back before the court to have that issue revisited. Mr. Bockmon? MR. BOCKMON: Your Honor, my client was interviewed by the Pretrial Services officer in my presence. We would be ready to go today. However, the government has moved for a continuance on the bail format. I don't have any grounds to argue against that, Your Honor.

16 Case :-cr-00-kjm Document Filed 0// Page of 0 THE COURT: So we'll put this over for Tuesday at :00 p.m. 0 MR. BOCKMON: But I would note that we're just shy of having some confirmation here, and look forward to her release. THE COURT: If -- I will tell, Mr. Wong, for your benefit as well, that although you have requested the three days, if any of these circumstances change -- for example, today if any information is confirmed and you feel that it is in a position where the record is ripe and you, for example, would want to put it on tomorrow's :00 o'clock calendar, you certainly can do so. So, Mr. Bockmon and Mr. Wong, I'll leave that to you, if you feel that information can be confirmed. So I'm just letting you know that is certainly an option. MR. BOCKMON: Very well, Your Honor. I don't think that's necessarily my option. THE COURT: I understand. Ms. Santos? MS. SANTOS: I would ask to come back on Tuesday, Your Honor. THE COURT: Mr. Jimenez. MR. JIMENEZ: Same with us. THE COURT: Mr. Long? MR. LONG: Tuesday. THE COURT: Mr. Bauer? MR. BAUER: Tuesday.

17 Case :-cr-00-kjm Document Filed 0// Page of 0 0 THE COURT: Mr. Hansen? MR. HANSEN: We're submitted today. THE COURT: All right, let me turn to -- and do we have any Pretrial information with regard to Mr. Reyes-Mojica? MR. HANSEN: We do not. THE COURT: And I'll ask Pretrial whether there's any verbal report with regard to Mr. Reyes-Mojica? PRETRIAL SERVICES OFFICER: No, Your Honor. THE COURT: All right. While I recognize, Mr. Hansen, that you are proposing to submit today, given the fact that we don't have a more complete record, I'm still going to continue that as well to :00 o'clock, based upon the government's request and representation in that matter. MR. HANSEN: I will not be here on that day. THE COURT: If you could, have someone just stand in for you, just to the extent that we may have a more fleshed-out record in that regard. I want to make sure and give Mr. Reyes-Mojica every benefit of the doubt in that regard. Mr. Haydn-Myer? MR. HAYDN-MYER: We're going to submit, Your Honor. And I have reviewed the document from Pretrial Services. THE COURT: All right. And Mr. Lopez-Barron, with regard to you, sir, there is -- based upon the information contained in the criminal complaint and accompanying affidavit and the probable cause therein, as well as the presumptions,

18 Case :-cr-00-kjm Document Filed 0// Page of 0 0 and additionally in the Pretrial Services report, the information I have, and specifically your apparent immigration status and the fact you are subject to a no-bail ICE detainer, I find that you should be detained as both a flight risk and a danger to the community. There is no condition or combination of conditions that could reasonably assure the safety of the community or your appearance at future court proceedings, so I am going to order you detained on both bases. But as I informed one of the defendants previously, if Mr. Haydn-Myer becomes aware of different circumstances that he thinks might address the court's concern, he can always put that back before the court. With regard to each of the other defendants, other than Mr. Schweder and Mr. Lopez-Barron, the government has asked for three days. And as your counsel has also, therefore, asked to have this matter put before the judge :00 o'clock Tuesday, if I was deciding simply based upon the information contained in the complaint and the affidavit, I would order you detained. But your counsel want to have the opportunity to see whether, based upon your circumstances, whether in working with government's counsel, Pretrial, whether there are conditions that could be fashioned that could satisfy the court for your release during the pendency of this case. So for each of you it's going to be ordered at :00 o'clock on Tuesday before the duty judge.

19 Case :-cr-00-kjm Document Filed 0// Page of 0 0 Mr. Wong, the only thing I would address in that regard is, the duty judge on Tuesday, if I'm not mistaken, is Judge Delaney. And therefore, you just need to consider whether or not any of this was in the office and existed before, whether there would be a conflict, and just let her courtroom deputy know in that regard. MR. WONG: Let me just state on the record, I think there is a potential conflict. THE COURT: All right, so we will take that up to see whether or not we will have someone else cover that aspect of the calendar. All right. And then otherwise, what we're going to do is set the matter for a preliminary examination. And the preliminary examination will be on October 0th at :00 p.m. And that's also before Judge Delaney, but we will have someone else address that hearing. Gentlemen, that will be that date we discussed for a preliminary hearing, unless the grand jury returns an indictment against you, and then you would be informed of the charges brought against you by the grand jury. Mr. Wong, anything further? MR. WONG: Not as to these defendants, Your Honor. THE COURT: Mr. Reichel? MR. REICHEL: No, Your Honor. THE COURT: Mr. Bockmon?

20 Case :-cr-00-kjm Document Filed 0// Page 0 of 0 0 MR. BOCKMON: No, Your Honor. Thank you. THE COURT: Ms. Santos? MS. SANTOS: No, Your Honor. THE COURT: Mr. Jimenez? MR. JIMENEZ: No, thank you. THE COURT: Mr. Long? MR. LONG: No, thank you. THE COURT: Mr. Bauer? MR. BAUER: No, Your Honor. THE COURT: Mr. Hansen? MR. HANSEN: No. THE COURT: Mr. Haydn-Myer? MR. HAYDN-MYER: No, Your Honor. THE COURT: Thank you, all. (Whereupon, the hearing in the above-entitled matter was adjourned at : a.m.) --o0o-- CERTIFICATE I certify that the foregoing is a correct transcription from the electronic sound recording of the proceedings in the above-entitled matter. June, 0 Patricia A. Petrilla, Transcriber AAERT CERT*D-