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United States v. Ballato

November 7, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THOMAS BALLATO, DEFENDANT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

BRIEFING ORDER; AMENDMENT TO MINUTES

This criminal case is before the Court on Motion of the United States for Reconsideration of this Court's Order Permitting Travel of the Defendant (Doc. No. 16).

The docket shows that the motion resulting in the Order for which reconsideration is sought was made orally in open court on October 18, 2006. Defendant was scheduled to appear in court that day to execute a waiver of timely indictment; apparently the court appearance was scheduled orally for 1:30 p.m. that day by agreement among counsel for both parties. Ms. Lafferty represents in the instant Motion that the time of the proceeding was extended to 2:15 for the convenience of Mr. Ambrose. The docket sheet reflects neither the 1:30 nor the 2:15 setting.

According to the minute sheet (Doc. No. 10), which has been verified by reference to the verbatim record of the proceedings, Court commended at 2:08 p.m. and recessed at 2:14 p.m. Although the minute sheet reflects that Ms. Lafferty was present, the verbatim record shows the Court recited that no attorney representing the United States was present.

The Court apologizes for proceeding without the U.S. Attorney present. It may be that the Court believed the matter was still set for 1:30 with the agreement of the United States and that by not being present, the United States believed it was appropriate for the Court to proceed with the scheduled matter -- an uncontested extension of time -- without any need for the Government to be represented. In any event, it is clear that this mode of proceeding resulted in the Court's considering the oral motion for permission to travel to North Carolina for a wedding ceremony without the United States' having an opportunity to oppose the motion. Thus it is completely proper that the matter be reconsidered and Defendant has been on notice since the court appearance on bond violation on November 6, 2006, that the United States intended to move for reconsideration.

It is accordingly ORDERED that Defendant file any memorandum he wishes the Court to consider in opposition to the Motion for Reconsideration not later than November 8, 2006. Defendant should address, inter alia, whether allowing him to travel without the ability to electronically monitor him during the travel would violate the Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248.

Michael R. Merz Chief United States Magistrate Judge

20061107

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