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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA Affirmation in Support of
Application for Order of
v. Continuance
JUSTIN HEATH SMITH, 24 Mag. 2422
a/k/a “Austin Wolf,”
Defendant.
State of New York )
County of New York : ss.:
Southern District of New York )
Getzel Berger, pursuant to Title 28, United States Code, Section 1746, hereby declares
under penalty of perjury:
1. I am an Assistant United States Attorney in the Office of Danielle R. Sassoon,
United States Attorney for the Southern District of New York. I submit this affirmation in support
of an application for an order of continuance of the time within which a preliminary hearing would
have to be conducted or an indictment or information would have to be filed, pursuant to Rule
5.1(d) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3161(h)(7)(A).
2. The defendant was charged by complaint with violations of 18 U.S.C.
§ 2252A(a)(2)(A) and (a)(5)(B). He was arrested on June 28, 2024 and presented in this District
before Magistrate Judge Tarnofsky on that same date, at which proceeding the defendant was
represented by Michael Baldassare, Esq. and Thomas Andrykovitz, Esq. and ordered detained.
3. At the presentment on June 28, 2024, a preliminary hearing was scheduled for July
29, 2024, after defense counsel consented to extend the deadline within which to conduct a
preliminary hearing. Under the Speedy Trial Act, the Government had until July 29, 2024 within
which to file an indictment or information. See 18 U.S.C. § 3161(b).
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4. On July 23, 2024, Magistrate Judge Valerie Figueredo entered an Order of
Continuance, pursuant to Rule 5.1(d) and 18 U.S.C. § 3161(h)(7)(A), extending the time within
which a preliminary hearing would have to be conducted or an indictment or information would
have to be filed in this case until August 28, 2024.
5. On August 27, 2024, Magistrate Judge Stewart D. Aaron entered an Order of
Continuance, pursuant to Rule 5.1(d) and 18 U.S.C. § 3161(h)(7)(A), extending the time within
which a preliminary hearing would have to be conducted or an indictment or information would
have to be filed in this case until September 27, 2024.
6. On September 24, 2024, the Honorable Katharine H. Parker entered an Order of
Continuance, pursuant to 18 U.S.C. § 3161(h)(7)(A), extending the time within which a
preliminary hearing would have to be conducted or an indictment or information would have to be
filed in this case until October 28, 2024.
7. On October 24, 2024, the Honorable Gary Stein entered an Order of Continuance,
pursuant to 18 U.S.C. § 3161(h)(7)(A), extending the time within which a preliminary hearing
would have to be conducted or an indictment or information would have to be filed in this case
until November 27, 2024.
8. On November 26, 2024, the Honorable Barbara Moses entered an Order of
Continuance, pursuant to 18 U.S.C. § 3161(h)(7)(A), extending the time within which a
preliminary hearing would have to be conducted or an indictment or information would have to be
filed in this case until December 27, 2024.
9. On December 23, 2024, the Honorable Sarah Netburn entered an Order of
Continuance, pursuant to 18 U.S.C. § 3161(h)(7)(A), extending the time within which a
2
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preliminary hearing would have to be conducted or an indictment or information would have to be
filed in this case until January 27, 2025.
10. Defense counsel and I have had discussions regarding a possible disposition of this
case. The parties plan to continue our discussions, but do not anticipate a resolution before
January 27, 2025.
11. Therefore, the Government requests a 30-day continuance until February 26, 2025,
to continue the foregoing discussions toward resolving this matter. On January 10, 2025, I
personally corresponded with defense counsel, who stated that the defendant consents to an
extension of the preliminary hearing and Speedy Trial Act deadlines to February 26, 2025, and has
specifically consented to this request. This application has been authorized by Assistant United
States Attorney Andrew Dember, Deputy Chief of the Criminal Division.
12. For the reasons stated above, good cause supports the extension of the preliminary
hearing deadline, and the ends of justice served by the granting of the requested continuance
outweigh the best interests of the public and defendant in a speedy trial.
Dated: New York, New York
January 24, 2025
__________________________
Getzel Berger
Assistant United States Attorney
212-637-1061
