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U.S. v. ELLIOTT

April 4, 2005.

UNITED STATES OF AMERICA,
v.
KENNETH ELLIOTT, Defendant.



The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge

Decision and Order

I. Introduction

  Pending is the omnibus pretrial motion of defendant, Kenneth Elliot, who seeks the following relief: (1) dismissal of the indictment as insufficient pursuant to the Fifth Amendment; (2) in camera review of the grand jury minutes and dismissal of the indictment because of insufficient evidence and improper legal instructions; (3) suppression of his statements, and evidence seized from his person, vehicle and house; (4) disclosure of Brady material; (5) early release of Jencks Act material; (6) disclosure of the government's intention to use prior bad acts or convictions; (7) preservation of original police notes; (8) discovery; and, (9) leave to file additional motions as necessary to address undisclosed discovery and to supplement the current motion. At the conclusion of oral argument, the court stated that it would supplement its oral rulings with a written decision. This is that decision.

  Procedurally and substantively, this motion raises fundamental concerns regarding the parties' compliance with this District's Local Rules and the standard Criminal Pretrial Order ("CPO") issued in this case. Because the court will enforce the Local Rules and the CPO in the future, it seizes this opportunity to remind the parties, and more generically, the government and defense bar, of their mandated requirements.*fn1 II. Background

  On September 17, 2004, Elliot was indicted for participating in a cocaine distribution conspiracy. After his arrest and arraignment, the court issued its standard CPO. See CPO, Dkt. No. 4.

  On December 17, the parties filed a stipulation and proposed order seeking a sixty day exclusion from the Speedy Trial Act, and the court executed the order. Citing the interests of justice, the stipulation sought time for the parties to complete discovery and prepare motions. The order extended the CPO's motion filing deadline and plea or trial date. Otherwise, neither the stipulation nor proposed order addressed the specific disclosure deadlines or other obligations contained in the CPO, the Local Rules, or for that matter, the Federal Rules of Criminal Procedure. See Stipulation & Order, Dkt. No. 9.

  III. Rules Governing Pretrial Procedures in Criminal Cases

  Rather than invent new rules governing criminal pretrial procedures, the court will enforce existing ones. Recognizing that enforced compliance may be novel, the court provides fair notice that everyone must adjust to the novelty. Having provided that admonition, the court preliminarily turns to the authority of the rules, their application to discovery, other pretrial matters and motion practice, and to suggestions for avoiding unnecessary judicial interference in the parties' pretrial relationship.

  A. Authority of the Rules

  Criminal procedures are governed by a combination of the following: (1) Federal Rules of Criminal Procedure; (2) Local Rules of Criminal Procedure; (3) General Orders;*fn2 (4) Criminal Pretrial Orders; (5) specific, case-related orders; and, (6) other so-called "standing orders."*fn3 See Fed.R. Cr. P. 1(a)(1), 57(a)(1) and (b); L.R. Cr. P. 1.1; CPO, ¶ II(A).

  While no rule should be so strictly enforced that parties lose rights because of an unintentional failure to comply, sanctions may be appropriate when parties have actual notice of the rules and do not comply. See Fed.R. Cr. P. 57(a)(2) and (b); CPO, Notice Foll. ¶ VIII.*fn4 Although the Local Rules and orders already provide actual notice, this decision supplements that notice. B. Discovery and Other Pretrial Matters

  The CPO parallels the Local Rules, and governs discovery except in extraordinary circumstances. CPO, ¶ II(A); L.R. Cr. P. 14.1(a); see also Fed.R. Cr. P. 57 (local rules and orders may supplement the Federal Rules of Criminal Procedure). Within fourteen (14) days of arraignment, unless the court alters the date for good cause, the government must disclose for inspection and copying all Rule 16(a) information, and file a notice of its intention to use this evidence. L.R. Cr. P. 14.1(b)(1); CPO, ¶ II(B)(1); see also Fed.R. Cr. P. 16(a)(1) (defendant's statements and prior criminal record, documents and objects, reports of examinations and tests, and experts), and 12(b)(4) (notice of intent).*fn5 These disclosure obligations alter the demands required by Rules 12(b)(4) and 16(a) of the Federal Rules of Criminal Procedure, and are designed to promote the efficient exchange of discovery, to eliminate routine and unnecessary discovery motions, and to afford defendants the opportunity to file suppression motions. L.R. Cr. P. 14.1(a) and (b)(1); CPO, ¶ II(A). Defendants' reciprocal obligations are also governed by these rules. Cf. L.R. Cr. P. 14.1(c); CPO, ¶ II(C) (requiring reciprocal disclosure twenty-one (21) days after arraignment); and, Fed.R. Cr. P. 16(a)(1)(C)(D) and (E), and (b)(1).

  The Local Rules and CPO also govern both the timing of disclosure, and the disclosure itself, of many other routine, pretrial requests, some of which are the subject of Elliot's motion. Thus, within fourteen (14) days of arraignment, unless the court sets another date for good cause, the government must disclose for inspection and copying all information and material which may be favorable to the defendant on the issues of guilt or punishment, and must advise the defendant of its intention to introduce Rule 404(b) evidence in its case-in-chief at trial. L.R. Cr. P. 14.1(b)(2-3); CPO, ¶ II(B)(2-3); see also Fed.R.Evid. 404(b). As to 404(b), the CPO supersedes the defendant's obligation to demand the notice. L.R. Cr. P. 14.1(b)(3); CPO, ¶ II(B)(3); see also Fed.R. Evid. 404(b) ("upon request of the accused" ("demand")).

  Fourteen (14) days before trial, unless the court alters the date for good cause, the government must provide the defendant Giglio material, and the criminal history of testifying informants. L.R. Cr. P. 14.1(d)(1-2); CPO, ¶ II(D)(1-2). Before trial (on a reasonable date otherwise unspecified), the government must transcribe grand jury testimony and the parties must exchange 3500 material. L.R. Cr. P. 14.1(e); CPO, ¶ II(E). Furthermore, the government must advise agents and officers to preserve all rough notes. L.R. Cr. P. 14.1(f); CPO, ¶ II(F).

  C. Motion Practice

  Motions are generally governed by Rules 12 and 47 of the Federal Rules of Criminal Procedure, but those rules may be modified. See Fed.R. Cr. P. 57. Rule 12 itself anticipates that courts may set motion filing deadlines (see Fed.R. Cr. P. 12(c)), and this District has done so. All motions must be served and filed within four (4) weeks of the date the CPO is issued, and must comply with Local Rule 12.1. CPO, ¶ III(A).*fn6 Oral argument is required unless otherwise ordered by the court. CPO, ¶ III(A).

  By Federal Rule, the court may, sua sponte, or upon motion for good cause made before the expiration of the allotted time, or because of excusable neglect after the expiration of the allotted time, extend deadlines.*fn7 Fed.R. Cr. P. 45(b)(1) (A-B) and (2). In this District, motions may be filed after four weeks only by court order upon a showing of good cause for the delay. CPO, ¶ III(C). Extensions of motion filing deadlines are subject to judicial discretion, extension requests must be written and recite the reason for the request, and any party seeking an extension must first contact opposing counsel.*fn8 L.R. Cr. P. 12.1(d).

  A party applying for an order must do so by motion.*fn9 Fed.R. Cr. P. 47(a). The moving party must specifically articulate the relief requested and must set forth a factual basis which, if proven true, would entitle the moving party to the relief requested. L.R. Cr. P. 12.1(a); see also Fed.R. Cr. P. 47(b).

  After filing a motion, the moving party must confer with opposing counsel and report to the court, in writing, the following: (1) whether the parties agree or disagree that the requested relief is appropriate; (2) whether a hearing is necessary to resolve factual disputes; and (3) whether oral argument is necessary. CPO, ¶ III(B).

  There are additional requirements related to discovery, suppression hearings, and the speedy trial clock. No discovery motion may be filed without first conferring with opposing counsel. L.R. Cr. P. 14.1(g); CPO, ¶ II(G). The court will not consider a discovery motion unless it is accompanied by an attorney certification or notice stating that a pre-motion conference was conducted with opposing counsel, and the certification or notice recites the moving party's good faith efforts to resolve, eliminate or reduce the area of controversy, and arrive at a mutually satisfactory resolution. L.R. Cr. P. 12.1(b) and 14.1(g); CPO, ¶ II(G). Motions seeking discovery of matters encompassed by the CPO are limited to the following: (1) motion to compel; (2) motion for a protective order; or, (3) motion for an order modifying discovery. L.R. Cr. P. 14.1(g); CPO, ¶ II(G); see also Fed.R. Cr. P. 16(d).

  Regarding suppression motions, if the parties agree that a hearing is necessary and the motion papers conform to the requirements of Local Rule 12.1(a), the court will schedule a hearing. If the government contests the necessity of a hearing, the defendant's motion must be accompanied by an affidavit, based upon personal knowledge, setting forth facts which, if proven true, would entitle the defendant to relief. L.R. Cr. P. 12.1(e).

  As to the Speedy Trial Act, all motions and other papers must show on the first page beneath the file number, the speedy trial exclusions applicable to the action sought or opposed by the motion or other paper, and the amount of resulting excludable time. L.R. Cr. P. 12.1(c). Any delay from the date a motion is filed through conclusion of its hearing, or other prompt disposition, is excluded from the speedy trial clock. CPO, ¶ III(D); see 18 U.S.C. § 3161(h)(1)(F).

  D. Suggested Procedures

  The court will not micro-manage the pretrial relationship between the defense bar and the government. Given the extraordinary variables often unique to each case, the court respects the parties' ability — in the best interests of their respective clients — to negotiate the timing and content of pretrial disclosures. However, the parties must recognize their obligation to seek judicial authorization for variances in the CPO and Local Rules, and should recognize the need to seek judicial intervention when the rules strain their relationship.

  While the court should not have to explain why parties must comply with judicial rules and orders, it nonetheless offers several observations. First and foremost, the Local Rules and the CPO are designed to avoid the wasted time and energy associated with the kind of motion currently pending. So too, the rules create a process for the exchange of information which facilitates the interests of justice for both parties, and permits the court to efficiently manage the case. Furthermore, the court must ...


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