DISREGARD. FILED IN ERROR. ORDER ON DISCOVERY AND SCHEDULING (SEE ORDER… — USA v. Thomas - Chad Brandon Thomas (Dkt. 22)

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U.S. District Court for the Eastern District of Tennessee · No. 2:22-cr-00076-JRG-CRW · Doc. 22 · 2022-09-08 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF TENNESSEE 
GREENEVILLE DIVISION 
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
 
v. 
 
KEVIN LEE HARRISON, 
 
 
 
Defendant. 
 
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2:22-CR-86 
 
 
 
 
ORDER ON DISCOVERY AND SCHEDULING 
 
On September 6, 2022, counsel appeared before the undersigned to set the case for trial 
within the confines of the Speedy Trial Act, 18 U.S.C. § 3161.  The Court offered a date within 
the confines of the Act, but counsel asked that the trial be set on a later date to allow sufficient 
time for review of discovery, research and investigation, attorney-client meetings, and 
consideration of options for case disposition. The United States did not oppose the request. The 
Court found the request to set outside the Act to be well-taken, and it was GRANTED.  
Based upon the foregoing and statements made on the record during the hearing in this 
cause, all time between the filing of this order and the trial date identified herein is declared 
“excludable time” under the Speedy Trial Act. The ends of justice served by the granting of the 
oral motion outweighs the interests of the public and Defendants in a speedy trial. See 18 U.S.C. 
§ 3161(h)(7)(A).  
 
 
 
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I. 
SCHEDULING DEADLINES 
Important Scheduling Dates 
Trial Date 
March 7, 2023, at 9:00 a.m.  
Before U.S. District Judge  
Clifton L. Corker 
Estimated length of trial 
 
2 days 
Defendant’s Pretrial Motions Due: 
January 13, 2023 
Government’s Responses Due: 
January 27, 2023 
Plea Deadline 
February 21, 2023 
Requests for Special Jury Instructions 
5 days before trial 
 
II. 
PURPOSE OF ORDER AND DUTY TO CONFER 
The purpose of this Order is to eliminate the unnecessary filing of discovery motions.  If there 
 
are disagreements regarding discovery issues, counsel for Defendant(s) shall make a request 
 
to the government for each item of discovery sought and be declined prior to the filing of any 
 
motion to compel discovery and must certify in the motion that they have conferred with 
 
opposing counsel, that they have been unable to resolve the issue by agreement, and that the 
 
issue concerns a matter not covered by this order.  The Court may deny without prejudice 
 
motions filed without the required certificate. 
 
III. 
DISCOVERY ORDER1 
 
A. 
Defendant’s Oral Statement. Within five (5) days of receipt of Defendant's request, 
the government must disclose to Defendant the discovery within the scope of Rule 
16(a)(1)(A).   Similarly, the government shall disclose to an organizational defendant 
the information required by Fed. R. Crim. P. 16(a)(1)(A) upon request by the 
organizational defendant. 
 
 
B. 
Written or Recorded Statements of Defendant.  Within five (5) days of receipt of 
Defendant's request, the government must disclose to Defendant the discovery within 
the scope of Rule 16(a)(1)(B).   Similarly, the government shall disclose to an 
 
 
organizational defendant the information required by Fed. R. Crim. P. 16(a)(1)(B) 
upon request by the organizational defendant. 
 
 
1 To the extent any disclosure deadline references a pretrial conference, and no conference is later set, parties shall 
presume the disclosure is due no later than five weeks prior to the trial date.  
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C. 
Prior Record of Defendant.  Within five (5) days of receipt of Defendant's request, 
the government must disclose to the defendant the discovery within the scope of Rule 
16(a)(1)(D).    
D. 
Documents and Objects. Within five (5) days of receipt of Defendant's request, the 
government must disclose to the defendant the discovery within the scope of Rule 
16(a)(1)(E).    
E. 
Reports of Examinations and Tests.  Within five (5) days of receipt of Defendant's 
request, the government must disclose to Defendant the discovery within the scope of 
Rule 16(a)(1)(F).    
F. 
Expert Witnesses.  Within five (5) days of receipt of Defendant's request, the 
government must disclose to Defendant the discovery within the scope of Rule 
16(a)(1)(G).    
 
G. 
Expert Witnesses regarding Defendant’s Mental Condition.  Defendant must 
within five days of the government’s request provide the government a written 
summary of testimony Defendant intends to offer as provided for in Rule 16(b)(1)(C). 
 
If the government requests discovery under this paragraph (H), within five (5) days of 
Defendant’s request, the government must provide a written summary of testimony 
the government intends to offer as provided for in Rule 16(a)(1)(G). 
 
H. 
Expert Witnesses at Pretrial hearings – Five (5) Days’ Notice Required. If either 
the government or a Defendant intends to offer the testimony of an expert witness 
in conjunction with any pretrial hearing in order to give an opinion based upon 
scientific, technical, or other specialized knowledge, the party intending to utilize 
the witness shall notify opposing counsel at least five (5) business days prior to the 
hearing and furnish a written summary of the testimony which shall describe the 
witness’s opinions, the bases and the reasons for those opinions, and the witness’s 
qualifications. 
 
I. 
Continuing Duty to Disclose.  It shall be the continuing duty of counsel for all parties 
to immediately reveal to opposing counsel all subsequently discovered information or 
other material within the scope of this order or Rule 16. 
 
 
J. 
Reciprocal Discovery Obligations 
 
1. 
Receipt of discovery treated as a request.  The government routinely 
provides defendants with discovery provided for under Rule 16(a)(1)(E) 
(relating to disclosure of documents and objects) and Rule 16(a)(1)(F)(relating 
to reports of examinations and tests) soon after the initial appearance.  If the 
government provides Defendant with such discovery, the Court will presume 
that Defendant has requested the same under Rule 16(a)(1)(E) and (a)(1)(F), 
triggering its reciprocal obligations under Rule 16(b)(1)(A) and (B).  
 
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2. 
Opting Out of Discovery.  A Defendant who elects not to request disclosure 
as outlined herein or under both Fed. R. Crim. P. 16(a)(1)(E) (relating to 
documents and tangible objects) and under Rule 16(a)(1)(F) (relating to 
reports of examinations and tests), has no obligation to provide reciprocal 
discovery to the government pursuant to Rule 16(b)(1)(A) and Rule 
16(b)(1)(B).  However, if Defendant receives discovery from the government, 
the Court will presume he requested it for purposes of determining 
Defendant’s reciprocal discovery obligations. 
 
 
K. 
Brady material  
 
 
  
1.  
Timing of Disclosure. Within 14 days of the arraignment, except where the 
Brady material is covered by the Jencks Act, 18 U.S.C. § 3500, then the 
Jencks Act will control the timing of disclosure.   
 
 
  
2. 
Nature of Disclosure.  The government shall reveal to Defendant and permit 
Defendant to inspect and copy all evidence known to the government which 
may be favorable to Defendant on the issues of guilt or punishment within the 
scope of Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 
U.S. 97 (1976), United States v. Bagley, 473 U.S. 667 (1985), and Kyles v. 
Whitley, 514 U.S. 419 (1995). 
 
 
L. 
Giglio material   
 
 
  
1. 
Timing of Disclosure.  Not later than 7 days prior to trial shall the material 
governed by this section be disclosed. 
 
 
  
2. 
Nature of Disclosure.  The government shall disclose to Defendant the 
existence and substance of any payments, promises of immunity, leniency, 
preferential treatment, or other inducements made to prospective government 
witnesses to the extent required by Giglio v. United States, 405 U.S. 150 
(1972) (impeachment evidence) and Napue v. Illinois, 360 U.S. 264 (1959).   
 
 
  
3. 
Criminal Record of Witness.  For each witness who will testify for the 
government at trial, the government shall supply the defendant with a record 
of all prior convictions of the type that may be used to impeach a witness 
pursuant to Fed. R. Evid. 609. 
 
 
M. 
Jencks Act Material  
 
 
  
1. 
Duty to Comply. All parties shall be prepared to comply with the Jencks 
Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2 relating to the production of 
witness statements on demand after the witness has testified on direct 
examination.   
 
 
  
2. 
Early Disclosure.  To avoid disruptions in the progress of the trial, and perhaps 
even continuances of the trial, the Court strongly urges the government to reveal 
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Jencks Act material to defense counsel before the commencement of trial.  The 
parties may agree on – but the Court does not order – an earlier time for the 
exchange or production of Jencks Act and Rule 26.2 material. 
 
 
 N.  
Identity of Defendant in a photo lineup 
 
 
 
  
1. 
Timing of disclosure.  Within 14 days of arraignment. 
 
 
  
2. 
Nature of Disclosure.  The government shall state whether Defendant was 
identified in any lineup, show up, photo spread, or similar identification 
proceedings, and produce any pictures utilized or resulting therefrom. 
 
IV. 
PRESERVATION OF AGENT’S ROUGH NOTES.  
 
The Government shall advise its agents and officers involved in this matter to preserve 
all rough notes. Rough notes which contain the substance of any relevant oral statements 
made by Defendant before or after arrest in response to interrogation by a person Defendant 
knew was a government agent are subject to disclosure pursuant to Rule 16(a)(1)(B)(ii), 
Federal Rules of Criminal Procedure. 
 
V. 
ELECTRONIC SURVEILLANCE.  
 
 
A. 
Timing of Notice. Within 14 days of the date of this Order, the government shall 
state whether Defendant was an aggrieved person, as defined in 18 U.S.C. § 
2510(11), of any electronic surveillance and, if so, shall set forth in detail the 
circumstances thereof.   
 
B. 
Contents of Notice.  Specifically, the government shall disclose to the defendant the 
nature and extent of the use of electronic surveillance (including wiretapping, 
consensual monitoring, body wires, tape recordings, transmission devices, videotape 
recordings, bank surveillance recordings, pen registers) or mail covers conducted by 
law enforcement officers or witnesses in investigating this case, and also disclose the 
existence of all recordings obtained and final transcripts made during the 
investigation, regardless of whether the government intends to use the recordings 
and transcripts in its case-in-chief. 
 
VI. 
FINGERPRINT ANALYSIS.  
 
 
Within five (5) days of the request by Defendant, the government shall provide the defense, 
 
for independent expert examination, copies of all latent fingerprints or palm prints which have 
 
been identified by a Government expert as those of Defendant.  
 
 
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VII. 
PROCEDURE 
FOR 
RESOLVING 
OBJECTIONS 
TO 
AUDIO/VIDEO 
RECORDINGS.  
 
 
A. 
Need for Robinson hearing.  If a Defendant files (1) a motion to exclude an audio 
or video recording because the allegedly inaudible and/or unintelligible portions of 
the recording are so substantial as to render the recording as a whole untrustworthy, or 
(2) a motion to prohibit the use of a transcript of a recording, then a “Robinson” hearing 
may be required. See United States v. Robinson, 707 F.2d 872 (6th Cir. 1983). 
 
If defense counsel believes that an entire recording should be excluded as 
untrustworthy under Robinson, a hearing will be held at the pretrial conference and 
motion hearing. Similarly, a hearing will be conducted at the same time regarding the 
accuracy of any transcript which is disputed by Defendant. If such a hearing is 
required, the government and the Clerk shall have available for the Court’s use the 
audio and/or video equipment to be used at trial or comparable equipment. The 
parties shall notify the Magistrate Judge if such a hearing will in fact be needed. 
 
 
B. 
Duty to confer.  Defendant’s counsel will, not later than seven (7) days before the 
pretrial conference, meet and confer with the government’s counsel and identify 
what recording or portions of a recording the Defendant insists should be wholly 
excluded as untrustworthy under Robinson.   
 
 
C. 
Transcripts.  If the government intends to prepare and submit transcripts of any 
recording, it shall submit those transcripts to defense counsel at the time the recording 
is reviewed so that any objections to such transcripts may be presented at the time of 
the Robinson hearing. Counsel shall review any transcripts contemporaneously with 
his/her review of the actual recordings and, on or before seven (7) days prior to the 
pretrial conference, identify to the government’s attorney all portions of the 
transcripts claimed to be inaccurate or unverifiable after listening to the recordings 
themselves.   
 
D. 
Resolution of Disagreements.  The Court prefers the parties to stipulate to any 
transcript.  If a stipulation is not possible, the parties are to advise the Court accordingly 
and identify the areas of disagreement regarding the accuracy of the transcript and the 
Court will listen to the recordings with the transcript and make a pretrial determination.  
Where portions of the recording are inaudible, the transcript should so reflect.  United 
States v. Adams, 722 F.3d 788, 824 (6th Cir. 2013). 
VIII. USE OF CO-CONSPIRATOR’S STATEMENTS AND REQUIREMENT OF 
GOVERNMENT TO FILE NOTICE OF INTENT TO USE.   
 
 
A. 
Admissibility of Co-Conspirator Statements.  If the government intends to offer 
evidence under F.R.E. 801(d)(2)(E), then the admissibility of an alleged co-
conspirator’s statements under F.R.E. 801(d)(2)(E) will be determined in accordance 
with United States v. Vinson, 606 F.2d 149 (6th Cir. 1979); specifically, such 
statements will be admitted subject to a later demonstration during the trial by a 
 
 
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preponderance of the evidence that the statements were made during the course and 
in furtherance of the conspiracy. 
 
 
B. 
Notice Required. 
If the government intends to introduce a co-conspirator’s 
statements under F.R.E. 801(d)(2)(E), the government shall file a notice not later than 
seven (7) days prior to the commencement of the trial. The notice must include the 
following: (1) the substance of the statements to be introduced under F.R.E. 
801(d)(2)(E); (2) when those statements were made, where they were made, and to 
whom they were made; and (3) a summary of the evidence which the government 
will present to establish the existence of the conspiracy, that the declarant was a 
member of that conspiracy, and that the statements were made during and in 
furtherance of the conspiracy. 
 
 
C. 
Pre-trial contest to admissibility.  If Defendant intends to contest the admissibility 
of any statements offered under Fed.R.Evid. 801(d)(2)(E), prior to the commencement 
of the trial, Defendant shall file and serve upon the government’s attorney a motion in 
which Defendant shall state the grounds and specify the reasons why the statements 
are not admissible under F.R.E. 801(d)(2)(E). A copy of such motion shall be 
delivered to the District Judge contemporaneously with its filing. 
 
IX. 
RULE 404(b) EVIDENCE  
 
 
A. 
Timing of Notice. The government shall provide written notice in advance of trial, or 
during trial if the Court excuses pretrial notice on good cause shown, of the nature of 
any Rule 404(b)-type evidence it intends to introduce at trial.  Pretrial disclosure of 
such evidence will be excused where its use only becomes indicated due to events 
at trial or such evidence constitutes legitimate rebuttal evidence. This notice must 
be provided far enough in advance of trial to allow Defendant a fair opportunity to 
meet the evidence. Disclosure any less than seven (7) days prior to trial will generally 
be found to be insufficient and many times, more than seven (7) days will be 
necessary. 
 
 
B.   
Nature of Disclosure.  The government shall also disclose the purpose of the 
evidence (e.g., proof of motive, opportunity, intent, preparation, plan, knowledge, 
identity, or absence of mistake or accident) and do so in a way that demonstrates the 
non-propensity purpose of its use and how the evidence is relevant in light of this 
 
  
purpose. The government’s written disclosure shall characterize Defendant’s 
specific prior conduct to a degree that fairly apprises Defendant of its general nature. 
 
  
X. 
INSANITY DEFENSE  
 
 
If a Defendant intends to assert a defense of insanity, Rule 12.2 Fed. R. Crim. P. 
 
Defendant(s) shall submit the required written notification(s) by the deadline for the filing 
 
of pretrial motions.  
 
 
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XI. 
FILING OF MOTIONS AND RESPONSES.   
 
 
A.  
Timing of filing Motions. All motions (including, but not limited to, motions in 
limine, motions to suppress, and objections to any evidence) shall be filed by the 
motion deadline.  A response to a motion filed by either party shall be filed by the 
response deadline. FAILURE TO RESPOND TO A MOTION MAY BE DEEMED 
A WAIVER OF ANY OPPOSITION TO THE RELIEF SOUGHT IN THE 
MOTION.  
 
 
B. 
Memorandum of Law Required.  All motions that require a brief shall be 
accompanied by a separate brief or they may be subject to summary denial. Local 
Rule 7.1.  
 
 
C. 
Evidentiary Hearings. Motions will be decided in accordance with Local Rule 7.2; 
in this regard, the Court may rule upon any motion without a hearing thereon if 
such is deemed unnecessary by the Court, notwithstanding that a motion hearing has 
been scheduled. 
 
  D. 
Motions to Suppress  
 
1. 
Requirement of specificity. If Defendant files a motion to suppress a 
statement, or evidence seized as a result of a search (whether with or without a 
warrant), Defendant’s motion shall (1) specify in detail each fact which 
Defendant claims requires suppression of the statement or evidence, and (2) 
the legal basis supporting suppression. See, Franks v. Delaware, 438 U.S. 
154 (1978); United States v. Giacalone, 853 F.2d 470 (6th Cir. 1988); United 
States v. Thompson, 2001 WL 820905 (6th Cir. 2001).  
 
2. 
Waiver.  Failure to raise the issue before the Magistrate Judge may  
constitute a waiver of the issue.  For that reason, Defendant should raise 
every factual and legal issue which he claims requires suppression.  
 
 
E. 
Adoption of Motions of co-defendants  
 
 
 
1. 
Requirement of specificity.  If counsel files a motion to adopt any motions of 
one or more co-defendants, it should be specifically stated which motion(s) 
counsel wishes to so adopt. 
 
 
 
2. 
General adoption reference.  Counsel shall not file a motion that merely 
adopts, or requests to adopt, any or all motions of co-defendants. 
 
 
F. 
Untimely Motions. 
 
1. 
Canceling of Pre-trial Conference and Motion Hearing.  If no motions are 
filed by the motion deadline, the Court will cancel any pre-trial conference 
scheduled and will not set such hearing unless the parties notify the Court 
 
 
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that one is necessary to address issues outstanding that were not subject to a 
motion hearing.   
 
2. 
Summary Denial.  Motions filed after the motion deadline may in the 
discretion of the District Judge or, where appropriate, the Magistrate Judge, be 
denied summarily as untimely. 
 
G. 
Presence of Defendant  
 
1. 
Mandatory appearance at all evidentiary hearings.  Any Defendant who 
has filed a motion which requires the presentation of evidence must be present, 
along with his/her counsel. This requirement cannot be waived. The Clerk 
shall notify the U.S. Marshal of any Defendant who is in custody and who 
must be present in court and defense shall notify Defendants who are not in 
custody of this requirement. 
 
2. 
Optional Appearance.  Any Defendant, who has filed no motions, or who has 
filed no motions that require the presentation of evidence, may attend the 
motion hearing and any final pretrial conference but is not required to do so. 
If such Defendant is incarcerated and wishes to attend any final pretrial 
conference/motion hearing, he/she must file a written request with the Clerk to 
so attend ten (10) days prior to the hearing to afford the U.S. Marshal’s 
adequate time to make transportation arrangements. 
 
XII. 
STIPULATIONS. 
 
 
Prior to trial, all counsel shall confer and make every possible effort in good faith to stipulate 
 
facts, the truth and existence of which are not contested, in order to expedite the trial of this 
 
matter.  
 
 
No stipulation made by defense counsel shall be used against Defendant unless the stipulation 
 
is reduced to writing and signed by Defendant and his/her counsel. It shall be the 
 
responsibility of the government’s attorney to initiate contact with defense counsel 
 
regarding the possibility of stipulating uncontroverted facts as herein above described. 
 
SO ORDERED: 
 
s/Cynthia Richardson Wyrick 
 
United States Magistrate Judge 
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