Discovery Conference Memorandum — USA v. Foreman (Dkt. 29, D. Colo.)

Summary

This discovery conference memorandum and order, filed 11/18/21 as Document 29 in Case No. 1:21-cr-00165-WJM (District of Colorado), sets out discovery between the government and defendant Chandler Simbeck, one of 2 defendants, in a case assigned to Judge Raymond Moore with an estimated trial time of over five days. In it the government states it will make the Rule 16 disclosures requested and disclose favorable evidence under Brady v. Maryland and Giglio v. United States.

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Record facts

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ase NO. L.Z1-Cf-UULO9-VVJIV VJOCUMEY Y CO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. )
21-cr-00165-RM
) JUDGE ASSIGNED: RAYMOND MOORE
UNITED STATES OF AMERICA, )
) ESTIMATED TRIAL
Plaintiff, ) TIME: Over five days
V. ) NUMBER OF
) DEFENDANTS: 2
2. CHANDLER SIMBECK )
) DOCUMENT DISCLOSURE EXTENSIVE
Defendant. ) C Yes &@ No
(Please select one)
DISCOVERY CONFERENCE
MEMORANDUM AND ORDER
INTRODUCTION

Rule 16, Federal Rules of Criminal Procedure, is entitled Discovery and Inspection and

provides for discovery by both defendant and the government. D.C.COLO.LCrR 17.1.1 requires a
discovery conference memorandum and order be entered by a magistrate judge.

A defendant may discover certain material as a matter of right without any obligation to permit
discovery by the government. However, if the defendant requests certain materials by discovery,
namely, documents and tangible objects, as well as reports of examinations and tests, then the
defendant is obligated to permit similar discovery by the government.

In addition to discovery we will take up the matter of notice, as required by Rules 12.1 and
12.2, Fed.R.Crim.P. if the defense of alibi or mental capacity is contemplated. Further, a date will be

set for the filing of all motions.

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 filed 11/18/21 USDC Colorado pg 2
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At the conclusion of this hearing the report will be signed by defendant and/or his counsel, and
government counsel, as well as the magistrate judge. The discovery hearing proceedings will be
recorded.

I. DEFENDANT'S REQUEST FOR DISCOVERY AND NOTICE

(A) Request for Rule 16 Material

1, The defendant requests disclosure of the substance of any relevant oral statements made
by the defendant, before or after arrest, in response to interrogation by any person the
defendant knew to be a government agent if the government intends to use that
statement at trial. Rule 16(a)(1)(A). The government states that it will disclose to the
defendant and make available for inspection, copying, or photographing such statements
in accordance with Rule 16(a)(1)(A).

2. The defendant requests disclosure of any relevant written or recorded statement made
by the defendant within the government’s possession, custody, or control, which the
attorney for the government knows — or through due diligence could know — that the
statement exists; the portion of any written record containing the substance of any
relevant oral statement made before or after arrest if the defendant made the statement
in response to interrogation by any person the defendant knew to be a government
agent. Rule 16(a)(1)(B)(i) and (ii).

3. The defendant requests disclosure of any recorded testimony of the defendant before a
grand jury which relates to the offense charged pursuant to Rule 16(a)(1)(B)(iii). The
government states it will permit the defendant to inspect and copy such statements.

4. If government counsel knows of such statements he will so indicate by initialing here.

(Rev. 11/17/21)
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5. The defendant requests, if the defendant is an organization, the government’s disclosure
to the defendant of any statement described in Rule 16(a)(1)(A) and (B), if the
government contends that the person making the statement; (i) was legally able to bind
the defendant regarding the subject of the statement because of that person’s position as
the defendant’s director, officer, employee, or agent; or (ii) was personally involved in
the alleged conduct constituting the offense and was legally able to bind the defendant
regarding that conduct because of that person’s position as the defendant’s director,
officer, employee or agent. Rule 16(a)(1)(C).

6. The defendant requests a copy of his prior criminal record. The government states it
will furnish to the defendant a copy of his prior criminal record, if any, in accordance
with Rule 16(a)(1)(D).

7. The defendant, understanding his burden of reciprocal discovery as set forth in Rule
16(b)(1)(A), (requests) (does not request) disclosure of books, papers, documents, data,
photographs, tangible objects, buildings or places, and copies or portions thereof, which
are within the possession, custody, or control of the government, and which are material
to the preparation of his defense, or are intended for use by the government as evidence
in chief at the trial, or were obtained from or belong to the defendant.

8. The defendant, understanding his burden of reciprocal discovery as set forth in Rule
16(b)(1)(B), (quests) (does not request) disclosure of any results or reports of physical

or mental examinations, and of scientific tests or experiments, or copies thereof, which

are within the possession, custody, or control of the government, the existence of which

is known, or by the exercise of due diligence may become known, to the attorney for the

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 filed 11/18/21 USDC Colorado pg4
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government, and which are material to the preparation of the defense or are intended for
use by the government as evidence in chief at the trial.

9. The defendant, understanding his burden of reciprocal discovery as set forth in Rule
16(b)(1)(C), ets oe not request) disclosure of a written summary of testimony
the government intends to use under Rule 702, 703, or 705 of the Federal Rules of
Evidence, relating to expert testimony and opinions of experts, during its case in chief at
trial, as set forth in Rule 16(a)(1)(G).

10. The government acknowledges its continuing duty to disclose under Rule 16(c).

(B) Request for Exculpatory Evidence

The defendant requests disclosure of evidence favorable to the defendant on the issue of guilt
and/or sentencing. The government states it will disclose material evidence which is favorable to the
defendant as required by Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150
(1972); and United States v. Bagley, 473 U.S. 667 (1985). The government acknowledges its
continuing duty to make these disclosures. This request does not foreclose the defendant from filing a
more specific motion requesting exculpatory evidence.

(C) Notice of Evidence of Other Crimes, Wrongs, or Acts

Rule 404(b)(3) of the Federal Rules of Evidence requires the government to provide reasonable
notice of any evidence of other crimes, wrongs, or acts committed by the defendant that it intends to
offer at trial. That notice must articulate in writing the permitted purpose for which the prosecutor
intends to offer the evidence and the reasoning that supports the purpose. The government states that if
it intends to introduce such evidence at trial it will provide such written notice to the defendant no later
than 21 days before trial unless, for good cause shown, the court permits less, or on motion of the

defendant the court requires notice be provided sooner.

(Rev. 11/17/21)
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-Cr-U01L05-WUJIV Document ZY led D OlOradoO oe

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(D) Request for Disclosure of the Identity of Confidential Informants

The government states there (was) (was not) a confidential informant who was a
participant in or a witness to the crime charged and that the informant (may) (will) (will
not) be called as a witness at trial. The government further states it (has supplied) (will
claim privilege of non-disclosure of) the identity of the confidential informant. Rovario

v. United States, 353 U.S. 53 (1957).

(E) The Government States There Have Been in this Case:

(Circle those which are applicable) \ / ff

Telephone tape recordings;
Electronic surveillance of the defendant or his premises;
Leads obtained by electronic surveillance of defendant's person or premises; and

Photographic surveillance.

The government (may) (will) (will not) permit discovery of the foregoing items.

Tl. GOVERNMENT'S REQUEST FOR DISCLOSURE AND NOTICE

(A) Request for Rule 16 Material

The government requests disclosure of books, papers, documents, data, photographs,
tangible objects, or copies or portions thereof, which are within the possession, custody
or control of the defendant and which the defendant intends to introduce as evidence in
chief at the trial. If the defendant made a similar request under Rule 16(a)(1)(E), the
defendant states that upon compliance by the government with the defendant's request
he will permit the government to inspect and copy or photograph such items in

accordance with Rule 16(b)(1)(A).

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 _ filed 11/16/21 USDC Colorado” Poo

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2. The government requests disclosure of any results or reports of physical or mental
examinations and of scientific tests or experiments made in connection with this case, or
copies thereof, within the possession or control of the defendant as described in Rule
16(b)(1)(B). If the defendant made a similar request under Rule 16(a)(1)(F), the
defendant states that upon compliance by the government with the defendant's request
he will permit the government to inspect and copy or photograph such items in
accordance with Rule 16(b)(1)(B).

3. The government requests disclosure of a written summary of testimony the defendant
intends to use under Rules 702, 703 and 705, F.R.E. as evidence at trial. If the defendant
made a similar request under Rule 16(a)(1)(G), the defendant states that upon
compliance by the government with the defendant's request he will disclose such
summaries in accordance with Rule 16(b)(1)(C).

4, The defendant acknowledges his continuing duty to disclose under Rule 16(c).

(B) Request for Notice of Alibi

1. The government hereby requests notice of the defendant's intent to rely on an alibi
defense pursuant to Rule 12.1(a) of the Federal Rules of Criminal Procedure. The
parties agree that the indictment/information and the discovery provided by the
government give the defendant sufficient notice of the time, date, and place at which the
alleged offense was committed and triggers the defendant's obligation under Rule 12(a)
to serve upon the attorney for the government a written notice of alibi within 20 days
from the date of this request, or at such different time as the court may direct. Should
the defendant require additional information concerning the time, date, or place at
which the alleged offense was committed, it is the defendant's obligation to file a

request for additional information in the time provided for filing motions.

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 filed Li/Id/Zl ~~ USDU COMTadU ™ Sue

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2. The government states that if the defendant files a notice of intent to rely upon alibi, the
attorney for the government shall serve upon the defendant or the defendant's attorney a
written notice stating the names and addresses of the witnesses upon whom the
government intends to rely to establish the defendant's presence at the scene of the
alleged offense and any other witnesses to be relied on to rebut the testimony of any of
the defendant's alibi witnesses. The government's written notice shall be filed within 10
days of its receipt of the defendant's Rule 12.1 (a) notice, but in no event less than 10
days before trial, unless the court otherwise directs.

3. The parties acknowledge their continuing duty to disclose under Rule 12. l(c).

(C) Request for Notice of Insanity Defense and Expert Testimony Regarding Defendant's Mental
Condition

The government hereby requests notice of the defendant's intent to rely on a defense based on
insanity or to introduce expert testimony relating to mental condition. If the defendant intends
to rely on the defense of insanity or introduce expert testimony relating to mental disease or
defect or any other mental condition bearing on the issue of guilt, he agrees to file a written
notice and disclosure of the same within 20 days from the date of this request, or at such

different time as the court may direct.

il. LUSELIHOOD OF DISPOSITION OR TRIAL
(A) Thereisa (200d Cais) po0r chance of a Rule 11 disposition of this case.

(B) The parties understand that the court must be given notice of any proposed disposition no less
than 10 days before the scheduled trial date. Unless otherwise ordered, notice of disposition

shall be filed no later than 14 days before the date set forth for trial. (D.C.COLO LCrR 11.1A)

(Rev. 11/17/21)
© RaASE NO. LZ1-cr-U0Lo5-WJM =~ Document 29 filed 11/18/21 USDC Colorado pg8
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“(C) The defendant will receive a jury trial in accordance with F.R.Crim.P. 23(a). Waiver of jury can
only be accomplished by filing a motion with the trial court.

IV. SPEEDY TRIAL

(A) _ The speedy trial time limits of 18 U.S.C. § 3161 are as follows:

PNT period; 30 days } Z/ Z0 / 292)

Trial clock; 70 days | ] i 28] Ze2d
Custody clock; 90 days uf q
tl~ [ed “and Kool
Date Signed Chandler Simtbeck // “oy
Defendant
Ly je0lal
Date Signed”
fl ] & bn
Date Signed Robert Brown

Assistant United States Attorney

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 filed Li/1s/Z1l USDC Colorado” PQ yg

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V. DISCOVERY ORDER
(A) Effect of Report

The responses by the parties set forth in this Report shall have the effect of a binding discovery
order. All requests for discovery will be considered continuing requests, and any discoverable
information and/or material coming into the possession or knowledge of either party prior to or during
the trial shall be made available to the opposing party promptly, consistent with the law and on an
ongoing basis.

(B) US. Probation Office

Unless otherwise specified in this Discovery Order, at the time of the detention hearing or by

[date], the U.S. Probation Office will disclose any criminal history information

compiled on the defendant to both parties.
(C) Disclosure by the Government
Unless otherwise specified in this Discovery Order, the government on or before

December 02, 2021, shall disclose those materials that are on that date within the possession of the

attorney for the government and are subject to disclosure under the provisions of Rule 16. If additional
material subject to the disclosure obligations of Rule 16 come into the possession of the attorney for
the government, the attorney for the government shall promptly disclose the material to the defendant.
The attorney for the government shall exercise due diligence as expressly required by provisions of
Rule 16 to fulfill his or her discovery obligations under the provisions of Rule 16.

Written summaries of any testimony that the government intends to use under Rules 702, 703,
or 705, Fed. R.Crim P. 16(a)(1)(G) shall be provided on such schedule as the District Court shall

determine upon motion by either party.

(D) Disclosure by the Defendant

Unless otherwise specified in this Discovery Hearing Report, the defendant shall disclose its Rule

(Rev. 11/17/21)
Case No. 1:21-cr-00165-WJM Document 29 MEM LI/ TOs Zi OS OO eee

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. 16 discovery material to counsel for the government on or before | LS, /202. zZ
Written summaries of any testimony that the defendant intends to use under Rules 702, 703, or 705,
Fed.R.Crim P. 16(b)(1)(C) shall be provided on such schedule as the District Court shall determine
upon motion by either party.
(E) Any motion alleging a failure to comply with the time limits set forth in this report and order
must be filed promptly.
(F) Counsel is directed to obtain pretrial motion deadlines and a trial date from the presiding judge
assigned to the case.
Pursuant to Rule 5(f) of the Federal Rules of Criminal Procedure, the Court confirms the
United States' continuing duty to disclose material evidence which is favorable to the defendant as
required by Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and orders it to do so. Failing to
do so in a timely manner may result in consequences, including, but not limited to, exclusion of
evidence, adverse jury instructions, dismissal of charges, contempt proceedings, or sanctions by the

Court.

IT IS SO ORDERED.

BY THE COURT

S. 4A

Hon. S. Kato Crews
U.S. Magistrate Judge

Lig [202

Date / 7

(Rev. 11/17/21)


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