Scheduling Order as to Diop McKenzie Status Conference set — USA v. McKenzie (Dkt. 19, M.D. Fla.)

Record facts

U.S. District Court for the Middle District of Florida · No. 2:23-cr-00088 · Doc. 19 · 2023-09-22 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
v. 
CASE NO.: 2:23-cr-88-SPC-KCD 
DIOP MCKENZIE 
 
PRETRIAL CRIMINAL SCHEDULING ORDER1 
Now that Defendant has been arraigned or waived arraignment, the 
Court enters this Pretrial Criminal Scheduling Order to control this case, 
eliminate unjustifiable expense and delay, and secure a fair outcome.  The 
parties must comply with these requirements with minimal (or no) need for 
Court intervention. Accordingly, it is ORDERED: 
A. Rule 16 Disclosures 
1. This Order assumes each party has or will request all disclosures 
under Rule 16 of the Federal Rules of Criminal Procedure.2 
a. On or before October 6, 2023, Defendant may file a notice 
stating he/she does not request any disclosure under Rule 
 
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees.  By using 
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third 
parties or the services or products they provide, nor does it have any agreements with 
them.  The Court is also not responsible for a hyperlink’s availability and functionality, and 
a failed hyperlink does not affect this Order. 
 
2 Unless otherwise noted, all references to rules means the Federal Rules of Criminal 
Procedure. 
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16(a)(1)(E)-(G). The notice must identify the specific disclosures 
not requested and corresponding subsections.  The Government 
has no obligation to provide any disclosure to the extent 
specified in the Defendant’s notice. 
b. If Defendant timely elects against Rule 16(a)(1)(E)-(G) 
disclosures, then Defendant need not provide reciprocal 
discovery under Rule 16(b)(1). 
c. Defendant’s election not to request any Rule 16(a)(1)(E)-(G) 
disclosures does not otherwise relieve a party from complying 
with this Order. 
2. On or before October 6, 2023, the Government must make all 
disclosures under Rule 16(a)(1). For any Rule 16(a)(1)(A) disclosures, 
the Government must disclose and provide for inspection, 
copying, or photographing any written record that contains the 
substance of Defendant’s relevant oral statement. 
3. On or before October 13, 2023, Defendant must make all disclosures 
under Rule 16(b)(1). But Defendant need not do so until the 
Government complies with Rule 16(a)(1)(E)-(G). 
 
B. Additional Disclosures and Discovery 
1. On or before October 6, 2023, the Government must disclose to 
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Defendant and provide for inspection, copying, or photographing the 
following information as it relates to this case: 
a. nature and extent of electronic surveillance or mail covers that 
law enforcement officers and witnesses used in investigating 
this case; 
b. all recordings and final transcripts of electronic surveillance 
made during the investigation of this case, regardless of 
whether the Government intends to use the recordings and 
transcripts in its case-in-chief; 
c. all items seized from a Defendant and all the seized evidence, if 
any, the Government intends to introduce in its case in chief at 
trial and permit a Defendant to inspect and copy any search 
warrant, affidavit, and inventory of any search under Rule 41, 
pursuant to which the evidence was seized; 
d. whether the Government used a confidential informant in its 
investigation; 
e. whether any individual has identified Defendant in a lineup, 
show up, photo spread, or other identification proceeding; 
f. any picture used in or resulting from identification in a lineup, 
show up, photo spread, or similar identification proceeding; 
g. copies of all latent fingerprints or palmprints that a 
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Government expert has identified as belonging to Defendant for 
independent examination; 
h. general nature and purpose3 of evidence of Defendant’s other 
crimes, wrongs, or acts the Government intends to introduce at 
trial under Federal Rule of Evidence 404(b)—failure to do so 
may bar use of such evidence at trial.  The disclosure must 
describe Defendant’s specific prior conduct to apprize 
Defendant of its general nature; and 
i. potential conflicts of interest for defense counsel to represent 
Defendant. All parties must ask their witnesses about matters 
that may cause a conflict of interest, including whether any 
attorney has represented the witness. 
2. On or before October 6, 2023, the Court requests—but does not 
require—the Government make all disclosures under the Jencks 
Act, 18 U.S.C. § 3500, and Rules 26.2 and 12(h). If not done, the 
parties must do so after the witness has testified on direct 
examination. 
3. On or before 14 days before the first day of the trial term, the 
Government must disclose to Defendant and permit inspection, 
 
3 Examples of purpose are proof of motive, opportunity, intent, preparation, plan, 
knowledge, identity, or absence of mistake or accident. 
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copying, and photographing: 
a. all information and material favorable to Defendant’s guilt or 
punishment pursuant to Brady v. Maryland, 373 U.S. 86 (1963), 
its progeny, and other applicable case law; and 
b. substance of payments, promises of immunity, leniency, 
preferential treatment, or other inducements made to 
prospective Government witnesses per Giglio v. United States, 
405 U.S. 150 (1972) and other applicable case law.  For each 
Government witness who may testify at trial, the Government 
must (1) give Defendant a record of all prior convictions for 
impeachment evidence; and (2) make available any application 
to the Court for a witness’ immunity and the corresponding 
order. 
4. The Government must tell all law enforcement agents and officers 
involved in this case to retain any rough notes, recordings, reports, 
and statements pertaining to this case that now exist. 
5. The Government must give Defendant’s counsel fourteen days 
written notice before destroying any evidence in this case. If 
Defendant objects to the destruction, the Government cannot destroy 
the evidence without the Court’s prior approval. 
 
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C. Continuing Duty to Disclose and Extending Deadlines 
1. A party who discovers additional evidence or material must disclose 
its existence—within seven days after it comes into counsel’s 
possession—to the other party or the Court if the (a) evidence or 
material is subject to discovery or inspection under this Scheduling 
Order; and (b) other party previously requested, or the Court ordered, 
its production. 
2. The parties may agree in writing—without Court intervention—to 
extend the deadlines for Rule 16 disclosures and other discovery, 
provided the extensions do not disrupt or delay trial, status 
conferences, or the pretrial motions deadlines. 
3. The Government must inform the Court of any delay in the prompt 
disposition of this case under the Speedy Trial Act of 1974, 18 U.S.C. 
§ 3165, the Middle District of Florida’ Speedy Trial Plan, and Rule 60. 
 
D. Notices 
1. Within three days of providing Defendant all disclosures and 
discovery required by this Order, the Government must file a notice 
stating the dates it produced the information and the contents of such 
discovery (if confidential then under seal). 
2. On or before October 6, 2023, the Government must file a notice 
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listing each person or non-government entity who has or may have a 
financial interest in a party or this case. The notice must include each: 
a. victim of the charged conduct who may be entitled to 
restitution; 
b. person or non-government entity who may claim an interest in 
forfeitable assets; 
c. corporation, partnership, or association that a Defendant 
controls; and 
d. publicly traded corporation that is a parent, subsidiary, or 
affiliate of a victim or otherwise interested corporation. 
Thereafter, all parties must notify the Court immediately when they 
learn of any ground for recusal or disqualification of an assigned judge 
or attorney of record. 
3. On or before October 20, 2023, the Government and Defendant must 
file their respective notices under Rules 12(b)(4), 12.1, 12.2, and 12.3, 
if applicable. 
 
E. Motions 
1. On or before 14 days after arraignment, Defendant may move for 
a bill of particulars.  See Fed. R. Crim. P. 7(f). 
2. On or before October 20, 2023, all Rule 12(b) motions and other 
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pretrial motions (except for motions in limine), must be filed in 
compliance with Rule 47 and Local Rule 3.01. 
a. Failure to raise defenses or objections by timely motion will 
constitute waiver.  Relief from waiver may be granted for cause 
on a showing of excusable neglect. 
b. If a party does not file a timely Rule 12(b)(3) motion, the Court 
may deny the motion as untimely.  See Fed. R. Crim. P. 12(c)(3). 
c. Before filing any motion (except ex parte motions), the moving 
party must confer with opposing counsel in person or by 
telephone in a good-faith effort to resolve, clarify, or narrow the 
disputed issues.  Trying to confer is not enough.  The motion 
must include a statement certifying the following information: 
i. moving counsel has conferred with opposing counsel; 
ii. counsel has not resolved the motion by agreement; and 
iii. the motion concerns a matter not covered by this Order. 
The Court may deny without prejudice motions lacking 
the required certificate. 
3. The parties must not file unnecessary discovery motions about 
matters covered in this Order. Any such motions may be denied as 
moot. 
4. On or before October 20, 2023, the non-moving party must file a 
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response to a pretrial motion in accordance with Local Rule 3.01. 
 
F. Status Conference and Trial Term 
1. This case is set for a telephonic status conference on October 10, 
2023 at 9:30 AM before United States District Judge Sheri Polster 
Chappell. The Courtroom Deputy Clerk will provide the call-in 
information on the docket.  
2. This case is set for trial during the November 2023 trial term before 
United States District Judge Sheri Polster Chappell.4 Counsel and 
their witnesses must be available and ready for trial on 24 hours’ 
notice after the first day of the trial term. 
3. Once Defendant announces ready for trial, the District Judge will 
issue a Final Criminal Scheduling Order with deadlines for jury 
instructions, verdict forms, voir dire questions, exhibit lists, witness 
lists, electronic exhibit binder, and motions in limine. 
 
 
 
 
 
4 Unless Defendant consents otherwise in writing, the trial will not start less than 30 days 
from the date on which Defendant first appeared through counsel or expressly waived 
counsel and elects to proceed pro se.  18 U.S.C. § 3161(c)(1).   
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       ORDERED on September 22, 2023. 
 
 
 
 
 
 
Copies:  All Parties of Record 
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