Discovery and Scheduling Order as to Donna J. Clark Plea Agreement due — USA v. Clark (Dkt. 6, E.D. Tenn.)

Record facts

U.S. District Court for the Eastern District of Tennessee · No. 1:21-cr-00069-CEA-CHS · Doc. 6 · 2021-08-09 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
 
EASTERN DISTRICT OF TENNESSEE 
 
AT CHATTANOOGA 
 
UNITED STATES OF AMERICA 
 
v. 
 
DONNA J. CLARK 
) 
) 
) 
) 
) 
) 
) 
 
Case No. 1:21-cr-69 
 
Judge Charles E. Atchley 
 
Magistrate Judge Christopher H. Steger 
 
 
 
DISCOVERY AND SCHEDULING ORDER 
 
 
Summary Schedule: 
Defendant’s Pretrial Motions Due: 
September 14, 2021 
Plea Deadline: 
September 14, 2021 
Jury Instructions Due: 
September 28, 2021 
Final Pretrial Conference 
September 28, 2021, at 3:00 p.m. 
Trial 
October 5, 2021, at 9:00 a.m. 
 
I. 
DISCOVERY 
If the parties in this action have not already done so, they are ordered to confer and to 
comply with Federal Rule of Criminal Procedure 16.1.  In the absence of any agreement 
pursuant to Rule 16.1 or contrary order of the Court, the parties shall comply with the 
following schedule: 
A. Rule 16 Discovery from Government.  Within fourteen days of the defendant’s 
request, the government shall comply with the disclosure requirements set forth in 
Federal Rule of Criminal Procedure 16,1 including permitting the defendant to inspect 
and to copy the following items or copies thereof: 
i. 
The substance of any oral statements made by the defendant in response to 
interrogation (see Fed. R. Crim. P. 16(a)(1)(A)); 
ii. 
Relevant written or recorded statements made by the defendant (see Fed. R. 
Crim. P. 16(a)(1)(B)(i)); 
iii. 
Written records of oral statements made by the defendant in response to 
interrogation (see Fed. R. Crim. P. 16(a)(1)(B)(ii)); 
iv. 
The defendant’s recorded testimony before a grand jury (see Fed. R. Crim. P. 
 
1 Nothing in this order limits or expands the parties’ respective discovery and disclosure obligations set forth in 
Federal Rule of Criminal Procedure 16. 
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16(a)(1)(B)(iii)); 
v. 
The defendant’s arrest and conviction record (see Fed. R. Crim. P. 
16(a)(1)(D)); 
vi. 
Books, papers, documents, data, photographs, tangible objects, buildings or 
places (see Fed. R. Crim. P. 16(a)(1)(E)); and 
vii. 
Results or reports of physical or mental examinations, and scientific tests (see 
Fed. R. Crim. P. 16(a)(1)(F)). 
B. Rule 16 Discovery from Defendant.  Within fourteen days of receipt by a defendant 
of materials set forth in Federal Rule of Criminal Procedure 16(a)(1)(E) or (F), the 
defendant shall permit the government to inspect and copy the following items:  
i. 
Books, papers, documents, data, photographs, tangible objects, buildings or 
places (see Fed. R. Crim. P. 16(b)(1)(A)); and 
ii. 
Results or reports of physical or mental examinations, and scientific tests (see 
Fed. R. Crim. P. 16(b)(1)(B)). 
C. Expert Testimony.  Within twenty-one days of the defendant’s request, the 
government shall disclose to the defendant a written summary of any testimony it 
intends to use under Federal Rule of Evidence 702, 703, or 705 during its case-in-
chief at trial.  This summary must describe each witness’s opinions, the bases and 
reasons for those opinions, and the witness’s qualifications (see Fed. R. Crim. P. 
16(a)(1)(G)). 
D. Insanity Defense.  If the defendant intends to rely upon the defense of insanity at the 
time of the alleged crime or intends to introduce expert testimony relating to a mental 
disease, defect or other condition bearing upon the issue of whether he had the mental 
state required for the offense charged, he shall give written notice thereof to the 
government within twenty days of the entry of this order. 
E. Electronic Surveillance.  Within fourteen days of the entry of this order, the 
government shall state whether the 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. 
F. Brady Material.  Within fourteen days of the entry of this order, except where the 
Brady material is covered by the Jencks Act, 18 U.S.C. § 3500, the government shall 
reveal to the defendant and permit inspection and copying of all information and 
material known to the government which may be favorable to the 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) (exculpatory evidence), and 
United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence).   
II. 
PRETRIAL  
A. Written Memoranda.  Any motion that requires the resolution of an issue of law 
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shall be accompanied by a supporting memorandum.  E.D. Tenn. Local Rule 7.1.  
Without such a memorandum, the Court will not consider the motion.  If either party 
desires a Daubert hearing, regarding expert testimony, that party shall notify the 
Court before the deadline for filing pretrial motions. 
B. Propensity Evidence.  The government must comply with Federal Rule Evidence 
404(b).  Notice that results in good cause for continuance of the trial is unlikely to be 
“reasonable notice” required under Federal Rule of Evidence 404(b)(3)(A). 
C. Giglio Material.  Not later than seven days prior to trial, the government shall 
disclose to the defendant the existence 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).  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 under Rule 609 of the Federal Rules of Evidence. 
D. Jencks Act Material.  All parties shall be prepared to comply with the Jencks Act, 18 
U.S.C. § 3500 and Rule 26.2 of the Federal Rules of Criminal Procedure relating to 
the production of witness statements on demand after the witness has testified on 
direct examination.  To avoid disruptions in trial, the Court strongly urges the 
government to reveal Jencks Act material to the defendant at least fourteen days 
before the trial. 
III. 
PLEA DEADLINE 
Plea bargaining shall be concluded by the plea deadline, and any written agreement shall 
be executed by the plea deadline. 
IV. 
JURY INSTRUCTIONS 
The parties shall confer and submit a joint proposal for jury instructions by the deadline 
listed above.  Before submitting the joint proposal to the Court, the parties must attempt to 
resolve any disagreements.  To the extent there are disagreements as to specific instructions that 
cannot be resolved, the parties should provide competing instructions in their joint proposal.  All 
jury instructions in the joint proposal, including agreed instructions and competing instructions, 
shall be supported by citations of authority.  A copy of the proposed jury instructions should be 
sent in Microsoft Word format to mcdonough_chambers@tned.uscourts.gov.   
V. 
FINAL PRETRIAL CONFERENCE 
A. Statement of Discovery and Stipulations.  The parties shall collaborate to prepare a 
written statement to be signed by counsel for each side prior to the final pretrial 
conference, generally describing all discovery material exchanged, and setting forth 
all stipulations.  The parties shall make every good-faith effort to stipulate to facts or 
points of law, the truth and existence of which are not contested and the early 
resolution of which will expedite the trial.  However, no stipulation made by defense 
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counsel shall be used against the defendant unless the stipulation is in writing and 
signed by the defendant and defendant’s counsel.  It shall be the government’s 
responsibility to contact defense counsel regarding stipulating to any uncontroverted 
facts. 
B. Evidentiary Discussion.  At or before the final pretrial conference, all parties shall 
provide a notebook to the Court with exhibits they expect to offer during their cases-
in-chief.  Each party shall also file a written submission advising the Court: (1) how 
and by whom each document will be authenticated and (2) the theory of admissibility 
for the document, with appropriate references to the Federal Rules of Evidence.  At 
the final pretrial conference, the parties should also be prepared to advise the Court 
whether they intend to offer any out-of-court statements as evidence beyond what is 
reflected in the exhibit notebook and be prepared to explain why each statement is not 
barred by the rule against hearsay, the Confrontation Clause, or any other basis.  The 
parties should also be prepared to discuss evidence relating to a crime, wrong, or 
other act by the defendant, whether that evidence is admissible under Federal Rule of 
Evidence 404(b)(2), and whether the Government has given appropriate notice. 
C. Technology Disclosure.  Prior to the final pretrial conference, the parties shall 
disclose to one another and to the Court, technology they intend to use in the 
courtroom during the trial and how they intend to use it (e.g., display equipment, data 
storage, retrieval, or presentation devices). This disclosure shall list (1) equipment 
they intend to bring into the courtroom to use and (2) equipment supplied by the 
Court the parties intend to use. 
D. Disclosure of Digital Materials.  The parties shall disclose to one another the content 
of their electronic or digital materials by the time of the final pretrial conference and 
shall confirm the compatibility/viability of their planned use of technology with the 
Court’s equipment before the final pretrial conference.  General information on 
equipment supplied by the Court is available on the Eastern District of Tennessee 
website (www.tned.uscourts.gov). Specific questions about Court-supplied equipment 
should be directed to the courtroom deputy (directory available on website). 
VI. 
TRIAL 
 
The trial of this case will be held before the United States District Judge and a twelve-
person jury.  Counsel shall be prepared to commence trial at 9:00 a.m. on the date which has 
been assigned. If this case is not heard immediately, it will be held in line until the following day 
or any time during the week of the scheduled trial date.  
VII. 
OTHER 
A. Criminal Records of Witnesses.  The government shall obtain the record of prior 
convictions of any alleged informant who will testify for the government at trial so 
that the record will be available to the defendant at trial. 
B. Preservation of Notes.  The government shall advise its agents and officers involved 
in this case to preserve all rough notes. 
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C. Continuing Obligations.  It shall be the continuing duty of counsel for both sides to 
immediately reveal to opposing counsel all newly discovered information or other 
material within the scope of this order. 
D. Protective Orders.  Upon a sufficient showing, the Court may at any time, upon 
motion properly filed, order that the discovery or inspection provided for by this order 
be denied, restricted or deferred, or make such other order as is appropriate.  It is 
expected by the Court, however, that counsel for both sides shall make every good 
faith effort to comply with the letter and spirit of this order. 
E. Ethical Standards.  This order does not relieve any attorney from complying with 
the Court’s ethical standards. 
 
IT IS SO ORDERED.   
Christopher H. Steger  
 
UNITED STATES MAGISTRATE JUDGE 
 
 
 
 
 
 
  
 
 
 
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