Court filing
Information — U.S. v. Maurice Fayne (Dkt. 38, N.D. Ga. No. 1:20-cr-00228, GAND 278523)
Filed July 27, 2020 in United States v. Maurice Fayne related docket; one of 163 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2020-07-27 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 38 · 2020-07-27 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CRIMINAL ACTION FILE NO.
1:20-CR-228-MHC-JKL
[Eff. 12/01/2019]
PRETRIAL SCHEDULING ORDER
I.
A pretrial conference shall be held in this criminal action on Friday, August
14, 2020 at 9:00 a.m., before the undersigned Magistrate Judge in Courtroom 1834,
18th Floor, United States Courthouse, 75 Ted Turner Drive, S.W., Atlanta, Georgia.
Counsel who will actually handle the trial of the case must be present. Since
Defendant is presently proceeding pro se, he is ORDERED to attend. Pretrial
motions shall be due on or before August 10, 2020.
Please note that it shall be the responsibility of Defendant’s counsel to notify
the office of the undersigned and counsel for the Government if no pretrial motions
shall be filed and/or no pretrial conference is required.
II.
Prior to the above-scheduled conference, the following shall occur:
A.
The parties shall confer regarding the probable disposition of the case,
UNITED STATES OF AMERICA
v.
MAURICE FAYNE,
Defendant.
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resolution of issues related to discovery production and the mechanics thereof,
including the timing and procedures for pretrial disclosures, see FED. R. CRIM.
P. 16.11; see also infra Part V.D.1; scheduling problems; anticipated pretrial and
trial motions; and possible stipulations of law and fact. LCrR 12.1D, NDGa.
B.
Upon the defendant’s request, the government shall permit the
defendant to inspect and copy discoverable matter, including but not limited to,
all Rule 16 materials, all search warrants and affidavits, consent forms for any
searches that the defendant arguably has standing to challenge, Miranda rights and
waiver of Miranda rights forms, and photographs from which identification of the
defendant was made. If the government has discoverable materials not
immediately available, it shall advise the defendant of the existence and nature of
1
The Joint Electronic Technology Working Group has developed an
“ESI Discovery Production Checklist” identifying topics that may help guide
counsel’s discussion of issues relating to the production of electronically stored
information. See Recommendations for Electronically Stored Information (ESI)
Discovery Production in Federal Criminal Cases (the “Recommendations”),
available at https://www.justice.gov/archives/dag/page/file/913236/download.
The Court refers counsel to this checklist for informational purposes only. Neither
the checklist nor the Recommendations alter the parties’ discovery obligations or
protections under the U.S. Constitution, the Federal Rules of Criminal Procedure,
the Jencks Act, or other federal statutes, case law, the Local Rules, or this order.
Nor do they create any rights or privileges for any party or provide a basis for
allegations of misconduct or claims for relief.
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the items and the timeline for their receipt and inspection. LCrR 16.1, NDGa.
In accordance with Rule 12(b)(4), the government shall enumerate and
describe with particularity the existence and nature of all items seized during any
search that the defendant arguably has standing to challenge, including specifying
where such items were seized during said search.2 FED. R. CRIM. P. 12(b)(4). Where
reciprocal discovery is requested by the government, the attorney for the defendant
shall personally advise the defendant of the request, the defendant’s obligations
thereto, and the possibility of sanctions, including exclusion of any such evidence
from trial, for failure to comply with the Rule. See FED. R. CRIM. P. 16(b) and (d);
LCrR 16.1, NDGa.
C.
A party desiring to inspect and copy any materials which were not
available initially shall be permitted to do so in accordance with the Local Rules.
LCrR 16.1, NDGa.
D.
All discovery of materials known by the parties or their agents to exist
shall be completed within the times contemplated by this order unless a modifying
2
At arraignment, the government is required to provide the defendant
with an inventory of all items seized from the defendant by law enforcement
officials that the government expects to introduce at trial. The government SHALL
furnish the affected defendant with such an inventory. LCrR 16.1, NDGa.
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order is entered upon motion made under Rule 16(d) or Local Criminal Rule 16.1.
The parties shall document, independent of their personal recollection, compliance
with requests and orders for discovery. At the pretrial conference, the parties shall
be prepared to discuss with the magistrate judge the results of their Rule 16.1
conference as provided by this Order. See infra Part V.D.1.
III.
Filing Pretrial Motions
The parties are reminded that pretrial disclosure in criminal cases generally
is governed by Rule 16 of the Federal Rules of Criminal Procedure or pursuant to
case law, such as Brady v. Maryland, 373 U.S. 83 (1963), and that the government
ordinarily has no basis upon which to object. The local rules require any party
seeking relief through a motion to confer with opposing counsel in an attempt to
resolve disputed matters prior to the filing of motions related thereto. LCrR 12.1.D,
NDGa. Moreover, Rule 16 directs that the government must produce discoverable
material upon only a “request” of the defendant. See FED. R. CRIM. P. 16.
Therefore, counsel are DIRECTED to NOT file any motion for materials
or information or other relief that: (1) the opposing party has agreed to provide, or
(2) the party is entitled to inspect and copy under applicable criminal rules and
case law, UNLESS the attorney certifies to the court in writing that: (1) the
materials have been requested from the opposing party or the motion for other relief
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has been discussed with the counsel for the opposing party, and (2) the opposing
counsel declines to provide the materials/information/relief requested. If counsel
believes it is necessary to document what is requested from, or agreed to by, the
government, he or she may do so by letter to opposing counsel, without filing or
copying such letter with the Court. Counsel also may re-label his or her standard
motions as “Requests” and serve them on opposing counsel, but NOT file them
with the Clerk’s Office or the Court. Or, counsel may file with the Clerk a
certification that the defendant had served the government with a discovery
request, and keep the original discovery request in his or her file, to be filed with the
Clerk only upon the need to use the request in court, similar to the practice in civil
cases. See Local Civil Rules 5.4 and 26.3, NDGa. The Court WILL discuss any
such requests at the pretrial conference. The requests, certificates or letters may
later be used to support a motion for sanctions or to compel, if the opposing party
fails to comply with his or her legal obligations or agreements. See FED. R. CRIM.
P. 16(d)(2).
If, after consultation and failure to reach an agreement with opposing counsel,
counsel files a motion for materials or information outside the scope of Rule 16
and relevant case law, he or she shall do so ONLY by making a particularized
showing that relates to the facts of this case.
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IV.
Standard Rulings
The following rulings are made in this case and are intended only to obviate
the need for standard, non-particularized motions on these subjects. Any party
who disagrees with these standard rulings may file, within the time allowed for
filing motions under Local Criminal Rule 12.1(B), a particularized motion for
relief therefrom, including a motion to compel or for a protective order.
A.
Discovery Materials:
Upon request of the defendant, the government is directed to provide to the
defendant all materials and information falling within the scope of Rule 16 and
Local Criminal Rule 16.1, including but not limited to an inventory of all items
seized from the defendant by law enforcement officials which the government
intends to introduce at trial. The government has a continuing duty to disclose any
evidence that is subject to discovery or inspection. United States v. Jordan,
316 F.3d 1215, 1249 (11th Cir. 2003); FED. R. CRIM. P. 16(c).
B.
Discovery and Disclosure of Evidence Arguably Subject to
Suppression and of Evidence Which is Exculpatory and/or Impeaching:
Upon request of the defendant, the government is directed to
comply with Federal rules of Criminal Procedure 12 and 16, by providing notice as
specified supra Part II.B. The government also is directed to provide all materials
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and information that are arguably favorable to the defendant in compliance with its
obligations under Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States,
405 U.S. 150 (1972); and their progeny. Exculpatory material as defined in Brady
and Kyles v. Whitley, 514 U.S. 419, 434 (1995), shall be provided sufficiently in
advance of trial to allow a defendant to use it effectively. Impeachment material
must be provided no later than production of the Jencks Act statements.
C.
Rule 404(b):
Upon request of the defendant, the government is directed to provide to the
defense a summary of any evidence it intends to offer of other crimes, wrongs or
acts pursuant to Federal Rule of Evidence 404(b). The Rule 404(b) evidence
shall be provided to the defense as soon as practicable after the government has
determined to use such evidence, subject to the following deadlines: If the
Rule 404(b) evidence pertains to acts or conduct of the defendant which is alleged
to have occurred within the Northern District of Georgia, the summary required to
be provided under this heading and the rule shall be provided no later than
fourteen days before trial. If the acts or conduct is alleged to have occurred outside the
Northern District of Georgia, the summary required to be provided under this heading
shall be provided no later than twenty-one days before trial.
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D.
Preservation of Evidence and Handwritten Notes of Agents:
The government is directed to preserve all evidence and handwritten notes
of law enforcement officers pertaining to this case and the defendant.
Notwithstanding this provision, if the government wishes to destroy contraband
drug evidence in conformance with the procedures set forth in 28 C.F.R. § 50.21,
the government must first give each affected defendant notice in writing of the
intended contraband destruction. Said notice shall not be given earlier than
fourteen days after the entry of this Order. Any defendant shall have fourteen
days after the date of the notice to file a written objection to the proposed
contraband destruction. If no objections are filed and the government otherwise
has complied with any applicable protocol under 28 C.F.R. § 50.21, the government
may destroy the excess contraband.3
E.
Examination and Testing of Physical Evidence:
The defendant shall be allowed to examine and test physical evidence under
reasonable conditions which maintain the integrity of the evidence.
3
The government is reminded that the provisions of this Order apply
only to parties presently before the Court and not to defendants who have not been
apprehended or who are subsequently charged in this case.
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F.
Monitored Phone Calls of an In-Custody Defendant and All
Electronic Recordings of Defendant:
The government shall disclose to the defendant if it has heard, used, or
intends to use, any monitored phone calls made by the defendant while he/she was
in custody, and shall disclose to defendant all electronic monitoring of the
defendant in accordance with Federal rule of Criminal Procedure 16 and 18 U.S.C.
§ 2500, et seq. (Title III). A defendant is not entitled to the recorded conversations
of co-defendants or others to which he/she was not a party, unless required to be
produced by Rule 16, the Jencks Act, or Brady and/or Giglio.
G.
Identification Materials:
The government shall disclose to the defense the circumstances under which
any photographic or lineup identification of the defendant was made and shall
provide the defendant with copies of any photographs used to make any
identification.
H.
Charts and Summaries:
The government shall produce any charts or summaries to be used in its
opening statement or presentation of its case-in-chief at trial no later than three
business days before trial. The defendant shall produce any charts and summaries
to be used in his or her opening statement no later than three business days before
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trial. All other charts and summaries shall be produced to the other party at least
one business day prior to their use. As used in this paragraph, the term “summaries”
excludes summaries of expert testimony which must be disclosed upon request
under Rule 16(a)(1)(G); expert summaries are due to be disclosed in the time
provided for discovery. FED. R. CRIM. P. 16(a)(1)(G).
I.
Jencks Act (18 U.S.C. § 3500):
The Court has no authority in the typical case to order the government to
provide Jencks Act material at any time prior to the completion of direct
examination of the government witness at issue. Jordan, 316 F.3d at 1227 n.17,
1251 & n.78. The Court strongly encourages the government to disclose Jencks
Act materials prior to the pretrial hearing or trial at which the witness will be called
to testify. Any agreement between the parties to provide early Jencks Act material
may be memorialized orally at the pretrial conference or by letter agreement
between the parties. The government is ORDERED to comply with the Jencks
Act.
J.
Names of Unindicted Co-Conspirators:
Whether or not there is a conspiracy count in the indictment or if the
government intends to rely on Federal Rule of Evidence 801(d)(2)(E) to introduce
co-conspirator statements, the government is directed to provide the defendant with
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the names of unindicted co-conspirators known to the government, but not with
statements made by co-conspirators or with their address or other identifying
information, unless required by the Jencks Act, Brady and/or Giglio, or Bruton.
K.
Identification of Government Witnesses:
Upon request of the defendant, the government is required to provide the
names of all expert witnesses, along with other information and materials required
by Federal Rule of Criminal Procedure 16(a)(1)(F) and (G) and Federal Rules of
Evidence 702, 703, and 705.
No party is required to provide a list of its other witnesses in advance of trial
unless otherwise compelled by law or ordered by the Court. The Court will
entertain a motion for a witness list only if it is particularized to the facts of this
case.
L.
Bruton Issues:
The government shall disclose to the defendant and the Court whether it
anticipates introduction at trial of a co-defendant’s statement that inculpates the
defendant, within the meaning of Bruton v. United States, 391 U.S. 123 (1968). At
the pretrial conference, the government shall be prepared to announce whether, if
both defendants opted to go to trial, they could not be tried jointly since the co-
defendant’s statements could not be properly redacted to comply with the Supreme
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Court’s directive in Gray v. Maryland, 523 U.S. 185 (1998).
M.
Motions to Sever Defendants Under Fed. R. Crim. P. 14(a) Due to
Prejudicial Overspill:
Severance under Federal Rule of Criminal Procedure 14 on the grounds of
alleged undue prejudice from a joint trial due to “overspill” is warranted only when
a defendant demonstrates that a joint trial will result in “specific and compelling
prejudice” to his or her defense. Compelling prejudice occurs when the jury is
unable, even after proper instruction from the trial court, “to separately appraise the
evidence as to each defendant and render a fair and impartial verdict.” United
States v. Liss, 265 F.3d 1220, 1228 (11th Cir. 2001). The trial court is empowered
to sever defendants or counts after the commencement of the trial under Rule 14 if
manifest necessity so requires. United States v. Butler, 41 F.3d 1435, 1441
(11th Cir. 1995). Therefore, any motion for severance on grounds of prejudicial
overspill should not be filed unless it sets out specific, individualized grounds as
to why the defendant is unduly prejudiced by a joint trial with others.
N.
Reserving Right to File Additional or Out-of-Time Motions:
Motions for an extension of time to file pretrial motions are not granted as a
matter of right, and instead must be based on good cause shown. Any motion to
file additional or out-of-time motions must contain a particularized statement of the
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existence of good cause to file such a motion, must identify the specific motion or
motions that may be filed, a statement of the position of opposing counsel, and be
accompanied by a proposed order which includes appropriate language excluding
any delay under the Speedy Trial Act, 18 U.S.C. § 3161, et seq.
O.
Motion to Adopt Motions of Co-Defendants:
No motion to adopt one or more motions of a co-defendant shall be filed
unless it is accompanied by a statement specifically demonstrating the standing of
the adopting party to seek the relief requested in each motion sought to be adopted.
A motion to adopt shall only seek to adopt a single motion of a co-defendant;
moving to adopt multiple motions, even of the same co-defendant, requires the
filing of a separate motion to adopt as to each motion. As to any motion sought to
be adopted, the adopting defendant must either (1) specifically identify the motion
sought to be adopted by its docket number in CM/ECF; and (2) include as an
attachment to the motion to adopt a copy of at least the front page of the motion
sought to be adopted. The motion must otherwise comply with the requirements
of Local Criminal Rule 12.1.C, NDGa. Any motion to adopt not filed in
compliance with this paragraph shall be denied.
P.
Motion for Reciprocal Discovery:
If the defendant has requested discovery, upon request of the government
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following its compliance with its Rule 16(a)(1)(E) obligations, the defendant is
required to provide discovery materials and information in accordance with Rule 16(b)
and Local Criminal Rule 16.1. See FED. R. CRIM. P. 16(b), LCrR 16.1, NDGa.
Subject to the above instructions and rulings:
(1) Unless otherwise extended by the undersigned or the District Judge to
whom this case is assigned for trial, the parties shall file with the Clerk
within fourteen days after arraignment any necessary pretrial motions
pursuant to Local Criminal Rules 12.1A, B and 16.1 and Local Civil
Rules 5.1.A, 7, 10 and 11, NDGa.
(2) Each motion other than a motion to adopt shall contain a
certification that counsel conferred with opposing counsel
concerning the subject matter of the motion but was unable to
reach agreement on the resolution of the issue therein.
LCrR 12.1D, NDGa.
V.
Procedure at Pretrial Conference:
A.
Government counsel shall be prepared to discuss:
1. The circumstances surrounding any arrest of the defendant;
2. The circumstances surrounding any identifications made of the
defendant;
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3. The circumstances surrounding any statements made by the
defendant to law enforcement or other government agents; and
4. The circumstances surrounding any searches or seizures that
resulted in evidence that the Government intends to use against the
defendant.
5. Whether it intends to introduce any evidence pursuant to Federal
Rule of Evidence 404(b).
6. Whether it intends to introduce any expert testimony.
B.
Government and Defense Counsel shall be prepared to discuss the
following:
1.
The production and review of discovery, including but not
limited to,
(a) issues discussed at counsel’s Rule 16.1 conference;
(b) the volume, format, and types of materials produced or to
be produced in discovery;
(c) whether the discovery is protected by passwords or specific
proprietary software is needed to access the materials;
(d) whether discovery contains any materials that are subject to
privilege review;
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(e) (if CJA counsel) whether application for funds to employ
paralegal or other services to access and review discovery is anticipated;
(f) (if the defendant is in custody) issues related to the
defendant’s access to and ability to review discovery;
(g) whether the government can inform the Court and defense
counsel that all discovery has been produced, and if not, the reason why not all
discovery has been produced (e.g., outstanding Rule 17 subpoenas, analysis of
electronic devices (including the reason why they have not been analyzed), etc.),
and the time needed to produce all outstanding discovery; and
(h) the progress in Defense Counsel’s review of discovery and
period of time counsel reasonably believes that review can be completed to file all
necessary pretrial motions.
2.
Evidentiary and other legal issues they anticipate may arise at
trial;
3.
Probability of disposition of the case without trial;
4.
Problems relating to the scheduling of trial;
5.
Whether any facts can be stipulated; and
6.
Whether any time periods established by this Order, the Federal
Rules of Criminal Procedure, and/or the Local Rules need to be modified, adjusted,
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or extended, and the specific reasons why the time periods need to be modified,
adjusted, or extended despite the exercise of due diligence.
C.
Evidentiary hearings will be scheduled.
D.
Where possible, the undersigned will rule orally on any motions that
have been filed. The rulings will be noted on the docket sheets and the docket of
the case.
E.
Failure to respond to a motion after being directed to do so within
fourteen days thereafter or at such time as set by the Magistrate Judge may be
considered as indicating there is no opposition to the motion. LR 7.1.B, NDGa;
LCrR 12.1.B, NDGa.
F.
Failure by a party to raise defenses or objections or make motions as
specified in Federal Rule of Criminal Procedure 12(b)(3)(A)-(D) shall constitute a
waiver thereof, unless good cause for such failure is shown.4
G.
When a party fails to supplement or perfect a motion within the time
afforded after having requested or been given an opportunity to supplement or
4
A motion is not necessary to protect a party’s right to Rule 16
discovery materials and information so long as the party seeking protection
complies with the procedure set forth in this Order. See Federal Rule of Criminal
Procedure 12(b)(3)(E).
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perfect said motion, the Court may deem the original motion abandoned or
withdrawn.
VI.
Rescheduling of the Pretrial Conference
The pretrial conference may be continued only by order of the Court. A
party seeking to continue a pretrial conference first must confer with all other
counsel representing parties in this case to determine whether all parties consent to
the continuance. If all parties consent to the rescheduling of the pretrial conference,
the party seeking the continuance should then contact the undersigned magistrate
judge’s Courtroom Deputy Clerk to request to reschedule the pretrial conference,
and if said request is granted, to set a new date and time for the conference.
If a party seeking to continue a pretrial conference cannot obtain the consent
of all parties in this case, a written motion specifying the reasons for the
continuance must be filed with the Clerk and at least one business day prior to the
pretrial conference. Any consent continuance or motion to continue the pretrial
conference shall be accompanied by a proposed order which includes the
following: (1) a place for the entry of any rescheduled date and time to hold the
pretrial conference, and (2) the following language for the Court’s consideration:
( ) The delay between the original and rescheduled pretrial
conferences shall be excluded from Speedy Trial Act
calculations because the Court finds that the reason for the delay
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was for good cause and the interests of justice in granting the
continuance outweigh the public’s and the defendant’s rights to
a speedy trial. 18 U.S.C. § 3161, et seq.
( ) The delay between the original and rescheduled pretrial
conferences shall not be excluded for Speedy Trial Act
purposes. 18 U.S.C. § 3161, et seq.
( ) The Court finds that due to the extensive discovery in
this case, it was necessary to extend the time for the defendants
to file pretrial motions, and accordingly, postpone the holding of
the initial pretrial conference. The Court finds that the interests
of justice in continuing the pretrial motions deadline and in
holding the pretrial conference substantially outweigh the
interests of the public and defendants in the speedy resolution of
this matter, and thus the Clerk is directed to count as excludable
any delay occurring in extending the motions deadline and the
holding of the pretrial conference. 18 U.S.C. § 3161, et seq.
IT IS SO ORDERED, this the 27th day of July, 2020.
_____________________________________
JOHN K. LARKINS III
UNITED STATES MAGISTRATE JUDGE
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