Information — United States v. Maurice Fayne (Dkt. 149, N.D. Ga. No. 1:20-cr-00228)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 149 · 2021-01-29 · Docket on CourtListener

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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. 12/22/2020] 
 
PRETRIAL SCHEDULING ORDER 
 
I. 
A pretrial conference shall be held in this criminal action on Thursday, 
February 11, 2021 at 9:30 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.  The defendant need not be present.  LCrR 17.1, NDGa.  Pretrial motions 
shall be due on or before February 10, 2021.   
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. 
 
MICHAEL D. SARGENT (3) 
MARK T. SARGENT (4) 
 
     Defendants. 
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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.   
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Pursuant to the Due Process Protections Act, the Court confirms the United 
States’ obligation to disclose to the defendant all exculpatory evidence- that is, 
evidence that favors the defendant or casts doubt on the United States’ case,  as 
required by Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and ORDERS 
the United States to do so.  The government has a duty to disclose any evidence 
that goes to negating the defendant’s guilt, the credibility of a witness, or that would 
reduce a potential sentence.  The defendant is entitled to this information without a 
request.  Failure to disclose exculpatory evidence in a timely manner may result in 
consequences, including, but not limited to, exclusion of evidence, adverse jury 
instructions, dismissal of charges, contempt proceedings, disciplinary action, or 
sanctions by the Court. 
C. 
Rule 404(b):  
Pursuant to Rule 404(b), the government is ordered to provide written notice 
of any evidence of other crimes, wrongs, or acts that it intends to offer at  trial,  so  
that  the  defendant  has  a  fair opportunity to meet it, and to articulate in the notice 
the permitted purpose for which it intends to offer the evidence and the reasoning 
that supports the purpose.  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 
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pertains to acts or conduct of the defendant are alleged to have occurred within the 
Northern District of Georgia, the notice 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 are alleged to have occurred outside the Northern District of Georgia, 
the notice required to be provided under this heading and the rule shall be provided 
no later than twenty-one days before trial. 
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 
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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. 
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:  
 
 
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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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 
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 
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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 
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 
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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 
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 
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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 
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 
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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  
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 
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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; 
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: 
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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;  
 
 
(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 
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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, 
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. 
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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 
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. 
 
 
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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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 
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. 
 
 
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IT IS SO ORDERED, this the 29th day of January, 2021. 
 
__________________________________ 
JOHN K. LARKINS III 
UNITED STATES MAGISTRATE JUDGE  
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