Order on Discovery and Scheduling — United States v. Leslie Danielle Bethea (Dkt. 15)

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An Order on Discovery and Scheduling, Document 15, filed February 28, 2018 in United States of America v. Leslie Danielle Bethea, Case 2:18-cr-00025-JRG-CRW, in the United States District Court Eastern District of Tennessee at Greeneville. The order states that defense counsel orally moved to continue the case and that the Court grants the motion, declaring the time until the new trial date excludable under the Speedy Trial Act. It sets trial for May 22, 2018, a final pretrial conference and motion hearing for April 23, 2018, defendant's pretrial motions due April 6, 2018, government responses due April 20, 2018 and a plea deadline of May 8, 2018. It also sets discovery obligations under Rule 16, Brady, Giglio and the Jencks Act, and closes with s/Clifton L. Corker, United States Magistrate Judge.

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“Order on Discovery and Scheduling — United States v. Leslie Danielle Bethea (Dkt. 15).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-tned-84581-15-0-9e4575f209/, SHA-256 d009de1ec5649ee42bb95bdb75628740f4b3ce9c99c44a81d313c187c2b1c9e5.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

UNITED STATES OF AMERICA )
)
v. ) No. 2:18-CR-25
)
LESLIE DANIELLE BETHEA )

ORDER ON DISCOVERY AND SCHEDULING

The parties and their counsel appeared before the undersigned and established the

following deadlines that govern the progression of the case. The Court provided dates

within the Speedy Trial Act to set this case for trial. At that time, Defendant’s counsel

orally moved to continue the case on the grounds that she could not review the discovery,

investigate the case, or determine what pretrial motions should be filed if any within the

timeframe proposed. Counsel indicated the timeframe does not provide a reasonable

amount of time in which to prepare adequately for the trial itself or even determine the need

to file pretrial motions. On that basis, the Court GRANTS Defendant’s motion. For the

reasons state above, all time between the filing of this order and the new trial date identified

herein is hereby declared “excludable time” under the Speedy Trial Act. The ends of justice

served by the granting of this continuance outweigh the best interests of the public and

Defendant in a speedy trial. See 18 U.S.C. § 3161(h)(7)(A).

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I. SCHEDULING DEADLINES

The Court sets the following deadlines for this matter:

Important Scheduling Dates
Trial Date May 22, 2018, at 9:00 a.m.
U.S. District Judge Pam L. Reeves
Estimated length of trial 2 days

Final Pretrial Conference/Motion Hearing April 23, 2018, at 9:00 a.m.

Defendant’s Pretrial Motions Due: April 6, 2018

Government’s Responses Due: April 20, 2018

Plea Deadline May 8, 2018

Requests for Special Jury Instructions 5 days before trial

II. PURPOSE OF ORDER AND DUTY TO CONFER

The purpose of this Order is intended to eliminate the unnecessary filing of discovery
motions. If there are disagreements regarding discovery issues, counsel for Defendant(s)
shall make a request to the government for each item of discovery sought and be declined
prior to the filing of any motion to compel discovery and must certify in the motion that they
have conferred with opposing counsel, that they have been unable to resolve the issue by
agreement, and that the matter concerns matters not covered by this order. The Court may
deny without prejudice motions filed without the required certificate.

III. DISCOVERY ORDER

A. Defendant’s Oral Statement. Within five (5) days of receipt of Defendant's
request, the government must disclose to Defendant the discovery within the
scope of Rule 16(a)(1)(A). Similarly, the government shall disclose to an
organizational defendant the information required by Fed. R. Crim. P.
16(a)(1)(A) upon request by the organizational defendant.

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B. Written or Recorded Statements of Defendant. Within five (5) days of
receipt of Defendant's request, the government must disclose to Defendant the
discovery within the scope of Rule 16(a)(1)(B). Similarly, the government
shall disclose to an organizational defendant the information required by Fed.
R. Crim. P. 16(a)(1)(B) upon request by the organizational defendant.

C. Prior Record of Defendant. Within five (5) days of receipt of Defendant's
request, the government must disclose to the defendant the discovery within
the scope of Rule 16(a)(1)(D).

D. Documents and Objects. Within five (5) days of receipt of Defendant's
request, the government must disclose to the defendant the discovery within the
scope of Rule 16(a)(1)(E).

E. Reports of Examinations and Tests. Within five (5) days of receipt of
Defendant's request, the government must disclose to Defendant the discovery
within the scope of Rule 16(a)(1)(F).

F. Expert Witnesses. Within five (5) days of receipt of Defendant's request, the
government must disclose to Defendant the discovery within the scope of Rule
16(a)(1)(G).

G. Expert Witnesses regarding Defendant’s Mental Condition. Defendant
must within five days of the government’s request provide the government a
written summary of testimony Defendant intends to offer as provided for in
Rule 16(b)(1)(C).

If the government requests discovery under this paragraph (H), within five (5)
days of Defendant’s request, the government must provide a written summary
of testimony the government intends to offer as provided for in Rule
16(a)(1)(G).

H. Expert Witnesses at Pretrial hearings – Five (5) Days’ Notice Required.
If either the government or a Defendant intends to offer the testimony of an
expert witness in conjunction with any pretrial hearing in order to give an
opinion based upon scientific, technical, or other specialized knowledge, the
party intending to utilize the witness shall notify opposing counsel at least five
(5) business days prior to the hearing and furnish a written summary of the
testimony which shall describe the witness’s opinions, the bases and the reasons
for those opinions, and the witness’s qualifications.

I. Continuing Duty to Disclose. It shall be the continuing duty of counsel for all

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parties to immediately reveal to opposing counsel all subsequently-discovered
information or other material within the scope of this order or Rule 16.

J. Reciprocal Discovery Obligations

1. Receipt of discovery treated as a request. The government routinely
provides defendants with discovery provided for under Rule 16(a)(1)(E)
(relating to disclosure of documents and objects) and Rule
16(a)(1)(F)(relating to reports of examinations and tests) soon after the
initial appearance. If the government provides Defendant with such
discovery, the Court will presume that Defendant has requested the same
under Rule 16(a)(1)(E) and (a)(1)(F), triggering its reciprocal
obligations under Rule 16(b)(1)(A) and (B).

2. Opting Out of Discovery. A Defendant who elects not to request
disclosure as outlined herein or under both Fed. R. Crim. P. 16(a)(1)(E)
(relating to documents and tangible objects) and under Rule 16(a)(1)(F)
(relating to reports of examinations and tests), has no obligation to
provide reciprocal discovery to the government pursuant to Rule
16(b)(1)(A) and Rule 16(b)(1)(B). However, if Defendant receives
discovery from the government, the Court will presume he requested it
for purposes of determining Defendant’s reciprocal discovery
obligations.

K. Brady material

1. Timing of Disclosure. Within 14 days of the arraignment, except
where the Brady material is covered by the Jencks Act, 18 U.S.C. §
3500, then the Jencks Act will control the timing of disclosure.

2. Nature of Disclosure. The government shall reveal to Defendant and
permit Defendant to inspect and copy all evidence known to the
government which may be favorable to 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), United States v.
Bagley, 473 U.S. 667 (1985), and Kyles v. Whitley, 514 U.S. 419
(1995).

L. Giglio material

1. Timing of Disclosure. Not later than 7 days prior to trial shall the
material governed by this section be disclosed.

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2. Nature of Disclosure. The government shall disclose to Defendant the
existence and substance 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).

3. Criminal Record of Witness. 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 pursuant to Rule 609, Fed.R.Evid.

M. Jencks Act Material

1. Duty to Comply. All parties shall be prepared to comply with the
Jencks Act, 18 U.S.C. § 3500 and Fed.R.Crim.P. 26.2 relating to the
production of witness statements on demand after the witness has
testified on direct examination.

2. Early Disclosure. To avoid disruptions in the progress of the trial, and
perhaps even continuances of the trial, the Court strongly urges the
government to reveal Jencks Act material to defense counsel before the
commencement of trial. The parties may agree on – but the Court does
not order – an earlier time for the exchange or production of Jencks Act
and Rule 26.2 material.

N. Identity of Defendant in a photo lineup

1. Timing of disclosure. Within 14 days of arraignment.

2. Nature of Disclosure. The government shall state whether Defendant
was identified in any lineup, show up, photo spread, or similar
identification proceedings, and produce any pictures utilized or
resulting therefrom.

IV. PRESERVATION OF AGENT’S ROUGH NOTES.

The Government shall advise its agents and officers involved in this matter to
preserve all rough notes. Rough notes which contain the substance of any relevant
oral statements made by Defendant before or after arrest in response to interrogation
by a person Defendant knew was a government agent are subject to disclosure
pursuant to Rule 16(a)(1)(B)(ii), Federal Rules of Criminal Procedure.

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V. ELECTRONIC SURVEILLANCE.

A. Timing of Notice. Within 14 days of the date of this Order, the government
shall state whether 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.

B. Contents of Notice. Specifically, the government shall disclose to the
defendant the nature and extent of the use of electronic surveillance
(including wiretapping, consensual monitoring, body wires, tape
recordings, transmission devices, videotape recordings, bank surveillance
recordings, pen registers) or mail covers conducted by law enforcement
officers or witnesses in investigating this case, and also disclose the
existence of all recordings obtained and final transcripts made during the
investigation, regardless of whether the government intends to use the
recordings and transcripts in its case-in-chief.

VI. FINGERPRINT ANALYSIS.

Within five (5) days of the request by Defendant, the government shall provide the
defense, for independent expert examination, copies of all latent fingerprints or palm prints
which have been identified by a Government expert as those of Defendant.

VII. PROCEDURE FOR RESOLVING OBJECTIONS TO AUDIO/VIDEO
RECORDINGS.

A. Need for Robinson hearing. If a Defendant files (1) a motion to exclude an
audio or video recording because the allegedly inaudible and/or unintelligible
portions of the recording are so substantial as to render the recording as a whole
untrustworthy, or (2) a motion to prohibit the use of a transcript of a recording,
then a “Robinson” hearing may be required. See United States v. Robinson, 707
F.2d 872 (6th Cir. 1983).

If defense counsel believes that an entire recording should be excluded as
untrustworthy under Robinson, a hearing will be held at the pretrial conference
and motion hearing. Similarly, a hearing will be conducted at the same time
regarding the accuracy of any transcript which is disputed by Defendant. If
such a hearing is required, the government and the Clerk shall have available
for the Court’s use the audio and/or video equipment to be used at trial or
comparable equipment. The parties shall notify the Magistrate Judge if such a
hearing will in fact be needed.

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B. Duty to confer. Defendant’s counsel will, not later than seven (7) days before
the pretrial conference, meet and confer with the government’s counsel and
identify what recording or portions of a recording the Defendant insists should
be wholly excluded as untrustworthy under Robinson.

C. Transcripts. If the government intends to prepare and submit transcripts
of any recording, it shall submit those transcripts to defense counsel at the time
the recording is reviewed so that any objections to such transcripts may be
presented at the time of the Robinson hearing. Counsel shall review any
transcripts contemporaneously with his/her review of the actual recordings
and, on or before seven (7) days prior to the pretrial conference, identify to
the government’s attorney all portions of the transcripts claimed to be
inaccurate or unverifiable after listening to the recordings themselves.

D. Resolution of Disagreements. The Court prefers the parties to stipulate to any
transcript. If a stipulation is not possible, the parties are to advise the Court
accordingly and identify the areas of disagreement regarding the accuracy of the
transcript and the Court will listen to the recordings with the transcript and made
a pretrial determination. Where portions of the recording are inaudible, the
transcript should so reflect. United States v. Adams, 722 F.3d 788, 824 (6th Cir.
2013).

VIII. USE OF CO-CONSPIRATOR’S STATEMENTS AND REQUIREMENT OF
GOVERNMENT TO FILE NOTICE OF INTENT TO USE.

A. Admissibility of Co-Conspirator Statements. If the government intends to
offer evidence under F.R.E. 801(d)(2)(E), then the admissibility of an alleged
co-conspirator’s statements under F.R.E. 801(d)(2)(E) will be determined in
accordance with United States v. Vinson, 606 F.2d 149 (6th Cir. 1979);
specifically, such statements will be admitted subject to a later demonstration
during the trial by a preponderance of the evidence that the statements were
made during the course and in furtherance of the conspiracy.

B. Notice Required. If the government intends to introduce a co-conspirator’s
statements under F.R.E. 801(d)(2)(E), the government shall file a notice not
later than the Friday preceding the commencement of the trial. The notice must
include the following: (1) the substance of the statements to be introduced
under F.R.E. 801(d)(2)(E); (2) when those statements were made, where
those statements were made, and to whom they were made; and (3) a

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summary of the evidence which the government will present to establish the
existence of the conspiracy, that the declarant was a member of that
conspiracy, and that the statements were made during and in furtherance of
the conspiracy.

C. Pre-trial contest to admissibility. If Defendant intends to contest the
admissibility of any statements offered under Fed.R.Evid. 801(d)(2)(E), prior
to the commencement of the trial, Defendant shall file and serve upon the
government’s attorney a motion in which Defendant shall state the grounds and
specify the reasons why the statements are not admissible under F.R.E.
801(d)(2)(E). A copy of such motion shall be delivered to the District Judge
contemporaneously with its filing.

IX. RULE 404(b) EVIDENCE

A. Timing of Notice. Upon request by Defendant, the government shall provide
notice at least seven (7) days in advance of trial, or during trial if the Court
excuses pretrial notice on good cause shown, of the general nature of any Rule
404(b)-type evidence it intends to introduce at trial. Pretrial disclosure of such
evidence will be excused where its use only becomes indicated due to events
at trial or such evidence constitutes legitimate rebuttal evidence.

B. Nature of Disclosure. The government shall disclose as well as the general
purpose of the evidence (e.g., proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident).
The government’s written disclosure shall characterize Defendant’s
specific prior conduct to a degree that fairly apprizes Defendant of its
general nature.

X. INSANITY DEFENSE

If a Defendant intends to assert a defense of insanity, Rule 12.2 Fed. R. Crim. P.
Defendant(s) shall submit the required written notification(s) by the deadline for the filing
of pretrial motions.

XI. FILING OF MOTIONS AND RESPONSES.

A. Timing of filing Motions. All motions (including, but not limited to, motions in
limine, motions to suppress, and objections to any evidence) shall be filed by
the motion deadline. A response to a motion filed by either party shall be filed
by the response deadline. FAILURE TO RESPOND TO A MOTION MAY

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BE DEEMED A WAIVER OF ANY OPPOSITION TO THE RELIEF
SOUGHT IN THE MOTION.

B. Memorandum of Law Required. All motions that require a brief shall be
accompanied by a separate brief or they may be subject to summary denial.
Local Rule 7.1.

C. Evidentiary Hearings. Motions will be decided in accordance with Local
Rule 7.2; in this regard, the Court may rule upon any motion without a hearing
thereon if such is deemed unnecessary by the Court, notwithstanding that a
motion hearing has been scheduled.

D. Motions to Suppress

1. Requirement of specificity. If Defendant files a motion to suppress a
statement, or evidence seized as a result of a search (whether with or
without a warrant), Defendant’s motion shall (1) specify in detail each
fact which Defendant claims requires suppression of the statement or
evidence, and (2) the legal basis supporting suppression. See, Franks v.
Delaware, 438 U.S. 154 (1978); United States v. Giacalone, 853 F.2d
470 (6th Cir. 1988); United States v. Thompson, 2001 WL 820905 (6th
Cir. 2001).

2. Waiver. Failure to raise the issue before the Magistrate Judge may
constitute a waiver of the issue. For that reason, Defendant should raise
every factual and legal issue which he claims requires suppression.

E. Adoption of Motions of co-defendants

1. Requirement of specificity. If counsel files a motion to adopt any
motions of one or more co-defendants, it should be specifically stated
which motion(s) counsel wishes to so adopt.

2. General adoption reference. Counsel shall not file a motion that
merely adopts, or requests to adopt, any or all motions of co-
defendants.

F. Untimely Motions.

1. Canceling of Pre-trial Conference and Motion Hearing. If no

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motions are filed by the motion deadline, the Court will cancel the pre-
trial conference and motion hearing unless the parties require the Court
to address any issues outstanding that were not subject to a motion
hearing.

2. Summary Denial. Motions filed after the motion deadline may in the
discretion of the District Judge or, where appropriate, the Magistrate
Judge, be denied summarily as untimely.

G. Presence of Defendant

1. Mandatory appearance at all evidentiary hearings. Any Defendant
who has filed a motion which requires the presentation of evidence must
be present, along with his/her counsel. This requirement cannot be
waived. The Clerk shall notify the U.S. Marshal of any Defendant who
is in custody and who must be present in court.

2. Optional Appearance. Any Defendant, who has filed no motions, or
who has filed no motions that require the presentation of evidence,
may attend the final pretrial conference/motion hearing but is not
required to do so. If such Defendant is incarcerated and wishes to attend
the final pretrial conference/motion hearing, he/she must file a written
request with the Clerk to so attend ten (10) days prior to the hearing to
afford the U.S. Marshal’s adequate time to make transportation
arrangements.

XII. STIPULATIONS.

Prior to trial, all counsel shall confer and shall make every possible effort in good
faith to stipulate facts, the truth and existence of which are not contested, in order to expedite
the trial of this matter.

No stipulation made by defense counsel shall be used against Defendant unless the
stipulation is reduced to writing and signed by Defendant and-- his/her counsel. It shall be
the responsibility of the government’s attorney to initiate contact with defense counsel
regarding the possibility of stipulating uncontroverted facts as herein above described.

SO ORDERED:

s/Clifton L. Corker
United States Magistrate Judge

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