IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Criminal Action No.
v. )
)
)
Defendant. )
SCHEDULING AND TRIAL ORDER
I. SCHEDULING CONFERENCE
Present for a scheduling conference on ________________ were defendant
____________________ and his counsel, ____________________ , and counsel for the
government, _________________________-Assistant United States Attorney.
A. DISCOVERY
1. Counsel for the government and defendants agreed to voluntarily provide
Jencks Act material at least 14 days prior to trial.
2. This proceeding constitutes a specific request by the defense and the
government for all information covered by this proceeding. In addition,
during the conference, defense counsel requested all discovery to which
defendant may be entitled pursuant to the Federal Rules of Criminal
Procedure, the Federal Rules of Evidence and the United States
Constitution. The government requested reciprocal discovery to which it
is entitled pursuant to the Federal Rules of Criminal Procedure, the
Federal Rules of Evidence and the United States Constitution.
II. DISCOVERY PROVIDED BY THE GOVERNMENT
Within ten days from the date of this Order, the government shall disclose or make
available for inspection, copying or photographing to defense counsel, the following
information within the possession, custody and control of the government or the existence of
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which is known or by the exercise of due diligence may become known to the attorney for the
government:
A. CONVICTIONS
1. A copy of the prior criminal record of the defendant, if any, which is
within the possession, custody, or control of the government, the existence
of which is known, or by the exercise of due diligence may become
known, to the attorney for the government.
2. A copy of the defendant’s prior felony convictions which the government
intends to use for impeachment.
B. STATEMENTS
1. Any written or recorded statement, or copy thereof, made by the defendant
which is within the possession, custody, or control of the government, the
existence of which is known, or by the exercise of due diligence may
become known, to the attorney for the government.
2. The substance of any oral statement made by the defendant whether before
or after arrest, to an attorney for the government, a Federal agent, or any
other law enforcement officer.
3. The recorded testimony of the defendant before a Grand Jury which
relates to the offense charged.
C. OTHER DISCOVERY
1. Any books, papers, documents, photographs, tangible objects, buildings or
places, or copies or portions thereof, which are within the possession,
custody or control of the government and which are material to the
preparation of the defendant’s defense or are intended for use by the
government as evidence in chief at the trial, or were obtained from or
belong to the defendant.
2. Any results or reports of physical or mental examinations, and of scientific
tests or experiments, or copies thereof, which are within the possession,
custody or control of the government, the existence of which is known, or
by the exercise of due diligence may become known, to the attorney for
the government, and which are material to the preparation of the defense
or are intended for use by the government as evidence in chief at the trial.
D. EVIDENCE ARGUABLY SUBJECT TO SUPPRESSION
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1. Identify and provide a list of the physical or tangible evidence seized
pursuant to a state or federal search warrant, consent of the defendant or of
some other person or incident to the arrest of the defendant and as to each
item described and identified provide the following:
a. The location from which the evidence was seized;
b. The date and time of the search and seizure;
c. The name and address of the person(s) making the seizure;
d. The name and address of any witness(es) to the seizures; and
e. In lieu of items (a)-(d), the government can provide all reports
relating to any search and seizures within its possession, custody,
and control, the existence of which is known or by the exercise of
due diligence may become known to the attorney for the
Government.
2. Identify and list by date all electronic surveillance including any court
ordered interceptions of oral or wire communications, consensual
recordings of telephone conversations, body recorders, wiretaps, pen
registers or trap and trace devices, video cameras, or bank surveillance
cameras and provide the following:
a. All logs, notes, reports or other material relating to the electronic
surveillance
b. Copies and transcripts, if transcribed, of any recorded
conversations; and
c. Copies of all videotape, including bank surveillance tapes.
3. Disclosure of any identification procedure of defendant that has been used
either by way of lineups or photographic or voice identification and for
each such procedure provide the following information:
a. The name and address of each identification witness;
b. The method of identification;
c. The specific items used in the identification procedure, i.e.
photographs, tape recordings, etc.;
d. The date and location of the identification procedure;
e. The results of the identification procedure; and
f. Notes, memorandum, reports and records regarding the
identification procedure.
g. In lieu of items (a)-(f), the government can provide all reports
relating to any identification procedure of defendant within its
possession, custody, and control, the existence of which is known
or by the exercise of due diligence may become known to the
attorney for the Government.
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III. DISCOVERY PROVIDED BY THE DEFENDANT
A. DOCUMENTS / REPORTS/ TESTS
Upon compliance with the government’s discovery obligations under sections II.C.1. or
II.C.2. above, the defendant shall permit the government to inspect, copy or photograph the
following categories of material:
1. Any books, papers, documents, photographs, tangible objects, or copies or
portions thereof, which are within the possession, custody, or control of
the defendant and which the defendant intends to introduce as evidence in
chief at the trial.
2. Any results or reports of physical or mental examinations and of scientific
tests or experiments made in connection with the particular case, or copies
thereof, within the possession or control of the defendant, which the
defendant intends to introduce as evidence in chief at the trial or which
were prepared by a witness whom the defendant intends to call at the trial
when the results or reports relate to that witness’ testimony.
B. ALIBI EVIDENCE
1. Within thirty days from the date of this Order, defendant shall serve
upon the government a written notice of the defendant’s intention to offer
a defense of alibi. Such notice shall state the specific place or places at
which the defendant claims to have been at the time of the alleged offense
and the names and addresses of the witnesses upon whom the defendant
intends to rely to establish such alibi.
2. Within ten days thereafter, but in no event less than fourteen days
before trial, the government shall serve upon the defendant a written
notice stating the names and addresses of the witnesses upon whom the
government intends to rely to establish the defendant’s presence at the
scene of the alleged offense and any other witnesses to be relied on to
rebut testimony of any of the defendant’s alibi witnesses.
3. If prior to or during trial, a party learns of an additional witness whose
identity, if known, should have been included in the information furnished
above, the party shall promptly notify the other party of the existence and
identity of such additional witness.
IV. EXPERT TESTIMONY
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A. RULE 16(a)(1)(E) EXPERTS
1. No later than fourteen days prior to the trial, the government shall
disclose to the defendant a written summary of testimony that the
Government intends to use under Rules 702, 703 or 705 of the Federal
Rules of Evidence during its case-in-chief at trial. The written summary
should identify the witnesses, describe the witnesses’ opinions, the bases
and the reasons for the opinions, and the witnesses’ qualifications.
2. No later than five days prior to trial, defendant shall disclose to the
government a written summary of testimony that the defendant intends to
use under Rules 702, 703 or 705 of the Federal Rules of Evidence as
evidence at trial. The written summary should identify the witnesses,
describe the witnesses’ opinions, the bases and the reasons for the
opinions, and the witnesses’ qualifications.
B. MENTAL HEALTH EXPERTS/EVIDENCE
1. On or before twenty days from arraignment, the parties must file any
motion seeking to determine the defendant’s mental competency pursuant
to 18 U.S.C. § 4241.
2. On or before twenty days from arraignment, the defendant shall file a
notice in writing which complies with the requirements of Rule 12.2 of the
Federal Rules of Criminal Procedure stating:
a. Whether the defendant intends to rely upon the defense of insanity
at the time of the alleged offense; and
b. Whether the defendant intends to introduce expert testimony
relating to a mental disease or defect or any other mental condition
of the defendant bearing upon the issue of guilt.
3. If the defendant gives notice under Rule 12.2(b) of an intent to present
expert testimony on the defendant’s mental condition, on or before thirty
days prior to trial, the defendant shall identify the experts and provide a
summary of the witnesses’ opinions, the bases and reasons for those
opinions and the witnesses’ qualifications.
4. If the defendant complies with the requirements of V.B.2. and V.B.3., on
or before ten days prior to trial, the government shall disclose to the
defendant a written summary of testimony the government intends to use
under Rules 702, 703, or 705 as evidence at trial on the issue of the
defendant’s mental condition. The summary shall describe the witnesses’
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opinions, the bases and the reasons for those opinions, and the witnesses’
qualifications.
V. EVIDENCE FAVORABLE TO THE DEFENSE
A. BRADY EVIDENCE
Within ten days from the date of this order, the Government is directed to
disclose all evidence favorable to the defendant within the meaning of Brady v.
Maryland.
B. GIGLIO IMPEACHMENT EVIDENCE
No later than fourteen days prior to trial, the Government is directed to
disclose all evidence which may tend to adversely affect the credibility of any
person called as a witness by the government pursuant to Giglio v. United States
and United States v. Agurs, including the arrest and/or conviction record of each
government witness, any offers of immunity or lenience, whether made directly or
indirectly, to any government witness in exchange for testimony and the amount
of money or other remuneration given to any witness.
C. ENTRAPMENT EVIDENCE
Within fourteen days from the date of this Order, the government is directed
to provide discovery, inspection, and copying or photographing of any
information suggesting entrapment of the defendant which is within the
possession, custody or control of the government or the existence of which is
known or by the exercise of due diligence may become known to the government
attorney.
D. WITNESS INDUCEMENTS
No later than fourteen days prior to trial, the government is directed to
provide written disclosure of: (a) the names(s) and address(es) of the witness(es)
to whom the government has made a promise; (b) all promises or inducements
made to any witness(es); (c) all agreements entered into with any witness(es); and
(d) the amount of money or other remuneration given to any witness(es).
E. INFORMANTS
Unless the government has made a claim of privilege as to an informant, no later
than fourteen days prior to trial, the government is directed to provide: (a) the
name(s) and address(es) of the informant(s); (b) all promises or inducements to
the informant(s); (c) all agreements entered into with the informant(s); (d) the
amount of money or other remuneration given to the informant(s); (e)
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identification of the informant’s prior testimony; (f) evidence of psychiatric
treatment; (g) evidence of the informant’s narcotic habit; and (h) the name,
address and phone number for the lawyer(s) for the informant(s) if represented by
counsel. If an informant objects to the disclosure of his or her address, the
government shall produce the informant to defense counsel for a determination of
whether or not the informant will consent to an interview. If the informant
refuses to appear, the United States shall provide a written statement to that effect
signed by the informant or his counsel.
VI. PRETRIAL FILINGS
A. PRETRIAL MOTIONS
On or before twenty days from the date of this order, the parties shall file any
relevant pretrial motions. Any suggestions in opposition shall be filed on or
before ten days thereafter. For defendants who are represented by counsel, the
Court will only accept pretrial filings made by counsel. Pro se filings will not be
accepted for defendants who are represented by counsel.
B. RELEVANT OFFENSE CONDUCT
Within fourteen days of trial or a change of plea hearing, the government is
directed to disclose all information in its possession on which it will rely to
establish “relevant offense conduct” or to establish an upward departure under the
Federal Sentencing Guidelines.
C. RULE 404(b) EVIDENCE
The government is directed to provide written notice of all prior and subsequent
acts and convictions intended to prove knowledge, intent or other elements
identified in Rule 404(b) of the Federal Rules of Evidence no later than fourteen
days prior to trial.
D. WITNESS LISTS
The government is directed to supply in writing witness lists which shall include
the name and address of each witness whom counsel intends to call in its case-in-
chief, together with any record of prior felony convictions for such witness, no
later than fourteen days prior to trial. The defendant is directed to supply in
writing witness lists which shall include the name and address of each witness
whom counsel intends to call in its case-in-chief, together with any record of prior
felony convictions for such witness, no later than five days prior to trial. If a
new witness is discovered after counsel prepares its witness list, either prior to
trial or during trial, counsel shall promptly notify opposing defense and provide
the discovery identified above.
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E. EXHIBIT LISTS
The government is directed to supply in writing exhibit lists which shall include a
description of each exhibit that counsel intends to offer in its case-in-chief no
later than fourteen days prior to trial. Defendant is directed to supply in
writing exhibit lists which shall include a description of each exhibit that counsel
intends to offer in its case-in-chief no later than five days prior to trial.
F. MOTIONS IN LIMINE
No later than seven days prior to trial, the parties should file any motions in
limine seeking to exclude evidence from trial. (Once the motion is filed, copies
should be faxed to opposing counsel and the Court.) Any suggestions in
opposition to the motions in limine should be filed within three days after the
motion is filed.
G. STIPULATIONS
Any proposed stipulations should be provided in writing to opposing counsel and
the Court no later than fourteen days prior to trial.
VII. WITNESS ADDRESSES
In lieu of providing the address of any witness required by this Order, counsel for the
government or defendant may produce the witness for interview by opposing counsel.
VIII. TIME CALCULATIONS
All time calculations are governed by the Federal Rules of Criminal Procedure.
IT IS SO ORDERED.
/s/ David P. Rush
DAVID P. RUSH
United States Magistrate Judge
Date: ________________
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