IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:08-MC-3
(Doc. No. 1)
IN RE: )
)
STANDING ORDER GOVERNING )
CRIMINAL CASES BEFORE THE )
HONORABLE FRANK D. WHITNEY )
)
This Order shall apply to all criminal cases in which the initial charging document is filed
on or after 1 February 2008 and that are assigned to the docket of the Honorable Frank D. Whitney.
I. TRIAL CALENDAR
A. Scheduling Order. Upon the arraignment of a defendant or written waiver of
arraignment, the magistrate judge shall issue an Arraignment Order substantially
conforming to the model appended hereto as Exhibit A, along with the District’s
Standard Criminal Discovery Order.
B. Initial Trial Setting.
1. Magistrate Judge’s Authority to Grant Presumptive Continuance on the
Court’s Own Motion. Upon the entry of a not guilty plea, the magistrate
judge is authorized to grant a single presumptive continuance (and resolve
any objections to this presumptive continuance) and calendar the case for trial
at the second scheduled trial term* following the date of arraignment or
*
Counsel are advised that criminal trials calendared during the Court’s criminal trial term
may be carried over and tried during the contiguous mixed trial term.
written waiver of arraignment, as set forth in the third and fourth columns of
the Court’s Standing Order Governing the Calendaring of Hearings and
Trials, Misc. No. 3:07-MC-47 (Doc. No. 1). While this trial setting may fall
outside the 70-day window required by the Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., this scheduling policy is based upon the Court’s considered
judgment (to be determined on a case-by-case basis by the arraigning
magistrate judge) that the ends of justice served by granting one continuance
nearly always outweigh the interests of the public and the defendant in a
speedy trial. If either the defendant or the Government objects to this
presumptive magistrate’s continuance, such objection must be made at the
time of arraignment or written waiver of arraignment or will be deemed
waived.
2. Scheduling Conflicts of Counsel. Conflicts of counsel will justify an
extended magistrate’s continuance (i.e., beyond the second scheduled trial
term following the date of arraignment) only in the following circumstances:
(i) an actual conflict with a state death penalty case (virtually all other state
cases must yield to federal cases), (ii) an actual conflict with another federal
criminal case in which a trial date has already been calendared, and (iii) a
conflict with a prescheduled vacation of which the Court has been duly
notified in writing. Notice of known or anticipated conflicts should be
communicated to the Court not later than the date of arraignment or written
waiver of arraignment, so that a trial setting acceptable to all counsel is
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reflected in the magistrate judge’s Arraignment Order. Once a trial date has
been set, however, a continuance may only be obtained by motion directed
to the presiding district judge.
C. Additional Continuances of Trial By District Judge Upon Motion of a Party.
1. Routine vs. Non-Routine Cases. There is a strong presumption against more
than one continuance in the majority of “routine” cases. Cases that fall
outside of the “routine” category and which are therefore likely to receive a
peremptory setting include: (i) complex fraud or like cases with an
exceptional amount of witnesses or documentary evidence, (ii) complex
multi-defendant organized crime prosecutions (not including routine drug
conspiracies), (iii) cases affecting national security or which involve
classified information, (iv) cases in which witnesses must be brought in from
abroad, and (v) any other type of case that ordinarily would justify a
peremptory trial setting. The procedure for obtaining a peremptory trial
setting in qualifying non-routine cases is set forth in Section I.D, below.
2. Exceptional Circumstances Required for Continuance of “Routine” Cases
Beyond the Magistrate’s Trial Setting. All further motions for continuance
must state bona fide grounds sufficient to overcome the presumption against
continuances. Exceptional circumstances in which a motion to continue will
be entertained include, without limitation, cases where: (i) the competency
of a defendant to stand trial has been put in issue; (ii) the Court conducted an
inquiry into counsel and determines that new counsel must be appointed less
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than thirty (30) days before a scheduled trial; (iii) an unforeseen emergency
has resulted in the unavailability of a defendant, counsel, or a key witness for
trial; or (iv) other substantial hardship exists.
3. Filing of Motion for Continuance Does Not Relieve Counsel of Trial
Responsibilities. The Court may elect to defer ruling upon motions to
continue until docket call. If a decision on a motion to continue has not
issued prior to docket call, counsel of record (or a substitute if necessary) are
expected to appear at docket call and be prepared to try the case during the
scheduled trial term in the event that the motion for continuance ultimately
is denied.
D. Peremptory Trial Settings. An appropriate written motion to the presiding district
judge must be made to obtain a peremptory trial setting in a qualifying non-routine
case. The motion must be joined by all parties or must state the position of all parties
on the request, and must also state with particularity the grounds that would justify
a peremptory trial setting. If a case is given a peremptory trial setting, the Court may
also reset the deadlines for pretrial motions as necessary.
II. TRIAL PROCEDURES
A. Final Pretrial Conference. Unless requested by a party, the Court will not conduct
a final pretrial conference in criminal cases. Routine pretrial motions will be
disposed of as provided in Section II, below.
B. Jury Trials. The general procedures governing jury trials (including the Court’s
pattern jury instructions) are set forth in the Court’s Standing Order Governing Jury
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Selection and Instruction in Criminal Cases Before the Honorable Frank D. Whitney,
No. 3:08-MC-3 (Doc. No. 2). Trial briefs are not required but may be filed at the
election of counsel if briefing would substantially aid the Court at trial.
C. Bench Trials. If a defendant elects a bench trial, the Court encourages the parties
to file trial briefs that succinctly outline the elements of the charged offense(s) and
any contested issues of law that counsel are able to anticipate in advance of trial.
D. Closing Arguments. As a general rule, each side will be limited in their time for
closing arguments according to the following formula: twenty (20) minutes for the
first day of trial and fifteen (15) minutes for each additional day of trial, with a
maximum of ninety (90) minutes.
E. Authentication of Documents. In order to promote the efficient use of Court time,
the Court strongly encourages parties to stipulate to the authenticity of documents,
where possible, or utilize the certification procedures of Fed. R. Evid. 902 for the
authentication of documents.
F. Trial Exhibits. The parties are directed to maintain all exhibits offered and admitted
in this case during trial and the pendency of any appeal, and the Clerk is relieved of
all responsibility for trial exhibits.
III. PRETRIAL MOTIONS
A. Rule 12(b)(3) Motions. All motions required to be made under Rule 12(b)(3) of the
Federal Rules of Criminal Procedure (including, for example, motions to dismiss and
motions to suppress evidence) will be scheduled for hearing at a time to be noticed
by the Court during the week-long motions/sentencing term immediately preceding
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the trial term for which the case is set, as set forth in the first column of the Court’s
Standing Order Governing the Calendaring of Hearings and Trials, No. 3:07-MC-47
(Doc. No. 1). Any such motions (together with any memorandum of law in support)
are due to be filed not later than eight (8) business days before the first day of the
motions term, with any memorandum in opposition due to be filed not later than one
(1) business day before the first day of the term. See Local Criminal Rule 47.1(E).
The Government need not file a written opposition to a Rule 12(b)(3) motion if such
motion involves well-established law and the Government attorney can sufficiently
address the issues presented at hearing.
B. Notice of Certain Defenses. Any notice by the defendant that is required by Federal
Rule of Criminal Procedure 12.2 or 12.3 is due to be filed not later than the date
established above for the filing of Rule 12(b)(3) motions.
C. Other Pretrial Motions. Motions for the issuance of subpoenas at government
expense under Federal Rule of Criminal Procedure 17(b) and applications for writs
of habeas corpus ad prosequendum or ad testificandum are due to be filed within the
time periods specified by Local Criminal Rules 17.2 and 17.3. All other pretrial
motions (including, for example, motions for continuance or a peremptory trial
setting, Daubert-type motions, and motions in limine which are reasonably
anticipated in advance of trial) are due to be filed not later than eight (8) business
days before the first day of the trial term during which the case has been set for trial,
with any response in opposition due to be filed not later than one (1) business day
before the first day of the trial term. See Local Criminal Rule 47.1(E). Counsel need
6
not file a written opposition to a pretrial motion if such motion involves well-
established law and the attorney can sufficiently address the issues presented at
hearing.
D. Estimate of Time. All non-routine pretrial motions must contain counsel’s good
faith estimate of how much court time will be required to hear any evidence and/or
argument pertaining to the motion. See Local Criminal Rule 47.1(B).
E. Effect of a Continuance of Trial. Unless otherwise provided, an Order granting a
continuance from the trial setting set forth in the Arraignment Order will delay the
deadline for filing Rule 12(b)(3) motions until eight (8) business days before the
motions/sentencing term immediately preceding the new trial setting and the deadline
for filing all other motions until eight (8) business days before the first day of the new
trial term. However, a deadline will not automatically reset if at the time the
continuance is granted the relevant deadline has already passed.
F. Effect of Mistrial. In the event of a declaration of mistrial, any further pretrial
motions will be due to be filed not later than eight (8) business days before the trial
term for which the case is set for retrial. If there are newly discovered grounds to
make a Rule 12(b)(3) motion, such motion will be due to be filed not later than eight
(8) business days before the motions/sentencing term immediately preceding the trial
term for which the case is set for retrial.
IV. PLEA AGREEMENTS AND CHANGE-OF-PLEA HEARINGS
A. A defendant who wishes to change his or her plea must promptly notify the Clerk of
Court and the Government.
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B. A plea agreement, once executed, shall be filed with the Court as soon as practicable.
Once a plea agreement has been filed with the Court, the trial setting shall be
discontinued and the Speedy Trial clock will not run pending the Rule 11 hearing.
See 18 U.S.C. § 3161(h)(1)(I).
C. A defendant who enters a plea of guilty which is accepted by a judicial officer
(including a magistrate judge by consent of the defendant) has been “found guilty”
within the meaning of the Bail Reform Act and therefore shall be subject to the pre-
sentence detention provisions of 18 U.S.C. § 3143. See United States v. Moffitt, No.
3:06-CR-66, 2006 WL 3240752 (W.D.N.C. Nov. 7, 2006). Where the mandatory
post-plea detention provisions of the Bail Reform Act are applicable, a defendant
who has executed a plea agreement may remain on bond for purposes of cooperation
only if the Government and defendant jointly file a consent motion, under seal, to
delay the Rule 11 hearing until after the defendant’s cooperation has been exhausted.
Should the Government utilize this procedure, the Court encourages the Government
to obtain from the defendant a signed admission to the elements of the offense(s) to
be filed with the plea agreement.
V. SENTENCING PROCEDURES
A. Scheduling. A defendant who is adjudged guilty should expect to be sentenced
during the first available sentencing term after the expiration of thirty-five (35) days
following service of the Presentence Investigation Report (PSR) by the United States
Probation Office. The Court’s regularly scheduled motions/sentencing terms are set
forth in the first column of the Court’s Standing Order Governing the Calendaring
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of Hearings and Trials, No. 3:07-MC-47 (Doc. No. 1). The Court will notify the
defendant and counsel of the specific date, location, and time to appear. Unless extra
time is requested (e.g., due to a need to present witness testimony or adequately argue
complex legal issues), thirty (30) minutes will be allocated for each sentencing
hearing.
B. Obtaining Extra Time or Alternate Date for Sentencing Hearing; Continuances.
Informal requests for extra time (i.e., more than the default thirty minute allotment)
or for an alternate sentencing date during the same sentencing term should be
directed to Deputy Clerk Candace Cochran (Tel: 704.350.7402), provided that the
request is made within five (5) business days after receipt of the ECF Notice of
Hearing. The Clerk shall make every effort to honor timely scheduling requests.
Motions for a continuance to a subsequent sentencing term are due to be filed on or
before the deadline for filing other sentencing-related motions.
C. Objections to the Presentence Investigation Report. Any objections to the PSR
must be served not later than fourteen (14) days after receipt of the PSR. See Fed.
R. Crim. P. 32(f)(1). An extension of up to seven (7) calendar days may be granted
at the discretion of the United States Probation Office; otherwise, enlargements of
time may be obtained only upon written motion to the Court. Each objection to a
PSR shall:
1. Specify the page and paragraph of the PSR to which the objection applies;
2. Include a proposed amendment or modification to the language of the
relevant paragraph of the PSR; and
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3. Include a statement as to how the calculations of the defendant’s offense level
and/or criminal history will be affected if the objection is allowed, including
calculations of the resulting Guidelines ranges for imprisonment and fines.
D. Motions for Departure/Variance; Sentencing Memoranda. Any motion for a
departure or variance from the advisory Sentencing Guidelines range, as well as any
sentencing memorandum counsel may wish to submit for the Court’s consideration,
must be filed not later than eight (8) business days before the first day of the
motions/sentencing term, with any memorandum in opposition due to be filed not
later than one (1) business day before the first day of the term.
IT IS SO ORDERED.
Signed: January 30, 2008
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO.
UNITED STATES OF AMERICA )
)
vs. )
) ARRAIGNMENT ORDER
)
)
Defendant. )
)
The Defendant came before the Court by written waiver of arraignment. The
Defendant has acknowledged receiving a copy of the Indictment/Information, has stated
an understanding of the pending charge(s) against him/her, and has entered a plea of
NOT GUILTY, and waived his right to a jury trial.
WHEREFORE, the parties and counsel are hereby advised that:
1. This case shall be governed by the provisions of the Standing Order
Governing Criminal Cases Before the Honorable Frank D. Whitney, Misc. No. 3:07-MC-
47 (Doc. No. 6). Specifically, the parties are directed to acquaint themselves with the
Court’s continuance policy set forth therein.
2. This case will be calendared for trial during the Court’s September trial
term, which is now scheduled to begin on . The Court will notify Defendant
and counsel of the specific date, location, and time to appear. Applicable: The Court
finds that the ends of justice served by granting a continuance from the next trial setting
outweigh the interests of the public and the Defendant in a speedy trial, and therefore
excludes this time from the Defendant’s speedy trial calculation.
3 Hearing on any motion that is required to be made pursuant to Fed. R.
Crim. P. 12(b)(3) shall be held during the Court’s August motions/sentencing term,
which is now scheduled to begin on , with any such motions due to be filed no
later than eight (8) business days prior to the first day of the motions term. All other
pretrial motions are due to be filed not later than eight (8) business days before the first
day of the trial term during which the case has been set for trial. All pretrial motions for
which a hearing will be required must contain counsel’s good faith estimate of how much
court time will be required to hear any evidence and/or argument pertaining to the
motion.
5. Unless otherwise provided, an Order granting an additional continuance
from the trial setting set forth in the Arraignment Order will delay the deadline for filing
Rule 12(b)(3) motions until eight (8) business days before the motions/sentencing term
immediately preceding the new trial term, and the deadline for filing all other motions
until eight (8) business days before the first day of the new trial term, if at the time the
continuance is granted that the relevant motions deadline has not already passed and the
motion has not already been decided.
6. If a jury is summoned for this trial only, and the Defendant changes the
plea to guilty on the day of trial, Defendant may be charged with the cost of the jury.
7. In the event of a mistrial, any further pretrial motions will be due to be
filed not later than eight (8) business days before the trial term for which the case is set
for retrial. If there are newly discovered grounds to make a Rule 12(b)(3) motion, such
motion will be due to be filed not later than eight (8) business days before the
motions/sentencing term immediately preceding the trial term for which the case is set for
retrial.
IT IS SO ORDERED.
DATE:
