IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR NO. 3:06CR204-MEF

)

HENRY ERIK YAPIAS )

ORDER ON ARRAIGNMENT

On September 27, 2006 the defendant, Henry Erik Yapias, appeared in person and

in open court with counsel, Samuel Walker, and was arraigned in accordance with the

provisions of Rule 10 of the Federal Rules of Criminal Procedure.

PLEA. The defendant entered a plea of NOT GUILTY. Counsel for the defendant

is requested to contact the U.S. Attorney immediately if the defendant intends to engage in

plea negotiations. If the defendant decides to change this plea, the parties shall file a notice

of intent to plead guilty or otherwise notify the clerk’s office at or before the pretrial

conference and then this action will be set on a plea docket.

PRELIMINARY SENTENCING GUIDELINES INFORMATION. The court no

longer requires the United States Probation Office to provide preliminary sentencing

guideline information to defendants. However, in difficult or complex cases defendants may

request the United States Probation Office to provide Sentencing Guideline calculation

assistance with the understanding that any estimate is tentative only and is not binding on the

United States Probation Office, the parties or the court. The court expects that requests for

Sentencing Guideline calculation assistance shall be the exception and that defendants will

not make such requests a matter of routine. A request for Sentencing Guideline calculation

assistance shall be made to the United States Probation Office not later than 10 days from

the date of this order.

PRETRIAL CONFERENCE. An initial pretrial conference is hereby set for

October 13, 2006 at 1:00 p.m., Courtroom 4B, United States Courthouse, One Church

Street, Montgomery, Alabama. Not later than three (3) days prior to the date of the

pretrial conference, counsel shall confer about the issues and matters to be discussed

at the pretrial conference as set forth in this order. Counsel who want in-custody

defendants to attend must notify the Magistrate Judge within three days of the conference

date so that an order to produce can be issued to the United States Marshal.

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At the pretrial conference defense counsel and counsel for the government shall be

fully prepared to discuss all pending motions, the status of discovery, possible stipulations,

and the estimated length of the trial. The defense counsel and counsel for the government

shall be fully prepared to provide a definite commitment as to the final disposition of this

case - by trial, plea or other non-trial disposition. If resolution of a dispositive motion will

affect the nature of this commitment, counsel must be fully prepared to discuss this type of

resolution. If the case is for plea, the notice of intent to enter a plea should be filed at the

time of the pretrial conference. If counsel require additional time for plea negotiations,

counsel should be prepared to inform the court about the date when those negotiations will

be completed.

TRIAL. This case is set for trial before Chief District Judge Mark E. Fuller on the

trial term beginning on November 27, 2006, unless otherwise ordered by the court. Any

requested voir dire questions and jury instructions must be filed no later than one week

before jury selection.

PRETRIAL MOTIONS. All pretrial motions under Fed.R.Crim.P. 12(b) and (d),

14 and 16, all notices under Fed.R.Crim.P. 12.1, 12.2 and 12.3, and any motion to compel

pursuant to this court' standing order on discovery must be filed no later than TWO DAYS

BEFORE THE FIRST PRETRIAL CONFERENCE HELD IN THIS CASE. No motion

filed after this date will be considered unless filed with leave of court. Unless otherwise

ordered by the court, the continuance of the trial of a case will not extend the time for filing

pretrial motions. THE CONFERENCING REQUIREMENT SET FORTH IN THE

STANDING ORDER ON CRIMINAL DISCOVERY SHALL BE MET BEFORE THE

COURT WILL CONSIDER ANY DISCOVERY MOTION. THE COURT WILL NOT

GRANT MOTIONS TO ADOPT MOTIONS FILED BY OTHER DEFENDANTS.

Motions to suppress must allege specific facts which, if proven, would provide a basis

of relief. This court will summarily dismiss suppression motions which are supported only

by general or conclusory assertions founded on mere suspicion or conjecture. All grounds

upon which the defendant relies must be specifically stated in the motion in separately

numbered paragraphs in a section of the motion which is labeled "Issues Presented.".

Grounds not stated in the "Issues Presented" section of the motion will be deemed to

have been waived. See generally United States v. Richardson, 764 F.2d 1514,1526-27 (11th

Cir. 1985).

The government shall file a response to all motions filed by the defendant on or

before five days prior to the date set for a hearing on the motion or, if no hearing is

necessary, on or before ten (10) days after the date of the pretrial conference.

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 In certain complex cases, the government may agree to earlier production.

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DISCOVERY. All discovery in this action shall be conducted according to the

requirements of this court's Standing Order on Criminal Discovery. A copy of the standing

order is attached and also may be found at http://www.almd.uscourts.gov/. Unless the

government provided initial disclosures to defendant prior to or at arraignment, the

government is ORDERED to tender initial disclosures to the defendant on or before

September 27, 2006. Disclosures by the defendant, as required by ¶ 4 of the Standing Order

on Criminal Discovery shall be provided on or before October 4, 2006.

JENCKS ACT STATEMENTS. The government agrees to provide defense counsel

with all Jencks Act statements no later than the day scheduled for the commencement of the

trial.1

MANDATORY APPEARANCE OF COUNSEL. Counsel of record for all parties

are ORDERED to appear at all future court proceedings in this criminal case. Those

attorneys who find it impossible to be in attendance (especially at the pretrial conference, jury

selection, or trial) must make arrangements to have substitute counsel appear on behalf of

their clients. Any attorney who appears as substitute counsel for a defendant shall have full

authorization from the defendant to act on his or her behalf and be fully prepared to proceed.

Substitute counsel shall not be counsel for a co-defendant unless permitted by the court after

proper motion. Any counsel who wishes to have substitute counsel appear must obtain

permission of the court in advance.

NOTE: Except in extraordinary circumstances or circumstances in which the

Constitution would require it, the court will not entertain motions to withdraw filed by

counsel who appear at arraignment unless the motions are filed within seven days of

the date of this order. Failure to obtain fees from a client is not an extraordinary

circumstance.

Done this 3 day of October, 2006. rd

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 3:06-cr-00204-MEF-CSC Document 10 Filed 10/03/2006 Page 3 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

CR. MISC. #534

STANDING ORDER ON CRIMINAL DISCOVERY

 It is the court's policy to rely on the standard discovery procedure as set forth in this Order

as the sole means of the exchange of discovery in criminal cases except in extraordinary

circumstances. This Order is intended to promote the efficient exchange of discovery without

altering the rights and obligations of the parties, but at the same time eliminating the practice

of routinely filing perfunctory and duplicative discovery motions.

INITIAL DISCLOSURES:

(1) Disclosure by the Government. At arraignment, or on a date otherwise set by the court

for good cause shown, the government shall tender to defendant the following:

(A) Fed. R. Crim. P. 16(a) Information. All discoverable information within the scope of

Rule 16(a) of the Federal Rules of Criminal Procedure.

(B) Brady Material. All information and material known to the government which may be

favorable to the defendant on the issues of guilt or punishment, without regard to materiality,

within the scope of Brady v. Maryland, 373 U.S. 83 (1963).

(C) Giglio Material. The existence and substance of any payments, promises of immunity,

leniency, preferential treatment, or other inducements made to prospective witnesses, within

the scope of United States v. Giglio, 405 U.S. 150 (1972).

(D) Testifying informant's convictions. A record of prior convictions of any alleged

informant who will testify for the government at trial.

(E) Defendant's identification. If a line-up, show-up, photo spread or similar, procedure was

used in attempting to identify the defendant, the exact procedure and participants shall be

described and the results, together with any pictures, and photographs, shall be disclosed.

(F) Inspection of vehicles, vessels, or aircraft. If any vehicle, vessel, or aircraft, was allegedly

utilized in the commission of any offenses charged, the government shall permit the

defendant's counsel and any expert selected by the defense to inspect it, if it is in the custody

of any governmental authority.

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(G) Defendant's latent prints. If latent fingerprints, or prints of any type, have been, identified

by a government expert as those of the defendant, copies thereof shall be provided.

(H) Fed. R. Evid.404(b). The government shall advise the defendant of its intention to

introduce evidence in its case in chief at trial, pursuant to Rule 404(b) of the Federal Rules

of Evidence.

(I) Electronic Surveillance Information. If the defendant was an aggrieved person as defined

in 18 U.S.C. § 2510(11), the government shall so advise the defendant and set forth the

detailed circumstances thereof.

(2) Obligations of the Government.

(A) The government shall anticipate the need for, and arrange for the transcription of the

grand jury testimony of all witnesses who will testify in the government's case in chief, if

subject to Fed. R. Crim. P. 26.2 and 18 U.S.C. ' 3500. Jencks Act materials and witnesses'

statements shall be provided as required by Fed. R. CRIM. P. 26.2 and 18 U.S.C. ' 3500.

However, the government, and where applicable, the defendant, are requested to make such

materials and statements available to the other party sufficiently in advance as

to avoid any delays or interruptions at trial. The court suggests an early disclosure of Jencks

Act materials.,

(B) The government shall advise all government agents and officers involved in the case to

preserve all rough notes.

(C) The identification and production of all discoverable evidence or information is the

personal responsibility of the Assistant United States Attorney assigned to the case and may

not be delegated without the express permission of the court.

(3) Disclosures to U.S. Probation. At arraignment, or on a date otherwise designated by the

court upon good cause shown, the government shall tender to the U.S. Probation Office all

essential information needed by U.S. Probation to accurately calculate the sentencing

guideline range for the defendant, including, but not limited to, information regarding the

nature of the offense (offense level), the nature of the victim and the injury sustained by the

victim, defendant's role in the offense, whether defendant obstructed justice in the

commission of the crime, defendant's criminal history, and any information

regarding defendant's status as a career offender/armed career criminal. In addition, in order

to comply with the requirements of the Anti-Terrorism Act, the government shall produce

to the U.S. Probation Office information regarding the victims of defendant's alleged

criminal activity, including, but not limited to, the identity of the victim by name, address,

and phone number, and the nature and extent of the victim's loss or injury.

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(4) Disclosures by the Defendant. If defendant accepts or requests disclosure of discoverable

information pursuant to Fed. R. CRIM. P. 16(a)(1)(C), (D), or (E), defendant, on or before

a date set by the court, shall provide to the government all discoverable information within

the scope of Fed. R. Crim. P. 16(b).

SUPPLEMENTATION. The provisions of Fed. R. CRIM. P. 16(c) are applicable. It shall be

the duty of counsel for all parties to immediately reveal to opposing counsel all newly

discovered information, evidence, or other material within the scope of this Rule, and there

is a continuing duty upon each attorney to disclose expeditiously.

MOTIONS FOR DISCOVERY. No attorney shall file a discovery motion without first

conferring with opposing counsel, and no motion will be considered by the court unless it is

accompanied by a certification of such conference and a statement of the moving party's good

faith efforts to resolve the subject matter of the motion by agreement with opposing counsel.

No discovery motions shall be filed for information or material within the scope of this Rule

unless it is a motion to compel, a motion for protective order or a

motion for an order modifying discovery. See Fed. R. CRIM. P. 16(d). Discovery requests

made pursuant to Fed. R. CRIM. P. 16 and this Order require no action on the part of this

court and shall not be filed with the court, unless the party making the request desires to

preserve the discovery matter for appeal.

Done this 4th day of February, 1999.

/s/ W. Harold Albritton 

CHIEF UNITED STATES DISTRICT JUDGE

/s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

/s/ Ira De Ment 

UNITED STATES DISTRICT JUDGE

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