IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR NO. 2:06CR193-MEF

)

JOSHUA WAYNE HESTER )

ORDER ON ARRAIGNMENT

On August 30, 2006, the defendant, Joshua Wayne Hester, appeared in person

and in open court with Counsel, Stephen P. Glassroth, 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

September 25, 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 incustody 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 United States District Judge Mark E.

Fuller on the trial term beginning on October 24, 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 September

22, 2006. 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 6, 2006. Disclosures by the defendant, as required by ¶ 4 of the

Standing Order on Criminal Discovery shall be provided on or before September 13,

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 1 day of September, 2006. st

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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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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