UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 15-20254

DAVID WENGER,

Defendant. 

___________________________________/

ORDER AMENDING STANDING ORDER FOR DISCOVERY AND 

INSPECTION IN CRIMINAL CASES; 

AND GIVING NOTICE OF CERTAIN PRETRIAL AND TRIAL PRACTICES

The court finds that certain amendments to Administrative Order No. 03-AO-027

governing trial preparation will better assist in the effective administration of this case.

IT IS HEREBY ORDERED that Administrative Order No. 03-AO-027 is amended

in certain respects in this case as stated in Appendix 1 to this Order. Counsels’ trial

preparation shall be consistent with this court’s amendments to that Administrative

Order. Counsel shall also take notice of the court's intended practices, outlined in

Appendix 2 to this Order, concerning pretrial, voir dire, jury selection, trial practices, final

pretrial and guilty plea cutoff, and sentencing. For further information counsel may visit

<http://www.mied.uscourts.gov/Judges/guidelines/index.cfm?judgeID=12>

S/Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Date: June 26, 2015

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 APPENDIX 1

AMENDMENTS TO STANDING ADMINISTRATIVE ORDER 03-AO-027

ON CRIMINAL PRACTICE

The references in this Appendix to "section" numbers are to the sections of

the Standing Order. 

1) Section 5(a) (MARKING OF EXHIBITS):

Exhibits shall be pre-marked and designated as: government exhibits

beginning with "101" and defendant’s exhibits beginning with "501."

Counsel may discuss and recommend to the court before trial a reasonable

alteration to the numbering system described.

The list required under Section 5(a) of the Standing Order should be

submitted not later than the morning of jury selection. Counsel for the

government is urged to make reasonable efforts to reach agreement with other

counsel concerning the admissibility of each intended physical exhibit. In the

event such agreement is reached, a list of such exhibits is to be prepared by

government counsel for entry at the opening of trial, and the exhibits will be

considered admitted at the outset.

 2) Sections 5(b), 6 and 7 (OBJECTIONS TO FOUNDATIONAL

ISSUES):

In the event defense counsel chooses to file a notice of intent to contest

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foundation, chain-of-custody or scientific analysis, such notice shall be filed not

later than 7 days before trial. Unless such items or possible exhibits are

unusually voluminous, the notice shall provide a brief exhibit-by-exhibit or itemby-item description of the good faith basis for any such objection. A blanket

statement saying no more than "defendant contests the foundation" is not

sufficient. The statement of the good faith basis for any objection may be ex

parte if in the opinion of counsel there is a reasonable basis for doing so. 

In the event that such items or possible exhibits are unusually voluminous,

counsel for the defense shall, as early as is possible, give notice to the court and

the government of any difficulty expected in providing the specific objections

required herein, and seek assistance –first of the government, then of the court–

in resolving the matter.

3) Section 10 (JURY INSTRUCTIONS):

Counsel for the government is directed to draft proposed instructions which

identify the elements of the offense in the form of 6th Circuit pattern instruction

2.02, and to draft any other "non-standard" instruction requests. Counsel for the

defense shall also draft any "non-standard" instructions intended to be requested. 

Other instructions may be requested of the court by either party simply by

reference to pattern instruction number.

"Elements" instructions proposed by the government, and proposed special

instructions by both counsel shall be circulated among counsel with a reasonable

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opportunity given for reaction and possible stipulation. All such drafting and

reaction shall be concluded in time for submission of stipulated and requested

instructions before the jury selection is scheduled to commence. The court

intends to produce in chambers the final set of instructions. 

Counsel must submit proposed instructions by e-mail attachment

consistent with WordPerfect.

4) Section 11 (MOTION TIME LIMITS):

The court will generally set appropriate motion cut-off dates in a scheduling

order. The stringency of those limits generally varies with the complexity of the

case and the completeness of voluntary government discovery. Counsel are

reminded to seek concurrence under Local Rule 7.1(b) and to explain in

reasonable detail the results of counsel’s efforts before filing any motion. Failure

to do so will ordinarily result in a summary denial of the motion.

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APPENDIX 2

FINAL PRETRIAL; VOIR DIRE; JURY SELECTION 

AND TRIAL PRACTICES; SENTENCING 1 

1) FINAL PRETRIAL AND CHANGE-OF-PLEA DEADLINE

a) The court does not ordinarily accept a negotiated2 plea of guilty

after the final pretrial and change-of-plea cutoff conference date. Accordingly,

unless a signed Rule 11 agreement is in hand before that time, the attorneys for

the parties are hereby directed as follows:

b) Each trial attorney and defendant must personally appear in

court at the noticed date and time. Any request for adjournment should be

supported by good cause and made at least 24 hours in advance to allow

the court to properly notify other participants.

c) The defendant must be prepared to proceed with the guilty plea if

such is intended.

1

 More detailed information is available at the the Court’s website:

<http://www.mied.uscourts.gov/index.html>, then “Local Rules/Practices,” then “Practice Guidleines”

2

 A "negotiated" plea is one that contains any restrictions regarding sentencing under Rule

11, a significant reduction in the number of counts alleged, a 5K1.1 provision or any other

concessions by the government that could impinge upon the court's sentencing authority or

discretion. The court ordinarily does not accept plea agreements under Rule 11(c)(1)(C), but

readily accepts agreements under Rule 11(c)(1)(B) that include non-binding sentencing

recommendations; the court also generally accepts plea agreements that contemplate well-founded

5K1.1 departures. Although 11(c)(1)(B) sentencing recommendations are not binding, the court

nonetheless gives them careful consideration, and often agrees.

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d) In the event that the defendant chooses to proceed to trial, the

court will ask the government to set forth on the record any proffered plea

agreement and the government’s view of the calculation of sentencing guidelines

if the proffered agreement were accepted as opposed to a conviction at trial. The

court will address the defendant on the record and insure that the decision to

proceed to trial was made after adequate consultation with counsel and to record

that the decision to proceed to trial represents the defendant’s knowing and

voluntary choice.

e) Counsel must be prepared to conduct the Final Pretrial

Conference, and to discuss at least the following areas:

i) Evidence stipulations or problems

ii) Instruction stipulations or problems

iii) Unresolved motions

iv) Number of witnesses and estimated time for case

presentation

v) Estimated time for opening statements

vi) Understanding of juror-proposed question procedure

2. VOIR DIRE:

a) It is the court's practice to conduct voir dire questioning of the jury

panel. Counsel must submit any questions they may wish to request in writing to

the court not later than the end of the business day two days before jury

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selection is scheduled to commence. Question requests submitted on the

morning of trial will generally not be considered by the court.

3. JURY SELECTION METHOD: JURY TRIAL PRACTICES

The court will use a “struck jury” system for jury selection. A detailed

written description of this method is available from chambers and on the Court’s

website. Ordinarily the court will select twelve regular and two alternate jurors. 

Principal peremptory challenges must be used to select the twelve, and the

additional peremptory used separately to select the alternates. Alternate jurors

are ordinarily told that they are alternates. 

At trial, the court generally gives to the jury a copy of the indictment as a

guide to the case the government is required to prove. Therefore, counsel for the

government ordinarily produces a "sanitized" version of the indictment redacted

of all language referring to the Grand Jury and any other irrelevant or potentially

prejudicial matter.

The jury will be allowed to take notes. The jury will ordinarily be allowed to

submit written proposed clarification questions of witnesses at the conclusion of

the testimony. Any such questions will be reviewed by the court and counsel out

of the hearing of the jury, with counsel having the opportunity to object to the

substance of the question. The court then asks the question on behalf of the

juror, and counsel are given an opportunity for pertinent follow-up questions.

Caution is exercised during this process, and the court specifically instructs the

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jury in advance on these issues. See the Court’s website for further specifics. Any

objection to this procedure or suggestions for alteration must be stated in

advance of trial.

4) SENTENCING PROCEDURES

In the event of a conviction a presentence report will be prepared in the

regular course of business and counsel will respond pursuant to Rule 32, Fed. R.

Crim. P., and any applicable Local Rule of this court. The procedures to be used

in preparation for sentencing will be set forth in a separate order, and will include

the following:

In the event that a party identifies objections (controverted items) which are

not accepted by the probation officer, and which are therefore to be resolved by

the court, both parties shall prepare to respond in writing. Although a more

detailed order for response may be forthcoming from chambers on a case-bycase basis, the non-objecting party shall respond to each objection, setting forth

the party's position in agreement or disagreement with the objection, and

specifying at least these things:

The factual or legal basis on which the response rests.

Whether or not the party intends to present witnesses in support of a

sentencing position. 

If witnesses are intended, the name of each witness should be given along

with a brief statement showing the controverted item to which the witness's

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testimony applies, the substance of the witness's intended testimony (expressed

in one or two sentences), and an estimate of the time required to present the

witness's testimony.

Counsel must avoid “objecting” to presentence report notations which are

nothing more than mechanical or arithmetic calculations under the guidelines, the

resolution of which depend on other factual items.

DEPARTURES. Any motion for a departure from the calculated range

based upon Sentencing Guidelines factors must be stated in writing and filed not

fewer than fourteen days before sentencing. Provide a copy to the Probation

Officer. The opposing party must file a response not fewer than seven days

before sentencing. A decision on a departure motion will ordinarily be

announced before sentencing. Oral argument may be invited by the court in some

cases.

VARIANCES. Requests for sentencing variances based upon 28 U.S.C. §

3553(a) factors are often closely related to the substance of pre-sentencing

allocution. The basis for a hoped-for sentencing variance should be set forth in a

motion fourteen days in advance of sentencing, but even if not so stated may

be brought to the court’s attention at sentencing. If a variance request is not

briefed, and brought up only at sentencing, a delay in the imposition of sentence

may be required, with the defendant remanded to custody pending final

imposition of sentence.

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A sentencing memorandum is optional, but often helpful, and must be filed

not fewer than seven days before sentencing if at all.

Unless otherwise permitted for reasonable cause, allocution will not exceed

eight minutes for defendant’s counsel, five minutes for defendant and eight

minutes for government counsel.

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