UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v. 

CASE NO: 08-CR-20480

GABRIEL KISH, III AND DEBORAH

SUMMERS,

Defendants.

/

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 trial

preparation directives 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 for the purposes of this case as stated in Appendix 1 to this Order.

Counsel shall organize their trial preparation as stated in Standing Order No. 03-AO-027

on Criminal Practice" consistent with this court’s amendments thereto. Counsel should also

see the Court’s website for further information: <http://www.mied.uscourts.gov/index.html>,

then “Local Rules/Practices,” then “Practice Guidelines” 

IT IS FURTHER ORDERED that counsel shall 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.

S/Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Date: February 10, 2009

 

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APPENDIX 1

AMENDMENTS TO STANDING ADMINISTRATIVE ORDER 99-AO-003 

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 designated with the government using numbers beginning with

"101" and the defense using numbers beginning with "501." In the event of an extraordinary

number of exhibits or in the event of more than one defendant, counsel shall 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, but the listing submitted may be ex parte as to

items other than Rule 16, if in the good faith opinion of counsel there is a reasonable basis

for doing so, until the item is identified in court.

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 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 item-by-item description of the good faith basis for

any such objection. A statement which says nothing more than "defendant contests the

foundation" is insufficient. 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 the expected difficulty in providing the specific objection otherwise required, and seek

the assistance first of the government, then of the court, in resolving the matter.

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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

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's practice is to 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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 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.

1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APPENDIX 2

FINAL PRETRIAL; VOIR DIRE; JURY SELECTION 

AND TRIAL PRACTICES; SENTENCING 1 

1) FINAL PRETRIAL AND CHANGE-OF-PLEA DEADLINE

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: 

a) Each trial attorney and defendant must personally appear in court at the

noticed date and time. The defendant must be prepared to proceed with the

guilty plea if such is intended. 

b) 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

that the decision represents the defendant’s knowing and voluntary choice.

c) 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 presentation of

the case

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v) Estimated time for opening statements

vi) Agreement on juror-proposed questions

2) VOIR DIRE:

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 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

a) 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. 

b) 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.

c) 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 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:

a) 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

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(Rev 10/03) S:\Cleland\LISA\Criminal\CriminalStandingOrder.7.wpd 3

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:

i) The factual or legal basis on which the response rests. 

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

a sentencing position. 

iii) 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 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.

b) 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.

c) Any motion for a departure from the calculated range based upon

Sentencing Guidelines factors, or motion for a sentencing variance based upon 28

U.S.C. § 3553(a) factors must be stated in writing and filed not fewer than twentyone 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.

d) Any sentencing memorandum must be filed not fewer than twentyone days before sentencing.

e) 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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