1

 Motions in limine that expedite the trial process may be considered closer to the

trial date. Frequently the Court will decide motions in limine after having heard evidence

at trial.

2

 The Administrative Order provides at section 11: “Any pretrial motion shall

be filed within twenty (20) days of the date of arraignment of the defendant involved.”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA

Plaintiff, CASE NO.: 2:09-CR-20382

vs.

HONORABLE STEPHEN J. MURPHY, III

WILLIAM BORGIDA

Defendant.

/

PRETRIAL ORDER FOR DISCOVERY AND INSPECTION, GIVING NOTICE OF 

CERTAIN PRETRIAL AND TRIAL PRACTICES, AND ESTABLISHING SCHEDULE

I. SCHEDULE FOR MOTIONS, FINAL PRETRIAL 

CONFERENCE, GUILTY PLEA CUTOFF AND TRIAL DATES

A) MOTIONS

 Any pre-trial motion, including any motion in limine,1 is to be filed in accordance

with Local Criminal Rule 12.1 and Administrative Order No. 03-AO-027 (“Standing

Order for Discovery and Inspection and Fixing Motion Cut-Off Date in Criminal

Cases”).2

 Before any pre-trial motion is filed, compliance with Local Criminal Rule 12.1

and Local Civil Rule 7.1(a) must be observed. Upon a motion being filed, other

deadline dates will be adjusted as necessary, and the non-moving party will have the

time allowed in the Local Rules for response (ordinarily 14 days for nondispositive

motions and 21 days for dispositive motions), unless otherwise ordered by the Court.

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B) TRIAL PREPARATION AND FINAL PRETRIAL CONFERENCE

 A final pretrial conference and negotiated guilty plea cutoff will occur, on the

record, on October 16, 2009, at 2:00 pm. The government is directed to proffer any

proposed guilty plea agreement to the defendant not later than one week before that

date. The defendant must attend. The defendant, if free on bond, is ORDERED to

appear at or near courtroom #228 at least fifteen minutes before the scheduled pretrial

conference is to commence.

C) TRIAL SCHEDULE

 Trial, if necessary, will commence with jury selection on October 27, 2009, at

9:00 a.m. The defendant, if free on bond, is ORDERED to appear at courtroom #228 at

least fifteen minutes before the scheduled trial is to commence. Any questions or

scheduling conflicts with the dates contained in this order should be directed to Ms.

Alissa Greer, Case Manager to Judge Murphy, at (313) 234-2681.

II. PRETRIAL PROCEDURES

A) ORDERS OF THE COURT

The Court finds that certain amendments to the trial preparation directives of

Administrative Order No. 03-AO-027 will better assist in the effective administration of

this case. Therefore, IT IS HEREBY ORDERED that Administrative Order No. 03-AO027 is amended and augmented in certain respects for the purposes of this case as

stated below. Counsel shall organize their trial preparation as stated in Administrative

Order No. 03-AO-027 consistent with the Court’s amendments hereto. Counsel should

also see the Court’s website for further information: http://www.mied.uscourts.gov,

paying special attention to the Court’s “Local Rules,” and “Practice Guidelines” specific

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to Judge Murphy.

1. RECUSAL

The government shall immediately determine whether any portion of this

criminal case or its previous investigation was opened in the United States

Attorney’s office for the Eastern District of Michigan prior to August 18, 2008, and

if it was, shall immediately inform the Court and defense counsel of both that fact

and the date of the opening. Upon its own initiative or by motion of any party, the

Court may recuse itself from any matter over which Judge Murphy may have presided

as United States Attorney for the Eastern District of Michigan.

(Note: The references in headings 2-4 below to "section" numbers are to the sections of

the Court’s Administrative Order No. 03-AO-027.)

2. SECTION 5(a) (MARKING OF EXHIBITS)

Exhibits shall be designated with the government using numbers beginning with

"1" and the defense using letters beginning with "A". 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 Administrative Order should be

submitted not later than twenty four hours prior to the morning of jury selection.

Counsel for the government is urged to make reasonable efforts to reach

agreement with counsel for the defense 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.

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In cases that are not document intensive, the Court appreciates on the morning

of jury selection a unified binder of all exhibits so agreed upon.

 3. 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 the items or exhibits are unusually voluminous, the

notice shall provide a brief item-by-item or exhibit-by-exhibit description of the good faith

basis for any objection. 

In the event the items or 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.

4. SECTION 10 (JURY INSTRUCTIONS)

Counsel for the government is directed to draft proposed jury instructions

identifying the elements of the charged offense(s) in the form of 6th Circuit Criminal

Pattern Jury Instruction 2.02, and to draft any other "non-standard" instructions it

requests. Counsel for the defense shall also draft any "non-standard" instructions the

defense intends to request. Either party may request other instructions of the Court

simply by reference to the pattern instruction number.

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

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

opportunity for reaction and possible stipulation. All such drafting and reaction shall be

concluded in time for submission of stipulated and requested instructions before jury

selection is scheduled to begin. In most cases, the Court will produce in chambers the

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final set of instructions.

Counsel must submit proposed instructions by e-mail attachment consistent with

WordPerfect.

B) OTHER PROCEDURES

1. FINAL PRETRIAL CONFERENCE and PLEA DEADLINE

The Court does not ordinarily accept a negotiated plea of guilty that contains any

restrictions regarding sentencing under Fed. R. Crim. P. 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, 

after the final pretrial conference and change-of-plea cutoff date. The Court does not

accept plea agreements under Fed. R. Crim. P. 11(c)(1)(C), but readily accepts

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

recommendations; the Court also accepts plea agreements that contemplate well

thought out and supported 5K1.1 departures. Although Rule 11(c)(1)(B) sentencing

recommendations are not binding, the Court does give them careful consideration and

weight. Accordingly, unless a signed Rule 11 agreement is in hand before the pretrial

conference, the attorneys for the parties are hereby directed to appear for a final pretrial

conference on the date set as follows: 

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

noticed date and time. If desired, the defendant may use this conference as his

or her final opportunity to enter a negotiated plea. 

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

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agreement were accepted as opposed to a conviction at trial. The Court will

address the defendant on the record and ensure 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) Should the defendant decline to enter a plea of guilt, counsel must be

prepared to conduct the final pretrial conference, and to discuss at least the

following issues:

i) Evidentiary stipulations or problems 

ii) Jury instruction stipulations or problems

iii) Unresolved motions

iv) Number of witnesses and estimated time for presentation of

the case

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 full days before jury selection is

scheduled to commence. Question requests submitted on the morning of trial will not

be considered by the Court.

3. JURY SELECTION METHOD: JURY TRIAL PRACTICES

The Court uses a “struck jury” system for jury selection. The Court will select

twelve regular and two alternate jurors. In most cases, the government is allowed 6

peremptory challenges and the defendant is allowed 10 peremptory challenges. 

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Alternate jurors are not told they are alternates; they are dismissed by random draw at

the conclusion of the proofs. 

The jury will be allowed to take notes. The Court specifically instructs the jury in

advance on this issue.

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 Fed. R. Crim. P. 32, and any

applicable Local Rules of this Court.

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 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 the following:

i) The factual or legal basis for the response

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 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

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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 twenty-one

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 twenty-one 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.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 2, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 2, 2009, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager

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