UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, :

 Plaintiff, : 

: Criminal No. 11-447(WHW)

v. :

:

JAMES PENDER : ORDER FOR DISCOVERY

 Defendant(s) :

 In order to eliminate unnecessary motions for discovery in

this case, to eliminate delays in the presentation of evidence

and the examination of witnesses, and to expedite the trial

pursuant to the provisions of the Speedy Trial Act of 1974, 

IT IS ORDERED:

1. Conference. Within ten (10) days from the date hereof

the attorneys representing the United States and the defendant

shall meet or confer to seek to resolve any discovery issues

prior to the filing of motions, and the United States shall

permit the defendant to inspect, and shall permit defendant to

photograph or copy, or shall furnish a photograph or copy of:

(a) All statements of the defendant required to be

produced under Rule 16(a)(1)(A), Fed. R. Crim. P. 

(b) Defendant’s prior criminal record as required by

Rule 16(a)(1)(B), Fed. R. Crim. P.

(c) All documents and tangible objects required to be

produced under Rule 16(a)(1)(C), Fed. R. Crim. P. 

(d) All reports of examinations and tests required to

be produced under Rule 16(a)(1)(D), Fed. R. Crim. P.

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(e) All summaries of expert witnesses’ testimony,

required to be produced under Rule 16(a)(1)(E), Fed. R.

Crim. P. The summaries provided shall describe the

witnesses’ opinions, the bases and reasons therefor, and the

witnesses’ qualifications.

(f) Any material evidence favorable to the defense

related to issues of guilt, lack of guilt or punishment

which is known or that by the exercise of due diligence may

become known to the attorney for the United States, within

the purview of Brady v. Maryland and its progeny.

(g) If there is more than one defendant named in the

indictment, and if the United States intends to introduce

into evidence in its case-in-chief a confession made to law

enforcement authorities by one defendant which names or

makes mention of a co-defendant, then the United States must

make a copy of that statement or confession available to

counsel for the non-declarant defendant, along with a

proposal for its redaction to conform with the requirements

of Bruton v. United States. If the government makes no such

disclosure and turnover within the time period allowed, the

confession may not be received at a joint trial of the

declarant and non-declarant defendants. If, within ten (10)

days after the receipt of the confession and its redacted

version, counsel for the non-declarant defendant makes no

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objection to the redacted statement, the defendant will be

deemed to have acceded to the receipt of the redacted

statement into evidence.

(h) A defendant who receives discovery pursuant to

this Order shall be deemed to have requested such disclosure

for the purpose of triggering defendant’s reciprocal

discovery obligations under Rule 16(b), Fed. R. Crim. P. 

The defense shall have ten (10) days from its receipt of

discovery from the United States to produce its reciprocal

discovery.

(i) Any defendant intending to offer a defense of

alibi or insanity or mental condition shall comply with the

requirements of Fed. R. Crim. P. 12.1 and 12.2, Fed. R.

Crim. P.

2. Disclosure Declined. If, in the judgment of the United

States Attorney, in order to protect the identity of a

confidential informant or undercover agent, to prevent

interference with an ongoing investigation, to protect the

integrity of the criminal proceeding, or to otherwise serve the

interests of justice, any disclosure set forth in paragraph 1

hereof should not be made, disclosure may be declined, and

defense counsel advised in writing of the declination within five

(5) days of the conference.

A defendant who seeks to challenge the declination may move

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the Court for relief in the following manner:

(a) No later than ten (10) days from the time that the

government declines, the defendant shall file a motion for

discovery or inspection.

(b) The motion shall conform to the schedule set forth

in paragraph 12 of this Order, unless otherwise ordered by

the Court.

(c) The motion shall set forth: (1) the statement

that the prescribed conference was held; (2) the date of the

conference; (3) the name of the attorney for the United

States with whom the conference was held; (4) the matters

which were agreed upon; and (5) the matters which are in

dispute and which require the determination of the Court.

(d) In responding to any such motion, the United

States must show good cause for the declination of

discovery, and in doing so may invoke the provisions of Fed.

R. Crim. P. 16(d)(1).

3. Rule 404(b) Evidence. The United States shall provide

notice to the defense of all evidence it intends to offer of

other crimes, wrongs or acts within the meaning of Rule 404(b) of

the Federal Rules of Evidence, not less than ten (10) calendar

days prior to the date of trial, except that for good cause

shown, the Court may excuse such pretrial notice.

4. Jencks and Giglio Material. The United States agrees to

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produce all statements within the meaning of the Jencks Act, 18

U.S.C. § 3500, and impeachment evidence within the meaning of

Giglio v. United States, 405 U.S. 150 (1972), sufficiently in

advance of the witness’s testimony to avoid delay in the trial. 

Similarly, the defense shall produce reverse Jencks statements

sufficiently in advance of the witness’s testimony to avoid delay

in the trial. 

5. Continuing Duty. Any duty of disclosure and discovery

set forth herein is a continuing one and the attorneys for all

parties shall produce any additional discoverable information.

6. Exhibits. The United States shall pre-mark all exhibits

that it intends to introduce as part of its case-in-chief and

shall permit defense counsel to inspect and copy such exhibits

thirty (30) days before trial. A set of such pre-marked exhibits

with an exhibit list shall be given to the trial judge’s deputy

clerk no later than the first day of trial. The defendant’s

exhibits shall also be pre-marked and, unless otherwise ordered

by the Court upon the defendant’s application, shall be disclosed

to the United States within seven (7) days after the United

States’ disclosure. Defense counsel, in an appropriate case, may

apply to the Court for an order requiring the United States to

pre-mark exhibits more than thirty (30) days in advance of trial. 

The United States and the defense shall also pre-mark all Jencks

Act materials and “reverse Jencks” pursuant to Rule 26.2, Fed. R.

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Crim. P., so that no trial delay is encountered.

7. Authenticity of Exhibits. The authenticity of all

exhibits disclosed to and examined by counsel pursuant to the

provisions of paragraph 6 of this Order shall be deemed to have

been accepted by either the defendant or the United States unless

counsel files with the Court fourteen (14) days prior to the date

of trial, a notice that the authenticity of one or more exhibits

will be contested at trial, together with a statement delineating

why the authenticity of the exhibit is being challenged together

with a certification that the challenge to authenticity is being

made in good faith.

8. Chain of Possession. When counsel has examined an

exhibit disclosed prior to trial pursuant to the provisions of

paragraph 6 of this Order, the chain of possession of the exhibit

will be deemed to have been accepted by either the defendant or

the United States unless counsel files with the Court fourteen

(14) days prior to the date of trial, a notice that the chain of

possession of the exhibit will be contested at trial together

with a statement delineating that the chain of possession of the

exhibit is being challenged and a certification that the

challenge to the chain of possession is being made in good faith.

9. Scientific Analysis. When any party has disclosed the

scientific analysis of an exhibit proposed to be introduced at

trial by that party, which analysis has been determined by an

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expert in the field of science involved, then the scientific

analysis of the exhibit will be deemed admitted unless counsel

for a party receiving the disclosure files with the Court,

fourteen (14) days prior to trial, a notice that the scientific

analysis of the exhibit will be contested.

 10. Other Motions by Defendant. Motions regarding defenses

or objections permitted pursuant to Rules 12 and 41(e), Fed. R.

Crim. P., including, inter alia, motions for suppression of

evidence, shall be made within thirty (30) days from the date

hereof unless good cause for delay is shown. 

11. Translations. In the event that the United States

intends to utilize translations of any conversations, copies or

transcripts of such translations shall be produced for defense

counsel no later than thirty (30) days prior to the date of

trial. The correctness of any such translation or transcript

will be deemed admitted, unless defense counsel serves and files

with the Court, fourteen (14) days prior to the date of trial, a

notice that counsel objects to the translation or transcript,

specifying the portions thereof to which objection is made and

counsel’s contentions as to the correct translation.

12. All pretrial motions not otherwise specifically provided for

in this or other Orders of the Court in this case will be deemed

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waived unless they are filed and served not later than:

 Defts. motions to be filed by: August 19, 2011

 Gov’t response by: October 4, 2011

 Oral Argument (if necessary): October 11, 2011

 Trial date set for: October 18, 2011

13. Counsel shall furnish to the Court, five (5) days prior

to the date of trial, requests to charge and proposed voir dire

questions.

S/ WILLIAM H. WALLS 

UNITED STATES MAGISTRATE JUDGE

DATED: 12 JULY 2011

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