UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, :

Plaintiff, : 

 Criminal No. 2:11cr388(DMC) 

v. : 

 ORDER FOR DISCOVERY

ABIMAEL FUENTE : AND INSPECTION 

 

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),(B) or (C), Fed. R. 

 Crim. P.

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

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

 

 (c) All documents and tangible objects required to be 

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

 (d) All reports of examinations and tests required to be 

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

 (e) All summaries of expert witnesses’ testimony, 

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

 R. Crim. P. The summaries provided shall describe the 

 witnesses’ opinions, the bases and reasons therefor, 

 and the witnesses’ qualifications.

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 (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 receipt of the 

 confession and its redacted version, counsel for the 

 non-declarant defendant makes no 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 defendant 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 Rules 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.

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 A defendant who seeks to challenge the declination may

move 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

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.

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 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 prior to 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. 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

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(g), 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.

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 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. Motions. In multi defendant cases, each defendant

shall file his/her own motions. A letter asking the court to

join in co-defendants motions will not be addressed. All

pretrial motions not otherwise specifically provided for in this

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

unless they are filed and served not later than: 

 Motions due: 19 September 2011 

 Opposition due: 3 October 2011 

 Motions hearing date: 17 October 2011 

 Trial date: 1 November 2011 

 

 13. Instructions and Voir Dire. Counsel shall furnish to

the Court, five (5) days prior to the date of trial, an agreed

upon statement summarizing the case, requests to charge and

proposed voir dire questions. 

 S/MARK FALK 

UNITED STATES MAGISTRATE JUDGE

Dated: 19 July 2011 

DNJ Order for Discovery Inspection-4/03

5

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