Filed: Oct. 14, 2015
Latest Update: Oct. 14, 2015
Summary: PRETRIAL ORDER NO. 1 RE: INITIAL PRETRIAL CONFERENCE YVONNE GONZALEZ ROGERS , District Judge . Having considered the filings to date and the arguments and other submissions at the Pretrial Conference, held on October 9, 2015, for good cause shown the Court enters the following orders: 1. Trial Date and Schedule: The trial of this matter is confirmed to proceed in Courtroom 1. Jury Selection shall begin at 9:30 a.m. on October 30, 2015. However, counsel shall arrive by 8:00 a.m. All rem
Summary: PRETRIAL ORDER NO. 1 RE: INITIAL PRETRIAL CONFERENCE YVONNE GONZALEZ ROGERS , District Judge . Having considered the filings to date and the arguments and other submissions at the Pretrial Conference, held on October 9, 2015, for good cause shown the Court enters the following orders: 1. Trial Date and Schedule: The trial of this matter is confirmed to proceed in Courtroom 1. Jury Selection shall begin at 9:30 a.m. on October 30, 2015. However, counsel shall arrive by 8:00 a.m. All rema..
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PRETRIAL ORDER NO. 1 RE: INITIAL PRETRIAL CONFERENCE
YVONNE GONZALEZ ROGERS, District Judge.
Having considered the filings to date and the arguments and other submissions at the Pretrial Conference, held on October 9, 2015, for good cause shown the Court enters the following orders:
1. Trial Date and Schedule: The trial of this matter is confirmed to proceed in Courtroom 1. Jury Selection shall begin at 9:30 a.m. on October 30, 2015. However, counsel shall arrive by 8:00 a.m. All remaining trial days shall begin at 8:00 a.m. with counsel and 8:30 a.m. with the jury. Counsel shall arrive in court early enough to proceed promptly at 8:00 a.m. The trial schedule will be Mondays through Thursdays, from 8:00 a.m. to 1:30 p.m. with two fifteen minute breaks. November 11, 2015 is a Court holiday. Trial shall also not be held on the week of November 23, 2015, and shall recommence on November 30, 2015.
2. Additional time may be scheduled for matters outside the presence of the jury as necessary and determined by the Court. Sidebars are not permitted. Counsel should be prepared to anticipate issues so that they may be addressed outside of normal trial hours. In this regard, Counsel should also be prepared to reconvene with the Court after the Court's standing calendars which normally begin at 2:00 p.m.
3. Motions in Limine:
A motion in limine refers "to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40, n. 2 (1984). For the reasons stated on the record at the October 9, 2015 conference, the Court rules as follows on the pending motions in limine:
a. The government's motion to exclude evidence of defendant's reliance on advice of counsel (Dkt. No. 387) is DENIED WITHOUT PREJUDICE as premature.
b. The government's motion to exclude references to punishment (Dkt. No. 388) is DENIED WITHOUT PREJUDICE as moot in light of the concessions of defendant. The parties agree that in the event of a conviction on any applicable count, the jury will be sent back to deliberate on a special verdict regarding forfeiture. Further, the Court ORDERS sua sponte that there shall be no evidence of the medical condition of the defendant's wife.
c. The government's motion to exclude references to inadmissible hearsay (Dkt. No. 389) is DENIED WITHOUT PREJUDICE as impermissibly vague.
d. The government's motion to exclude evidence of defendant's competency (Dkt. No. 390) is GRANTED to the extent such evidence would be proffered in front of the jury. However, defense counsel may request such evidence be considered outside the presence of the jury.
e. The government's and defendant's motions regarding Rule 403 and 404(b) evidence (Dkt. Nos. 394, 396) and defendant's Rule 702 motion to exclude certain opinion evidence (Dkt. No. 397) remain under submission.
f. Parties are hereby ORDERED to admonish witnesses of the Court's rulings. Failure to comply with a ruling by the Court may result in sanctions, including without limitation the striking of the witness's entire testimony.
4. Procedural Stipulations: Attached hereto is a form of procedural stipulations. To the extent agreed upon, the parties shall file said document by October 26, 2015.
5. Witnesses: The government is limited to calling the witnesses submitted on its list filed for the Pretrial Conference, as well as the additional five witnesses identified on the record at the conference. Upon a showing of good cause, including for rebuttal or impeachment purposes, additional witnesses will only be allowed by Court order. Defendant need not decide whether he intends to testify until the close of his case.
6. Exhibits and Exhibit Lists: The parties are limited to using the Exhibits submitted to the Court on the Friday before the trial date. No witness may be shown any document or other object until it has been marked for identification using an exhibit number. The parties shall file updated Exhibit Lists identifying those for which a stipulation of admissibility exists with an "S" in the appropriate box.
The jury may not be shown any exhibits until admitted into evidence or stipulated by the parties as to admissibility without the express permission of the Court.
7. Equipment: Projectors, screens, and similar equipment must be tested in the courtroom prior to the day when it will be used. Arrangements may be made with the Courtroom Deputy, Frances Stone, at (510) 637-3540, as to an appropriate time for doing so. The U.S. Marshals Service requires a court order to allow equipment through security. The defendant shall file a request and proposed order regarding the same by October 23, 2015.
8. Jurors and Peremptory Challenges: The Court conducts a comprehensive voir dire and incorporates many of the additional topics requested. The Court will allow each side twenty (20) minutes to conduct follow-up voir dire. In addition:
a. The Court will seat a total of twelve (12) jurors and three (3) alternates. Pursuant to Rule 24 of the Federal Rules of Criminal Procedure, because the offense charged is punishable by imprisonment for more than one year, the government is allocated six (6) preemptory challenges and the defendant is allocated ten (10) peremptory challenges. Accordingly peremptory challenges shall be exercised in the following sequence:
• Prosecution First
• Defense First and Second
• Prosecution Second
• Defense Third and Fourth
• Prosecution Third
• Defense Fifth and Sixth
• Prosecution Fourth
• Defense Seventh and Eighth
• Prosecution Fifth
• Defense Ninth
• Prosecution Sixth
• Defense Tenth
Batson motions must be made in a timely fashion. Argument on the same shall be made outside the presence of the jury panel.
9. Jury Instructions: The Court will give Model Instructions 1.1-1.11 from the Manual of Model Criminal Jury Instructions for the Ninth Circuit (2010 Edition).
10. Opening Statements: Parties must meet and confer to exchange any visuals, graphics, or exhibits to be used in opening statements. Unless otherwise agreed, the exchange must occur no later than the close of business on the Tuesday before trial. Any objections not resolved must be filed in writing by the Wednesday before trial. The parties shall be available that Thursday for a teleconference if requested by the Court. To the extent not resolved, the parties shall address any objections on the day of jury selection.
11. Witnesses at Trial: The party presenting evidence shall give the other party(ies) 48 hours written notice of the witnesses to be called unless otherwise agreed upon by the parties themselves. In the event that scheduling necessitates late changes, written notice of the same shall be provided 24 hours in advance. Weekends do not count in the same manner for purposes of calculating these deadlines—as such, for Monday witnesses, notice shall be provided the preceding Friday morning. The parties are admonished that use of trial time is critical given the limited resources of the Court. All parties must have witnesses ready and available to testify. If the party presenting evidence does not have a witness ready to be called once a prior witness steps down, that party may be deemed to have rested its case. Witnesses may be taken out of order upon stipulation or with leave of Court provided that the circumstances giving rise to such an accommodation are promptly called to the attention of opposing counsel and the Court.
12. Objections: There shall be no "speaking objections," and no rebuttal unless requested by the Court, in which case it shall be brief — e.g., "hearsay," and if a rebuttal requested, "not offered for the truth." If either counsel needs to make a better record, he/she may do so when the jury is out at the next break.
13. Interpreters: The Court understands that none are required.
14. Requests for Transcripts: If transcripts will be requested during or immediately after the trial, arrangements must be made with the Court Reporter Coordinator (Telephone No. 510-637-3534) at least one week prior to the commencement of the trial.
15. Trial Decorum and Procedure: Counsel, parties, and witnesses are expected to conduct themselves at all times — on or off the record and whether or not in the presence of a jury — in a professional and courteous manner during trial. Do NOT approach other parties' witnesses without permission. You may approach your own non-hostile witnesses without permission.
During voir dire you will be allowed to use the bathrooms in the jury room so that you do not share the facilities with the jurors. You may not linger in the jury room or use any exit door other than the one leading to the courtroom.
16. Additional Deadlines:
a. The government shall provide a set of representative documents from each category at issue in its motion in limine at Docket Number 394 by October 19, 2015.
b. The parties shall meet and confer on jury instructions, including the preparation of jury instructions on ERISA, and file a joint set of instructions, with any disputed language identified in brackets and with color coding, by October 22, 2015.
c. By October 22, 2015, the parties shall meet and confer on the use of electronic evidence by the jury during deliberations.
d. The defendant shall review the documents identified as Government Trial Exhibit Nos. 200-262 and assert any claims of privilege for those documents by October 27, 2015. The government was to provide a load file for those documents by October 10, 2015.
17. Failure to Comply: Failure to comply with the obligations set forth in this order will result in sanctions appropriate to the gravity of the failure, including, but not limited to monetary fines and/or evidentiary sanctions.
18. Further Pretrial Conference: The Court shall hold a further pre-trial conference on October 26, 2015 at 9:30 a.m. to the extent necessary. If there are no outstanding issues, the parties may jointly request that it be vacated.
This Order terminates Docket Numbers 387-390.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
Case No.: 12-CR-00480 YGR
UNITED STATES OF AMERICA,
PROCEDURAL STIPULATIONS
(Attachment to Pretrial Order No. 1)
vs.
BURTON O. BENSON
Defendant.
PLEASE INITIAL AND SIGN as acceptable:
It is stipulated that the Defendant will be deemed present with counsel, and each of the jurors will be deemed present, upon reconvening after each adjournment or recess, unless the contrary is noted for the record.
U.S. Attorney ______________ For the Defendant ____________
It is stipulated that the Jury Instructions and the Exhibits may go into the Jury Room during deliberations.
U.S. Attorney ______________ For the Defendant ____________
It is stipulated that both Counsel and Defendant need not be present when, during jury deliberations, the jurors are excused for lunch, return from lunch, and/or are discharged in the evening and resume in the morning.
U.S. Attorney ______________ For the Defendant ____________
It is stipulated that, during jury deliberations, the jury may recess without further admonition and without assembling in the jury box, and that they may resume their deliberations upon the Courtroom Deputy's determination that all jurors are present.
U.S. Attorney ______________ For the Defendant ____________
In the absence of the trial judge, any judge of this court may receive the verdict.
U.S. Attorney ______________ For the Defendant ____________
(Name) ____________________________ (Name) _________________________
___________________________________ ________________________________
Signature (Attorney for the U.S.) Signature (Defense Attorney)
