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United States v. Lindberg

United States District Court, W.D. North Carolina, Statesville Division

October 25, 2019



          Max O. Cogburn Jr., United States District Judge.

         THIS MATTER is before the Court upon Motion of Defendants John D. Gray, John V. Palermo, Jr., and Robert Cannon Hayes to reset the pretrial motions deadline and all other related deadlines as identified in the Scheduling Order in the above-captioned case and to request a peremptory setting. (#61). Finding good cause for granting the relief requested, the Court GRANTS the motion and enters the following order:

         This Order is intended to eliminate unnecessary continuance or discovery motions and to expedite the presentation of evidence and the examination of witnesses. To the extent it conflicts with any administrative order in this District, this Order shall govern. Defendants were indicted under seal for alleged violations of Conspiracy to Commit Honest Services Wire Fraud (18 U.S.C. § 1349) and Bribery Concerning Programs Receiving Federal Funds (18 U.S.C. § 666). Mr. Hayes was also indicted for alleged False Statements (18 U.S.C. § 1001). The indictment was unsealed on April 2, 2019, and Defendants were arrested and arraigned the same day. All four entered pleas of not guilty. The indictment alleges a complex scheme to bribe the Commissioner of the North Carolina Department of Insurance that exceeded more than one year in length, and it specifically names the then-sitting Chairman of one of the state's two largest political parties. The discovery is voluminous and much of the information is contained in un-transcribed audio and video recordings collected over the better part of a year. This Court has been made aware of the status of discovery and is confident that both sides are proceeding in good faith and as expeditiously as possible given the volume and nature of the materials that have been or will be disclosed.

         By motion dated September 17, 2019, defense counsel has described the extraordinary volume of discovery that has and continues to be disclosed and the additional resources that have been deployed to review the disclosed materials in order to be useful for the formulation of pretrial motions. Defendants have requested that pretrial motions be filed by December 2, 2019, and the United States does not oppose this request.

         Defendants' Motion is ALLOWED, and it is therefore ORDERED that the parties shall conduct a pretrial conference after all pending pretrial motions have been addressed and on a date set by the Court; the pretrial motion filing deadline shall be reset to December 2, 2019; government responses shall be due not later than thirty (30) days after the filing of the Defense motion to which the government responds; defense replies shall be filed not later than fifteen (15) days after the filing of the applicable government responses. Defense counsel need not move for disclosure of evidence which has already been ordered disclosed under the terms of this Order. All parties are reminded of their continuing duty to disclose discovery materials pursuant to Rule 16(c) of the Federal Rules of Criminal Procedure.

         The Court finds that the government's and the public's interest in a speedy trial is outweighed by Defendants' interest in obtaining voluntary discovery and having sufficient time to review that discovery in order to frame appropriate motions and prepare for trial. Therefore, the time period from the date of this Order until the date of trial set below is excluded under 18 U.S.C. § 3161(h)(7).

         IT IS FURTHER ORDERED that in accordance with 18 U.S.C. § 3161(h)(6), this matter is continued as to the remaining co-defendant and the time is excluded as a reasonable period of delay as such defendants are joined with a co-defendant whose case has been continued from the term and as to whom the time for trial has not run and no motion for severance has been granted.

         Failure by any party to raise defenses or objections, or to make requests that must be made prior to trial at the time set forth in this scheduling order or prior to any extension made by the Court, shall constitute a waiver thereof pursuant to Federal Rule of Criminal Procedure 12(f). The parties will receive no further notice of these dates.

         For scheduling purposes, it is therefore ordered:

         1. A pretrial conference will be held on December 9, 2019.

         2. To the extent that they have not already done so, no later than November 15, 2019, the government shall do the following:

(a) Provide defense counsel with all information described in Federal Rule of Criminal Procedure 16(a)(1); and
(b) Permit defense counsel to inspect and copy or photograph any exculpatory/impeachment evidence within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Giglio v. United States, 405 U.S. 150 (1972). A list of such evidence shall be prepared and signed by all counsel. Copies ...

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