Tips for Practicing Before Judge Pepper; Judge Pepper's Standard Voir Dire Questions, Jury Selection Process and Opening Instructions: Criminal; Criminal Hearings Before Judge Pepper During the COVID-19 Pandemic; Notice of Non-Consent and Request for In-Person Hearing; Tips for Successful Pretrial C

=== Tips for Practicing Before Judge Pepper ===

Tips for Parties Practicing Before Judge Pepper as of September 29, 2025 I. Important Contact Information Official office hours: 8:30 a.m. to 5:00 p.m., Monday through Friday Chambers group telephone line: 414-297-3335 E.D. Wisconsin Clerk of Court office telephone number: 414-297-3372 Conference line for appearing at telephonic hearings: Call-in number: 551-285-1373 Meeting ID: 161 4901 8989 Passcode: 190021 E-mail address for uploading proposed orders (in Word format): [email protected] District court web site (including local rules and forms): www.wied.uscourts.gov Seventh Circuit web site: https://www.ca7.uscourts.gov II. Communication We’re here to help, and we want to make your communications with chambers as pleasant and fruitful as possible. Here are some tips: A. Our chambers group telephone line is 414-297-3335. I realize that sometimes, lawyers or parties may have the direct telephone numbers for members of chambers staff. I strongly encourage you not to use those direct line numbers. The person whose direct line you call may be on vacation, may be out sick, may be in training all day. You certainly can leave a voice message for that person, but the only person who can access that voice message is the person to whom that number is assigned, and if that person is out, you may not hear back for days. Call the group telephone line— someone will almost always answer, unless it’s after hours or everyone’s out at the same time (very rare). Calling the group line will put you in touch with a person much faster than calling a direct line. 1 B. C. D. E. F. Court staff cannot give legal advice. Sometimes the line between giving procedural information and giving legal advice can become blurry. My judicial assistant, Cary Biskupic, and my courtroom deputy, Justin Dreikosen, are the people to talk to about scheduling issues. If you need resolution of a legal issue, file a motion. If you file a motion, I will review it and decide whether a hearing is necessary. If I feel a hearing is necessary, chambers staff will schedule a date and time for it. If you need to re-schedule a hearing, please either file a joint motion or call the chambers group line with all parties on the telephone. If all parties are present on the call and agree to the adjournment, we’ll re-schedule the hearing. If the parties aren’t in agreement regarding the adjournment, the party asking for the adjournment will need to file a motion (depending on the time frame, perhaps an expedited motion pursuant to Local Rule 7(h See Section III(A)(4) below. If you want me to do something, the best way to ask is to file a motion. I’ve noticed that many lawyers communicate with the court by writing letters. Sometimes I don’t know what to do with a letter—are you just writing to provide me with some information? Do you want me to take a particular action? If you file a motion, and state the relief you are requesting, then I’ll better know what you need from me, and can respond accordingly. The motion also will trigger the deadlines for responding under our local rules— letters don’t do that. If you’re just providing me with information, file a “notice.” We have procedures for processing and dealing with motions and notices—letters, not so much. So—file motions or notices, not letters. Stipulations are agreements between the parties. Stipulations are great, convenient, efficient tools for resolving motions and cases. But I’m not a party to stipulations. If what you are agreeing to requires me to do something in order to effectuate it, you need to ask me to do what you have agreed that you’d like me to do. For many reasons (some that have to do with the way our docket works), I ask parties to use the following process for stipulations: 1. Draft your stipulation (cleverly captioning it “Stipulation”), indicating exactly what the parties have agreed to, and have each party sign and date it. File it with the court. 2. File a one or two-sentence motion, asking me to approve the 2 G. H. I. stipulation and enter an order doing whatever it is you need me to do. If you have a proposed order, file it as an attachment to the motion. 3. Send it—in Word, not a PDF—to the proposed order email box, [email protected], your proposed order indicating that I approve the stipulation and order the following, then list all the things you have agreed that I should order. Stick a signature block at the end. E-filing is mandatory in the Eastern District, which means that every document that gets filed appears on the electronic docket, and I can access it on-line. As a consequence, I don’t need (and selfishly, don’t want) lawyers to drop paper “courtesy copies” by chambers. So . . . save a tree—don’t provide chambers with paper courtesy copies. The earth, and I, will thank you. Registered e-filers (lawyers) receive an e-mail, a “notice of electronic filing” (which we call NEFs, because the government couldn’t survive without acronyms), each time a document is filed in one of their cases. My chambers doesn’t receive an NEF as something is filed in one of our cases—with some 300-400 civil cases and a full load of criminal cases, and numerous filings coming in on most of them on any given day, our email system would grind to a standstill if we got an NEF for every document filed. Instead, we receive a “docket activity report,” which summarizes all the documents filed the previous day. Depending on when my staff and I review that report each day, we might not see something you’ve filed until 24 hours or more after you filed it. If you need me to know that you filed something almost immediately after you file it, the best way to bring it to my attention is to give a courtesy call to the chambers group line. If you call and let chambers staff know that you’ve filed something, they can let me know, and I can try to look at it on the docket (or act on it) sooner rather than later. In many cases, lawyers draft proposed orders for ruling on motions that they’ve filed. This saves me work, of course, and ensures that you cover what you need covered in the order. On occasion, however, I’m not comfortable signing the order as you drafted it. I can ask the staff to call you and ask you to make the changes and re-submit the order. But if, in addition to filing the proposed order on the docket as an attachment to your motion, you submit a Word (not PDF) document to my proposed order e-mail box ([email protected]), I am able to edit the order myself. So forward a Word document to the proposed order e-mail box. 3 J. K. L. M. The proposed order email box is exactly what it sounds like—a mailbox set up solely to receive proposed orders. We don’t use it as a correspondence address. If you are trying to communicate with a person in chambers (as opposed to providing a proposed order), the proposed order box is not the way to do that. The best way to communicate with chambers is to call the chambers group line. The clerk’s office for the Eastern District does not allow filings by fax, unless you have the judge’s permission. I grant that permission only in rare circumstances. If you file something by fax, you’ll delay processing of whatever you filed, because someone will have to give it to me and ask me if I am willing to give permission for a fax filing. Don’t file by fax. Lawyers are busy people—I empathize, having been one myself. It’s often necessary for you to ask for extensions of time to file things or complete things, or to adjourn hearings. Two suggestions to make the process easier on everyone: (a) state in your motion how much additional time you need; and (b) if you can, ask for the extension before the day of the deadline, or the adjournment before the day of the hearing. Again, because of the way our docket activity report works, filing a motion on the day of a deadline or hearing means we may not see it until the next day, and even if we do see it the day you file it, I may not be able to rule on the motion that day. Sometimes—very rarely—the federal building must close, usually as a result of severe weather. If you have a court hearing on a day that we must close, chambers staff will try to reach you by phone or e-mail to let you know if your hearing won’t take place. We also try to post a message on the court web site when the building is closed, so if the weather is very bad, take a look at the web site. And be aware that even if the building is closed, it is up to each individual judge to decide whether to cancel hearings. Even if the web site says the building is closed, a particular judge might decide not to cancel hearings. In an abundance of caution, call even if the web site says the building is closed. III. Civil Cases A. Scheduling/Discovery Issues 1. The Federal Rules of Civil Procedure require, and our local rules assume, that parties to civil cases will file Rule 26(f) discovery and scheduling plans before I issue a scheduling order. I find these plans helpful—they give me a sense of how 4 much time you think you’ll need for the case, whether you and your opponent disagree on discovery issues, whether there are unusual issues that impact scheduling. My policy is to set a scheduling conference and require the parties to submit a joint Rule 26(f) plan a couple of weeks before the hearing. If, after my review of your Rule 26(f) report, I decide that a Rule 16 scheduling conference is not necessary, my staff will remove the hearing from my calendar. It isn’t true that judges hate discovery disputes. It is true that judges are not overly fond of being asked to resolve disputes that the parties, acting professionally, should have been able to resolve themselves. Judges also are uncomfortable with discovery disputes that involve intemperate exchanges or ad hominem attacks, or that lack good faith efforts to resolve the issues. Some discovery disputes involve legal issues that need fleshing out and require briefing. Don’t hesitate to file motions in those instances, after you’ve tried in good faith to work the issues out with your opposing counsel. Be aware that the expedited motions process in Civil Local Rule 7(h) may be appropriate in some circumstances where a little briefing, but only a little, is needed. Also be aware, however, that just because you designate a motion an expedited, non-dispositive, Rule 7(h) motion, it doesn’t mean that I’ll necessarily drop everything to rule on it. If western civilization will crumble if you don’t get a decision in a week, perhaps a gentle call to chambers, explaining why it is truly urgent, would help your cause. 2. 3. 4. B. Docket “Encouragement” Parties who have resolved their cases frequently file a notice informing me of that fact and telling me that the settlement documents (whatever they may be) will be filed “shortly,” or “within 45 days,” etc. When I receive such notices, I will close the case administratively, with an order that says that once you have filed your settlement papers, we’ll convert the administrative closure to the resolution upon which you’ve agreed. It is the parties’ obligation to file the settlement papers and ask the court to convert the administrative closure. 5 C. Motions for Default Judgment 1. 2. Before even considering ruling on a motion for default judgment, I check the docket to determine whether the plaintiff properly served the defendant(s) with the complaint. If I can’t confirm proper service from the record, I will schedule a hearing to ask the plaintiff’s counsel for proof of proper service. The fact that a defendant does not timely answer or otherwise respond to a properly-served complaint does not mean that the plaintiff wins, no questions asked. The plaintiff must support any request for damages/judgment. Attaching your proof to your motion for default judgment, providing your calculations for how you came up with your damages amount, and providing itemizations of fees and costs will help you avoid an invitation to attend a “prove-up” hearing. D. Injunctive Relief There are requests for injunctive relief and there are requests for injunctive relief. We do not assume that every motion for injunctive relief requires us to run around with our hair on fire, trying to fit in a hearing as soon as humanly possible. If you need a hearing immediately because something terrible is about to happen in the immediate future—a person will be homeless in the next week, or a person is in physical danger, or a person’s probation period at his/her job expires in four days, etc.—contact chambers by telephone, with the other party on the line, and explain why you need a hearing and when. If the opposing party has been using your trademark for the last five years, you likely do not need a hearing in the next twenty-four hours. We will not schedule an “emergency” hearing unless you call chambers and ask us to do so and unless we know that the other side has notice and is able to appear. IV. Criminal Cases A. Scheduling When a criminal case has been referred to me from a magistrate judge and dates are in place for the final pretrial conference and the trial, I will issue a criminal pretrial order. See Section VI(A) below. 6 B. Hearings 1. 2. Federal Rule of Criminal Procedure 43 discusses when a defendant’s presence is or is not required at a hearing. If the defendant does not have to be present at the hearing, or has waived his or her presence, I encourage counsel to think about whether a telephone hearing might suffice, and if so, to request one. It is the responsibility of the defense attorney to inform the defendant that he or she will not be present at the hearing, and, after the hearing, to relay to the defendant what took place. I will always hold an in-person hearing when the defendant’s presence is required. I will not schedule a change-of-plea hearing until the signed and executed plea agreement has been filed on the docket. The main reason for this policy is because if a defendant is in custody, the Marshals Service must arrange to have him or her brought to the federal building for the change-of-plea hearing. If we schedule a hearing based on the parties’ representation that they are going to file a plea agreement, but for some reason the plea is not executed and docketed prior to that hearing, the Marshal will have brought the defendant to the courthouse unnecessarily, wasting the Marshals Service’s time and resources. If the defendant is not in custody, he or she will have made an unnecessary trip to the federal building for a hearing that doesn’t happen. V. General Courtroom Decorum/Procedures A. B. Please place your phones or other devices in silent mode while in the courtroom. I use an electronic court reporting system, not a human court reporter. If you have a hearing which you believe requires a court reporter, let me know as soon as possible (either at an already- scheduled hearing, or by requesting the reporter through a motion), and we’ll arrange to get a reporter for the hearing. If you need a recording of a particular hearing, you can contact the clerk’s office (414-297-3372), provide the case number and date of the hearing and obtain a thumb drive containing the recording. In most cases, we are make the recordings of hearings available on the docket. C. The courtroom I am lucky enough to use—Room 222—is an “electronic courtroom,” in the sense that it is equipped with a 7 document camera and video screens in the jury box and on counsel tables, etc. If you plan to use demonstrative exhibits or present evidence electronically at a hearing or trial, please contact my courtroom deputy, Justin Dreikosen, to schedule a time for you to come in and test the equipment in the courtroom to see if it meets your needs, or to practice using it so that your hearing or trial goes smoothly. We need a little heads- up; the day before the hearing or trial isn’t enough. Our courtroom tech guru is Eric Riedijk (414- 297-1210); he can answer questions about what equipment is available. D. I am aware that it costs parties time and money to travel to and appear in a courtroom. I frequently conduct hearings by telephone for that reason. Generally any party may appear in person for a hearing, even if the hearing notice indicates that the hearing is scheduled to take place by phone. Unless the court specifies otherwise, parties are always welcome in the courtroom. E. When appearing by telephone, you may wish to consider a few technical details. First, I can’t see people’s faces on the phone. That can sometimes lead to misunderstandings—both by parties, and on my part. Second, if you need to conduct the call via speaker phone because you have clients/associates/professionals in your office, be aware that our phone system has difficulties with speaker phones. There are times when I can’t hear the party who is using the speaker phone and must ask that he or she pick up the handset. If you are appearing by cell phone, background noise or a bad connection can make it difficult for me and the other parties to the call to understand you. F. We have a conference telephone line for handling phone hearings. The hearing notice will contain the call-in number and the passcode; the call-in number and passcode always remain the same from hearing to hearing, case to case. It’s the responsibility of the parties to call in at the appointed date and time. While we will try to contact a missing party if time and the calendar permit, we can’t always do that. The call-in number is 551-285-1373, the Meeting ID is 161 4901 8989 and the Passcode is 190021. G. I don’t take evidence by telephone. I can’t see the witnesses, and one can’t show a witness an exhibit via phone. If your hearing is going to involve testimony, know that it will be scheduled as an in- person hearing. H. I don’t keep exhibit stickers in the courtroom. I ask that parties confer with each other about how they wish to number exhibits 8 (plaintiff 1-100, defendant 101-200, or plaintiff alphabetically and defendant numerically, etc.), and then pre-mark their exhibits before coming into the courtroom. You might also stick a packet of blank exhibit stickers in your briefcase, given that we don’t keep them in the courtroom. If both parties intend to use the same exhibit, they needn’t assign that exhibit two different numbers— they should agree to use the plaintiff’s number or the defendant’s number, or a discreet number or letter. Please work with opposing counsel to determine how documentary exhibits will be exchanged between the parties. Provide a thumb drive—not a CD-rom—of all exhibits to the court. It’s easy to get caught up in the moment and start arguing with your opposing counsel during a hearing. Try not to give in to the temptation. When parties direct their remarks to a judge, rather than to each other, it usually is less likely that the remarks will devolve into incivility. I. U. VI. Trial Procedures A. B. C. In most cases, I issue a pretrial order, requiring parties to file pretrial reports, proposed exhibit lists, proposed witness lists, proposed voir dire questions, proposed jury instructions, forms of verdict, and motions in limine. If you haven’t received such an order within a couple of weeks of the final pretrial conference, feel free to call chambers and enquire. In no circumstances should parties file these documents later than seven days prior to the final pretrial conference date. By the date of the final pretrial conference, please provide Word (not PDF) versions of proposed voir dire questions, proposed jury instructions (the full text of all proposed instructions, including pattern instructions), and forms of verdict to the proposed order e- mail box ([email protected]) address. This allows me and my staff to compile final versions of those documents after I rule on any disputes. In civil trials, I use anywhere from eight to twelve jurors, depending on the parties’ request, the expected length of the trial and the time of year (we may select more jurors in winter, when inclement weather could cause problems for jurors in getting to court). D. I ask the voir dire questions, rather than having counsel ask them. After I complete the list of questions upon which we’ve all agreed, I 9 will provide counsel with the opportunity, at side bar, to tell me if there are any follow-up questions they think need asking. E. For criminal trials, I have posted standard voir dire questions, the jury selection process and opening instructions on our court web site. https://www.wied.uscourts.go/judge/pamela-pepper. Parties to a criminal trial need only provide me with questions that are not listed among the standard questions I’ve posted, or notify me of any standard questions to which they object. For civil trials: among the standard voir dire questions I will always ask are potential jurors’ ages, occupations, city/town/village of residence, and marital status; whether anyone ever has served on a jury (and if so, whether it was civil or criminal; whether the potential juror was the foreperson; and whether the jury reached a verdict); whether anyone knows the lawyers or witnesses in the case; whether anyone has any health issues that would prevent them from serving on the jury; and whether there is any other reason anyone could not serve on the jury. You don’t need to include these in your proposed voir dire questions. F. G. Once an exhibit has been admitted by the court, you may not make changes to that exhibit without court approval. Lawyers may not go into the jury box during breaks (or at any other time during a jury trial). At the conclusion of trial, the parties will be responsible for providing admitted exhibits to the jury. The court and the parties will confer and agree on the format of the exhibits, e.g. paper, thumb drive, etc. I allow jurors to take notes, if all parties agree. I require jurors to leave their notebooks in the courtroom when they leave for breaks, for lunch and for the evening. I allow them to take the notes into the jury room during deliberations, and the notes are destroyed (without being read) after the trial. H. When you make an objection during trial, please state, in a word or two, the basis for the objection—“Objection, hearsay,” or “objection, no foundation,” or “objection, cumulative.” If I need to hear argument on the objection, I will invite counsel to side bar. If you don’t agree with a ruling on an objection, please ask to be heard, rather than making your argument in front of the jury. I. The Seventh Circuit Court of Appeals has issued standard pattern civil and criminal jury instructions. I expect that parties will use standard pattern instructions whenever they are appropriate, and 10 J. K. L. will submit special instructions only for issues/situations for which no pattern instruction exists. You can access the pattern instructions at the Seventh Circuit’s web site: https://www.ca7. uscourts.gov. I conduct jury instruction conferences before closing arguments. I send copies of the final jury instructions to the deliberation room with the jurors. I strongly discourage parties and lawyers from posting on any form of social media anything about a trial while it is in progress. While I instruct jurors that they cannot independently investigate a case on social media (or any other form of media), the pervasive presence of social media in our lives means that parties, lawyers and witnesses bear responsibility for avoiding juror taint on social media, just as they do in the courthouse. Please do not post on social media during trial, and instruct your clients and witnesses not to do so. I assume that anyone practicing in the Eastern District will have familiarized themselves with our local rules. That assumption has been proven wrong on several occasions, particularly regarding one rule—General Local Rule 47(c). That rule states that parties, lawyers and their agents or employees “may not approach, interview, or communicate with a venire member or juror, before, during or after trial, except on leave of Court granted upon notice to opposing counsel and upon good cause shown.” I understand that Wisconsin state courts, or other federal courts, may not have this rule. We do, and we enforce it. Lawyers and parties may not talk to members of the venire or petit jurors without the court’s permission—period. This includes alternate jurors who do not get to deliberate 11

=== Judge Pepper's Standard Voir Dire Questions, Jury Selection Process and Opening Instructions: Criminal ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA, Plaintiff, v. [DEFENDANT(S)], Defendant(s). Case No. XX-cr-XXX-pp CRIMINAL TRIAL MATERIALS RELATING TO JURY VOIR DIRE, JURY SELECTION, AND PRELIMINARY INSTRUCTIONS ______________________________________________________________________________ Draft as of [DATE DRAFT COMPLETED] Honorable Pamela Pepper [DATE OF TRIAL] 1 I. PRELIMINARY MATTERS: A. Introduction Welcome to the federal courthouse, and to Room 222. My name is Pam Pepper, and I’m a district court judge. Today, we begin a criminal trial in [NAME OF CASE], Case No. [XX-cr-XXXX]. To my right is Kris Wrobel, my courtroom deputy, who’ll be helping me during the trial. [To my left is __________, our court reporter.] You’ve also met our courtroom security officer, Ed Graham. We hope to complete jury selection this morning. If, during the process, you need to use the restroom, or need water, Mr. Graham will be happy to help you with any issues you may have. B. Jury Selection Process We begin the trial by selecting a jury. For this trial, we’ll be selecting [12 jurors plus number of alternates requested] jurors. There are several steps to the jury selection process. In the first part of the jury selection process (called the voir dire), I will ask you questions. Your answers to these questions will allow the parties to get to know you, and to determine whether any of you have had experiences or feelings that might interfere with your ability to be fair and impartial in this case. This is a criminal case. Each party in a criminal case has a right to a fair, impartial and unbiased jury. The jury selection process is designed to preserve and ensure that right. Each of us, because of our experiences, 2 background, education and relationships with others, has developed certain attitudes, opinions, philosophies, biases, sympathies and prejudices. No two of us think alike. What we do, where we work, where we live, all tell something about who we are. I’m going to ask you questions about those things. The reason that we ask those questions is so that the parties and their attorneys may decide whether they believe there is anything about you or your background or experience that might influence you in the case. In this country, we all have the right to believe whatever we like and to make decisions as we see fit. Outside of this courthouse, you can make decisions and judge people on any basis you choose—opinions about wealth, occupation, political party, religious affiliation, hair color, race, size, sex, national origin—whatever you think is important. As a human being, I have deeply-held opinions, and I suspect you have them, too. But I have taken an oath that says that as a judge, I will, to the very best of my ability, put my private views aside and decide cases on the facts and the law, and not on my personal views or biases. If you are selected as a juror in this case, you must take an oath to do the same. The question that the parties and I must answer in jury selection is whether any of you have particular biases, such that you should not sit on the jury in this particular case. Through your answers to my questions, the lawyers and I get to know you a little bit, so that we can determine whether we believe you can be fair and impartial in this case. And you need to know a little 3 about the case, so that you can make your own judgment about whether you should sit as a juror in it. As I tell you what I believe the case is about, I ask that you think about whether you feel there is any reason that you should not serve on this jury. Many, if not all of us, have biases that we do not even recognize— “implicit biases.” We are influenced by information without even realizing it. It is hard to recognize these biases, and to set them aside. But it helps to be aware that, while I do not believe that I am biased against a person of a particular gender or race, I may unknowingly be influenced by those factors. Being aware helps us guard against making decisions based on implicit bias. I ask you to be aware, throughout this trial, that you may be influenced by implicit, or unconscious biases, and try to set those biases aside. The second part of the jury selection process is the challenges for cause. That means that either of the lawyers can ask me to excuse a potential juror from service because the lawyer believes juror cannot or will not be fair and impartial in deciding the facts and applying the law in this case. A lawyer who wants to challenge a juror for cause will provide me with the reasons that he or she believes that particular juror can’t be fair and impartial. I, myself, may suggest excusing a juror, if I believe the juror’s answers show that he or she cannot be fair and impartial to both parties. The third part of the process involves what are called peremptory challenges. Each side gets a certain number of peremptory challenges. When a party makes a “peremptory” challenge to a juror, that means the lawyer does 4 not have to state a reason for the challenge. The law allows parties to use peremptory challenges to excuse jurors, not only to ensure that there will in fact be a fair jury, but also to insure that each side believes that the jury is a fair jury. The lawyers will make their challenges, and discuss them with me, outside your hearing. Please don’t feel insulted, or upset, if you are excused from service. As I indicated, each of us has certain attitudes, opinions, biases, etc. Each of us would find it hard to be fair in a particular kind of case. Even if I excuse you in this case, you may be perfectly qualified to sit on another case. On the other hand, even if you end up on the jury in this case, you may be excused from service in some future case. Again, the name of this case is [NAME OF CASE]. As I said before, this is a criminal case. The party who brought the lawsuit—the plaintiff—is the United States. There [is/are] [NUMBER OF DEFENDANTS] defendant(s): [NAME(S) OF DEFENDANT(S)]. The case arose out of an indictment. An indictment is a formal document used by the government to start a criminal case, and to bring that case to court. The indictment also advises and informs [the/each] defendant of the nature of the crime the government alleges that [s/he] committed. An indictment is not evidence against a defendant, and the fact that an indictment exists does not give rise to an inference of a defendant’s guilt. This indictment contains [number of counts] allegation(s), or count(s). Count One alleges that [on/about/between DATE or DATES], in the State and 5 Eastern District of Wisconsin [“and elsewhere,” if applicable], [NAME OF DEFENDANT(S)] [DESCRIPTION OF OFFENSE]. REPEAT FOR EVERY COUNT, IF THERE IS MORE THAN ONE. [The/each] defendant has pled not guilty to the charge(s) against [him/her]. Because [he/she/they] [has/have] pled not guilty, the jury selected to try this case must find the relevant facts, and determine [“as to each of the defendants,” if there is more than one] whether the evidence proves [the/that] defendant is guilty of the charge against [him/her/them]. In a criminal case, the government has the burden to prove that the defendant(s) [is/are] guilty, and the government must prove [the/each] defendant’s guilt beyond a reasonable doubt. I’m going to start by asking Ms. Wrobel, to administer an oath to you, in which you promise to answer the questions I ask you truthfully. Your obligation to answer truthfully is a powerful one. At this point, the lawyers know little about you, and your answers to my questions help us determine whether you are qualified to serve as a fair juror in this case. It is critical that you answer candidly and completely, because your answers bear on the parties’ right to a fair trial. If you would prefer to answer any question outside the hearing of your fellow jury panel members, please let me know, and you can give your answer to the lawyers and me privately at sidebar. [Ms. Wrobel administers the oath.] II. VOIR DIRE 6 A. The parties and I understand that jury service disrupts your usual routine, and is inconvenient to many of you. But it is a service that our government asks of us as citizens, and it is critical to a fair and just legal system. There are people who feel they are too busy, or are sick, or have moral or religious objections to serving, regardless of what the case is about, or who the parties are. Those are not necessarily reasons for me or the parties to excuse a juror, but it is important that the parties know if you are not willing to serve. Is there anyone here who believes that he or she should not be on the jury no matter what the case is about, or who the parties or witnesses are? B. Before I start asking you questions about your qualifications to serve as jurors, I’ll ask each of you to stand and provide a little background information about yourself. You see that on the screens in the courtroom we have several questions—you can refer to the questions on the screen for a reminder of the information I will ask each of you to provide. That information includes: 1. 2. 3. Your juror number—not your name; Your age; The community or neighborhood where you live (not your street address), and if you’ve lived there less than ten years, any other places you’ve lived during that time; 4. Your marital status; 7 5. Your occupation, as well as that of your spouse or significant other, if you have one. If you’re retired, share with us what you did before you retired; and 6. Your educational background—how far you went in school. C. [NAMES OF PROSECUTORS], could you please introduce yourselves [and any representative seated with you at counsel table] and tell the jury where you work? Does anyone know [NAMES OF PROSECUTORS] [NAME(S) OF REPRESENTATIVE(S)]? Do any of you know anyone employed at the United States Attorney’s Office? Do any of you know anyone employed at [REPRESENTATIVE AGENCY/AGENCIES]? D. [NAMES OF DEFENSE ATTORNEY(S), could you please introduce [yourself/yourselves] [and any paralegal/investigator/whatever seated with you at counsel table], tell us where you work, and introduce your client? Does anyone know [NAME(S) OF DEFENSE ATTORNEY(S)? Does anyone know [NAME(S) OF DEFENDANT(S)]? E. Do any of you know any of the other members of the jury panel here in the courtroom today? F. [NAMES OF PROSECUTORS], could you tell the jurors the names of the witnesses you may possibly call in the case and their employers? Does anyone know any of these individuals? G. [NAME(S) OF DEFENSE ATTORNEY(S), could you tell us the names of witnesses you may possibly call in this case? [IF THE DEFENDANT 8 DOES NOT PLAN TO CALL WITNESSES, I’LL REMOVE THIS QUESTION.] Does anyone know any of these individuals? H. The attorneys estimate that this trial will last [ESTIMATED NUMBER OF TRIAL DAYS FROM PRETRIAL REPORT] days—that is, until [ACTUAL DATE ON WHICH TRIAL IS ESTIMATED TO END]. Are there any of you who have travel, doctor’s appointments, or other commitments that you cannot change, that would prevent you from attending and committing to paying attention in the two weeks between now and [ACTUAL DATE TRIAL IS ESTIMATED TO END]? I. Our trial days start at 9:00 a.m., and, unless something unusual happens, end between 5:00 and 5:30 p.m. During each trial day, we take a morning break, a lunch recess and an afternoon break. We also may take breaks when the lawyers and I need to discuss legal issues. Is there anyone who has any health problems—including hearing problems, vision problems, disabilities or medication issues—that would make it difficult for you to follow that schedule, or to hear or see testimony and other evidence? J. Have any of you read, or heard, anything about this case, or any of the defendants, before you came here today? K. Have any of you ever served on a grand jury, either in federal or state court? If so, when and for how long? Was there anything about that experience that would make it difficult for you to serve as a juror at a trial? 9 L. Has anyone ever served on a jury before—either in state or federal court? 1. Was it a criminal case or a civil case? 2. Were you the foreperson? 3. 4. Did the jury reach a verdict? Is there anything about that experience that would make it difficult for you to be fair and impartial in this case? M. Do any of you have any legal training or experience? Do any of you have any specialized knowledge of the law? N. Has any of you ever been a party to a lawsuit—in other words, have you ever sued anyone, or had someone sue you? If so, please tell us what kind of lawsuit it was, and how long ago it took place. Was there anything about that experience that would make it difficult for you to be fair in this case? O. Have any of you ever been a witness, or an expert witness, in any kind of proceeding where you testified under oath (including a deposition)? If so, please tell us about that experience. P. Is there anyone who, because of particular feelings about our judicial system—including judges and lawyers—would not be able to serve as a fair and impartial juror in the case? Q. Is there anyone who has strong feelings about the federal government—including government agencies like the [INVESTIGATING AGENCY/AGENCIES]—that might affect your ability to listen fairly and 10 impartially to the evidence in this case, and to render a verdict in accordance with that evidence and with the law that I provide you? R. Do you have any relatives or close friends who are lawyers? What is your relationship with that person, and what kind of law do they practice? Do they talk to you about their work? Is there anything about your relationship with that person which would make it difficult for you to be fair and impartial in this case? S. Do you have any relatives or close friends who work in law firms or legal offices—perhaps as paralegals, administrative assistants, investigators? Who are they, and what kind of work do they do? Do they talk to you about their work? Is there anything about your relationship with that person, or anything they’ve told you, that would make it difficult for you to be fair and impartial in this case? T. Have you, or any close family member or friend, ever been employed in the court system, either municipal, state or federal? If so, please describe the job. U. Have any of you ever been employed by, or volunteered for, a law enforcement agency—local, state or federal? If so, please share the name of the agency, when you worked there, and what you did. V. Do you have any close family members or friends who are employed by a law enforcement agency? If so, please share the name of the agency and what they do. 11 W. Specifically, do you have any close family members or friends who are employed by the [INVESTIGATING AGENCY/AGENCIES], or by a state law enforcement agency that investigates drug offenses? If so, please tell us your relationship with them, and what job they hold with that agency. X. Have any of you, a close family member or a close friend ever had any experience with federal, state or local government that might affect your ability to be fair and impartial in this case? Y. Is there anyone who has strong feelings about the police or law enforcement—positive or negative—that might affect your ability to serve as a fair and impartial juror in a case involving investigation or testimony by law enforcement officers? Z. Is there anyone who would find it difficult to assess the testimony or credibility of a law enforcement officer the same way you would assess the testimony or credibility of any other witness? AA. Have any of you, or any of your close family members or friends, ever been employed in corrections (i.e., as a prison guard or a probation officer or in some other capacity)? If so, please tell us who, and describe the job. BB. Have any of you ever served in the military? If so, in what branch, in what capacity and during what period? CC. Have you, a close family member or a close friend ever been arrested? [Follow-ups: How long ago? What law enforcement agency? Anything about that experience that would make it difficult for you to be fair in this case?] 12 DD. Have you, or any close family members or friends been convicted of a crime? [Follow-ups: State or federal court? Anything about that experience that would make it difficult for you to be fair in this criminal case?] EE. Have you, or any close family members or friends, ever been the victim of a crime? [Follow-ups: Who was the victim? Anything about that experience that would make it difficult for you to be fair in this case?] FF. Have any of you, or any close family members or friends, been a witness to a crime? [Follow ups, if necessary.] GG. Have any of you, or any close family members or friends, ever had a direct interest in the outcome of a criminal case? [Follow-ups, if necessary.] HH. [QUESTIONS PARTICULAR TO THE CASE] II. Do any of you have any moral or philosophical objections to sitting in judgment of another person or entity? TT. I realize you don’t know much about the case, but is there anything that you have heard up to this point that would make it difficult for you to be fair and impartial to both the government and [the defendant/each of the defendants]? UU. At both the beginning and the end of the trial, I am going to give you instructions on the law that governs this case. Is there anyone who is unable to follow that law, and those instructions, even if you do not agree with them? 13 VV. Is there anyone who, if you were selected to serve as a juror, would not be able to render a verdict based on the evidence (which consists of the testimony of the witnesses and the exhibits that I admit at trial) and on the law that I will provide you? WW. Is there anyone who would like to tell me or the parties anything outside the hearing of the other jurors that might impact your ability to be a fair and impartial juror to both the government and [the defendant/each of the defendants] in this case? XX. Is there anything about this case that reminds you of something in your own life? Is there anything about that similarity that would make it hard for you to be fair to both the government and [the defendant/each of the defendants] in this case? YY. Do any of you have any reason at all—perhaps something I haven’t asked you about—why you could not sit as a fair and impartial juror in this case? ZZ. Here’s my final question: If you were the government or [the defendant/one of the defendants] in this case, is there any reason that you would not want someone with your views or frame of mind sitting on your jury? III. POST-VOIR DIRE PROCEDURE A. The court consults with the lawyers and excludes from consideration any jurors challenged for cause. 14 B. The government has six peremptory challenges and the defendants have ten peremptory challenges (the court deems multiple defendants a single party for purposes of challenges). Fed. R. Crim. P. 24(b)(2). [IN A MULTI- DEFENDANT CASE, NOTE WHETHER ANY DEFENDANT HAS ASKED FOR ADDITIONAL PEREMPTORY CHALLENGES.] Twelve jurors will serve. From the first or last twenty-eight remaining members of the venire, the parties will make their peremptory strikes by alternating—the government will start with one strike, and the defendant(s) will make two, for the first four rounds. In the last two rounds, each side will make one strike. This should result in twelve remaining jurors. C. Once the lawyers have exercised their peremptory strikes and selected twelve jurors, the government and the defense [INSERT “(collectively)” IN MULTI-DEFENDANT CASES] each will exercise one additional strike out of the next four members of the venire. The two remaining members will be the alternates. D. The court gets the final list. If, for any reason, either side has not exercised all its strikes, the court will eliminate the appropriate number of names from the bottom of the list. E. The court hands the list back to Ms. Wrobel, who reads the numbers of the jurors and the alternates (not distinguishing between them). The court then instructs the venire as follows: 1. If Ms. Wrobel called your number and you are in the jury box, please remain seated. 15 2. 3. If Ms. Wrobel called your number and you are in the back of the room, please move into the jury box. If Ms. Wrobel did not call your number at all, please move to the back of the room and stay there until I excuse you. F. The jurors get settled. Ms. Wrobel calls the roll of the jurors’ numbers and asks each to respond with “here” and to raise his or his hand. G. Ms. Wrobel administers the oath to the jury. The balance of the venire are excused or instructed to report elsewhere. H. The court thanks the jury panel for their time and cooperation. IV. PRELIMINARY INSTRUCTIONS: A. 10.01 FUNCTIONS OF COURT AND JURY Members of the jury: You are now the jury in this case. I would like to take a few minutes to describe your duties as jurors and to give you instructions concerning the case. As the judge in this case, one of my duties is to decide all questions of law and procedure. In these preliminary instructions, during the trial, and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision. The instructions that I give you at the end of the trial will be more detailed than the instructions I am giving you now, and when the trial is over, I will give you a copy of the more detailed, end-of-trial instructions. You have two duties as jurors. Your first duty is to decide the facts from the evidence that you see and hear in court. Your second duty is to take the law as I give it to you, apply it to the facts, and decide—as to each defendant— 16 whether the government has proved that defendant guilty beyond a reasonable doubt. You must perform these duties fairly and impartially. Do not let sympathy, prejudice, fear, or public opinion influence you. In addition, to not let any person’s race, color, religion, national ancestry, or gender influence you. You should not take anything I say or do during the trial as indicating what I think of the evidence or what I think your verdict should be. B. 10.02 THE CHARGE The charge(s) against the defendant(s) [is/are] in a document called an indictment. You will have a copy of the indictment during your deliberations. Count One alleges that [on/about/between DATE or DATES], in the State and Eastern District of Wisconsin [“and elsewhere,” if applicable], [NAME OF DEFENDANT(S)] [DESCRIPTION OF OFFENSE]. REPEAT FOR EVERY COUNT, IF THERE IS MORE THAN ONE. [The defendant/All (NUMBER DEFENDANTS) defendants] [has/have] pleaded not guilty to the charges. The indictment is simply the formal way of telling the defendant(s) what crime(s) [he/she/they] (is/are] accused of committing. It is not evidence that the defendant(s) (is/are] guilty. It does not even raise a suspicion of guilt. C. 10.03 PRESUMPTION OF INNOCENCE/BURDEN OF PROOF [The/Each] defendant is presumed innocent of (the/each and every one of the] charge(s). This presumption continues throughout the case. It is 17 not overcome unless, from all the evidence in the case, you are convinced that the [add “particular” in multi-defendant cases] defendant [add “you are considering” in multi-defendant cases] is guilty as charged. The government has the burden of proving (the/each] defendant’s guilt beyond a reasonable doubt. This burden of proof stays with the government throughout the case. A defendant is never required to prove (his/her] innocence. (She/He] is not required to produce any evidence at all. D. 10.04 THE EVIDENCE (Modified) You may consider only the evidence that you see and hear in court. You may not consider anything that you may see or hear outside of court, including anything from the newspaper, television, radio, the Internet or any other source. The evidence includes only what the witnesses say when they are testifying under oath, the exhibits that I allow into evidence, and any facts to which the parties agree, or “stipulate.” A stipulation is an agreement that certain facts are true or that a witness would have given certain testimony. Nothing else is evidence. Any statements and arguments that the lawyers make are not evidence. If what a lawyer says is different from the evidence as you hear or see it, the evidence is what counts. The lawyers’ questions and objections likewise are not evidence. 18 A lawyer has a duty to object if he thinks a question or evidence is improper. When a lawyer makes an objection, I will be required to rule on the objection. If I sustain an objection to a question a lawyer asks (which means I won’t allow the witness to answer), you must not speculate on what the answer might have been or draw an inference from an unanswered question. If I strike testimony or an exhibit from the record, or tell you to disregard something, you must not consider it. I don’t allow the lawyers to argue about objections to evidence in your presence. I’ll base my ruling on objections solely on the law, which is why you, as jurors, are not involved in that process. You must not infer from any ruling that I make or from anything that I say during the trial that I hold any views for or against either party. Pay close attention to the evidence as it is being presented. During your deliberations, you will have exhibits that I allow into evidence, but you will not have a transcript of the testimony. You will have to make your decision based on what you recall of the evidence, aided by any notes you take. I will discuss notes in a moment. [ADD IF THERE WILL BE INTERPRETERS] E. 10.05 TESTIMONY PRESENTED THROUGH INTERPRETER [LANGUAGE] may be used during the trial. When that happens, you should consider only the evidence provided through the official interpreter. Although some of you may speak or understand [LANGUAGE], 19 it is important for all jurors to consider the same evidence. For this reason, you must base your decision on the evidence presented in the English translation. F. 10.06 DIRECT AND CIRCUMSTANTIAL EVIDENCE You may have heard the terms “direct evidence” and “circumstantial evidence.” Direct evidence is evidence that directly proves a fact. Circumstantial evidence is evidence that indirectly proves a fact. You are to consider both direct and circumstantial evidence. The law does not say that one is better than the other. It is up to you to decide how much weight to give to any evidence, whether direct or circumstantial. G. 10.07 CONSIDERING THE EVIDENCE Give the evidence whatever weight you believe it deserves. Use your common sense in weighing the evidence, and consider the evidence in light of your own everyday experience. People sometimes look at one fact and conclude from it that another fact exists. This is called an inference. You are allowed to make reasonable inferences, so long as they are based on the evidence. H. 10.08 CREDIBILITY OF WITNESSES (Modified) Part of your job as jurors will be to decide how believable each witness is, and how much weight to give each witness’s testimony. 20 You may accept all of what a witness says, or part of it, or none of it. I caution you, however, not to prejudge the credibility of any witness until you have heard all the evidence, including the testimony of all the witnesses. In judging the credibility of a witness, you should consider factors such as the intelligence of the witness; the witness’s ability and opportunity to see, hear, or know the things the witness testified about; the witness’s memory; the witness’s demeanor; whether the witness had any bias, prejudice, or other reason to lie or slant the testimony; the truthfulness and accuracy of the witness’s testimony in light of the other evidence presented; and inconsistent or consistent statements or conduct by the witness. I. 10.09 NUMBER OF WITNESSES Do not make any decisions by simply counting the number of witnesses who testified about a certain point. What is important is how believable the witnesses were and how much weight you think their testimony deserves. J. 2.01 DEFENDANT’S RIGHT NOT TO TESTIFY A defendant has an absolute right not to testify or present evidence. You may not consider in any way the fact that a defendant may choose not to testify or to present evidence. You should not even discuss it in your deliberations. K. 10.10 JUROR NOTE-TAKING (Modified) I will permit you to take notes during the trial, if you would like to do so. If you take notes, you may use them during deliberations to help you remember what happened during the trial. But please keep your notes to 21 yourself until the end of the trial, when you and your fellow jurors go to the jury room to decide the case. You should use your notes only as aids to your memory. The notes are not evidence. Whether or not you choose to take notes, each of you should rely on your independent recollection of the evidence, and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any more weight than the memory or impressions of each juror. Also, if you choose to take notes, do not let note-taking distract you so that you do not hear other answers by witnesses. Mr. Graham will pass out pens and notebooks after the opening statements. When you leave the courtroom during breaks, you will leave your notebooks on your chairs; Mr. Graham will make sure they are there for you when we resume. He will collect the notebooks a final time before closing statements and have them available for you in the jury room when you begin your deliberations. L. 10.11 JUROR CONDUCT (Modified) There are several rules of conduct that you, as jurors, must follow. First, you should keep an open mind throughout the trial. Do not make up your mind about what your verdict should be until after the trial is over, you have received my final instructions on the law, and you and your fellow jurors have discussed the evidence. Your verdict in this case must be based exclusively on the law as I give it to you and the evidence that is presented during the trial. For this reason, and to ensure fairness to both sides in this case, you must obey the following rules. 22 These rules apply both when you are here in court and when you are not in court. They apply until after you have returned your verdict in the case. You must not discuss the case, including anyone who is involved in the case, among yourselves until you go to the jury room to deliberate after the trial is completed. You must not communicate with anyone about this case, including anyone who is involved in the case, until after you have returned your verdict. When you are not in the courtroom, you must not allow anyone to communicate with you about the case or give you any information about the case, or about anyone who is involved in the case. If someone tries to communicate with you about the case or someone who is involved in the case, or if you overhear or learn any information about the case or someone involved in the case when you are not in the courtroom, you must report this to me, through Mr. Graham, as soon as possible. You may tell your family and your employer that you are serving on a jury, so that you can explain that you have to be in court. However, you must not communicate with them about the case or anyone who is involved in the case until after you have reached your verdict. You may not speak, whether inside or outside of the courtroom, with any of the parties, their lawyers or any witnesses. I don’t just mean that you cannot talk to them about the case; you may not speak to them at all, even to pass the time of day. They can’t talk to you, either—if they see you in a hallway or on the sidewalk, they will not greet you or acknowledge you. They are not being 23 rude. They are following my instructions, just like you must follow them, to ensure the absolute impartiality they are entitled to expect from you as jurors. All the information that you will need to decide the case will be presented here in court. You may not look up, obtain, or consider information from any outside source. There are two reasons for these rules. First, it would not be fair to the parties in the case for you to consider outside information or communicate information about the case to others. Second, outside information may be incorrect or misleading. When I say that you may not obtain or consider any information from outside sources, and may not communicate with anyone about the case, I am referring to any and all means by which people communicate or obtain information. This includes, for example, face-to-face conversations; looking things up; doing research; reading, watching or listening to reports in the news media; and any communication using any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Android, Blackberry or similar device, PDA, computer, tablet, the Internet, text messaging, instant messaging apps such as WhatsApp or 3-QQ or WeChat, chat rooms, blogs (including platforms like Tumblr), social networking websites like Facebook, YouTube, Twitter, Google Currents or Google+ for G Suite, LinkedIn, Snapchat, Instagram, Reddit or any other form of communication at all. If you hear, see, or receive any information about the case by these or any other means, you must report that to me, through Mr. Graham, immediately. 24 M. OTHER MATTERS I explained during jury selection our usual trial schedule. In order to make the best use of everyone’s time, it is important for you all to be prompt— to be in the jury room in time to resume at the time I set after each break. There is no smoking allowed in this building. If you need to smoke, you must go outside during a break in the trial, and you should consider this when making sure you have enough time to get back to the jury room by the time we are ready to resume after each break. There is no cafeteria in the building, although there are vending machines on the first floor. You may bring a lunch, or leave the building to go to a local place to eat (Mr. Graham can make suggestions if you are unfamiliar with the area around the courthouse), but again, if you decide to leave the building, make sure to be back in the jury room by the time we are ready to resume. The lawyers and I will make every effort to make good use of your time, as well, although we will have to take unscheduled breaks at times to discuss legal issues outside your presence. Please know that when you are not in the courtroom with us, we are working as hard as we can to resolve issues efficiently. Once the trial has started, you cannot come back into courtroom without Mr. Graham. After you have left the courtroom, the lawyers, parties and I frequently remain to discuss legal issues, and it would not be appropriate for you to return to the courtroom during those discussions. 25 If you need to communicate with me at any time during the trial, the appropriate way to do so is through Mr. Graham. N. 10.12 CONDUCT OF THE TRIAL (Modified) Now we are ready to begin the trial. It will proceed in the following manner: First, each party’s attorney may make an opening statement, but no lawyer is required to make an opening statement. An opening statement is not evidence. It is a summary of what each party’s attorney expects the evidence will show—a road map. After the opening statements, you will hear the evidence. After the evidence has been presented, the attorneys will have the opportunity to make closing arguments. Again, a closing argument is not evidence. Closing arguments give the parties the opportunity to explain their view of the evidence, and to explain what conclusions they believe you should draw from the evidence. After closing arguments, I will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict. 26

=== Criminal Hearings Before Judge Pepper During the COVID-19 Pandemic ===

PROCEDURES FOR HEARINGS IN CRIMINAL CASES BEFORE CHIEF JUDGE PAMELA PEPPER DURING THE COVID-19 PANDEMIC Chief Judge Pepper will schedule all criminal hearings other than jury trials by videoconference. The court is re-setting the large backlog of hearings that were continued during the three and a half months that in-person hearings were suspended. The court is giving priority to those hearings adjourned for the longest time while trying to promptly schedule new hearings and balancing the need to reserve enough time for required in-person hearings. Given these circumstances, if a party is unavailable on the date and time the court has scheduled a hearing, the party seeking to change the hearing date must file a motion, explaining why the party cannot participate on the scheduled date and providing the court with three alternative dates/times agreed upon by the parties. (The moving party need not provide private details about medical conflicts.) The court will make every effort to re-schedule the hearing at one of the agreed-upon times, but if it is not able to do so, the court will set the hearing when it has time available. I. Procedures for Defendants Who Consent to the Court Conducting the Hearing by Video If the defendant consents to the court conducting the scheduled hearing by video, the parties do not need to notify the court. They need only log on to the Zoom link on the date and time scheduled for the hearing. The court will make a record during the hearing regarding the defendant’s consent to proceed 1 by video, and in the case of a felony plea or sentencing hearing, will make a specific finding regarding the impact of further delay on the interests of justice. When a defendant consents to appear by video, all parties must appear by video, including counsel or other parties who are employed by agencies located in the 517 East Wisconsin federal building. Zoom instructions for attorneys are available on the court’s web site. https://www.wied.uscourts.gov/sites/wied/files/documents/WIEDZoomforAtt orneys.pdf. Tips for successful video hearings also are available on the web site. https://www.wied.uscourts.gov/sites/wied/files/documents/TIPS_FOR_SUCC ESSFUL_VIDEO%20HEARINGS.pdf. Members of the public—including friends, family, victims and the press— are welcome to attend Zoom hearings but must mute audio. The court prohibits anyone other than the court from making an audio or video recording of any Zoom hearing. The court prohibits publishing still photos from Zoom hearings on any format, including any social media platform and any media site. II. Procedures for Defendants Who Do Not Consent to the Court Conducting the Hearing by Video If the defendant does not consent to the court conducting a hearing by videoconference, the defendant must file a notice advising the court of non- consent. The form will be attached to the notice of hearing. Before filing the notice, defense counsel and the government must confer, so that the defendant may include the following information in the notice: • The amount of time the parties believe the hearing will take; • Whether either side anticipates calling witnesses, and if so, how many witnesses each side plans to call; 2 • Whether the defendant is in custody, and if so, in what facility; and • The days/times during the week scheduled for the hearing that the parties are available. A copy of the notice is available on Chief Judge Pepper’s page of the court web site, https://www.wied.uscourts.gov/judges/pamela-pepper. A. Procedures for parties entering the courthouse: Parties entering the courthouse will be required to: • pass through security screening; • wear masks or face coverings in accordance with General Order 20-15. https://www.wied.uscourts.gov/sites/wied/files/documents/General_Or der_20--15_Mask_policy.pdf; • socially distance; and • answer screening questions related to COVID-19 symptoms. Parties should expect delays in entering the building. Parties may be denied access to the building if they do not comply with the above requirements, if they have certain symptoms, if they have been diagnosed with COVID-19 or if they have been told to quarantine or have been in close contact with (defined as being within six feet of someone for fifteen minutes or more) anyone who meets those criteria. If a party who is scheduled to appear in person before Chief Judge Pepper is excluded from the building at screening, that party must call (414) 297-3335 and notify chambers staff. Building elevators hold only one person or family unit safely for social distancing purposes. Parties should expect wait time for elevators. Parties may use stairs if they are able, maintaining social distancing in the stairwells and maintaining only one person or family group on a landing at a time. 3 B. Procedures for Parties Appearing In Person Before Chief Judge Pepper: The only people authorized to be physically present in the courtroom are the judge, the courtroom deputy, the court security officer, the defendant, one defense attorney, up to two U.S. deputy marshals, one prosecutor, one probation officer, up to two interpreters (if necessary) and one witness (if necessary). Any party other than the defendant—lawyers, probation officers, interpreters and witnesses—may appear via video even if the hearing is scheduled in person. Friends, family, victims, press and members of the public are not authorized to be physically present in the courtroom; they may attend via Zoom through the link on the docket, or may watch via YouTube. Cleaning supplies will be available in the courtroom to allow parties to wipe down tables, chairs and other surfaces. Court staff will wipe down frequently touched surfaces before each hearing. The court will provide hand sanitizer for all parties. Parties who can should bring their own water to the courtroom and should avoid sharing pens or notepads. The defendant and defense counsel must appear in the courtroom ten (10) minutes prior to the scheduled start time of the hearing. The prosecutor and the probation officer must appear in the courtroom at the scheduled time of the hearing. Staggered appearance times will allow parties to maintain social distance while entering the courtroom. In any hearing involving witnesses who will be present in person, the court’s staff will notify the parties regarding where witnesses should wait until called. For this reason, it is important that the parties include in the notice of in-person hearing the number of witnesses the parties plan to call. Parties physically present in the courtroom must wear masks or face coverings in accordance with General Order 20-15. Witnesses who sit at the 4 witness stand behind the Plexiglas partition may remove their masks or face coverings while testifying. Parties must sit at least six feet from any other person in the courtroom, with the exception that in hearings involving an in- custody defendant, one deputy U.S. Marshal may sit six feet or less from the defendant for security purposes. The court will assist the parties in maintaining social distance by assigning seats. The defendant and defense counsel will be separated from each other at the defense table by a Plexiglas partition. The court has closed-circuit devices for the defendant and defense counsel to use if they need to communicate privately; the devices allow the defendant and counsel to speak privately without violating social distancing requirements. Parties must upload to the docket any documents they wish the court to consider at the hearing. The court will publish documents, if necessary. If parties wish to speak with the judge outside the hearing of the public, they should ask to be heard off the record. The court’s staff will send remote viewers to the Zoom waiting room until the parties have completed their discussions with the court, then allow them to resume viewing. If parties wish to have someone participating by Zoom speak at the hearing, they must provide the court with the name or names of the person or persons who will be speaking. Parties may provide this information during the hearing. The speaker should be sure his or her device (computer, phone or tablet) shows the speaker’s name so that the court’s staff can identify the speaker. Anyone attending by Zoom who is not speaking will be required to mute audio. No one other than the court may make an audio or video recording of any Zoom hearing. The court prohibits publishing still photos from Zoom 5 hearings on any format, including any social media platform and any media site. At the end of the hearing, the defendant and defense counsel (and, if the defendant is in custody, the deputy U.S. Marshals) will leave the courtroom first. Once they have left, the prosecutor and probation may leave the courtroom. 6

=== Notice of Non-Consent and Request for In-Person Hearing ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, v. ____________________________ Defendant. Case No. ________________ ______________________________________________________________________________ NOTICE OF NON-CONSENT AND REQUEST FOR IN-PERSON HEARING ______________________________________________________________________________ The court has scheduled the above defendant for a video hearing on: _______________________ The defendant does not consent to the court holding the hearing by video. The parties have conferred and estimate that the length of the hearing will be: ____________________ The parties: DO NOT anticipate calling witnesses. DO anticipate calling witnesses. Number of government witnesses: __________________ Number of defense witnesses: __________________ The defendant: IS NOT in custody. IS in custody at: __________________________________ 1 The parties are available the following dates/times during the same week the hearing is currently scheduled: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Dated Counsel for the government: _________________________________ _________________________________ _________________________________ Counsel for the defendant: _________________________________ _________________________________ _________________________________ 2

=== Tips for Successful Pretrial Conferences in the COVID-19 Era ===

EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION TIPS FOR SUCCESSFUL PRETRIAL CONFERENCES IN THE COVID-19 ERA As of September 2, 2020 The COVID-19 epidemic has required courts and litigants to consider virus mitigation as part of jury trial planning and process. And, as was the case before COVID-19, each judge does things a little differently. Because of the rapidly changing COVID-19 situation—new information about how the virus spreads and its impacts on infected individuals comes out almost daily—court policies and procedures are changing and evolving. These conditions make detailed pretrial conferences more important than ever. The following tips for including COVID-19 logistics in the process of preparing for jury trials were prepared by committees of judges, court staff and practitioners. They are subject to revision as new information becomes available about virus transmission and spread. I. Scheduling * While judges should think about scheduling pretrial conferences earlier than they have in the past, lawyers also may request earlier pretrial conferences, or multiple pretrial conferences, to address COVID-related logistical issues. Lawyers should consider asking for a virtual pretrial conference so that * all trial participants—lead counsel, support counsel, paralegals, IT support, parties—may attend. Before the conference, counsel should discuss with all members of the * trial preparation team scheduling issues that might require more preparation time in advance of trial. --Do any team members need extra time to arrange for childcare? --Are any team members responsible for caring for elderly persons or people with underlying health conditions? --Do any team members have specific COVID concerns—underlying health conditions, family members who are at increased risk? Lawyers should consider asking the judge to issue a detailed pretrial * order memorializing all the COVID-related logistical decisions made at the pretrial conference, to avoid misunderstandings or problems at trial. The following sections list COVID-related logistical topics for discussion * at status and pretrial conferences: 1 II. Mask Policy • Whether the judge will require lawyers/witnesses/jurors to wear masks or other face coverings; • Whether the judge will wear a mask or face covering; • Whether and when a person may remove or lower their mask or face covering; • What constitutes a “mask”—paper mask, cloth mask, bandana, other? III. Jury Selection Jury selection is one of the biggest challenges of holding jury trials during the pandemic. Jury selection requires the court to gather anywhere from twenty (civil trials) to forty or fifty (criminal trials) people. There are few courtrooms large enough to allow a gathering that size with proper social distancing. Getting that number of people to upper floors, where the district court courtrooms are, poses problems at “pinch points” such as elevators and stairwells, where social distancing requires limiting the number of people who can use them at a time. Lawyers should discuss with the presiding judge issues such as: • Whether the judge will allow supplemental questionnaires on the subject matter of the case to pare down the venire prior to the first day of trial; • Where jury selection will take place. There are options: 1. 2. 3. Conduct voir dire remotely, via video (assumes all potential jurors have a device which would allow them to participate via video). Seat venire, socially distanced, in the atrium. Lawyers question subsets of the venire in Room 190, while the rest of the venire waits in the atrium. Venire members could be placed in several different rooms on the first floor, socially distanced, and the lawyers, court staff and judges could travel from room to room, conducting the voir dire in each room. At least one bankruptcy judge has offered the use of her courtroom, and Room 190 is an option. (This could cause logistical problems in cases with in-custody defendants, requiring the USMS to accompany the defendant from room to room.) • How jury selection will take place. In the past, jurors answered voir dire questions using a hand mic that was handed from person to person, something that is not advisable given the virus. There are 2 options: 1. 2. 3. Conducting voir dire in Room 190, which now is equipped with a permanent sound system and boom mics. Jurors answer questions in writing in a prequestionnaire, with counsel compiling the results in a spreadsheet. If jurors are questioned in a smaller room other than 190, they could be questioned in smaller groups and asked to speak loudly (assuming they are masked). • Health experts strongly recommend social distancing combined with masks/face coverings when people are together in a group, especially if there is a lot of talking. On the other hand, there are those who argue that seeing the jurors’ whole face is critical. Each judge will decide how to handle this, possibly on a case-by-case basis. There are options: 1. 2. 3. Having all jurors wear masks/face coverings all the time (unless they have a health excuse). Allow jurors to pull down masks/face coverings while answering questions. Have jurors come to a podium, equipped with Plexiglas, to answer questions unmasked (will slow the process considerably). • Concerns about obtaining a representative venire (will concerns about COVID-19 result in fewer potential jurors from certain age groups, races or ethnic groups, or fewer potential jurors with school-aged children, etc.); and • Selection of alternates (should the possibility that a juror might test positive or become ill during trial result in the selection of more alternates than usual). IV. The Trial • The physical layout of the courtroom and any logistical issues presented by social distancing (including sight lines for presentation of electronic exhibits); • How many lawyers/representatives each side may have present at counsel table; 3 • How many support staff (paralegals, IT staff, law clerks/interns) each side may have present in the courtroom; • Where witnesses will wait and how to maintain their social distancing; • How the court will accommodate public viewing of the trial while maintaining social distancing (broadcast via YouTube; post Zoom link on courtroom door; remote viewing room set up in Room 398); • Staggering arrival times for parties and for the jury; • How to handle breaks and the location of restrooms. There are options: 1. Take more than one break each morning/afternoon; allow half of the jurors to go at one time and half to go at the other. 2. Make use of several different nearby courtrooms/ 3. chambers/conference rooms, so that multiple restrooms are available, and have jurors go three or four at a time. Assure that all restrooms have cleaning supplies for wiping down surfaces after use, and signage re: wearing masks and closing lids before flushing. • How to handle exhibits to reduce contact with paper. Possible options: Judge requires that all evidence be presented electronically. Judge requires parties to pre-mark exhibits. 1. 2. 3. Witnesses view exhibits electronically, not the paper version. 4. Lawyers and witnesses handling paper documents wear gloves (concerns with proper use of gloves, making sure not to touch face with gloved fingers). Providing jurors with exhibits during deliberations—provide laptop and disc for reviewing electronic exhibits? (May address sightline issues created by having jurors scattered all over the courtroom.) Give jurors paper exhibits and gloves. (Gloves raise concerns—many people touch their faces with their gloved hands, and the virus can be transmitted from the glove to the person that way). Give lawyers the option of bringing their own laptops and screens. Password-protect rebuttal documents. 5. 6. 7. • How jurors will be able to take notes. There are options: 1. Have jurors mark notebooks and pens with their names. The court could have plastic bins for each juror; at day’s end, they could place their notebooks and pens in the bins. The court could supply bottled water and hand sanitizer in the bins, as well. 4 2. Provide jurors with electronic tablets, on which they could view evidence and take notes. • How the judge will handle sidebars. There are options: 1. 2. 3. The judge and counsel can move into a different, larger room to confer, or out in the hallway. Judges and lawyers can be provided with the closed loop listening devices that the courts are using to allow criminal defendants to speak with their attorneys, in conjunction with white noise available on all court sound systems. Use of a special Plexiglas barrier to separate participants in a sidebar, but this would be difficult in cases involving more than two lawyers. • Whether lawyers and witnesses will have any cleaning responsibilities (wiping down the witness chair, wiping down counsel tables, etc.); • How lawyers may communicate with each other and with their clients (pass notes, closed-loop listening devices, allowing lawyers to text); • Possible options if a lawyer/witness/party/juror/judge tests positive or becomes ill during the trial. 1. 2. 3. Terminate the trial? Release the juror and continue with remaining jurors? Contact tracing? 5