USE OF ELECTRONIC DEVICES AND CAMERAS

IN THE COURTHOUSE (a) Broadcasts, Photography, and Use of Cameras during Court Proceedings. (1) Photography and Electronic Recording Prohibited. The taking of still or moving photographs and/or the audio recording of any Court proceedings in the courtroom or in the corridors immediately adjacent thereto, during the progress of judicial proceedings or during any recess, is prohibited. Such prohibition includes, but is not limited to, the transmittal or sound recording of such proceedings for broadcast by radio, television, internet, and social or any other media.

(2) Exceptions for Ceremonial and Educational Proceedings. Ceremonial proceedings, such as administration of oaths of office, presentation of portraits, investitures, and similar occasions, may be photographed, broadcast, or televised from the courtroom with the 54 permission and under the supervision of the Court. Seminars conducted in the courtroom, such as Continuing Legal Education seminars, may also be recorded and broadcast by the program sponsor under the Court’s supervision. (3) Naturalization Proceedings.

During Naturalization Proceedings, participants, spectators, and the media may bring cameras and cell phone cameras into the courthouse and use such devices during the ceremonies. Such devices are, however, subject to screening by a United States Marshal or Court Security Officer. (b) Cell Phones, Computers, and Other Electronic Devices. (1) Persons Permitted to Bring Electronic Devices Into the Courthouse.

The following persons may bring computers, cell phones, and similar electronic devices (hereinafter “devices”) into the courthouse after such devices have been screened by the United States Marshal Service or a Court Security Officer: (1) attorneys; (2) paralegals; (3) federal employees; (4) law firm staff when accompanied by an attorney; (5) state, county, or tribal law enforcement or emergency services personnel on official business; (6) jurors who have been selected to serve on a jury; (7) invited guests of the Court for ceremonial proceedings; and (8) service and delivery personnel. Where a pro se litigant needs to use a personal device during Court proceedings, the litigant should contact the Clerk of Court in advance of that proceeding to secure permission from the Court. (2) Prohibited Use. Unless otherwise permitted by this Rule, all devices must be powered off in the courtroom.

No device shall be used to record Court proceedings under any circumstances. Use of such devices for voice or video communication from the courtroom or from the corridors near courtrooms is prohibited. Use of devices for purposes of streaming of audio 55 and/or video and for gaming is also prohibited. Improper use may be treated as a contempt of Court.

(3) Permitted Use. Where a permitted device has been brought into the courthouse by a permitted person, a device may be used in conjunction with a proceeding, in preparation for an upcoming proceeding, and to work on other matters while waiting for upcoming proceedings. Use of devices to communicate by e-mail, texting, and instant messaging is permitted if the use is not disruptive. Advisory Committee Notes This new Rule, drafted by the Local Rules Courtroom Technology Subcommittee, generally prohibits disruptive or unlawful uses of electronic devices while allowing authorized persons to work on their devices in a non-disruptive manner while awaiting upcoming proceedings.

56 LOCAL RULES GOVERNING CRIMINAL CASES LCrR 1.1 APPLICATION OF LOCAL CRIMINAL RULES The Local Criminal Rules which follow are intended to provide case participants with procedures that supplement the Federal Rules of Criminal Procedure. They are not intended to bind any judicial officer to any particular course of action or result. Each judicial officer retains the discretion to apply the Local Criminal Rules in a manner consistent with the demands of the case. LCrR 11.1 ELECTRONIC RECORDING OF RULE 11 INQUIRY When a United States Magistrate Judge conducts an inquiry under Fed. R. Crim. P. 11, the electronic recording of the proceeding constitutes the verbatim record of the proceeding.

LCrR 11.2 PLEA HEARINGS AND FACTUAL BASIS FOR PLEAS Submission of a Written Factual Basis. Before the Court schedules a Rule 11 hearing to consider the acceptance of a bargained-for plea, the parties must file with the Court a fully executed copy of the Plea Agreement and a Factual Basis showing facts sufficient to establish guilt as to each element of each offense as to which a plea of guilty is being offered. The Factual Basis shall be signed by an attorney for the government and defense counsel, who shall certify that he/she has discussed the Factual Basis with the defendant, and that the defendant does not dispute the Factual Basis. 57 Advisory Committee Notes New LCrR 11.2 substantially implements the provisions of the Superseding Order, 3:14mc005, concerning a written factual basis for the plea.

While the Standing Order required a factual proffer that included “offense conduct,” id. at ¶ 3, the Local Rules Criminal Subcommittee determined that such requirement reduced to a local rule might not be supportable under Libretti v. United States, 516 U.S. 29 (1995), which held that an “element of the sentence … falls outside the scope of Rule 11(f) [now Rule 11(b)(3)].” See also United States v. Dunbar, 9 Fed. Appx. 411, 413 (6th Cir. 2001) (holding that “the required inquiry relates to whether there is a factual basis for a finding that the defendant is guilty of the crime charged”). After a series of meetings with stakeholders, the Local Rules Advisory Committee drafted Rule 11.2 to mirror the language of the Superseding Order concerning certification by counsel.

The requirements of the Superseding Order for “offense conduct” have been split off and paired with the Rules concerning sentencing, specifically LCrR 32.4, see infra. LCrR 17.2 SUBPOENAS IN CRIMINAL CASES Requests for Subpoenas Where Defendant is Unable to Pay. All defense motions seeking service of subpoenas by the United States Marshal at government expense must be filed with the Court at least fourteen (14) days before either the hearing date or the first day of the term of Court, whichever is earlier, for which the witness’s presence is being requested. Any subpoena request not made at least fourteen (14) days before the applicable date may be denied as untimely.

Upon a finding of good cause, however, a judicial officer may honor an untimely subpoena request. LCrR 17.3 APPLICATIONS FOR WRITS IN CRIMINAL CASES Applications for Issuance of Writs of Habeas Corpus to be Executed by the United States Marshals Service. To ensure the prisoner’s presence in the district at the requested time, applications for writs of habeas corpus (ad prosequendum and/or ad testificandum) that are to be executed by the United States Marshal must be filed with the Court within the time frames provided below: 58 (1) If the prisoner is out-of-district, at least twenty-one (21) days before the hearing date, or the first day of the term of Court, whichever is earlier, for which the prisoner is needed; (2) If the prisoner is within the district, at least fourteen (14) days before the hearing date, or the first day of the term of Court, whichever is earlier, for which the prisoner is needed. Any writ application not made within the time period prescribed herein may be denied as untimely.

Upon a finding of good cause, however, a judicial officer may honor an untimely writ application. LCrR 20.1 CONSOLIDATION AND TRANSFER OF CASES Consolidation or Transfer of Related Cases. If a related case is pending before another United States District Judge, the government or defendant must move for consolidation before, or transfer to, the judge assigned to the lowest case number. The motion for consolidation or transfer may be filed in either of the cases with proper notice of the motion in the related case.

Upon execution of the order, the Clerk of Court shall re-assign the latter case to the judge presiding in the lowest case number, unless otherwise set forth in the order. 59 LCrR 23.1 FAIR TRIAL AND FREE PRESS IN CRIMINAL CASES It is the attorney’s duty, in connection with pending or imminent criminal litigation with which the attorney is associated, not to release or authorize the release of information or opinion for dissemination by any means of public communication, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. LCrR 32.2.1 AUTHORITY OF UNITED STATES MAGISTRATE JUDGES IN CRIMINAL FORFEITURE CASES AND PUBLICATION OF NOTICE IN FORFEITURE CASES (a) United States Magistrate Judge’s Duties in Criminal Forfeiture Cases. In any case where a defendant pleads guilty and consents to forfeiture of property, a duly appointed United States Magistrate Judge may enter one or more orders and judgments of forfeiture in connection with the hearing under Fed. R. Crim. P. 11.

(1) Findings of Fact. Based on the parties’ stipulation or other proper showing, the United States Magistrate Judge may make any related finding of fact contemplated by Fed. R. Crim. P. 32.2, provided that defendant consents to those findings. (2) Waiver of Notice. Defendant may waive the notice required by Fed. R. Crim. P. 32.2, either through written consent in the plea agreement or through written consent of defendant and defendant’s counsel in a proposed order and/or judgment.

(3) Ancillary Proceedings. 60 (A) Where a forfeiture consists of a money judgment or where no third- party files a timely petition, the Order of Forfeiture may become final without conducting an ancillary proceeding to adjudicate third-party interests. (B) A United States Magistrate Judge shall not conduct an ancillary proceeding unless instructed by a United States District Judge to do so. (C) Where a United States Magistrate Judge conducts an ancillary proceeding, the order and judgment entered in connection with the Rule 11 proceeding is deemed a “preliminary order” for purposes of Fed. R. Crim. P. 32.2(c) and may be amended, if necessary, by a further order and judgment of a United States District Judge.

(b) Publication of Notice by the Government. Unless otherwise required by statute, rule, or specific order of this Court, in any criminal judicial forfeiture case filed in this district, the government may satisfy its requirement of publication of notice by publishing once in a newspaper of general circulation. Publication in such manner satisfies the publication requirements of 21 U.S.C. § 853(n)(1) and Rule C(4) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. LCrR 32.3 DISCLOSURE OF PRESENTENCE OR PROBATION RECORDS The probation officer’s sentencing recommendation is a confidential record and shall not be disclosed except pursuant to Court order.

The recommendation shall not contain any fact not otherwise disclosed in the Presentence Report. If any additional facts are contained in the recommendation, they will be disclosed by the Court at sentencing if the Court intends to rely on those facts. 61 Advisory Committee Notes In response to comments from federal defenders concerning the non-public nature of USPO’s sentencing recommendation, the Local Rules Criminal Subcommittee conducted research under Federal Rule 32 to determine whether any court had ever held the practice to be unlawful. No cases to such effect were found and it was determined that the practice was lawful and that Local Criminal Rule 32.3 complies with the procedural requirements of Federal Criminal Rule 32(e)(3) in making the recommendation confidential.

In United States v. Whitlock, 639 F.3d 935 (9th Cir. 2011), that court held that a district court must “disclose any factual information in the confidential recommendation on which it relied in sentencing” to comply with the requirements of Due Process. Id. at 937 (citation omitted). That court found the District of Idaho’s Local Criminal Rule dealing with the sentencing recommendation complied with Due Process.

While USPO has assured the Advisory Committee that its recommendations never contain such additional facts, the Advisory Committee has included, proactively, a disclosure provision in the unlikely event a fact is inadvertently contained in a recommendation upon which the sentencing court wishes to rely. LCrR 32.4 STATEMENT OF RELEVANT CONDUCT (a) Submission by United States Attorney’s Office. Upon acceptance of the plea or entry of a verdict of guilty, the United States Attorney’s Office must submit to the United States Probation Office, and provide defendant with a copy of, a “Statement of Relevant Conduct.” Such submission must include: (1) the loss and drug amounts the government believes are supportable by the evidence; (2) facts the government believes support any agreed-upon offense level computations in the plea agreement; and (3) facts warranting any non-agreed-upon Chapter 2 or 3 enhancements or reductions. When practicable, the government should reflect consultation with counsel for defendant and note therein whether defendant concurs or opposes such statement.

(b) Response by Defendant. Defendant may submit to the United States Probation Office a response or objection to the government’s submission within seven (7) days. Where defendant elects not to respond initially, no inference is raised that defendant concurs with the government’s proposed submission and defendant may wait until a Draft Presentence Report is 62 issued to lodge objections. By filing an initial response within seven (7) days, defendant does not waive the right to later file objections to the Draft and Final PSRs.

Advisory Committee Notes This new Rule is intended to implement the second part of the Superseding Order, 3:14mc005, by providing USPO with a statement of relevant conduct promptly upon acceptance of the plea or entry of a verdict. This Rule does not, however, require defendant to concur in the statement, but instead provides the defendant with an opportunity to promptly respond to the government’s proffer without waiving their procedural rights under Fed. R. Crim. P. 32, and without shifting the burden of proof from the government to prove sentencing enhancements. United States v. Mitchell, 825 F.3d 422, 425-26 (8th Cir. 2016) (“Application of sentencing enhancements must be supported by a preponderance of the evidence, and the government has the burden to prove the factual basis for an enhancement.”).

LCrR 32.5 SENTENCING HEARING, PRESENTENCE REPORTS, IDENTITIES OF VICTIMS, AND SENTENCING MEMORANDA (a) Presentence Completion Date. In every case, it is anticipated that there will be a “Presentence Completion Date” of approximately ninety (90) days after a plea is accepted or a guilty verdict is returned. The Presentence Completion Date is the date by which the Final Presentence Report and confidential Sentencing Recommendation is anticipated to be filed by probation. (b) Notice of Sentencing Hearing.

Once a final presentence report is filed, the Clerk of Court will issue a Notice of Sentencing Hearing providing the date and time for sentencing. Sentencing is ordinarily anticipated to occur within sixty (60) days of the Presentence Completion Date. (c) Sentencing Memoranda and Supporting Letters. Sentencing memoranda, supporting letters, and other materials should be filed as soon as possible after entry of the Final 63 Presentence Report and not later than seven (7) days before the Sentencing Hearing.

Recognizing that letters may not be received by such deadline, the United States District Judge may determine on a case-by-case basis whether to accept late-filed materials for consideration under 18 U.S.C. § 3553(a). (d) Filing of Sentencing Memoranda, Exhibits, and Supporting Letters. Recognizing the public’s right of access to documents filed in criminal proceedings and the need to protect legally recognized personal privacy interests and vulnerable witnesses in fulfilling the Court’s duties under 18 U.S.C. § 3553(a), sentencing memoranda, exhibits, and supporting letters shall not be filed under seal unless leave is secured from the Court in the manner provided in Local Civil Rule 6.1. (e) Advising the Court of a Good-Faith Estimate of Time Needed for Sentencing Hearing.

Once sentencing memoranda have been filed, counsel for the respective parties must file a Notice of Time Needed for Sentencing Hearing if greater than the time typically allotted by the sentencing judge. (f) Rule 35, 5K, and § 3553(e) Motions Sealed. All motions under Fed. R. Crim. P. 35, U.S.S.G. § 5K, and 18 U.S.C. § 3553(e) based on cooperation with the government shall be sealed and there shall be no public access to the motion unless ordered by the Court. Advisory Committee Notes This new Rule is intended to implement the district’s goal of being ready for sentencing within 90 days of acceptance of the plea or verdict.

Recognizing that judges have schedules that may not allow for pinpoint scheduling six months out, the 90 days for sentencing readiness and the 60 days for the Court to thereafter hold a sentencing hearing are intentionally soft to avoid any implication that sentencing within that period is an entitlement and to reduce motions practice. 64 LCrR 44.1 ADMISSION, APPEARANCE, APPOINTMENT, DISCIPLINE, AND DISBARMENT OF COUNSEL The admission, appearance, discipline, and disbarment of counsel are governed by LCvR 83.1 and LCvR 83.2, which are fully adopted herein. Title 18 of the United States Code and this district’s Criminal Justice Act Plan govern appointment of counsel. Advisory Committee Notes The Rule has been substantially reduced by simply referencing the Local Civil Rules for admission and discipline of counsel.

A criminal defendant’s right to counsel of choice is not impaired by those Rules, making the restatement of those Rules here redundant. LCrR 47.1 MOTIONS PRACTICE IN CRIMINAL CASES, REQUIREMENT OF BRIEFS, RESPONSES REQUIRED BY THE GOVERNMENT, AND PROPOSED ORDERS (a) Motions in Writing. Unless made during a hearing or trial, all motions must be written, filed as provided by LCrR 49.1.2, and must state with particularity the grounds of the motion and the relief or order sought. Motions will ordinarily be ruled on without oral argument.

(b) Certificate of Conference with Filing. Pretrial motions, other than motions to suppress, ex parte motions, and notices (notice of substitution of counsel, notice of appearance, notice of intent to present certain types of evidence, etc.) must include a certification that the moving party has conferred with opposing counsel and state opposing counsel's position on the relief sought, or explain why conferring should not be required under the circumstances. A motion that fails to show that the parties have properly conferred or attempted to confer may be summarily denied. If a hearing on a motion is requested, counsel should estimate the length of the hearing.

65 (c) Requirement of Briefs. A brief must be filed contemporaneously with any potentially dispositive pretrial or post-trial motion submitted in a criminal action. No brief is required to support timely motions for admission pro hac vice, extensions of time, continuances, or uncontested requests. (d) Response Required by the Government.

Unless otherwise directed by the Court, the government must respond to all potentially dispositive defense motions in a criminal case. Examples include motions to suppress and motions to dismiss the indictment. Unless otherwise directed by the Court, the government is not required to respond to pro se motions filed by a criminal defendant who is still represented by counsel and who has not formally waived his or her right to counsel after appearing before a judicial officer and being fully advised of the consequences of waiver. (e) Motions Deadline/Time for Filing Response.

Motions practice, including deadlines for filing pretrial motions, and the time for filing responses and replies to motions, is governed by the practice of the presiding judge consistent with Fed. R. Crim. P. 12 and 47. Unless otherwise directed by the Court, responses to motions, if any, must be filed within seven (7) days of the date on which the motion is served. Neither the motions deadlines set in an Arraignment Order, nor operative deadlines under this Local Rule, entitle any party to continuance of a trial date. (f) Proposed Orders.

Proposed orders are not required, unless otherwise ordered by the Court. If directed to provide a proposed order, parties must submit the order through Cyberclerk and serve the proposed order on all parties. 66 (g) Pro Se Motions Filed By Criminal Defendants Who Have Not Waived Their Right to Counsel. Except for challenges to the effective assistance of counsel, the Court will not ordinarily entertain a motion filed by a criminal defendant who is still represented by counsel and has not formally waived the right to counsel in the presence of a judicial officer after being fully advised of the consequences of waiver.

Exceptions to this general rule may be made in the discretion of the judicial officer considering the pro se motion. LCrR 49.1.1 SEALED RECORDS AND PUBLIC ACCESS (a) Presumption of Public Filing. To further openness in criminal case proceedings, there is a presumption under applicable common law and the First Amendment that pleadings filed in this Court will be filed unsealed. Unless allowed by the United States Code, the Federal Rules of Criminal Procedure, or these Local Criminal Rules, decisions as to whether to seal a particular pleading or any portion thereof will be made on a case-by-case basis by the Court upon the filing of a motion, with findings specific enough that a reviewing court can determine whether the sealing is consistent with the First Amendment or the common law right to public access.

Motions to seal a particular pleading or any portion thereof and orders disposing of such motions are governed by the requirements for sealing provided by LCvR 6.1, incorporated herein by reference. (b) Sealing Criminal Cases. At the time of filing a complaint or information, or upon the return of an indictment, the government may move to seal such case by accompanying the charging document with an ex parte motion and proposed order requesting that all or part of the documents in the criminal case be sealed. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order submitted by the government if the facts justify sealing.

The Clerk of Court shall seal the case or documents as specified in the order. 67 (c) Unsealing Criminal Cases. Unless the Court grants a motion to keep a case or document(s) sealed, the case or document(s) shall be unsealed as follows: (1) Where the case involves a single defendant, at the time of the defendant's initial appearance; (2) Where the case involves more than one defendant, at the time of the last defendant’s initial appearance; or (3) Upon motion of the government to unseal. (d) Pending Cases.

Upon a motion filed separately from the motion or pleading sought to be sealed, the Court may enter an order sealing a pending case or any portion thereof after the moving party has provided such notice as required by law or these Rules. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order if the facts justify sealing. The sealing motion and proposed order presented to the Court should specifically identify the part of the record to be sealed, such as: (1) (2) (3) (4) The case file; The case docket; A specific pleading and/or its docket entry; or The identity of new defendants brought into the case. (e) Documents.

Documents sealed by the Court or otherwise required to be sealed by statute shall be marked as such within the document caption. If the document is sealed pursuant to a prior Court order, the pleading caption must include a notation that the document is being filed under Court seal and include the order's entry date. No document shall be designated by any party as “filed under seal” or “confidential” unless: 68 (1) (2) (3) It has been sealed by prior order of the Court; It is being filed in a case that the Court has ordered sealed; or It contains material subject to a protective order entered by the Court. (f) Case Closing.

After final disposition of any criminal case where the file or documents under seal have not previously been unsealed by Court order, all sealed files, sealed pleadings, or any portions thereof shall remain sealed indefinitely until otherwise ordered by the Court on a case-by-case basis. (g) Access to Sealed Documents. Unless otherwise ordered by the Court, access to documents and cases under seal shall be provided by the Clerk of Court only pursuant to Court order. Unless otherwise ordered by the Court, the Clerk of Court shall make no copies of sealed files or documents.

(h) Arrest, Search, and Seizure Warrants. Any application for an arrest, search, or seizure warrant shall be sealed until all the warrants have been executed and returned to the Court. No motion to seal shall be required for such materials. The government, defendant, or interested nonparties may move to unseal before the execution or delivery of all warrants.

The government may move to continue the seal after the execution of all warrants. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order submitted by the government if the facts justify sealing. (i) Public Notice. The Clerk of Court shall provide public notice by docketing the motion in a way that discloses it as a motion to seal unless otherwise ordered by the Court consistent with this Rule and applicable law.

Within the time allowed by the Court for the non- moving party to respond to the motion to seal, other parties and non-parties may submit 69 memoranda supporting or opposing the motion and may designate all or part of the memoranda as confidential. Any confidential memorandum will be treated as sealed pending the outcome of the ruling on the motion. While the Court may act on a motion to seal before the time for response has run, motions to unseal may be filed at any time by a party or third person. Advisory Committee Notes Proposed LCrR 49.1(a) remedies the earlier issues raised under former LCrR 55.1(h) by providing that parties must seek leave of Court to file matters under seal unless allowed to seal as a matter of federal law, a federal rule, or these Local Rules.

The new Rule then incorporates by reference LCvR 6.1, which details procedures and what must be shown to seal a filing. It should be noted that submissions to the Court by USPO are not technically sealed, but are “non-public” submissions. See Fed. R. Crim. P. 32 & 49.1 (Advisory Committee Notes, 2007 Adoption). The Advisory Committee notes that while counsel in criminal litigation have experience in seeking leave to file under seal, it may be appropriate for a subgroup, perhaps drawn from IP litigation, to form an advisory group to provide examples of effective motions and briefs.

Likewise, due to the anticipated increase in motions to seal, the Court may wish to develop template orders touching on Rule 6.1 concerns. LCrR 49.1.2 FILING OF PAPERS, FILING OF REDACTED PLEADINGS, AND OTHER ORDERS, AND JUDGMENTS, PRESENTING COMMUNICATIONS TO JUDGES (a) Place of Conventional Filing, when Allowed. Where conventional filing is permitted by the Administrative Procedures or by the assigned judge, all papers may be filed in Asheville, Charlotte, or Statesville, regardless of the division in which the case is pending. (b) Presenting Judgments, Orders, and Other Communications to Judges.

As provided by the Administrative Procedures, parties may submit proposed orders, memoranda of decision, judgments, bills of costs, and other proposed documents for consideration and entry by the Court or the Clerk of Court. Such proposed documents must be submitted through Cyberclerk and may also be submitted as attachments to a motion, brief, or notice that relates to the proposed 70 relief sought. In any event, such proposed document must be served on all parties as provided by Fed. R. Civ. P. 5, unless an exception is provided for proceeding ex parte under the Federal Rules of Criminal Procedure. Advisory Committee Notes The requirements for electronic filing in Sections (b) and (c) were redundant.

Section (c) has been amended to address the place of filing when conventional filing is permitted. Former section (d) has been eliminated as has its civil analogue in LCvR 5.2.1(d). The Rule has been moved to its present location to better correspond with the corresponding Federal Rule of Criminal Procedure. LCrR 55.2 PRESENTATION, CUSTODY, AND DISPOSITION OF EVIDENCE, MODELS, EXHIBITS, AND DEPOSITIONS The presentation, custody, and disposition of evidence, models, exhibits, and depositions in a criminal case are governed by LCvR 79.1, incorporated herein by reference.

LCrR 58.1 FORFEITURE OF COLLATERAL SECURITY IN LIEU OF APPEARANCE Pursuant to Fed. R. Crim. P. 58 and 28 U.S.C. § 636(b)(3), and upon motion by the government in the interest of justice, good Court administration, and sound law enforcement, the Unified Collateral Forfeiture Schedule implemented April 14, 2004, is hereby adopted and incorporated herein by reference as if fully set forth, as amended by the 2004 Supplement to the Unified Collateral Forfeiture Schedule. In accordance with Fed. R. Crim. P. 58, the Board of Judges may periodically supplement the Collateral Forfeiture Schedule through subsequent orders issued by a majority of the Board of Judges. 71 LCrR 58.2 PROCEDURES APPLICABLE TO COLLATERAL FORFEITURES, PETTY OFFENSES, AND CLASS A MISDEMEANORS (a) Effect of Payment of a Collateral Forfeiture. The payment of a collateral in lieu of appearance is a “civil penalty,” is not an admission of guilt, and shall not be deemed a “criminal conviction” for any purpose.

(b) Procedures Applicable to Processing and Trial of Petty and Class A Misdemeanor Offenses. (1) Scheduling of Court Days. The Clerk of Court shall establish and calendar court days for the hearing of petty and misdemeanor offenses as the Clerk of Court deems necessary. (2) Attendance.

Persons charged and the charging officer must be present on scheduled court days. Most cases will be resolved at the first court day, and persons charged with offenses and charging officers should be prepared to dispose of their cases that day. The Clerk of Court or any judicial officer may adjudicate pretrial motions to continue. Continuances upon good cause shown will be the exception, not the rule.

(3) Charging Instruments. Determining which charging instruments to issue, and the charging instruments on which to proceed, are within the government’s sound discretion as provided by Fed. R. Crim. P. 58(b)(1). (A) Initial Charging Instrument. Any misdemeanor (Class A, petty, or infraction) may be commenced by issuing a violation notice.

(B) Sending the Violation to CVB. In accordance with the rules promulgated by the Central Violations Bureau (“CVB”), any officer issuing a violation notice must 72 mail the notice to the CVB within three (3) business days of issuance. Failure to do so may result in summary dismissal of the violation notice, referral of the matter to the government, or further Court action. (C) Charging Instrument Sufficient for Trial.

Trial of a petty offense or infraction may proceed on a violation notice. Fed. R. Crim. P. 58(b)(1). Trial of a Class A misdemeanor may proceed on an indictment, information, or complaint. Id. Where a Class A misdemeanor is initially charged through a violation notice, the government should be prepared by the first scheduled court day to supersede the violation notice with an appropriate trial instrument or stipulate that it is only proceeding on the lesser-included petty offense.

(4) Plea Negotiations. Plea negotiations are anticipated by the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 11. Enough time will be set aside at the beginning of the court day for each person charged or their attorney to discuss their charges with the government.

(5) Collaterals on the Day of Court. The government has full authority to dispose of any charge before trial in any manner the government deems appropriate. In recognition of this important duty, the government may, within the confines of plea negotiations, allow resolution of any violation notice by way of payment of a collateral forfeiture (“collateral”), may raise or lower a collateral (not to exceed the maximum possible fine), and may convert a mandatory appearance into a collateral up to and through the day of court. Fed. R. Crim. P. 58(d)(1).

(6) Calendar Call. Court will commence after the government indicates it has had sufficient time for plea negotiations. 73 (7) Taking of Pleas. Where a charge is resolved through a plea of guilty, the Court will provide the person charged with a combined initial appearance, an abbreviated Rule 11 proceeding, and a sentencing hearing.

(8) Appointment of Counsel. The Court will consider appointing counsel in cases where the government indicates there is a possibility of imprisonment. Persons desiring Court-appointed counsel should fill out an appropriate affidavit of indigency the day of court. The Federal Defender may assist persons in making such requests, which may be tendered for approval before court so the Federal Defender may participate in the plea-negotiation process.

(9) Trials. Where a person charged tenders a plea of not guilty, the Court will afford such person a bench trial. In Class A misdemeanors where a jury trial is requested or where the person charged does not consent to proceed before a United States Magistrate Judge, such charges will be transferred to a United States District Judge. Once transferred to a United States District Judge, “Class A” misdemeanors will only be remanded to the United States Magistrate Judge where the United States District Judge so directs.

(10) Sentencing. If a person is found guilty after either a plea or trial, the Court will proceed immediately to sentencing. In a Class B misdemeanor or infraction (also known as “petty offenses”), no presentence report is required. In a Class A misdemeanor, a person charged may waive preparation of a presentence report or the Court may direct the preparation of an abbreviated report.

(11) Payment of Fines. Immediate payment of the fine and special assessment is required by way of mail payment. The Court does not accept cash payments. Where the Court 74 allows deferred payment, defendant must provide the Clerk of Court with his or her Social Security number, driver’s license number, and phone number.

(12) Failure to Appear. At the conclusion of all matters, the Court will determine who has failed to appear. Where a person fails to appear on an offense for which a collateral was issued, a warrant for arrest shall issue, allowing either payment of twice the collateral in lieu of arrest or an arrest without bond. The United States Marshal may contact the government or a United States Magistrate Judge (or the judge’s staff) for permission to accept a lesser amount as circumstances may warrant.

Where a person fails to appear on an offense for which a mandatory appearance was issued, the Court shall issue a warrant for arrest. (13) Dismissal for Insufficient Address. Where a person charged with an offense cannot be located and noticed to come to court by the CVB based on the information provided by the charging officer, the Court will administratively dismiss such violation notice without prejudice. See U.S.M.J. Manual, CVB, at 4-5 (2003).

The charging officer may, thereafter, issue a new violation notice to such person if further investigation provides the issuing officer with a better address. The charging officer must check with the CVB or the government, not the Clerk of Court, as to the status of any violation notice. (14) Non-Current Warrants. Warrants that have not been served after eight (8) months shall be disposed of in a manner consistent with the rules, regulations, and standards promulgated by the CVB.

Any such dismissal shall be without prejudice as to the charging agency or the government taking whatever action it deems appropriate in further prosecution of such alleged offenses. 75 (c) Arrests (1) Field Bonds. Officers may issue unsecured “field bonds” on forms approved by the Court to assure any person’s appearance. The forms may be used where the accused is not a danger to himself and/or the community and has no known history of failure to appear.

If the person arrested qualifies for a field bond, the officer must advise the arrestee of the right to be taken before a judicial officer within a reasonable time and that, by signing a field bond, the arrestee waives that right. (2) Appearance before a Judicial Officer. Unless a field bond is used, an arrested person shall be promptly brought before a United States Magistrate Judge or, in the event a United States Magistrate Judge is not reasonably available, before a state judicial officer as authorized by 18 U.S.C. § 3041. The arresting officer must use best efforts to contact the Clerk of Court and advise the Court of such arrest before arriving at the courthouse.

(3) Custody. The United States Marshal only takes custody of a defendant who is arrested by another agency after a United States Magistrate Judge has found probable cause for the arrest. See 28 C.F.R. § 0.111(k). Where an officer houses a defendant in a facility overnight, the arresting officer must secure the defendant from the local jail facility and promptly take the defendant before a United States Magistrate Judge for an initial appearance.

See Fed. R. Crim. P. 5(a). The arresting officer must use best efforts to contact the Clerk of Court and advise the Court of such arrest before arriving at the courthouse. 76 LCrR 59.1 UNITED STATES MAGISTRATE JUDGE DUTIES IN FELONY CASES In addition to the powers and duties in 28 U.S.C. § 636(a), after an indictment is returned or an information is filed in a felony case, United States Magistrate Judges are hereby authorized under 28 U.S.C. § 636(b), to perform any duties assigned to them by any United States District Judge of this Court that are consistent with the Constitution and laws of the United States. (a) Pretrial Matters.

In the absence of a United States District Judge’s decision to reserve a proceeding for decision by a United States District Judge, and with the exception of the motions and petitions listed herein, a United States Magistrate Judge of this Court is authorized and assigned to hear and determine pretrial matters including, but not limited to: (1) (2) (3) (4) (5) (6) (7) Accepting criminal complaints and issuing arrest warrants or summonses; Conducting initial appearances and imposing release conditions; Conducting preliminary examinations; Receiving grand jury returns in accordance with Fed. R. Crim. P. 6(f); Accepting waivers of indictment; Receiving executed or cancelling unexecuted arrest warrants; Conducting arraignments not triable by the United States Magistrate Judge and taking pleas of not guilty in such cases; (8) Hearing motions and entering orders for examinations to determine mental competency; (9) Hearing and determining discovery motions and motions to sever; 77 (10) Issuing subpoenas, writs of habeas corpus ad testificandum or habeas corpus ad prosequendum, or other orders necessary to obtain the presence of parties, witnesses, or evidence needed for court proceedings; (11) Conducting initial appearances and preliminary hearings in probation and supervised release revocation proceedings; (12) Conducting proceedings for defendants arrested in this district under a warrant issued in another district for allegedly failing to appear or violating release conditions and issuing all necessary orders incident thereto; (13) Issuing search warrants and receiving warrant returns; (14) Authorizing the installation of pen registers and devices including trap and trace devices (and issuing orders to assist), beeper devices (transponders), and clone beepers; (15) Determining if defendants have knowingly and voluntarily waived counsel, appointing attorneys for defendants who cannot afford them, and approving attorney expense vouchers; (16) Determining issues of release or detention of defendants, material witnesses, and confidential informants; (17) Ordering exoneration or forfeiture of bonds; (18) Determining the propriety of joint representation of criminal defendants; (19) Hearing and determining applications for admission to practice before this Court; (20) Directing the payment of basic transportation and subsistence expenses for defendants financially unable to bear the costs of travel to required court appearances; 78 (21) Conducting initial proceedings upon the appearance of an individual accused of an act of juvenile delinquency; (22) Performing the functions specified in 18 U.S.C. §§ 4107, 4108, and 4109 regarding offenders’ verification of consent to transfer to or from the United States and attorney appointments; and (23) Conducting a plea hearing and rejecting or accepting a plea and recommending rejection or acceptance of a plea by the United States District Judge. (b) Additional Pretrial Matters. Upon written order or a United States District Judge’s specific oral referral, a United States Magistrate Judge may also: (1) Rule on pre-indictment challenges to grand jury subpoenas or other motions related to grand jury proceedings; (2) Exercise general supervision of criminal calendars, including the handling of calendar and status calls, and motions to continue or expedite trials; (3) (4) Conduct pretrial conferences in a criminal case; and Conduct a plea hearing and reject or accept a plea and recommend rejection or acceptance of a plea by the United States District Judge. (c) Continuance of Felony Cases from District Court Docket.

At arraignment, a United States Magistrate Judge is authorized to grant a single presumptive continuance while considering the requirements of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and ensuring that the ends of justice are served by granting the continuance. It is anticipated that most such continuances will occur where trial is set less than thirty (30) days from arraignment. A United States Magistrate Judge may also resolve any objections to this presumptive continuance. 79 (d) Dispositive Matters.

(1) United States Magistrate Judge’s Recommendation. A United States Magistrate Judge is authorized to submit to a United States District Judge a report containing proposed findings of fact and a recommendation for disposition by the United States District Judge of the following matters: (A) Motions to dismiss or quash an indictment or information; (B) Motions to suppress evidence; (C) With the consent of the parties and the assigned United States District Judge, make such recommendations regarding the taking and accepting of guilty pleas as may be necessary; (D) Petitions to revoke probation and supervised release, including the conduct of the final probation or supervised release revocation hearing; and (E) Petitions for habeas corpus and motions for post-conviction relief filed under 28 U.S.C. §§ 2241, 2254, and 2255. (2) Authority to Conduct Proceedings. A United States Magistrate Judge is authorized to issue any preliminary order and conduct any necessary evidentiary hearing or other proceeding arising in the exercise of the authority conferred by this subsection.

(e) Exception. Nothing in this Rule precludes a United States District Judge from (1) reserving any proceeding for conduct by a United States District Judge, rather than a United States Magistrate Judge, or (2) modifying the method of assigning matters to a United States Magistrate Judge, as circumstances warrant. 80 Advisory Committee Notes This local rule delineates what matters are referred to a magistrate judge. It remains necessary because §§ 636(b)(1)(A) & (B) provide that an Article III judge “may designate” a Magistrate Judge to hear certain enumerated matters and even though each District Judge has a Standing Order, it is possible that unless the District Judge checks all the boxes, some matters may not be deemed properly referred.

It is also important to have a district-wide “blanket” designation because certain preliminary matters are handled by Magistrate Judges before a District Judge is assigned to the matter and before that judge’s Standing Order is, thereby, invoked. 81