 Federal Judicial Center Orientation Series for District Judges Criminal Pre-Trial Proceedings with the Honorable Terry J. Hatter Jr. and the Honorable Michael M. M. Judge Hatter was appointed as the United States District Judge for the Central District of California in 1979. He has previously served as a California Superior Court Judge and taught at the University of Southern California Law Center and Loyola University of Los Angeles Law School. Judge Mim was appointed as the United States District Judge for the Central District of Illinois in 1982. He's a member of the Judicial Conference Committee on the Judicial Branch and the Seventh Circuit Committee on Education. This program will focus on the legal requirements and management principles that apply at critical stages of the pre-trial process in criminal cases. Judge Mim and I hope to leave you with a sense of the kinds of problems you might reasonably expect to encounter pre-trial in the typical criminal case and with some clear suggestions on how to handle those problems. We'll try to keep our discussion as practical as possible. Of course, it just won't be possible for us to cover every single situation that might arise in your courtroom during the pre-trial phase of a case. And even if we could, we wouldn't. That would take part of the fun and excitement of your new position away from you. That's right. But we will be discussing a number of situations and procedures you should know about because they occur routinely in most cases. We'll be referring to the federal rules of criminal procedure from time to time during our discussion. You should, of course, also look to your own local court rules for guidance in these areas. We'll assume that the hypothetical case we're discussing is being prepared for trial and we'll actually go to trial. Having said that, of course, you should understand, if you don't already, that most criminal cases do not go to trial. The percentage of pleas of guilty in criminal cases varies from district to district and from court to court. But overall, approximately 85% of federal criminal cases are resolved pre-trial by a plea of guilty. Nevertheless, we'll assume this case is going to go to trial. And since a plea of guilty can be entered at any point in the proceedings, even during trial, we'll discuss guilty pleas separately in the last segment of the program. It's worth noting, though, that how you handle the pre-trial phase of the case may well determine whether it pleads out or goes to trial. And if it goes to trial, how smoothly that trial will proceed. Ordinarily, the arraignment will be your very first contact with the case. But dependent upon the court and the availability of magistrate judges, you may become involved in the case earlier. For example, you may have to preside at the defendant's initial appearance before the indictment is even returned by the grand jury. On the other hand, it may well be that a magistrate judge ordinarily handles arraignments in your court. If so, then the magistrate judge will need to know your schedule so he or she can properly schedule deadlines, dates for hearings, as well as the trial of the case. The arraignment is, in many ways, a routine proceeding. The bench book at section 1.05 has a good discussion of what needs to be addressed with the defendant at that time. For example, you must be sure the defendant has received a copy of the indictment or information, knows what the charges are, and enters a plea of either guilty or not guilty to the charges. The bench book tracks the requirements of Rule 10 of the Federal Rules of Criminal Procedure, which governs arraignments. Among other things, Rule 10 requires that the indictment or information be read to the defendant, or that the substance of the charge be stated to the defendant. That's true, but as the bench book suggests, you can ask the defendant whether he wants the indictment or information read, or if he will waive that reading. And you may be pleased to know in the 12 years that I've been a judge, no defendant has ever stood on his or her right to have the indictment read. That's right. As a practical matter, the reading of the indictment is almost always waived. One of the major events that normally does occur at the arraignment, or should, from a case management standpoint, is setting the schedule for the rest of the case. That's the point at which you begin to set the ground rules by giving the attorneys a certain period of time to file pre-trial motions, ordering opposing counsel to respond by a certain date, setting a hearing date for those pre-trial motions, and setting a trial date. Many districts have an omnibus local rule or standing order that governs scheduling of these matters, as well as pre-trial discovery. And you should consult that rule before setting dates. Judge Hatter, does your district have such a rule? It certainly does. In fact, our local rule is much like yours. And in addition, I have my own standing order that sets out the dates, and I suggest that you do the same. Now, it may be that many of the matters you'll be handling at arraignment will be routine, but there are several other events of great significance that also occur at arraignment. For example, if the defendant appears at the arraignment without an attorney and you are satisfied that the defendant cannot afford to hire his or her own attorney, you may have to appoint counsel for the defendant. If possible, you should make this decision and appoint counsel prior to the time the defendant is asked to plead guilty or not guilty. If the defendant is not represented at the arraignment, you should appoint counsel at that time. Or you can set a deadline by which the defendant must appear in court with private counsel so that the arraignment may be completed. Also, you may have to review the magistrate judge's ruling on bail or pre-trial detention or make initial rulings on these matters yourself at arraignment. In addition, the time limit set by the Speedy Trial Act normally began to run at arraignment if they have not already begun to run. Let's spend a couple of moments talking about the basic requirements of the Speedy Trial Act which is found beginning at Title 18, Section 3161. The Act requires that an indictment or information be filed within 30 days of arrest or service of summons. Also, the defendant's trial must begin within 70 days of the filing of the information or indictment or within 70 days of the defendant's first appearance in court, whichever is later. You need to educate yourself carefully regarding the requirements of the Speedy Trial Act. Don't simply rely on the representations of the Deputy Clerk or the Assistant United States Attorney or Defense Counsel. It's also important to note that under the Act, a defendant's trial cannot begin less than 30 days from the date on which the defendant first appears through counsel or expressly waves counsel and elects to proceed, per se. As a practical matter, it would be very, very rare to have any case go to trial anywhere near that 30-day minimum requirement. The reason for the rule is obvious. To force a defendant to trial in less than 30 days and presumptively interfere with the defendant's ability to prepare a defense. The requirements of the Speedy Trial Act are very stringent. At the same time, however, the Act recognizes that events may occur during the pre-trial process that should toll the running of the 70-day Speedy Trial Clock. These events are called excludables. Delay caused by an excludable event is called excludable time and is excluded from Speedy Trial Act calculations. An example of an event that would result in excludable time would be the defendant's filing of a motion to suppress evidence. This would have the effect of tolling the Speedy Trial Clock until such time as the court receives everything it needs to rule on the motion. Sometimes the defendant will offer to waive the Speedy Trial Act. Remember, the Act is not waivable. And by the way, I don't think you should just study Section 3161. I'm thinking here about the special rules contained in Section 3164 concerning the time a defendant can be detained without bail while awaiting trial. That's a good point. Section 3164 allows a defendant to be detained without bail while awaiting trial for no longer than 90 days as opposed to the 70-day time limit imposed by Section 3161. The 90-day limit on detention without bail begins to run on the date the defendant is first detained. And it applies to a period of continuous detention only. We mentioned earlier that you may have to appoint counsel for the defendant at arraignment. The appointment of counsel in a criminal case is, of course, a very serious matter. The law requires that unless the defendant has knowingly and intelligently waived the right to counsel, then the defendant must be represented by an attorney. The law also requires that the attorney provide effective counsel to the defendant. Very often, counsel will be appointed by the magistrate judge at the initial appearance. However, it will not be unusual for you to have to appoint counsel or consider the question of substitute counsel at the arraignment. This brings us to the Criminal Justice Act, or as you will come to know it, the CJA. The Criminal Justice Act is found at Title 18, Section 3006A. It allows you to appoint a federal public defender or a CJA panel attorney to represent the defendant if the financial affidavit filed by the defendant shows that the defendant cannot afford to hire an attorney. Most large urban areas have a federal public defender and will handle the defense in most of your indigent defendant cases. However, in my district, which is a small district, I have never had a public defender case in my court, although technically we do have a federal public defender assigned to a large area which includes our district. So we appoint counsel from the CJA panel list. That is a list of private attorneys from the local community who have been approved by the court to represent defendants under the Criminal Justice Act. I think it's important to realize that the inquiry into the financial status of the defendant needs to be something more than cursory. I fully agree. You really do have a duty to scrutinize the defendant's financial affidavit. In many cases, you will want to supplement the information on the affidavit with oral questions put to the defendant while he or she is on the road. Sometimes it's obvious that the defendant has absolutely no assets and that appointment of counsel is appropriate. But on other occasions, the defendant's financial situation may be a little more borderline. You may also have a case from time to time where you deny the request because you find the defendant has the money to hire a private counsel. Remember, if you determine at any time during the course of the case that the defendant is able to pay part or all of the cost of the court appointed attorney, you can order him to make that partial or total payment. I'd just like to add that although a defendant is entitled to be represented by competent counsel, a defendant is not entitled to have his or her own private counsel appointed under the Criminal Justice Act. Nor is the defendant entitled to select an attorney of choice from the CGA panel list. In fact, I would suggest in the strongest possible terms that it would be a very bad precedent for you to allow either of those things to occur. Once you determine that it is proper to appoint counsel to represent the defendant, you must consider which particular lawyer should be appointed. For example, what if the attorney appointed by the court to represent the defendant has a potential conflict of interest with a co-defendant already before the court in the case? That would of course raise a host of problems relating to the issue of effective assistance of counsel. And the bottom line is you should take great care to ensure that you don't appoint an attorney who has a conflict of interest or even a potential conflict of interest with a co-defendant in the case. Related to this is the serious problem of joint representation in a criminal case. Rule 44C provides that whenever two or more defendants have been jointly charged or have been joined for trial and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. Of course the court must be very sensitive to this concern when appointing counsel, but the concern would be the same if two or more defendants come into court represented by the same attorney who has been privately retained. That's correct. Concerns about joint representation are covered exceptionally well in the bench book under Section 1.22. You should also be familiar with the case of Wheat v. United States, cited in your outline, which discusses the tension between the defendant's right to choose his or her own counsel under the Sixth Amendment and your discretion to prohibit joint representation in cases where there is an actual conflict of interest or where there is a potential conflict of interest that may realistically be expected to develop into an actual conflict. I think the situations where the court should allow joint representation are extremely rare, if not nonexistent. To allow it is to set the stage for the almost inevitable falling out that occurs between co-defendants if they are convicted and the consequent finger pointing that follows with each convicted defendant now represented by a separate attorney or law firm claiming it was a reversible error for you to allow joint representation in the first place. And it will almost certainly result in a hapeous filing by the convicted defendants, arguing that because of an actual conflict of interest that developed, each of them was denied the effective assistance of counsel. Another possible conflict of interest arises if a defendant requests to be represented by the same attorney or the same law firm as an unindicted co-conspirator, or by the same attorney who represented or presently represents a witness who is going to testify for the government. Yet another troublesome situation occurs when the lawyer for one defendant is paid for by a co-defendant. This raises serious questions regarding whether both defendants are truly represented by independent counsel. That's right. You must engage in a meaningful dialogue with the defendant regarding possible conflicts of interest. Others may disagree, but in my opinion, this is not a task that you should ever delegate to a magistrate judge. The record you make at that point in the pre-trial stage will set the scene for later consideration of this issue by the Court of Appeals. The bench book lists a number of specific problems that may arise as a result of dual representation of co-defendants. It does, and I think we both agree, that it's important to discuss those specific problems with the defendant and not just use conclusive terms like conflict of interest. As a practical matter, you must understand that when discussing a possible conflict of interest situation, it's important that you discuss the issue with the attorneys and with the defendant directly. It's essential to the protection of your record that you engage in a meaningful dialogue with the defendant. That means something more than just having the defendant simply answer yes or no to your questions. You should explain how in specific circumstances the conflict could affect him or her adversely, for example with plea negotiations or cross-examination. You should insist that the defendant clearly indicate his or her position regarding the possible conflict on the record in a narrative fashion. That way, the argument cannot later be made that the defendant was simply going along with what was happening by answering yes or no. Also, you should involve the Assistant United States Attorney in this dialogue. Another sensitive situation arises when a defendant informs you that he or she wishes to waive the right to consul and proceed pro se. This can develop as early as the defendant's first appearance in court or as late as the sentencing hearing. This matter is discussed at section 2.01 of the bench book. I would suggest that you caution any defendant in the strongest possible terms not to represent himself or herself. Of course, as the bench book indicates, an accused does have a constitutional right to self-representation. That's right, but in order to exercise that right, the defendant must waive the right to the assistance of consul. And any waiver of the right to consul must be knowing and voluntary, which is why you must make the defendant aware of the hazards and disadvantages of self-representation before he or she elects to proceed pro se. It is in that context that I advise you to tell the defendant in the strongest possible terms not to proceed pro se. I might add that it's important to make a clear record on this matter too, because if you allow the defendant to proceed pro se and there is a conviction, there is a strong likelihood that one of the issues on appeal will be whether or not you acted properly in allowing the defendant to proceed pro se. There are many sub-issues that arise under this heading as well. For example, you'll also need to determine whether the defendant's level of mental competency is sufficient for the waiver of consul to be knowing and voluntary. But suppose you have found that the defendant has made a knowing and voluntary waiver of the right to consul and may proceed pro se. You may still decide to appoint an attorney to act as advisory consul to the defendant. In other words, don't be surprised if your pro se defendant wishes to seek legal advice concerning the filing or argument of motions or how to handle certain procedural matters. Appointing standby or advisory consul to assist a pro se defendant with these matters will help avoid some of the delays often associated with pro se litigation. What happens if the defendant's motion to waive consul and proceed pro se occurs after the trial begins? That's a good question. There's case authority in several circuits that unless a pro se motion is made in a timely manner, that is before trial has begun, it is considered waived. Now let's talk for a few moments about some basic provisions of the Bail Reform Act. As we stated earlier, it's usually the magistrate judge who sets bail or orders that the defendant be detained pending trial at the defendant's initial appearance or shortly thereafter. But it won't be uncommon for you to receive an appeal from the magistrate judge's ruling on bail. So you should be very familiar with the requirements of the Bail Reform Act. The Bail Reform Act requires every accused to be released without posting bail or meeting special conditions unless the judicial officer finds that the defendant is likely to flee, endanger the safety of another person or endanger the community. It also gives the court the authority to release a defendant subject to one or more conditions. The conditions are designed to assure the appearance of the defendant, the safety of others, and the safety of the community. Some examples of release conditions are that the defendant's travel be restricted to the federal district where the case is being prosecuted, that the defendant not have any contact with government witnesses in the case, or that the defendant submit to urine testing upon demand of the United States probation officer. Given the high percentage of drug prosecutions that we have in our courts, it is very common to include a condition requiring drug testing or treatment while the defendant is on bond. Of course, the defendant may also be detained prior to trial under the Bail Reform Act. Section 3142F of Title 18 provides that on motion of the government in certain types of cases the judicial officer shall hold a detention hearing. The purpose of the hearing is to determine whether any condition or combination of conditions would reasonably assure the appearance of the defendant as required and the safety of any other person in the community. The government may file that motion only in certain enumerated circumstances, such as when the defendant is charged with a crime of violence, an offense carrying a maximum sentence of life imprisonment or death, or a drug charge carrying a maximum term of 10 years or more. A detention hearing may also be held either upon motion of the government or upon the district judge's own motion, in a case involving a serious risk that the defendant will flee, obstruct or attempt to obstruct justice, or threaten, injure or intimidate a prospective witness or juror. The law requires that the detention hearing be held at the defendant's very first appearance, and that the defendant or the attorney for the government seeks a continuance. The burden of proof is on the government at a detention hearing. The government must establish by clear and convincing evidence the facts used to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community. Subsection G of section 3142 sets forth the factors the court is to look to in determining whether or not bond is appropriate. That's right. It's a fairly exhaustive list, although not an exclusive list. It includes such things as the nature and circumstances of the offense charged, the weight of the evidence, the history and characteristics of the person, and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. In the next few weeks, a pretrial services officer will do a background investigation of the defendant on an expedited basis and prepare a report and recommendation for you on bail or detention. You'll find that report quite helpful in making your decisions in this area. If the detention issue does come to you by way of an appeal from a detention order issued by the magistrate judge, you need to review that detention order carefully. You should be sure the magistrate judge allowed the parties a full opportunity to present their positions and that he or she properly considered the factors enumerated under section 3142G. If you are reviewing what the magistrate judge has already done, it will be helpful if you have a transcript of the earlier proceeding. You can read that over very quickly and get some background on the bond issues before considering any new information the parties present. It may be that by the time the matter gets to you, both sides have developed additional information, having a bearing on the appropriateness of bond. In any event, once a determination has been made regarding detention, the matter can be reopened at any time before trial. If the judge finds there is new information, information not known to the movement at the time of the initial hearing, that has a material bearing on the issue of whether or not the defendant should be released. And remember, if the defendant is detained, keep in mind the requirements of the Speedy Trial Act that apply to detained defendants when scheduling the case for trial. Let's talk a little more about the schedule you'll be setting at Arraignment. That schedule should always be tailored to fit the needs of the case. In a co-defendant case, for instance, the defendants will not necessarily be arraigned at the same time, or even on the same date. Defendants C may not even be taken into custody until three or four weeks after defendants A and B are arraigned. In some cases, the defendants will be detained prior to trial, and in others, they will be released on bond. Your schedule must take such case-specific factors into consideration. On the other hand, I'd suggest that the schedule you impose always include a date for a hearing on pending motions followed by a pretrial conference. This ensures that at the very next court hearing, at the conclusion of the hearing on motions, the parties can begin to engage in meaningful dialogue with the court regarding the trial itself. Of course, it's important that you let the lawyers know exactly what you want them to accomplish before and during the pretrial conference if that conference is going to be productive. Judge Mem and I have some suggestions we'd like to pass along to you that in our experience have helped paved the way for a useful pretrial conference. First, at the Arraignment, you should have an in-depth discussion with the attorneys on the status of discovery. Find out exactly what remains to be done to complete discovery and ensure timely delivery of discoverable materials. Establish a deadline for the completion of discovery. I would suggest setting a deadline for completion of plea bargaining as well. Of course, every judge has his or her own view on the question whether the court should place a deadline on plea bargaining. We'll talk more about that later. You should also set deadlines for the filing of motions by defense counsel and responses by the United States. These deadlines, as well as the motion hearing date and the trial date, must be set with the Speedy Trial Act in mind. Many judges use a preprinted memo or handout setting forth their policies on all of these kinds of matters. Whether you feel that such a handout is a time saver and would be appropriate in your court is entirely your own decision. What's your practice, Judge Memm? Well, in my district, we have an omnibus order that governs pre-trial discovery in criminal cases. I generally take the order and modify it to meet the needs of the case before me. Let's say it's a conspiracy case. If a defendant files a motion asking for a pre-trial ruling on the admissibility of alleged co-conspirator statements, the procedure I follow is to order the government to file a written proffer by a certain date. In that proffer, it must set out the proof it believes will be presented at trial to establish the existence of a conspiracy and the defendant's membership in it. I then set a deadline for the defendants to respond if they object to the adequacy of the proffer. If there is an objection, I'll resolve the matter at the hearing on pending motions. In my district, we have an order addressing the timing and method of preparing jury instructions. I use the pre-trial conference to flush out any problems counsel might have in complying with this order. Working within the framework you have established, the prosecutor and defense attorney should complete discovery between arraignment and the time of the pre-trial conference. But as Judge Hatter will tell you, discovery in a criminal case is substantially different from discovery in a civil case. It certainly is. Under federal rule of criminal procedure 16, the defendant simply does not have access to every piece of paper the United States has in its file. Rule 16 provides that upon the request of the defense counsel, the prosecutor must disclose certain evidence if it is in the possession, custody, or control of the government, or if the existence of the evidence is known to the government or can become known by the exercise of due diligence. Discoverable evidence includes such things as the defendant's own oral, written, or grand jury statement, the defendant's prior record defending, and documents and tangible evidence in the government's possession if they are material to the preparation of the defense, intended for use as evidence by the government in its case in chief at trial, or obtained from or belong to the defendant. In addition, the defendant is entitled to discover the results and reports of physical or mental examinations, scientific tests, or experiments if they are material to the defense, or are intended for use as evidence by the government in its case in chief at trial. After the defense requests this information and the prosecutor discloses it, Rule 16 allows the government to make a request for reciprocal discovery of similar evidence in the defendant's possession. We should also note that Rule 16A2 specifically provides that certain items are not subject to disclosure. These include reports, memoranda, or other internal documents made by the attorney for the government, or other government agents in connection with investigation or prosecution of the case. Also, under Rule 163, grand jury transcripts are not subject to pre-trial discovery. Federal rules of criminal procedure 12.1 and 12.2 also address discovery matters. Rule 12.1 imposes certain notice requirements upon a defendant intending to raise an alibi defense. Rule 12.2 imposes similar requirements upon a defendant intending to raise a defense of insanity or introduce expert testimony relating to a mental condition bearing upon the issue of guilt. The notice requirements of these two rules are quite specific, and you should review them carefully. Any other discovery issues we should cover? How about confidential informants? All right. It is not uncommon for the government to work with a confidential informant in developing its case. In such cases, the defendant becomes very interested in learning the identity of the informant prior to trial. The basic ground rules regarding whether or not the government should be ordered to divulge the identity of a confidential informant are contained in Roviero v. the United States and the cases following it. Those cases require you to balance the government's interest in protecting its informants against the defendant's right to prepare a defense. Essentially, the cases distinguish between tipsters, that is, informants who call the police with information about a criminal offense saying, I heard so and so did this or I have information that this happened, and informants who are actual participants in the alleged criminal conduct are witnesses to material events relating to that conduct. Obviously, if the informant were a necessary party to the criminal conduct or participated in the criminal conduct, the scale tips very heavily in favor of ordering the government to divulge his or her identity. Let's say, for example, the informant was a necessary party to an illegal drug sale, and the defendant wishes to present evidence of duress or entrapment resulting from the informant's behavior. I think in that instance, fundamental fairness would dictate disclosure of the identity of that informant at the pretrial stage. This issue will usually come to your attention in the form of a pretrial motion. Typically, the defendant files a motion asking the government to divulge the existence and identity of any informants. If the informant is no longer confidential, you don't have a problem. The government will divulge his or her identity. However, if the government feels that because of an ongoing investigation or specific concerns about the safety of the informant, the identity should not be divulged. They will resist it. At the motions hearing, you'll have an opportunity to hear evidence and argument on the issue before deciding whether or not to order the government to divulge the identity of its informant. Many of you may already be familiar with the term brady material. That term is derived from the basic rule of Brady v. Maryland. That case holds that the government has a duty to divulge to the defense information or evidence in its possession, which is favorable to the defendant on the issues of guilt or punishment. The disclosure of brady material to the defense is required by the Constitution, not Rule 16. But the obligation to disclose is contingent upon a request made by the defendant. This request should be as specific as possible. The evidence being sought by the defense must also be material. That is, the mere possibility that the evidence might aid the defense or affect the outcome of the trial does not establish its materiality. For example, if a government informant has given conflicting statements to different law enforcement agencies and matters of material interest to the defendants, then both statements should be turned over to the defense, whether the government intends to call the informant or not. The statements would be considered brady material. The prosecutor's duty to disclose requested brady material is ongoing. But the prosecutor and defense attorney may have different ideas about the timing of such disclosure. You must exercise your discretion carefully in ordering when brady material is to be disclosed. For example, any brady type information that would reasonably be expected to result in additional defense investigation or preparation for trial should be disclosed early in the case. Obviously, late disclosure of that material and late in this context means shortly before trial could result in a need to continue the trial date. Finally, while brady does impose a significant duty on the government, remember, it doesn't require the prosecutor to give the court or the defendant a detailed account of all investigatory work done on a case. As you can see, if the defendant in a criminal case has not given the right to discover a certain type of information by rule 16, by statute, or by case law, then the right to discover that information just does not exist. For example, defendant is not ordinarily entitled to receive an FBI agent's report during pre-trial discovery. The rationale behind this limitation on the flow of information is that requiring the government to reveal the identity of its witnesses or to turn over such things as witness statements or grand jury transcripts would place the safety of the government's witnesses at risk. Unfortunately, if the U.S. attorney in your district follows a policy of providing only the information required by law, you're likely to wind up litigating discovery issues in a good many cases. What's the policy in your district, Judge Mem? In my district, the U.S. attorney follows what's called an open file policy in most cases. An open file policy is pretty much what it sounds like. The U.S. attorney represents to the court that the government will turn over to the defense any information it has about the case, including information not required to be turned over by Rule 16 and the Jinx Act. We'll discuss the Jinx Act a little later, but count yourself lucky if your U.S. attorney has an open file policy. What's the policy in your district, Judge Hatter? Fortunately, the U.S. attorney in my district also follows an open file policy. And in my experience, open file discovery facilitates the exchange of information without giving rise, in most cases, to any concerns about the safety of government witnesses. Of course, even in an open file situation, the government may still reserve the right to withhold specific information. In that case, it will notify the court that certain information is being withheld and indicate why it's being withheld. This is usually information that would not otherwise be available to the defendants anyway. In my view, if the defendant has a full understanding of the strength of the government's case early on, it will facilitate plea bargaining. It's also been my experience, and I'm sure Judge Mem will join me in this comment, that full discovery facilitates the presentation of the case of trial. I certainly agree. If you have to stop the trial every time the government finishes questioning an agent on direct examination so that the defense attorney can examine the agent's report prior to cross-examination, then it's going to take you a lot longer than you'd like to try that case. Depending upon the situation, much of the discovery process is conducted informally. But to the extent disputes over the scope of discovery arise and result in discovery motions, those disputes must be resolved by the magistrate judge or the district judge.