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UNITED STATES DISTRICT COURT

Eastern District of Texas

Judge Ron Clark, Chief Judge
David A. O'Toole, Clerk of Court

Section II: Criminal

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Effective May 24, 2016
  • LOCAL RULE CR-1 Scope

    The rules of procedure in any criminal proceeding in this court are those prescribed by the laws of the United States, the Federal Rules of Criminal Procedure, these local rules, and any orders entered by the court.  These rules shall be construed as consistent with acts of Congress and rules of practice and procedure prescribed by the Supreme Court of the United States and the United States Court of Appeals for the Fifth Circuit.

  • LOCAL RULE CR-6 The Grand Jury

    (a) Selection of Grand Jurors.  Grand jurors shall be selected at random in accordance with a plan adopted by this court pursuant to applicable federal statute and rule.  

    (b)  Grand Jury Subpoenas.  Sealed grand jury subpoenas shall be kept by the clerk for three years from the date the witness is ordered to appear.  After that time, the clerk may destroy the subpoenas.

    (c)  Signature of the Grand Jury Foreperson.  The grand jury foreperson shall sign the indictment with initials rather than his or her whole name.  The foreperson will continue to sign the concurrence of the grand jury using his or her whole name.

     

  • LOCAL RULE CR-10 Arraignments

    In the interest of reducing delays and costs, judges and magistrate judges may conduct the arraignment at the same time as the post-indictment initial appearance.  

  • LOCAL RULE CR-24 Trial Jurors

    (a)  Communication with Jurors.

    (1)  No party or attorney for a party shall converse with a member of the jury during the trial of an action.

    (2)  After a verdict is rendered an attorney must obtain leave of the judge before whom the action was tried to converse with members of the jury.

    (b)  Signature of the Petit Jury Foreperson.  The petit jury foreperson shall sign all documents or communications with the court using his or her initials.

  • LOCAL RULE CR-47 Motions

    (a) Form and Content of a Motion. All motions and responses to motions, unless made during a hearing or trial, shall be in writing, conform to the requirements of LOCAL RULES CV-5 and CV-10, and be accompanied by a separate proposed order for the judge's signature. The proposed order shall be endorsed with the style and number of the cause and shall not include a date or signature block. Dispositive motions-those which could, if granted, result in the dismissal of an indictment or counts therein or the exclusion of evidence-shall contain a statement of the issues to be decided by the court. Responses to dispositive motions must include a response to the movant's statement of issues. All motions, responses, replies, and proposed orders, if filed electronically, shall be submitted in "searchable PDF" format. All other documents, including attachments and exhibits, should be in "searchable PDF" form whenever possible.

    (1) Page Limits.

    (A) Dispositive Motions. Dispositive motions shall not exceed thirty pages, excluding attachments, unless leave of court is first obtained. Likewise, a party opposing a dispositive motion shall limit the response to the motion to thirty pages, excluding attachments, unless leave of court is first obtained. Any reply brief shall not exceed ten pages, excluding attachments.

    (B) Non-dispositive Motions. Non-dispositive motions shall not exceed fifteen pages, excluding attachments, unless leave of court is first obtained. Likewise, a party opposing a non-dispositive motion shall limit the response to the motion to fifteen pages, excluding attachments, unless leave of court is first obtained. Any reply brief shall not exceed five pages, excluding attachments.

    (2) Briefing Supporting Motions and Responses. The motion and any briefing shall be contained in one document. The briefing shall contain a concise statement of the reasons in support of the motion and citation of authorities upon which the movant relies. Likewise, the response and any briefing shall be contained in one document. Such briefing shall contain a concise statement of the reasons in opposition to the motion and a citation of authorities upon which the party relies.

    (3) Certificates of Conference. Except as specified below, all motions must be accompanied by a "certificate of conference." It should be placed at the end of the motion following the certificate of service. The certificate must state: (1) that counsel has conferred with opposing counsel in a good faith attempt to resolve the matter without court intervention; and (2) whether the motion is opposed or unopposed. Certificates of conference are not required of pro se litigants (prisoner or non-prisoner) or for the following motions:

    (A) motions to dismiss;

    (B) motions for judgment of acquittal;

    (C) motions to suppress;

    (D) motions for new trial;

    (E) any motion that is joined, by, agreed to, or unopposed by all the parties;

    (F) any motion permitted to be filed ex parte;

    (G) objections to report and recommendations of magistrate judges;

    (H) for reconsideration; and

    (I) dispositive motions.

    (b) Timing of a Motion.

    (1) Responses. A party opposing a motion has fourteen days from the date the motion was served in which to serve and file a response and any supporting documents, after which the court will consider the submitted motion for decision. Any party may separately move for an order of the court lengthening or shortening the period within which a response may be filed.

    (2) Reply Briefs and Sur-Replies. Unless otherwise directed by the presiding judge, a party who has filed an opposed motion may serve and file a reply brief responding to issues raised in the response within seven days from the date the response is served. A sur-reply responding to issues raised in the reply may be served and filed within seven days from the date the reply is served. The court need not wait for the reply or sur-reply before ruling on the motion. Absent leave of court, no further submissions on the motion are allowed.

    (c) Affidavit Supporting a Motion. When allegations of fact not appearing in the record are relied upon in support of a motion, all affidavits and other pertinent documents shall be served and filed with the motion. It is strongly recommended that any attached materials have the cited portions highlighted or underlined in the copy provided to the court, unless the citation encompasses the entire page. The page preceding and following a highlighted or underlined page may be submitted if necessary to place the highlighted or underlined material in its proper context. Only relevant, cited-to excerpts of attached materials should be attached to the motion or the response.

  • LOCAL RULE CR-49 Service and Filing

    (a) Generally. All pleadings and documents submitted in criminal cases must conform to the filing, service, and format requirements contained in LOCAL RULES CV-5, CV-10, and CV-11.

    (1) Defendant Number. In multi-defendant cases, each defendant receives a "defendant number." The numbers are assigned in the order in which defendants are listed on the complaint or indictment. When filing documents with the court, parties shall identify by name and number each defendant to whom the document being filed applies.

    (2) Sealed Indictments. In multi-defendant cases involving one or more sealed indictments, the government should, at the time the sealed indictment is filed, provide the clerk with appropriately redacted copies of the indictment for each defendant. The goal of this procedure is to protect the confidential aspect of the sealed indictment with regard to any defendants not yet arrested.

    (b) Public Access to Criminal Case Documents Generally. In order to serve the legal presumption of openness in criminal case proceedings, pleadings in this court are generally to be filed unsealed. Except for the documents listed in section (c) of this rule, decisions as to whether to seal a particular pleading must be made on a case-by-case basis by the court, with findings specific enough that a reviewing court can determine whether the sealing or closure was properly entered.

    (1) Absent specific findings of the court to the contrary all documents other than those specifically listed in paragraph (c) below and those submitted with a motion to seal in accordance with LOCAL RULES CV-5(a)(7)(1) and CR-49(a) are to remain unsealed.

    (c) Authorization to Routinely Seal Particular Types of Criminal Case Documents. Despite the general rule cited in section (b) above, the court finds there is an overriding interest in routinely sealing certain types of criminal case documents, because public dissemination of the documents would substantially risk endangering the lives or safety of law enforcement officers, United States Marshals, agents, defendants, witnesses, cooperating informants, judges, court employees, defense counsel, or prosecutors, or their respective family members, and could jeopardize continuing criminal investigations. The documents that trigger this overriding interest are:

    1. unexecuted summonses or warrants (e.g., search warrants, arrest warrants);

    2. pen register or a trap and trace device applications pursuant to either 18 U.S.C. § 3121 et seq. or 18 U.S.C. § 2516 et seq.;

    3. pretrial bail or presentence investigation reports and any addenda and objections thereto; 4. the statements of reasons in the judgment of conviction;

    5. plea agreements, which shall be governed by paragraph (d) below; 

    6. addenda to plea agreements described in paragraph (e) below;

    7. motions for downward departure for substantial assistance, and responsive pleadings and orders granting or denying the same;

    8. motions pursuant to Section 5K1.1 of the U.S. Sentencing Guidelines, memoranda in support thereof, responsive pleadings and orders granting or denying the same;

    9. motions for reduction of sentence under Fed. R. Crim. P. 35(b), memoranda in support thereof, responsive pleadings and orders granting or denying the same;

    10. amended judgments pursuant to a grant of a Fed. R. Crim. P. 35(b) motion; and

    11. orders restoring federal benefits filed in conjunction with item 10 above.

    Documents listed above shall be filed under seal without need of a motion to seal or a certification by counsel. Other than plea agreements, the documents shall remain sealed unless otherwise ordered by the court.

    (d) Sealing and Unsealing of Plea Agreements (Item 5Above).

    (1) Until it is accepted by the court, a plea agreement is in the nature of an unaccepted offer of terms between parties. In addition to the findings of subparagraph (c) above, the court finds that making a plea agreement public before it has been accepted may lead to publicity that would tend to prejudice a defendant who decides to exercise his right to trial, by making it more difficult to select jurors who have not formed an opinion about the case. Such publicity may also provide details of the case pertinent to co-defendants who have not pled, thus prejudicing them. Therefore plea agreements shall be filed under seal.

    (2) The plea agreement shall be unsealed when the terms and conditions of the plea agreement are accepted absent a further order of the court finding that there is an overriding policy interest in keeping that particular plea agreement sealed and providing findings specific enough that a reviewing court can determine whether the sealing or closure was properly entered. The routine unsealing of sealed plea agreements is intended to serve the right of public access to criminal case documents.

    (e) Sealed Addendums to Plea Agreements. Every plea agreement in this court shall have an addendum that is sealed (see section (c) 4 above). The addendum will either state “no provisions are included in this addendum,” or it will contain specific provisions dealing with possible reductions in sentence in return for the defendant’s substantial assistance to the government. This will allow each plea agreement to be unsealed upon sentencing without prejudicing or endangering a cooperating defendant or the defendant’s family or other informants and defendants.

    (f) In those instances where the court orders an entire criminal case sealed, the case documents shall be e-mailed to the following addresses for filing by the relevant divisional clerk’s office: 

    Beaumont bmtcrimdocs@txed.uscourts.gov

    Lufkin lufcrimdocs@txed.uscourts.gov

    Marshall marcrimdocs@txed.uscourts.gov

    Sherman shrcrimdocs@txed.uscourts.gov

    Texarkana texcrimdocs@txed.uscourts.gov

    Tyler tylcrimdocs@txed.uscourts.gov

     

    (g) Defendants proceeding pro se shall submit all sealed criminal case documents in paper format to the clerk’s office for filing.

    (h) Unless otherwise ordered by the presiding judge, counsel filing a document under seal must send a paper copy of that document to the presiding judge’s chambers. The paper copy should be sent directly to the judge’s chambers and not to the clerk’s office.

  • LOCAL RULE CR-49.1 Privacy Protection for Filings Made with the Court

    (a)  Electronic Filing of Transcripts by Court Reporters.  Any transcript of criminal proceedings in this court filed by a court reporter or transcriber shall be filed electronically, including a “Notice of Filing of Official Transcript.”  The clerk will post a “model notice” for the court reporter or transcriber’s use on the court’s web site.  Upon request, the clerk shall make an electronic version of any unsealed transcript available for public inspection without charge at the clerk’s office.  See 28 U.S.C. ' 753(b).

    (b)  Availability of Transcripts of Court Proceedings.  Electronically-filed transcripts of criminal court proceedings are subject to the following rules:

    (1)  A transcript provided to a court by a court reporter or transcriber will be available at the clerk’s office for inspection for a period of ninety days after it is electronically filed with the clerk.  During the ninety-day inspection period, access to the transcript in CM/ECF is limited to the following users:  (a) court staff; (b) public terminal users; (c) attorneys of record or parties who have purchased the transcript from the court reporter or transcriber; and (d) other persons as directed by the court.  Court staff may not copy or print transcripts for a requester during the ninety-day inspection period.

    (2)  During the ninety-day period, a copy of the transcript may be obtained from the court reporter or transcriber at the rate established by the Judicial Conference.  The transcript will also be available within the court for internal use, and an attorney who obtains the transcript from the court reporter or transcriber may obtain remote electronic access to the transcript through the court’s CM/ECF system for purposes of creating hyperlinks to the transcript in court filings and for other purposes.

    (3)  Within seven days of the filing of the transcript in CM/ECF, each party wishing to redact a transcript must inform the court, by filing the attached “Notice of Intent to Request Redaction,” of the party’s intent to redact personal data identifiers from the transcript as required by Fed. R. Crim. P. 49.1.  If no such notice is filed within the allotted time, the court will assume redaction of personal data identifiers from the transcript is not necessary.

    (4)  If redaction is requested, a party is to submit to the court reporter or transcriber and file with the court, within twenty-one days of the transcript’s delivery to the clerk, or longer if a court so orders, a statement indicating where the personal data identifiers to be redacted appear in the transcript.  The court reporter or transcriber must redact the identifiers as directed by the party.  These procedures are limited to the redaction of the specific personal identifiers listed in Fed. R. Crim. P. 9(a).  If an attorney wishes to redact additional information, he or she may make a motion to the court.  The transcript will not be electronically available until the court has ruled on any such motion.

    (5)  The court reporter or transcriber must, within thirty-one days of the filing of the transcript, or longer if the court so orders, perform the requested redactions and file a redacted version of the transcript with the clerk of court.  Redacted transcripts are subject to the same access restrictions as outlined above during the initial ninety days after t6he first transcript has been filed. The original unredacted electronic transcript shall be retained by the clerk of court as a restricted document.

    (6)  If, after the ninety-day period has ended, there are no redaction documents or motions linked to the transcript, the clerk will remove the public access restrictions and make the unredacted transcript available for inspection and copying in the clerk’s office and for download from the CM/ECF system.

    (7)  If, after the ninety-day period has ended, a redacted transcript has been filed with the court, the clerk will remove the access restrictions as appropriate and make the redacted transcript available for inspection and copying in the clerk’s office and for download from the CM/ECF system or from the court reporter or transcriber.

  • LOCAL RULE CR-55 Records

    (a) Disposition of Trial Exhibits by Clerk. The Clerk will maintain all trial exhibits in criminal cases until the sentence of confinement set forth in the judgment of conviction, along with probation and supervised release conditions imposed by the Court, have been satisfied. At the end of this time period, the Clerk will contact the parties and provide notice of the intent to destroy the exhibits. If the parties do not object after receiving this notice, the exhibits will be destroyed. If either party objects, the Clerk will maintain the exhibits described in this paragraph and on an annual basis contact the parties to notify them of the intent to destroy the exhibits unless objections are received.

    (b) Disposition of Sealed Exhibits by Clerk. Sealed exhibits submitted in miscellaneous cases to obtain pen registers, wiretaps, etc. will be maintained in the court's vault for three years. At the end of this time, the Clerk will contact the parties and provide notice of the intent to destroy the sealed exhibits. If the parties do not object after receiving this notice, the sealed exhibits will be destroyed. If the parties do object, the Clerk will maintain the sealed exhibits described in this paragraph and on an annual basis contact the parties to notify them of the intent to destroy the exhibits unless objections are received. Once the parties no longer object to the destruction of the sealed exhibits after receiving notice, the Clerk will proceed to destroy the sealed exhibits.

    (c) Submission of Hearing/Trial Exhibits.

    (1) The parties shall not submit exhibits to the clerk's office prior to a hearing/trial without an order of the court. The clerk shall return to the party any physical exhibits not complying with this rule.

    (2) Exhibits shall be properly marked, but not placed in binders. Multiple-paged documentary exhibits should be properly fastened. Additional copies of trial exhibits may be submitted in binders for the court's use.

    (3) The parties shall provide letter-sized copies of any documentary, physical, or oversized exhibit to the court prior to the conclusion of a hearing/trial. At the conclusion of a hearing/trial, the parties shall provide the courtroom deputy with PDF copies of all exhibits that were admitted by the court, unless otherwise ordered. Oversized exhibits will be returned at the conclusion of the trial or hearing. If parties desire the oversized exhibits to be sent to the appellate court, it will be their responsibility to send them.

  • LOCAL RULE CR-59 Matters Before a Magistrate Judge

    (a) Powers and Duties of a United States Magistrate Judge in Criminal Cases.  Each United States magistrate judge of this court is authorized to perform the duties conferred by Congress or applicable rule. 

    (1) Specific Duties.  The duties a magistrate judge is authorized to perform include, but are not limited to, the following:

    (A) Conduct arraignments and take not guilty pleas.  A magistrate judge can conduct voir dire in a criminal case when assigned by a district judge and with consent of the parties;

    (B) Receive grand jury returns in accordance with Rule 6(f) of the Federal Rules of Criminal Procedure;

    (C) Accept waivers of indictment, pursuant to Rule 7(b) of the Federal Rules of Criminal Procedure;

    (D) Conduct necessary preliminary proceedings leading to the potential revocation of probation;

    (E) Modify, revoke, or terminate supervised release or probation of any person sentenced to a term of supervised release or probation by a magistrate judge;

    (F) Conduct guilty plea proceedings in criminal felony cases with the permission of the presiding district judge and the signed consent of the defendant;

    (G) Conduct an evidentiary hearing, when designated by a district judge, to modify, revoke, or terminate supervised release and to submit proposed findings of fact and recommendations, including, in the case of revocation, a recommended sentence.  (See 18 U.S.C. § 3401).  Recommendations are to be submitted in accordance with 28 U.S.C. 636(b)(1)(B), enabling the district judge to make a de novo review.

    (H) Issue 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;

    (I) Perform any additional duty consistent with the Constitution and laws of the United States.

    (b)  Nondispositive Matters. An objection to a magistrate judge’s order made on a non-dispositive matter shall be specific. Any objection and response thereto shall not exceed five pages. A party may respond to another party’s objections within fourteen days after being served with a copy; however, the court need not await the filing of a response before ruling on an objection.  No further briefing is allowed absent leave of court.

    (c) Dispositive Matters. An objection to a recommendation regarding a dispositive matter and any response thereto shall not exceed eight pages.  No further briefing is allowed absent leave of court.  

    (d ) Assignment of Criminal Matters to Magistrate Judges. The method for assignment of duties to a magistrate judge and for the allocation of duties among the several magistrate judges of the court in criminal cases shall be made in accordance with orders of the court or by special designation of a district judge.