United States District Court, D. Montana
L. Christensen, Chief Judge
the Court is Defendant's Response to the Court's
Order Setting a Final Pre-Trial Conference. The final
pretrial conference ("FPTC") will proceed as
scheduled on January 13, 2017. The Court takes this
opportunity to respond to Defendant's concerns about the
scheduling of the FPTC and to address the issues raised in
suggests that an earlier date would allow him to better
prepare for trial. FPTCs are generally held on the morning of
trial, but the Court scheduled the FPTC in this case earlier
than is customary in order to ensure that the parties have
adequate time for preparation. The Court agrees with
Defendant that an earlier date is preferable in this
instance, given the nature and number of charges that have
been brought. However, the parties will file important
documents after Defendant's preferred date of January 9,
2017. As stated in this Court's December 12, 2016 order
partially granting Defendant's motion to continue, the
parties shall file jury instructions and trial briefs on
January 12, 2017. (Doc. 147 at 4.) The Government's trial
notebook is also due on January 12, 2017. (Doc. 8 at ¶
21.) Thus, the ordered FPTC date of January 13, 2017 will
best allow the parties and the Court to consider these
filings and adequately prepare for trial.
response, Defendant also raises nine issues he would like to
address at the FPTC. Because the Court is largely able to
address these issues at this time, it does so now, addressing
Defendant's concerns in the order in which they were
A: Does the Court require any clarification of a party's
argument on any pre-trial motion upon which the Court has not
Court does not require clarification. The parties have fully
briefed the Court on their motions, and the Court anticipates
ruling on all motions well in advance of the FPTC.
B, C, and D: If the Court issues a Rule 615 Order, what will
be its scope?
Court does not anticipate issuing a Rule 615 Order sua
sponte. At this stage, neither party has requested the
exclusion of witness pursuant to Federal Rule of Evidence
615. However, if either party asks for exclusion under Rule
615, the Court does not have discretionary authority. If
exclusion is requested, the Court "must order witnesses
excluded so that they cannot hear other witnesses'
testimony." Fed.R.Evid. 615. In that event, the
witnesses would not be able to communicate with each other
about their testimony until both had testified. Nor could the
witnesses communicate through the parties present at trial.
Finally, unless the parties otherwise stipulate, expert
witnesses will similarly be excluded.
neither party has requested exclusion. However, if a party
does so, the Court will be bound to issue an order to the
full extent of the party's request. If both parties agree
to narrow the scope of a Rule 615 Order to allow some
communication between witnesses, the Court will honor that
E: Will the Court allow re-cross examination?
Court generally does not allow re-cross examination. However,
there is one narrow exception to the rule. Re-cross will be
allowed only if: (1) new material is presented on re-direct;
and (2) the new material is prejudicial.
F: How long does the Court expect trial to last, and will the
Court restrict the amount of time either party has to present
Court does not currently have an expectation regarding how
long trial will last, and it will not restrict either
party's time to present its case. The expected length of
trial will be a subject of discussion at the FTPC on January
13. In any event, the Court expects that both parties will:
proceed expeditiously, not call multiple witnesses to the
stand to testify as to the same matter, and ensure that
witnesses are available to testify at the appropriate times.
Issue G: Will the parties be expected to exchange
exhibits before trial?
scheduling order entered January 26, 2015, the Government
will submit its trial notebook on January 12, 2016, which
must include an exhibit list. (Doc. 15 at ¶ 21.) The
scheduling order also provides that both parties must submit
their exhibits immediately before trial. (Doc. 15 at ¶
19.) In this instance, however, to allow the parties and the
Court additional preparation, the parties shall bring their
trial exhibits, including their "will" and
"may" introduce exhibit lists, to the FPTC on
January 13, 2017. Although the parties will submit exhibits