Whitener v. USA

Filing 37

ORDER granting in part and denying in part 34 Motion to Strike Exhibit 1 of Document 20 ; granting 36 Motion for Extension of Time to File Reply re 20 MOTION for Reconsideration re 12 Order on Motion for Reconsideration ( Replies due by 8/31/2015). Signed by District Judge Max O. Cogburn, Jr on 7/13/2015. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00600-MOC
ERIC WHITENER,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s Motion for Extension of Time (#36) to
file his reply. Petitioner states that he cannot file his reply until this court resolves his Motion to
Strike [the Respondent’s] Exhibit 1 (#34). Petitioner states that the excerpts from the transcripts
relied on by the government should be stricken because they do not reference the proceeding from
which they were drawn and are not verified by the court reporter who transcribed the proceeding,
be it a grand jury hearing, a motion hearing, or trial. Petitioner has correctly cited the prevailing
standards concerning evidentiary exhibits this court can consider. The response to that motion was
due July 6, 2015, but no response was filed by Respondent.
While the lack of verifications from court reporters who may have long departed from the
court in the nearly three decades since this case was resolved is understandable, the court does
agree with petitioner that the government should be tasked with identifying the speaker as well as
the proceeding at which such witness testified. Further, as to verification, the court finds that since
these materials are not in usual form, some sort of “best evidence” verification is appropriate. Such
a verification should state that attempts to retrieve originals were unsuccessful, identify the source

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of the materials produced, and state that such records are true and correct copies of materials
contained in the USAO archived files, kept in the ordinary course of that office’s business.

ORDER
IT IS, THEREFORE, ORDERED that petitioner’s
(1) Motion to Strike [the Respondent’s] Exhibit 1 (#34) is GRANTED in part and DENIED
in part as herein provided, and the government shall conform its exhibit as instructed
above not later than July 31, 2015:
(2) Motion for Extension of Time (#36) to file his reply is ALLOWED, and petition is
granted up to and inclusive of August 31, 2015, to so Reply.

Signed: July 13, 2015

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