Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 1 of 71 PageID #: 10342 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, ) Plaintiff, ) ) v. ) ) TIMOTHY S. DURHAM, ) Defendant. ) Cause No. 1:11-cr-00042-JMS-DML -01 NOTICE OF APPEAL Notice is hereby given that Timothy S. Durham, Defendant in the above-captioned cause, appeals to the United States Court of Appeals for the Seventh Circuit from the Judgment of Judge Jane Magnus-Stinson on November 30, 2012, entering judgment on his criminal convictions for Count I Conspiracy to Commit Wire and Securities Fraud, Count II Wire Fraud, Count III Wire Fraud, Count IV Wire Fraud, Count V, Count VI Wire Fraud, Count VII Wire Fraud, Count VIII Wire Fraud, Count IX Wire Fraud, Count X Wire Fraud, Count XI Wire Fraud and Count XII Securities Fraud and sentencing him to fifty (50) years (600 months) of imprisonment. Dated: December 14, 2012 Respectfully submitted, BROWN TOMPKINS LORY & MASTRIAN /s/ John L. Tompkins__________________ John L. Tompkins (#19597-49) Attorney for Defendant, Timothy S. Durham Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 2 of 71 PageID #: 10343 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the Notice of Appeal has been served on Winfield Ong, Assistant United States Attorney for the Southern District of Indiana by first class United States mail on the 14th day of December, 2012. /s/ John L. Tompkins__________________ John L. Tompkins (#19597-49) Attorney for Defendant, Timothy S. Durham BROWN TOMPKINS LORY & MASTRIAN 608 E. Market Street Indianapolis, Indiana 46202 Telephone: (317) 631-6866 Fax: (317) 685-2329 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 3 of 71 PageID #: 10344 SEVENTH CIRCUIT APPEAL INFORMATION SHEET Include names of all plaintiffs (petitioners) and defendants (respondents) who are parties to the appeal. Use separate sheet if needed. District: SOUTHERN INDIANA Division: Docket No.: INDIANAPOLIS Plaintiff (APPELLEE) Short Caption USA 1:11-cr-00042-JMS-DML-1 Defendant (APPELLANT) V. TIMOTHY S. DURHAM --------------------------------------------------------------------------------------------------------------------------------------------Current Counsel for Plaintiff (APPELLEE): Current Counsel for Defendant (APPELLANT): (Use separate sheet for additional counsel) Name: Winfield D. Ong, Joe H. Vaughn Name: John L. Tompkins Firm: U.S. ATTORNEY'S OFFICE Firm: BROWN TOMPKINS LORY & Address: 10 W. Market St., Suite 2100 MASTRIAN Address: Indianapolis, IN 46204 Phone: (317) 226-6333 608 East Market Street Indianapolis, IN 46202 Phone: (317) 507-4838 --------------------------------------------------------------------------------------------------------------------------------------------Judge: Jane Magnus-Stinson CRIMINAL JEAN KNEPLEY Date Filed in District Court: 03/15/11 340 U.S. COURTHOUSE Date of Judgment: 12/10/12 - 12/14/12 INDIANAPOLIS, IN 46204 EOD: 12/11/12 - 12/14/12 (317) 686-0197 Court Reporter: Nature of Suit Code: Date of Notice of Appeal: 12/14/12 Counsel: Appointed X Retained Pro Se Fee Status: IFP Paid X Due IFP Pending U.S. Waived (Please mark only 1 item above) Has Docketing Statement been filed with the District Court's Clerk's Office: Was certificate of Appealability: granted; denied; X Yes No pending; X N/A If certificate of Appealability was granted or denied, what is the date of the order: If Defendant is in Federal custody, please provide United States Marshal number (USM#): IMPORTANT: THIS FORM IS TO ACCOMPANY THE SHORT RECORD SENT TO THE CLERK OF THE U.S. COURT OF APPEALS PURSUANT TO CIRCUIT RULE 3(a). Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 4 of 71 PageID #: 10345 Rodger A. Heaton (FOR DEFT) HINSHAW & CULBERTSON LLP 400 South Ninth Street, Suite 200 Springfield, IL 62701 217-528-7375 Henry Van Dyck (FOR PLTF) U.S. DEPARTMENT OF JUSTICE Fraud Section, Criminal Division 1400 New York Avenue, N.W. Washington, DC 20530 (212) 514-1721 Henry Parker Van Dyck (FOR PLTF) UNITED STATE DEPARTMENT OF JUSTICE CRIMINAL DIVISION, FRAUD SECTION 1400 New York Avenue, Bond Bldg. Washington, DC 20530 202-514-1721 Kathleen McGovern (FOR PLTF) UNITED STATES DEPARTMENT OF JUSTICE Criminal Division, Fraud Section 1400 New York Avenue, N.W. Washington, DC 20005 202-353-4004 Nicholas E. Surmacz (FOR PLTF) UNITED STATES ATTORNEY'S OFFICE 10 West Market Street, Suite 2100 Indianapolis, IN 46204 317-226-6333 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 5 of 71 PageID #: 10346 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, ) Plaintiff, ) ) v. ) ) TIMOTHY S. DURHAM, ) Defendant. ) Cause No. 1:11-cr-00042-JMS-DML -01 RULE 3(C) DOCKETING STATEMENT This is an appeal from the entry of judgment and sentencing in a criminal case. The Defendant was convicted of Count I Conspiracy to Commit Wire and Securities Fraud, Count II Wire Fraud, Count III Wire Fraud, Count IV Wire Fraud, Count V, Count VI Wire Fraud, Count VII Wire Fraud, Count VIII Wire Fraud, Count IX Wire Fraud, Count X Wire Fraud, Count XI Wire Fraud and Count XII Securities Fraud and sentenced to fifty (50) years incarceration by the Court. The parties in this matter are: Timothy S. Durham, an inmate with the Bureau of Prisons. The United States. There are no prior or related appellate proceedings. On November 30, 2012, the Defendant was sentenced pursuant to a judgment of conviction in the United States District for the Southern District of Indiana. A jury verdict of guilty on the twelve (12) counts above was returned on June 20, 2012 and a sentencing hearing was conducted on November 30, 2012. The Defendant timely filed his Notice of Appeal on December 5, 2012. Defendant will be filing a Motion to Proceed In Forma Pauperis on Appeal. Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 6 of 71 PageID #: 10347 At the trial phase, the Defendant was represented by: John L. Tompkins BROWN TOMPKINS LORY & MASTRIAN johnltom@mac.com At the sentencing phase, the Defendant was represented by: John L. Tompkins BROWN TOMPKINS LORY & MASTRIAN johnltom@mac.com Rodger A. Heaton HINSHAW & CULBERTSON, LLP RHeaton@hinshawlaw.com Dated: December 5, 2012 Respectfully submitted, BROWN TOMPKINS LORY & MASTRIAN /s/ John L. Tompkins__________________ John L. Tompkins (#19597-49) Attorney for Defendant, Timothy S. Durham CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing was served filed electronically on the ____ day of December, 2012. Notice of filing will be sent to Mr. Winfield Ong, Assistant United States Attorney for the Southern District of Indiana by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ John L. Tompkins__________________ John L. Tompkins (#19597-49) BROWN TOMPKINS LORY & MASTRIAN 608 E. Market Street Indianapolis, Indiana 46202 Telephone: (317) 631-6866 Fax: (317) 685-2329 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 7 of 71 PageID #: 10348 2AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 1 UNITED STATES DISTRICT COURT District of SOUTHERN INDIANA JUDGMENT IN A CRIMINAL CASE UNITED STATES OF AMERICA V. TIMOTHY S. DURHAM Case Number: 1:11CR00042-001 USM Number: 60452-112 John L. Tompkins Defendant's Attorney THE DEFENDANT: G pleaded guilty to count(s) pleaded nolo contendere to count(s) which was accepted by the court. X was found guilty on count(s) 1-12 after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Nature of Offense Offense Ended Count(s) Title & Section 18 USC ? 371 Conspiracy to Commit Wire Fraud and/or Securities Fraud 11/30/09 1 18 USC ? 1343 Wire Fraud 2/13/07 2 18 USC ? 1343 Wire Fraud 1/28/08 3 18 USC ? 1343 Wire Fraud 7/9/08 4 18 USC ? 1343 Wire Fraud 11/10/08 5 The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. G The defendant has been found not guilty on count(s) G Count(s) G is G are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 11/30/2012 Date of Imposition of Judgment Signature of Judicial Officer BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB +RQ -DQH 0DJQXV6WLQVRQ -XGJH 8QLWHG 6WDWHV 'LVWULFW &RXUW Honorable Jane Magnus-Stinson, U.S. District Court Judge Name and Title of Judicial Officer 6RXWKHUQ 'LVWULFW RI ,QGLDQD 12/10/2012 A CERTIFIED TRUE COPY Laura A. Briggs, Clerk U.S. District Court . uthern ndia Southern District of Indiana Indiana By Deputy Clerk Date Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 8 of 71 PageID #: 10349 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 1A Judgment -- Page DEFENDANT: CASE NUMBER: 1.01 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 ADDITIONAL COUNTS OF CONVICTION Title & Section Nature of Offense Offense Ended Count(s) 18 USC ? 1343 Wire Fraud 10/30/09 6 18 USC ? 1343 Wire Fraud 11/10/09 7 18 USC ? 1343 Wire Fraud 11/18/09 8 18 USC ? 1343 Wire Fraud 11/18/09 9 18 USC ? 1343 Wire Fraud 11/19/09 10 18 USC ? 1343 Wire Fraud 11/19/09 11 15 USC 78j(b) Securities Fraud 11/30/09 12 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 9 of 71 PageID #: 10350 AO 245B (Rev. 09/11) Judgment in Criminal Case Sheet 2 -- Imprisonment Judgment -- Page DEFENDANT: CASE NUMBER: 2 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 600 months (50 years) Count 1 - 5 years; Count 2 - 8 years; Count 3 - 10 years; Count 4 - 20 years; Count 5- 5 years; Count 6 - 20 years; Count 7 - 20 years; Count 8 - 20 years; Count 9 - 20 years; Count 10 - 20 years; Count 11 - 20 years; Count 12- 20 years, to be served as follows: Counts 1 and 4, concurrent; Counts 6-12, concurrent to each other and consecutive to Count 4; Counts 2, 3 and 5, concurrent to each other and consecutive to Count 12. X The court makes the following recommendations to the Bureau of Prisons: That the defendant be designated to a facility as close as possible to Indianapolis, IN. X The defendant is remanded to the custody of the United States Marshal. G The defendant shall surrender to the United States Marshal for this district: G a.m. G at G G p.m. as notified by the United States Marshal. on . G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: G before 2 p.m. on G as notified by the United States Marshal. G as notified by the Probation or Pretrial Services Office. . RETURN I have executed this judgment as follows: Defendant delivered on a to , with a certified copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 10 of 71 PageID #: 10351 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3 -- Supervised Release Judgment--Page DEFENDANT: CASE NUMBER: 3 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of : 2 years per count, concurrent The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter. G The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) X The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) G The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. ? 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.) G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 11 of 71 PageID #: 10352 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 3C -- Supervised Release Judgment--Page DEFENDANT: CASE NUMBER: 3.01 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SPECIAL CONDITIONS OF SUPERVISION 1. The defendant shall pay any restitution that is imposed by this judgment and that remains unpaid at the commencement of the term of supervised release. 2. The defendant shall provide the probation officer access to any requested financial information. 3. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer. 4. The defendant shall submit to the search (with the assistance of other law enforcement as necessary) of his person, vehicle, office/business, residence and property, including computer systems and peripheral devices. The defendant shall submit to the seizure of contraband found. The defendant shall warn other occupants the premises may be subject to searches. 5. The defendant shall fully cooperate with trustee appointed in the Fair Finance bankruptcy. 6. The defendant shall not be self-employed or employed in a position with fiduciary responsibility unless approved by the probation officer. Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision. These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed) Defendant Date U.S. Probation Officer/Designated Witness Date Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 12 of 71 PageID #: 10353 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 5 -- Criminal Monetary Penalties Judgment -- Page 4 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 DEFENDANT: CASE NUMBER: CRIMINAL MONETARY PENALTIES The defendant shall pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment TOTALS Fine $ 1,200.00 Restitution $ 202,830,082.27 $ G The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. X The defendant shall make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. ? 3664(I), all nonfederal victims must be paid before the United States is paid. Name of Payee Restitution Ordered Total Loss* Priority or Percentage SEE ATTACHED LIST TOTALS G $ 202,830,082.27 $ 202,830,082.27 Restitution amount ordered pursuant to plea agreement $ The defendant shall pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. ? 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. ? 3612(g). X The court determined that the defendant does not have the ability to pay interest and it is ordered that: X the interest requirement is waived for the G the interest requirement for the G fine G fine X restitution. G restitution is modified as follows: * Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 13 of 71 PageID #: 10354 AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 6 -- Schedule of Payments Judgment -- Page DEFENDANT: CASE NUMBER: 5 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SCHEDULE OF PAYMENTS Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows: A G Lump sum payment of $ G G not later than in accordance with G C, due immediately, balance due G D, , or G E, or G G below; or G C, G D, or G G below); or B X Payment to begin immediately (may be combined with C G Payment in equal D G Payment in equal E G Payment during the term of supervised release will commence within F G If this case involves other defendants, each may be held jointly and severally liable for payment of all or part of the restitution (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or ordered herein and the Court may order such payment in the future. G G Special instructions regarding the payment of criminal monetary penalties: Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. X Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate. Defendant Name James F. Cochran Rick D. Snow Case Number 1:11CR00042-002 1:11CR00042-003 Joint & Several Amount $202,830,082.27 $202,830,082.27 G The defendant shall pay the cost of prosecution. G The defendant shall pay the following court cost(s): G The defendant shall forfeit the defendant's interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 14 of 71 PageID #: 10355 OAO 245C (Rev. 09/11) Amended Judgment in a Criminal Case Sheet 1 (NOTE: Identify Changes with Asterisks (*)) UNITED STATES DISTRICT COURT SOUTHERN District of UNITED STATES OF AMERICA V. TIMOTHY S. DURHAM INDIANA AMENDED JUDGMENT IN A CRIMINAL CASE Case Number: USM Number: 1:11CR00042-001 60452-112 John L. Tompkins Defendant's Attorney Date of Original Judgment: 11/30/2012 (Or Date of Last Amended Judgment) Reason for Amendment: G G Correction of Sentence on Remand (18 U.S.C. 3742(f)(1) and (2)) G X G G Correction of Sentence by Sentencing Court (Fed. R. Crim. P. Reduction of Sentence for Changed Circumstances (Fed. R. Crim. P. 35(b)) Correction of Sentence for Clerical Mistake (Fed. R. Crim. P. 36) G G G Modification of Supervision Conditions (18 U.S.C. ?? 3563(C)) or 3583(e)) Modification of Imposed Term of Imprisonment for Extraordinary and Compelling Reasons (18 U.S.C. ? 3582(C))(1)) Modification of Imposed Term of Imprisonment for Retroactive Amendment(s) to the Sentencing Guidelines (18 U.S.C. ? 3582(C))(2)) Direct Motion to District Court Pursuant G 18 U.S.C. ? 3559(C))(7) G 28 U.S.C. ? 2255 or Modification of Restitution Order (18 U.S.C. ? 3664) THE DEFENDANT: G pleaded guilty to count(s) G pleaded nolo contendere to count(s) which was accepted by the court. X was found guilty on count(s) 1-12 after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Title & Section 18 USC ? 371 18 USC ? 1343 18 USC ? 1343 18 USC ? 1343 Nature of Offense Conspiracy to Commit Wire Fraud and./or Securities Fraud Wire Fraud Wire Fraud Wire Fraud The defendant is sentenced as provided in pages 2 through the Sentencing Reform Act of 1984. 5 Offense Ended 11/30/09 2/13/07 1/28/08 7/9/08 Count(s) 1 2 3 4 of this judgment. The sentence is imposed pursuant to G The defendant has been found not guilty on count(s) G Count(s) G is G are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 12/12/2012 Date of Imposition of Judgment Signature of Judicial Officer _______________________________ A CERTIFIED TRUE COPY Laura A. Briggs, Clerk U.S. District Court Southern District of Indiana By Deputy Clerk Honorable Jane Magnus-Stinson, U.S. District Court Judge Hon. Name and Title of Judicial Officer Jane Magnus-Stinson, Judge United States District Court 12/14/2012 Southern District of Indiana Date Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 15 of 71 PageID #: 10356 AO 245C (Rev. 09/11) Amended Judgment in a Criminal Case Sheet 1A (NOTE: Identify Changes with Asterisks (*)) Judgment -- Page DEFENDANT: CASE NUMBER: 1.01 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 ADDITIONAL COUNTS OF CONVICTION Title & Section Nature of Offense Offense Ended Count 18 USC ? 1343 Wire Fraud 11/10/08 5 18 USC ? 1343 Wire Fraud 10/30/09 6 18 USC ? 1343 Wire Fraud 11/10/09 7 18 USC ? 1343 Wire Fraud 11/18/09 8 18 USC ? 1343 Wire Fraud 11/18/09 9 18 USC ? 1343 Wire Fraud 11/19/09 10 18 USC ? 1343 Wire Fraud 11/19/09 11 15 USC 78j(b) Securities Fraud 11/30/09 12 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 16 of 71 PageID #: 10357 AO245C (Rev. 09/11) Amended Judgment in a Criminal Case Sheet 2 -- Imprisonment (NOTE: Identify Changes with Asterisks (*)) Judgment -- Page DEFENDANT: CASE NUMBER: 2 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of : 600 months (50 years) Count 1 - 5 years; Count 2 - 8 years; Count 3 - 10 years; Count 4 - 20 years; Count 5- 5 years; Count 6 - 20 years; Count 7 - 20 years; Count 8 - 20 years; Count 9 - 20 years; Count 10 - 20 years; Count 11 - 20 years; Count 12- 20 years, to be served as follows: Counts 1 and 4, concurrent; Counts 6-12, concurrent to each other and consecutive to Count 4; Counts 2, 3 and 5, concurrent to each other and consecutive to Count 12. X The court makes the following recommendations to the Bureau of Prisons: That the defendant be designated to a facility as close as possible to Indianapolis, IN. X The defendant is remanded to the custody of the United States Marshal. G The defendant shall surrender to the United States Marshal for this district: G at G G as notified by the United States Marshal. a.m. G p.m. on . G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: G before 2 p.m. on G as notified by the United States Marshal. G as notified by the Probation or Pretrial Services Office. . RETURN I have executed this judgment as follows: Defendant delivered on a to with a certified copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 17 of 71 PageID #: 10358 AO 245C (Rev. 09/11) Amended Judgment in a Criminal Case Sheet 3 -- Supervised Release (NOTE: Identify Changes with Asterisks (*)) Judgment--Page DEFENDANT: CASE NUMBER: 3 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of : 2 years per count, concurrent The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state, or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter. G The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) X The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) G The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.) G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record, personal history, or characteristics and shall permit the probation officer to make such notifications and confirm the defendant's compliance with such notification requirement. Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 18 of 71 PageID #: 10359 (Rev. 09/11) Amended Judgment in a Criminal Case AO 245C Sheet 3C -- Supervised Release (NOTE: Identify Changes with Asterisks (*)) Judgment--Page DEFENDANT: CASE NUMBER: 3.01 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SPECIAL CONDITIONS OF SUPERVISION 1. The defendant shall pay any restitution that is imposed by this judgment and that remains unpaid at the commencement of the term of supervised release. 2. The defendant shall provide the probation officer access to any requested financial information. 3. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer. 4. The defendant shall submit to the search (with the assistance of other law enforcement as necessary) of his person, vehicle, office/business, residence and property, including computer systems and peripheral devices. The defendant shall submit to the seizure of contraband found. The defendant shall warn other occupants the premises may be subject to searches. 5. The defendant shall fully cooperate with trustee appointed in the Fair Finance bankruptcy. 6. The defendant shall not be self-employed or employed in a position with fiduciary responsibility unless approved by the probation officer. Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision. These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed) Defendant Date U.S. Probation Officer/Designated Witness Date Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 19 of 71 PageID #: 10360 (Rev. 09/11) Amended Judgment in a Criminal Case AO 245C Sheet 5 -- Criminal Monetary Penalties (NOTE: Identify Changes with Asterisks (*)) Judgment -- Page 4 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 DEFENDANT: CASE NUMBER: CRIMINAL MONETARY PENALTIES The defendant shall pay the following total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment TOTALS Fine $ 1,200.00 Restitution $ G The determination of restitution is deferred until * $ 208,830,082.27 . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. X The defendant shall make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. ? 3664(I), all nonfederal victims must be paid before the United States is paid. Name of Payee Restitution Ordered Total Loss* Priority or Percentage SEE ATTACHED LIST. TOTALS G * $208,830,082.27 * $208,830,082.27 Restitution amount ordered pursuant to plea agreement $ The defendant shall pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. ? 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. ? 3612(g). X The court determined that the defendant does not have the ability to pay interest, and it is ordered that: X the interest requirement is waived for G the interest requirement for G fine G fine X restitution. G restitution is modified as follows: * Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. Case 1:11-cr-00042-JMS-DML Criminal Case Document 466 Filed 12/17/12 Page 20 of 71 PageID #: 10361 (Rev. 09/11) Amended Judgment in a AO 245C Sheet 6 -- Schedule of Payments (NOTE: Identify Changes with Asterisks (*)) Judgment -- Page DEFENDANT: CASE NUMBER: 5 of 5 TIMOTHY S. DURHAM 1:11CR00042-001 SCHEDULE OF PAYMENTS Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as follows: A G Lump sum payment of $ G not later than G in accordance with G C, due immediately, balance due G D, G , or E, or G G below; or B X Payment to begin immediately (may be combined with G C, G D, or C G Payment in equal D G Payment in equal E G Payment during the term of supervised release will commence within F G If this case involves other defendants, each may be held jointly and severally liable for payment of all or part of the restitution X G below); or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or ordered herein and the Court may order such payment in the future. G X Special instructions regarding the payment of criminal monetary penalties: Defendant is entitled to a credit equal to the amount of any recovery made by the Trustee for the U.S. Bankruptcy Court (approximately $6 million as of the date of sentencing). Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. X Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Joint and Several Amount, and corresponding payee, if appropriate. Defendant Name Case Number Joint & Several Amount James F. Cochran Rick D. Snow 1:11CR00042-002 1:11CR00042-003 * $208,830,082.27 * $208,830,082.27 G The defendant shall pay the cost of prosecution. G The defendant shall pay the following court cost(s): G The defendant shall forfeit the defendant's interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. CM/ECF LIVE Page 1 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 21 of 71 PageID #: 10362 APPEAL,FINANCE,CLOSED U.S. District Court Southern District of Indiana (Indianapolis) CRIMINAL DOCKET FOR CASE #: 1:11-cr-00042-JMS-DML-1 Internal Use Only Case title: USA v. DURHAM et al Date Filed: 03/15/2011 Date Terminated: 12/10/2012 Assigned to: Judge Jane MagnusStinson Referred to: Magistrate Judge Debra McVicker Lynch Defendant (1) TIMOTHY S. DURHAM TERMINATED: 12/10/2012 represented by Howard M. Srebnick BLACK, SREBNICK, KORNSPAN & STUMPF, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 305-371-6421 Fax: 305-358-2006 Email: HSrebnick@royblack.com TERMINATED: 07/07/2011 ATTORNEY TO BE NOTICED Designation: Retained John L. Tompkins BROWN TOMPKINS LORY & MASTRIAN 608 East Market Street Indianapolis, IN 46202 (317) 507-4838 Fax: (317) 685-2329 Email: johnltom@mac.com ATTORNEY TO BE NOTICED Designation: Retained Rodger A. Heaton HINSHAW & CULBERTSON LLP 400 South Ninth Street Suite 200 Springfield, IL 62701 217-528-7375 Fax: 217-528-0075 https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 2 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 22 of 71 PageID #: 10363 ATTORNEY TO BE NOTICED Designation: Retained Pending Counts Disposition 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1) 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1s) IMPRISONMENT: 5 Years, Concurrent to Count 4s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. RESTITUTION: $208,830,082.27. 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (2-11) 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (2s) IMPRISONMENT: 8 Years, Concurrent to Counts 3s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (3s) IMPRISONMENT: 10 Years, Concurrent to Counts 2s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (4s) IMPRISONMENT: 20 Years, Concurrent to Count 1s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (5s) IMPRISONMENT: 5 Years, Concurrent to Counts 2s and 3s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. 18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (6s-11s) IMPRISONMENT: 20 Years for each count, concurrent to each other and consecutive to Count 4s. SUPERVISED RELEASE: 2 Years each Count, Concurrent. S.A. FEE: $100.00 each Count. 15:78J.F MANIPULATIVE AND DECEPTIVE DEVICES (12) 15:78J.F SECURITIES FRAUD IMPRISONMENT: 20 Years, concurrent to Counts 6s-11s and consecutive to Count 4s. SUPERVISED https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 3 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 23 of 71 PageID #: 10364 (12s) RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. Highest Offense Level (Opening) Felony Terminated Counts Disposition None Highest Offense Level (Terminated) None Complaints Disposition None Intervenor J RICHARD KIEFER TERMINATED: 07/22/2011 represented by J. Richard Kiefer BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower 10 West Market Street Indianapolis, IN 46204 (317) 635-8900 Fax: (317) 236-9907 Email: jrkiefer@bgdlegal.com TERMINATED: 07/22/2011 ATTORNEY TO BE NOTICED Interested Party INDIANA NEWSPAPERS, INC. also known as THE INDIANAPOLIS STAR represented by Donald Robert Lundberg BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 317-231-7427 Fax: 317-231-7433 Email: donald.lundberg@btlaw.com TERMINATED: 01/25/2012 ATTORNEY TO BE NOTICED Designation: Retained Jan M. Carroll BARNES & THORNBURG LLP 11 South Meridian Street https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 4 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 24 of 71 PageID #: 10365 Indianapolis, IN 46204 (317) 231-7265 Fax: (317) 231-7433 Email: jan.carroll@btlaw.com ATTORNEY TO BE NOTICED Plaintiff USA represented by Henry Van Dyck U.S. DEPARTMENT OF JUSTICE Fraud Section, Criminal Division 1400 New York Avenue, N.W. Washington, DC 20530 (212) 514-1721 Email: Henry.Van.Dyck@usdoj.gov ATTORNEY TO BE NOTICED Henry Parker Van Dyck UNITED STATE DEPARTMENT OF JUSTICE CRIMINAL DIVISION, FRAUD SECTION 1400 New York Avenue Bond Bldg. Washington, DC 20530 202-514-1721 Fax: 202-514-7021 Email: henry.van.dyck@usdoj.gov ATTORNEY TO BE NOTICED Joe Howard Vaughn UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 229-2447 Fax: (317) 226-6125 Email: joe.vaughn@usdoj.gov ATTORNEY TO BE NOTICED Kathleen McGovern UNITED STATES DEPARTMENT OF JUSTICE Criminal Division, Fraud Section 1400 New York Avenue, N.W. Washington, DC 20005 202-353-4004 Fax: 202-514-7021 https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 5 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 25 of 71 PageID #: 10366 Email: kathleen.mcgovern@usdoj.gov ATTORNEY TO BE NOTICED Nicholas E. Surmacz UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 317-226-6333 Fax: 317-226-6125 Email: nicholas.surmacz@usdoj.gov ATTORNEY TO BE NOTICED Robertson Park U.S. DEPARTMENT OF JUSTICE Fraud Section, Criminal Division 1400 New York Avenue, N.W. Washington, DC 20530 (202) 514-4335 Email: Robertson.Park@usdoj.gov TERMINATED: 10/04/2012 ATTORNEY TO BE NOTICED Winfield D. Ong UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226-6333 Fax: (317) 226-6125 Email: winfield.ong@usdoj.gov ATTORNEY TO BE NOTICED Date Filed # Docket Text 03/15/2011 1 ***UNSEALED PER ORDER OF 3/16/2011***SEALED INDICTMENT as to TIMOTHY S. DURHAM (1) count(s) 1, 2-11, 12, JAMES F. COCHRAN (2) count(s) 1, 2-11, 12, RICK D. SNOW (3) count(s) 1, 2-11, 12. (LBK) Modified on 3/16/2011 (CBU). (Entered: 03/15/2011) 03/15/2011 4 NOTICE OF ATTORNEY APPEARANCE Winfield D. Ong appearing for USA. (LBK) (Entered: 03/15/2011) 03/15/2011 5 NOTICE OF ATTORNEY APPEARANCE Joe Howard Vaughn appearing for USA. (LBK) (Entered: 03/15/2011) 03/15/2011 6 NOTICE OF ATTORNEY APPEARANCE Robertson Park appearing for USA. (LBK) (Entered: 03/15/2011) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 6 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 26 of 71 PageID #: 10367 03/15/2011 7 NOTICE OF ATTORNEY APPEARANCE HENRY VAN DYCK appearing for USA. (LBK) (Entered: 03/15/2011) 03/15/2011 9 *SEALED* PRAECIPE for Warrant as to TIMOTHY S. DURHAM. (LBK) (Entered: 03/15/2011) 03/15/2011 17 NOTIFICATION of Assigned Judge, Automatic Not Guilty Plea, Trial Date, Discovery Order and Other Matters as to TIMOTHY S. DURHAM. Jury Trial set for 5/16/2011 at 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. Signed by Judge Jane Magnus-Stinson on 3/15/2011. (LBK) (Entered: 03/15/2011) 03/16/2011 20 MOTION to Unseal Indictment by USA. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) Modified to clarify document title on 3/16/2011 (LBK). (Entered: 03/16/2011) 03/16/2011 21 ORDER granting 20 Motion to Unseal Indictment (1). Signed by Magistrate Judge Kennard P. Foster on 3/16/2011.(CBU) (Entered: 03/16/2011) 03/23/2011 33 SCHEDULING ORDER as to TIMOTHY S. DURHAM Initial Appearance on an Indictment set for 4/6/2011 02:30 PM in room #243, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Kennard P. Foster. Signed by Magistrate Judge Kennard P. Foster on 3/23/2011.(CBU) (Entered: 03/23/2011) 03/28/2011 36 MOTION TO SET STATUS CONFERENCE ON APRIL 7, 2011 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 03/28/2011) 03/29/2011 37 NOTICE OF ATTORNEY APPEARANCE: Howard M. Srebnick appearing for TIMOTHY S. DURHAM (Retained). (Srebnick, Howard) (Entered: 03/29/2011) 04/04/2011 38 ORDER granting 36 Motion for Status Conference as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). Status Conference set for 4/7/2011 at 03:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. Signed by Judge Jane Magnus-Stinson on 4/4/2011. (LBK) (Entered: 04/04/2011) 04/05/2011 39 ENTRY FOR APRIL 5, 2011. The status conference, TIME ONLY, set for April 7, 2011 is RESET to 9:30 a.m. in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Issued by Judge Jane MagnusStinson on 4/5/2011.(LBK) (Entered: 04/05/2011) 04/05/2011 45 *SEALED* SEALED-Rule 5(c)3 documents-Affidavit of Surety (not for public view pursuant to Judicial Conference Policy) from the USDC CD/CA (CBU) (Entered: 04/07/2011) 04/05/2011 46 Rule 5(c)(3) Documents Received from CD/CA as to TIMOTHY S. DURHAM (Attachments: # 1 -Docket from USDC CD/CA, # 2 https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 7 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 27 of 71 PageID #: 10368 Documents from USDC CD/CA)(CBU)-Copies to USMS, USPO and USA) (Entered: 04/07/2011) 04/06/2011 41 CHARGES AND RIGHTS Form signed by TIMOTHY S. DURHAM and signed by U.S. Magistrate Judge. (CBU) (Entered: 04/06/2011) 04/06/2011 42 PENALTIES Form signed by TIMOTHY S. DURHAM and signed by U.S. Magistrate Judge. (CBU) (Entered: 04/06/2011) 04/06/2011 43 ORDER Setting Conditions of Release. Signed by Magistrate Judge Kennard P. Foster on 4/6/2011.(CBU) (Entered: 04/06/2011) 04/06/2011 44 COURTROOM MINUTES for proceedings held before Magistrate Judge Kennard P. Foster: Initial Appearance on Indictment held on 4/6/2011. Charges Rights and penalties were read and explained. A sealed status hearing regarding release set for 4/11/2011 02:00 PM before Magistrate Judge Kennard P. Foster. Defendant TIMOTHY S. DURHAM appears in person and by retained counsel Howard M. Srebnick. Appearance for the USA by AUSA Winfield Ong. USPO represented by Angie Smith. Defendant is released on recognizance to reside at the VOA on lock-down status pending further proceedings before the Court. Court, sua sponte, reopened the issue of release of detention. (CBU) (Entered: 04/06/2011) 04/07/2011 47 MOTION to Vacate Magistrate Judge Foster's Order RE: Conditions of Release by TIMOTHY S. DURHAM. (Srebnick, Howard) (Entered: 04/07/2011) 04/07/2011 48 ORDER FOLLOWING STATUS CONFERENCE. The USA estimates that the trial will take four (4) weeks to complete. Jury Trial is continued to 6/8/2012 at 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. Telephonic Status Conference set for 5/23/2011 at 04:30 PM before Judge Jane Magnus-Stinson. Counsel should call 317-229-3670 to participate in the conference. The parties should file a joint proposed agenda with the Court by May 20, 2011 to facilitate the conference. The Court takes under advisement 47 Motion to Vacate as to TIMOTHY S. DURHAM (1). Counsel are ORDERED to meet and confer about a case management plan, including a deadline pursuant to Federal Rule of Criminal Procedure 16, and file a proposal with the Court by April 13, 2011. The Court permitted Mr. Durham to meet with his attorneys today at a law office in Indianapolis and to return to VOA at 4:00 p.m. Signed by Judge Jane Magnus-Stinson on 4/7/2011.(LBK) (Entered: 04/07/2011) 04/07/2011 49 MOTION To Allow Mr. Durham To Work From The Law Firm of Bingham McHale, LLP by TIMOTHY S. DURHAM. (Srebnick, Howard) (Entered: 04/07/2011) 04/07/2011 50 (Excerpt) of Magistrate Judge's Ruling Concerning the Conditions of Release and the VOA as to TIMOTHY S. DURHAM held on 4-6-11 before Magistrate Judge Kennard P. Foster. (7 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review the USDC Transcript Policy for more information on redaction procedures. Redaction Statement due 4/28/2011. Release of Transcript https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 8 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 28 of 71 PageID #: 10369 Restriction set for 7/6/2011. (Knepley, Jean) Released on 7/6/2011 (SWM). (Entered: 04/07/2011) 04/07/2011 51 NOTICE of FILING of OFFICIAL TRANSCRIPT of Excerpt of Magistrate Judge's Ruling Concerning the Conditions of Release and the VOA held before Magistrate Judge Kennard P. Foster on 4-6-11 in case as to TIMOTHY S. DURHAM (Knepley, Jean) (Entered: 04/07/2011) 04/07/2011 52 ORDER DENYING DEFENDANT TIMOTHY DURHAM'S MOTION TO VACATE. Defendant Timothy Durham's Motion to Vacate asks this Court to vacate Magistrate Judge Foster's order and release Mr. Durham from Volunteers of America ("VOA"). [Dkt. 47 at 2.] See Order re: background and discussion. Magistrate Judge Foster has set a hearing for April 11, 2011 to review the status of Mr. Durham's conditions of release. Therefore, this Court considers the matter to continue to be under advisement with Magistrate Judge Foster and any further review by this Court to be premature. For these reasons, the Court DENIES Mr. Durham's Motion to Vacate Magistrate Judge Foster's Order Regarding Conditions of Release. [Dkt. 47.] Signed by Judge Jane Magnus-Stinson on 4/7/2011.(LBK) (Entered: 04/07/2011) 04/07/2011 53 MARGINAL ENTRY re: 49 Motion to Allow Mr. Durham to Work from the Law Firm of Bingham McHale, LLP as to TIMOTHY S. DURHAM (1). The court has been advised that the Government has no objection to this request. Accordingly it is granted. Issued by Judge Jane MagnusStinson on 4/7/2011.(LBK) (Entered: 04/07/2011) 04/08/2011 54 Unopposed MOTION TO ALLOW MR. DURHAM TO WORK FROM THE LAW OFFICE OF BINGHAM McHALE, LLP APRIL 9, 2011 by TIMOTHY S. DURHAM. (Srebnick, Howard) (Entered: 04/08/2011) 04/08/2011 55 ORDER granting 54 Motion as to TIMOTHY S. DURHAM (1). As the Government has no objection, and for the exclusive purpose of case preparation, Mr. Durham may conduct work related to that preparation from 8:30 a.m. to 4:00 p.m. at Bingham McHale, LLP, 4-9-2011. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 4/8/2011. (MAC) (Entered: 04/08/2011) 04/11/2011 56 MOTION TO ALLOW MR. DURHAM TO GO TO THE LAW FIRM OF BINGHAM McHALE STARTING AT 10:00 A.M. TODAY, APRIL 11, 2011 by TIMOTHY S. DURHAM. (Srebnick, Howard) (Entered: 04/11/2011) 04/11/2011 57 MARGINAL ENTRY granting 56 Motion to Allow Defendant to go to Law Firm 4/11/11 from 10:00 a.m.-2:00 p.m. as to TIMOTHY S. DURHAM (1). Issued by Judge Jane Magnus-Stinson on 4/11/2011. (LBK) (Entered: 04/11/2011) 04/11/2011 58 MOTION FOR ALTERNATIVE VICTIM NOTIFICATION PROCEDURES by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 04/11/2011) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 9 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 29 of 71 PageID #: 10370 04/11/2011 59 NOTICE of Appearance by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Carroll, Jan) (Entered: 04/11/2011) 04/11/2011 60 Submission of Objection to Closure of Hearing on Release Status by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Carroll, Jan) Modified to change event to motion on 4/11/2011 (LBK). Modified to terminate motion on 4/13/2011 (LBK). (Entered: 04/11/2011) 04/11/2011 61 COURTROOM MINUTES for proceedings held before Magistrate Judge Kennard P. Foster: Hearing regarding defts financial disclosure as to TIMOTHY S. DURHAM held on 4/11/2011. Defendant TIMOTHY S. DURHAM appears in person and by retained counsel Howard Srebnick. Appearance for the USA by AUSA Winfield Ong. USPO represented by Chris Dougherty. Documents presented to the Court by the Deft are to remain sealed. Govt has 7 days to submit to the Court proper documentation regarding the bond. Defts conditions of release are modified to include GPS or electronic monitoring and deft is released from lock-down status at VOA and is to reside at a location that was approved by the Court and the USPO. Deft releaseed on his own recognizance pending further proceedings before the Court. (CBU) (Entered: 04/12/2011) 04/12/2011 62 ENTRY-Because the hearing was not sealed, Indiana Newspapers' objection is declared moot (See Entry). Signed by Magistrate Judge Kennard P. Foster on 4/12/2011.(CBU) (Entered: 04/13/2011) 04/13/2011 63 ORDER granting 58 United States' Motion for Alternative Victim Notification Procedures as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). IT IS ORDERED: After an initial mailing as described in the government's motion for alternative victim notification procedures, all future notifications to victims of information required by the Crime Victims' Rights Act may be by the use of the Victim Notification System (VNS) and may be delivered by either the VNS Call Center, the VNS Internet site, and the United States Attorney's Office website and toll free phone number. Signed by Judge Jane Magnus-Stinson on 4/13/2011.(LBK) (Entered: 04/13/2011) 04/19/2011 64 MOTION TO PERMIT FILING OF PROPOSED SCHEDULING ORDER ON APRIL 19, 2011 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit Proposed Scheduling Order, # 2 Text of Proposed Order)(Ong, Winfield) (Entered: 04/19/2011) 04/20/2011 65 MOTION Petition for Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Carroll, Jan) (Entered: 04/20/2011) 04/20/2011 66 BRIEF/MEMORANDUM in Support re 65 MOTION Petition for Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 10 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 30 of 71 PageID #: 10371 (Carroll, Jan) (Entered: 04/20/2011) 04/20/2011 67 ORDER granting 64 Motion to Permit Filing of Proposed Scheduling Order on April 19, 2011 as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). IT IS ORDERED that the government is to file a proposed scheduling order in this matter on April 19, 2011. Signed by Judge Jane Magnus-Stinson on 4/20/2011.(LBK) (Entered: 04/20/2011) 04/20/2011 68 ORDER establishing deadlines as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (See Order). Signed by Judge Jane Magnus-Stinson on 4/20/2011.(LBK) (Entered: 04/20/2011) 04/21/2011 70 *SEALED* SEALED-Agreement to forfeit real property to obtain a deft's release filed by Beurt R. SerVaas (Attachments: # 1 Exhibit Indiana Property Record Card, # 2 Exhibit Warranty Deed, # 3 Exhibit Quitclaim Deed, # 4 Exhibit Memorandum of Option Agreement)(CBU) (Entered: 04/28/2011) 04/22/2011 69 ENTRY establishing deadlines regarding Petition for access to sealed court records in case as to TIMOTHY S. DURHAM. Signed by Magistrate Judge Kennard P. Foster on 4/22/2011.(CBU) (Entered: 04/22/2011) 04/29/2011 71 MOTION for Hearing to Determine Defense Counsel's Possible Conflict of Interest by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Van Dyck, Henry) (Entered: 04/29/2011) 05/06/2011 72 RESPONSE in Opposition re 65 MOTION Petition for Access to Sealed Court Records by TIMOTHY S. DURHAM (Srebnick, Howard) (Entered: 05/06/2011) 05/13/2011 73 MOTION to Intervene to Respond to Government's Motion for Hearing to Determine Defense Counsel's Possible Conflict of Interest by J RICHARD KIEFER as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Kiefer, J.) (Entered: 05/13/2011) 05/13/2011 74 RESPONSE in Opposition re 71 MOTION for Hearing to Determine Defense Counsel's Possible Conflict of Interest by J RICHARD KIEFER as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Kiefer, J.) (Entered: 05/13/2011) 05/13/2011 75 REPLY in Support of Motion re 65 MOTION Petition for Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Carroll, Jan) (Entered: 05/13/2011) 05/20/2011 76 Submission AGENDA FOR TELEPHONIC STATUS CONFERENCE ON MAY 23, 2011 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Ong, Winfield) (Entered: 05/20/2011) 05/24/2011 77 Minute Entry for proceedings held before Judge Jane Magnus-Stinson. https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 11 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 31 of 71 PageID #: 10372 Telephone Conference held on 5/23/2011. Defendants TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW appear by retained counsel. Telephonic Status Conference set for 6/16/2011 at 09:00 AM. Counsel should call 317-229-3670 to participate in the conference. Signed by Judge Jane Magnus-Stinson on 5/24/2011. (LBK) (Entered: 05/24/2011) 05/26/2011 78 ORDER granting 73 Motion to Intervene as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). J. Richard Kiefer is granted leave to intervene to respond to Government's Motion for a Hearing to Determine Defense Counsel's Possible Conflict of Interest. Signed by Judge Jane Magnus-Stinson on 5/26/2011.(LBK) (Entered: 05/26/2011) 06/02/2011 79 ORDER granting 71 Motion for Hearing to Determine Defense Counsel's Possible Conflict of Interest. Counsel, including Mr. Kiefer, should be prepared to address a hearing date for this motion at the June 16, 2011 telephonic status conference. Signed by Judge Jane Magnus-Stinson on 6/2/2011.(LBK) (Entered: 06/02/2011) 06/03/2011 80 MOTION TO ENLARGE DISCOVERY DEADLINE by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 06/03/2011) 06/03/2011 81 ORDER granting 80 Motion to Enlarge Discovery Deadline as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The current deadline of June 3, 2011, for the government to produce discovery is reset for June 24, 2011. Signed by Judge Jane Magnus-Stinson on 6/3/2011.(LBK) (Entered: 06/03/2011) 06/15/2011 82 NOTICE OF ATTORNEY APPEARANCE Nicholas E. Surmacz appearing for USA. (Surmacz, Nicholas) (Entered: 06/15/2011) 06/16/2011 83 MINUTE ENTRY for proceedings held before Judge Jane MagnusStinson. All parties and the United States of America appeared by counsel. The parties report that a relevant issue in the Ohio bankruptcy case, Case No. 10-50494 remains unresolved. The parties should report on the status, and hopeful resolution, of that issue at the next status conference. Additionally, the parties should be prepared to address the necessity of a possible hearing and a potential date with respect to the issues raised by the United States of America concerning Richard Kiefer's potential representation of Defendant Timothy S. Durham. [Dkt. 71.] Telephonic Status Conference set for 7/7/2011 at 09:00 AM before Judge Jane Magnus-Stinson. Counsel should call 317-229-3670 to participate in the conference. Signed by Judge Jane Magnus-Stinson. (LBK) (Entered: 06/16/2011) 06/24/2011 84 Unopposed MOTION TO STAY SCHEDULING DEADLINES by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) (Srebnick, Howard) (Entered: 06/24/2011) 06/27/2011 85 ORDER FOR MOTION TO STAY SCHEDULING DEADLINES - This https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 12 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 32 of 71 PageID #: 10373 matter is before the Court upon defendant, Timothy S. Durham's, motion requesting the Court to stay the current scheduling deadlines. The Court finds that the motion should be GRANTED. IT IS THEREFORE ORDERED that the Court will stay the current scheduling deadlines. Signed by Judge Jane Magnus-Stinson on 6/27/2011.(LBK) (Entered: 06/27/2011) 06/28/2011 86 ORDER granting in part and denying in part 65 Motion Petition for Access to Sealed Court Records - The defendant's revised financial statement should be unsealed. The defendant shall have until 12:00 noon on Friday, July 8, 2011 to propose redactions to the statement and to support same with a developed legal and factual showing before the statement is unsealed. The defendant's revised financial statement shall remain sealed in the meantime pending further order of the Court. The defendant's residence location shall remain sealed. Signed by Magistrate Judge Kennard P. Foster on 6/28/2011.(JD) (Entered: 06/30/2011) 07/07/2011 87 NOTICE OF ATTORNEY APPEARANCE: John L. Tompkins appearing for TIMOTHY S. DURHAM (Retained). (Tompkins, John) (Entered: 07/07/2011) 07/07/2011 88 Minute Order for proceedings held before Judge Jane Magnus-Stinson: Status Conference as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 7/7/2011., Court GRANTS Mr. Srebnicks oral motion to withdraw as counsel for Mr. Durham. Attorneys James Voyles and Jennifer Lukemeyer informed the Court that they intend to file a motion to withdraw as counsel for Defendant James F. Cochran and that Mr. Cochran may seek a public defender to represent him. Counsel is ORDERED to file a formal motion to withdraw, and the Court sets this matter for Hearing for 7/14/2011 10:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. Attorney Thomas W. Farlow informed the Court that he intends to file a motion to withdraw as counsel for Defendant Rick D. Snow and that Mr. Snow may seek a public defender to represent him. Counsel is ORDERED to file a formal motion to withdraw, and this matter will also be addressed at the hearing. Counsel for Mr. Durham is ORDERED to bring the revised financial statement to the hearing. The Government is ORDERED to confer with Mr. Kiefer and to file a notice by 10:00 a.m. on July 14, 2011 regarding whether it intends to further pursue the issues it raised in docket 71 . (See Order). Signed by Judge Jane Magnus-Stinson. (MAC) (Entered: 07/08/2011) 07/12/2011 93 MOTION /Objection to 86 Magistrate Judge's Order Regarding Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM. (Carroll, Jan) Modified on 7/13/2011 (JD). (Entered: 07/12/2011) 07/13/2011 95 ORDER granting 92 Motion to Continue as to RICK D. SNOW (3) ONLY. If new counsel does not enter an appearance for Mr. Snow by July 21, 2011, the Court will set a hearing to determine the status of Mr. Snow's representation and whether a public defender is appropriate. The July 14, 2011 hearing will proceed as scheduled for all other matters https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 13 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 33 of 71 PageID #: 10374 addressed by the Court at the July 7, 2011 status conference. (Dkt. 88 .). Signed by Judge Jane Magnus-Stinson on 7/13/2011.(JD) (Entered: 07/13/2011) 07/13/2011 96 NOTICE WITHDRAWAL OF GOVERNMENT'S MOTION FOR A HEARING TO DETERMINE DEFENSE COUNSEL'S POSSIBLE CONFLICT OF INTEREST by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW re 71 MOTION for Hearing to Determine Defense Counsel's Possible Conflict of Interest (Ong, Winfield) (Entered: 07/13/2011) 07/14/2011 97 Minute Order for proceedings held before Judge Jane Magnus-Stinson: Hearing as to TIMOTHY S. DURHAM, JAMES F. COCHRAN held on 7/14/2011., Counsel John Tompkins was present for Defendant Timothy S. Durham. Counsel Jennifer Lukemeyer was present for Defendant James F. Cochran. Mr. Cochran also appeared in person. Counsel Winfield Ong and Nick Surmacz were present for the Government. Counsel Jan Carroll appeared on behalf of the Indianapolis Star as an interested party. Hearing set for 7/21/2011 11:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson to address Mr. Cochrans pending request to be represented by a federal public defender, the status of Mr. Snows search for counsel, and any issues regarding Mr. Durhams anticipated financial statement. (See Entry for futher details). Signed by Judge Jane Magnus-Stinson.(Court Reporter Jean Knepley) (MAC) (Entered: 07/14/2011) 07/15/2011 98 First MOTION to Approve Schedule for Attorney-Client Consultations by TIMOTHY S. DURHAM. (Tompkins, John) (Entered: 07/15/2011) 07/18/2011 99 MARGINAL ENTRY in case as to TIMOTHY S. DURHAM: The Government has until the close of business on July 20, 2011 to file a response to Mr. Durham's Motion 98 . Signed by Judge Jane MagnusStinson on 7/18/2011.(DWH) (Entered: 07/18/2011) 07/18/2011 100 MOTION Verified to Disqualify Counsel for Indiana Newspapers, Inc. Due to Conflict of Interest by TIMOTHY S. DURHAM. (Tompkins, John) (Entered: 07/18/2011) 07/18/2011 101 RESPONSE in Opposition re 93 MOTION /Objection to Magistrate Judge's Order Regarding Access to Sealed Court Records by TIMOTHY S. DURHAM and Assertion of Expectation of Privacy in Said Records (Tompkins, John) (Entered: 07/18/2011) 07/20/2011 102 RESPONSE in Opposition re 98 First MOTION to Approve Schedule for Attorney-Client Consultations by USA as to TIMOTHY S. DURHAM (Ong, Winfield) (Entered: 07/20/2011) 07/21/2011 106 Minute Order for hearing on July 21, 2011 before Judge Jane MagnusStinson - Plaintiff appears by counsel and with FBI agent. Defendant, Timothy S. Durham, appears by counsel. Defendant, James F. Cochran, appears in person and by counsel. Defendant, Rick D. Snow, appears by counsel. Federal community defender Bill Dazey was present at the https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 14 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 34 of 71 PageID #: 10375 hearing. The Court ORDERS Mr. Durham to file a motion for leave to submit a redacted financial statement by July 22, 2011, attaching a redacted financial statement and a memorandum with citation to legal authority supporting the proposed redactions. The Court DENIES Mr. Durham's Motion to Approve Schedule for Attorney-Client Consultations. (Dkt. 98 .) The Court GRANTS Mr. Cochran's previous counsel's motions to withdraw, (dkts. 89 ; 91 ), and directs the Clerk to remove James H. Voyles, Jennifer Lukemeyer, and Tyler Helmond from the docket in this case. Mr. Dazey entered his appearance on behalf of Mr. Cochran after the hearing. (Dkt. 105 .) Mr. Baldwin entered his appearance after the hearing. (Dkt. 104 .) Therefore, the Court SUBSTITUTES Mr. Baldwin for Mr. Farlow as counsel for Mr. Snow and directs the Clerk to terminate Mr. Farlow's appearance from the docket. The Court will decide Mr. Durham's Verified Motion to Disqualify Counsel for Indiana Newspapers, Inc., (dkt. 100 ), before it decides Indiana Newspapers, Inc.'s Objection to the Magistrate Judge's Order Regarding Access to Sealed Court Records, (dkt. 93 ). The briefing on the Verified Motion to Disqualify Counsel for Indiana Newspapers, Inc. shall proceed as set forth in Local Rule 7.1. Signed by Judge Jane Magnus-Stinson.(Court Reporter Jean Knepley) (JD) (Entered: 07/21/2011) 07/22/2011 108 MOTION to Extend Redaction Deadline by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order Order Granting Motion to Extend Redaction Deadline)(Tompkins, John) (Entered: 07/22/2011) 07/22/2011 110 MARGINAL ENTRY granting 108 Motion to extend redaction deadline to 7/25/2011 as to TIMOTHY S. DURHAM (1). No further extensions of time on this issue will be allowed. Signed by Judge Jane Magnus-Stinson on 7/22/2011.(SWM) (Entered: 07/22/2011) 07/22/2011 111 *SEALED* SEALED MOTION to Approve Out-Of-State Travel for Mr. Durham by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order Order Granting Motion to Approve Out-Of-State Travel for Mr. Durham)(Tompkins, John) (Entered: 07/22/2011) 07/22/2011 114 ENTRY in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW, J RICHARD KIEFER terminated. Mr. Kiefer has not responded to the show cause, the Court directs the Clerk to remove him as an intervenor in this case. Signed by Judge Jane Magnus-Stinson on 7/22/2011.(CKM) (Entered: 07/25/2011) 07/25/2011 112 ***UNSEALED PER ENTRY OF 7/28/2011***SEALED Durhan's Submission in Support of Maintaining the Seal of his Financial Records or Alternatively Supporting His Proposed Redactions of Said Financial Information by TIMOTHY S. DURHAM. (Attachments: # (1) Supplement Redacteed Financial Information-To remained sealed per Entry of 7/28/2011)(Tompkins, John) Modified on 7/28/2011 (CBU) (Entered: 07/25/2011) 07/25/2011 113 ORDER DENYING 111 Sealed Motion for Out-of-State Travel as to TIMOTHY S. DURHAM (1). ***SEE ORDER FOR FURTHER INFORMATION***. Signed by Judge Jane Magnus-Stinson on https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 15 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 35 of 71 PageID #: 10376 7/25/2011.(CKM) Modified on 7/25/2011 (CKM). (Entered: 07/25/2011) 07/26/2011 115 ORDER TO SHOW CAUSE as to TIMOTHY S. DURHAM - Mr. Durham filed his redacted financial statement and supporting memorandum on July 25, 2011; however, he filed both of those documents under seal with no motion supporting why either of those documents should be maintained under seal. The Court ORDERS Mr. Durham to show cause by July 29, 2011 why the Court should not unseal the redacted financial statement and supporting memorandum. [Dkts. 112; 112-1.] Should he fail to do so, the Court will unseal the documents at issue. Mr. Durham is permitted to file an amended supporting memorandum by that date should he choose to do so. If he believes any portion of the supporting memorandum should be maintained under seal, he is to file a motion requesting leave to file the affected portions under seal with supporting authority and to comply with Local Rule 5.3. Signed by Judge Jane Magnus-Stinson on 7/26/2011.(JD) (Entered: 07/26/2011) 07/27/2011 116 RESPONSE TO ORDER TO SHOW CAUSE by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 07/27/2011) 07/28/2011 117 MOTION TO ADOPT REVISED SCHEDULING ORDER by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit Proposed Revised Scheduling Order)(Ong, Winfield) (Entered: 07/28/2011) 07/28/2011 118 ENTRY that the Court directs the Clerk to unseal docket 112. Docket 112-1 should remain under seal. The Government has until 8/2/2011 to respond to Mr. Durham's argument that the redacted financial information should remain under seal in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN and RICK D. SNOW. Signed by Judge Jane MagnusStinson on 7/28/2011.(CBU) (Entered: 07/28/2011) 07/28/2011 119 *** WITHDRAWN PER ORDER DATED 8//2011 *** REPLY in Support of Motion re 93 MOTION /Objection to Magistrate Judge's Order Regarding Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM (Carroll, Jan) Modified on 8/5/2011 (SWM). (Entered: 07/28/2011) 07/28/2011 120 REPLY in Support of Motion re 93 MOTION /Objection to Magistrate Judge's Order Regarding Access to Sealed Court Records by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM (Amended) (Carroll, Jan) (Entered: 07/28/2011) 07/29/2011 121 RESPONSE TO ORDER TO SHOW CAUSE by USA as to TIMOTHY S. DURHAM (Ong, Winfield) (Entered: 07/29/2011) 07/29/2011 122 ORDER granting USA's 117 Motion TO ADOPT REVISED SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - see Order for established deadlines. Signed by Judge Jane Magnus-Stinson on 7/29/2011.(SWM) (Entered: 07/29/2011) 07/29/2011 123 MOTION to Withdraw Document 119 Reply in Support of Motion by https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 16 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 36 of 71 PageID #: 10377 INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Carroll, Jan) (Entered: 07/29/2011) 08/03/2011 124 Submission of INI's Response to Durham's Submission on Maintaining Financial Statement Under Seal by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Carroll, Jan) (Entered: 08/03/2011) 08/03/2011 125 ORDER as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW - Previously the Court granted the United States four days in which to respond to Mr. Durhams argument that his redacted financial information should remain under seal. [Dkt. 118.] The United States has responded that it takes no position on the matter. [Dkt. 121.] Any other party, or Indiana Newspapers, Inc., may respond to Mr. Durhams argument within four days. Any reply from Mr. Durham will be due four days thereafter. Signed by Judge Jane Magnus-Stinson on 8/3/2011.(JKS) (Entered: 08/04/2011) 08/04/2011 126 NOTICE of Appearance of Donald Lundberg by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Lundberg, Donald) (Entered: 08/04/2011) 08/04/2011 127 RESPONSE in Opposition re 100 MOTION Verified to Disqualify Counsel for Indiana Newspapers, Inc. Due to Conflict of Interest by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Lundberg, Donald) (Entered: 08/04/2011) 08/04/2011 128 ORDER granting Indiana Newspapers, Inc's 123] Motion to Withdraw Docket #119 as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2) and RICK D. SNOW (3). Signed by Magistrate Judge Kennard P. Foster on 8/4/2011.(SWM) (Entered: 08/05/2011) 08/09/2011 129 *SEALED* MOTION to Approve Residence Change, SEALED MOTION () by TIMOTHY S. DURHAM. (Tompkins, John) (Entered: 08/09/2011) 08/15/2011 130 RESPONSE in Opposition re 129 MOTION to Approve Residence Change SEALED MOTION by USA as to TIMOTHY S. DURHAM Government's Objection to Durham's Motin to Reside at his Fortville, Indiana Residence (Ong, Winfield) (Entered: 08/15/2011) 08/15/2011 131 MOTION for Extension of Time to September 2, 2011 Motion to Extend Time for Government to Complete Discovery Production by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 08/15/2011) 08/16/2011 132 ORDER ON MOTION TO EXTEND TIME FOR GOVERNMENT TO COMPLETE DISCOVERY PRODUCTION - granting 131 Motion for Extension of Time as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) for the reasons set forth in https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 17 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 37 of 71 PageID #: 10378 Government's Motion. IT IS THEREFORE ORDERED that the current deadline August 15, 2011, for the government to produce discovery be reset until September 2, 2011. Signed by Judge Jane Magnus-Stinson on 8/16/2011.(JKS) (Entered: 08/16/2011) 08/17/2011 133 SCHEDULING ORDER as to TIMOTHY S. DURHAM- Motion Hearing set for 8/19/2011 01:00 PM in room #246, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Kennard P. Foster. Signed by Magistrate Judge Kennard P. Foster on 8/17/2011. (CBU) (Entered: 08/17/2011) 08/19/2011 134 COURTROOM MINUTES for proceedings held before Magistrate Judge Kennard P. Foster: Motion Hearing as to TIMOTHY S. DURHAM held on 8/19/2011 re 129 SEALED MOTION filed by TIMOTHY S. DURHAM ; Defendant TIMOTHY S. DURHAM appears in person and by retained counsel John Tompkins. Appearance for the USA by AUSA Winfield Ong. USPO represented by Chris Dougherty. Hearing Held and the Court orders defts conditions modified. Deft is to seek housing approval from USPO within 72 hours or deft is to report to VOA. Defendant is released on recognizance. Signed by Magistrate Judge Kennard P. Foster. (CBU) (Entered: 08/22/2011) 10/03/2011 135 ORDER - Mr. Durham's Motion to Disqualify, dkt. 100 , is DENIED. The Indianapolis Star's Objection, dkt. 93 , is GRANTED IN PART and DENIED IN PART. It is granted insofar as Mr. Durham must remove the redactions in Docket 112-1 not specifically authorized by Fed. R. Crim. Pro. 49.1 and must re-file the document, on the public docket, no later than October 11, 2011. The Objection is also granted to the extent that the Indianapolis Star may request the Court Reporter to prepare the transcript of the sidebar with Magistrate Judge Foster held on April 11, 2011, referenced in page seven, note 4 of Docket 86. The Objection is denied in all other respects. Mr. Durham must publicly file the document previously and impermissibly filed under seal without Court approval as Docket 129. He may redact any information specifically protected under Fed. R. Crim. Pro. 49.1 in the publicly accessible version of the document. Future violations of Local Rule 5.3, which governs the process for requesting sealed filings, may result in sanctions.(SEE ORDER). Signed by Judge Jane Magnus-Stinson on 10/3/2011.(JKS) Modified on 10/3/2011 (JKS). (Entered: 10/03/2011) 10/13/2011 136 ORDER TO SHOW CAUSE as to TIMOTHY S. DURHAM (1) Previously, the Court ordered Mr. Durham to "remove the redactions in Docket 112-1 not specifically authorized by Fed. R. Crim. Pro. 49.1 and... [to] re-file the document, on the public docket, no later than October 11, 2011." [Dkt. 135 at 9.] To date, Mr. Durham has not filed the document, as required, nor sought an extension of the deadline. Accordingly, Mr. Durham must SHOW CAUSE, if any, no later than October 20, 2011, why he and/or his attorney should not be sanctioned for failing to comply with the order docketed at Docket 135 . Signed by Judge Jane MagnusStinson on 10/13/2011. (JKS) (Entered: 10/13/2011) 10/14/2011 137 MOTION for Leave to File Request to Allow Belated Filing of Redacted https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 18 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 38 of 71 PageID #: 10379 Financial Information by TIMOTHY S. DURHAM. (Attachments: # 1 Verified Response to Court's October 13th Rule to Show Cause) (Tompkins, John) (Entered: 10/14/2011) 10/14/2011 138 REDACTION by TIMOTHY S. DURHAM to 112 SEALED Document (Sealed - entry) filed by TIMOTHY S. DURHAM (Attachments: # 1 Redacted Financial Information)(Tompkins, John) (Entered: 10/14/2011) 10/17/2011 139 ENTRY in case as to TIMOTHY S. DURHAM (1) - Redacted filings accepted, re Defendant's 137 Request to Allow Belated Filing of Redacted Finanacial Information. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 10/17/2011.(JKS) (Entered: 10/17/2011) 10/21/2011 141 ENTRY in case as to TIMOTHY S. DURHAM (1) - Show cause order discharged. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 10/21/2011. (JKS) (Entered: 10/21/2011) 12/21/2011 143 MOTION to Dismiss the Indictment with Prejudice by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 12/21/2011) 12/21/2011 144 BRIEF/MEMORANDUM in Support re 143 MOTION to Dismiss the Indictment with Prejudice by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit Exhibit A Partial Wiretap Call List, # 2 Exhibit Exhibit B August 2011 emails between Tompkins and Ong, # 3 Exhibit Exhibit C November 2009 Durham phone bill, # 4 Exhibit Exhibit D November 2, 2009 PEN Data, # 5 Exhibit Exhibit F Instructions to call monitoring personnel, # 6 Exhibit Exhibit G Letter date December 5, 2011 from Tompkins to Ong/Van Dyck, # 7 Exhibit Exhibit H Letter 1 dated December 6, 2011 from ong to Defense Counsel, # 8 Exhibit Exhibit I Verizon Surveillance Confirmation Form, # 9 Exhibit Exhibit J Electronic Surveillance Log, # 10 Exhibit Exhibit K Letter 2 dated December 6, 2011 from Ong to Defense Counsel, # 11 Exhibit Exhibit L 47 CFR 1.20000-1.20008)(Tompkins, John) (Entered: 12/21/2011) 12/21/2011 145 *SEALED* SEALED Notice of Exhibit Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit Exhibit E First Interim Report) (Tompkins, John) (Entered: 12/21/2011) 12/21/2011 146 *SEALED* SEALED MOTION to File Exhibit E Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) (Tompkins, John) (Entered: 12/21/2011) 12/22/2011 147 *SEALED* ORDER granting 146 Defendant's Sealed Motion to File Exhibit E Under Seal as to TIMOTHY S. DURHAM (1) and RICK D. SNOW (3) - Upon consideration of the Defendant's Motion, and the entire record of this case, it is hereby ORDERED that the Motion is GRANTED. Signed by Judge Jane Magnus-Stinson on 12/22/2011. (JKS) (Entered: 12/22/2011) 01/05/2012 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/05/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 19 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 39 of 71 PageID #: 10380 01/05/2012 149 BRIEF/MEMORANDUM in Support re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by TIMOTHY S. DURHAM (Attachments: # 1 Notice of Exhibit Under Seal)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 150 *SEALED* SEALED Exhibits In Support of Motion to Dismiss by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit Exhibit A - Wiretap Order dated November 6, 2009, # 2 Exhibit Exhibit B - Wiretap Application dated November 6, 2009, # 3 Exhibit Exhibit C - Wiretap Affidavit dated November 6, 2009)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 151 *SEALED* MOTION to File Exhibits Under Seal, SEALED MOTION () by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 152 MOTION to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Serches by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 153 BRIEF/MEMORANDUM in Support re 152 MOTION to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Serches by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit BB - Offering Circular, Fair Financial Services dated July, 2008, # 2 Exhibit CC - ODS Letter of Examination, # 3 Exhibit DD - Transcript of call 2332, # 4 Exhibit EE - OAC 1301:6-3-06, # 5 Exhibit FF Transcript of call 557, # 6 Exhibit GG - Transcript of call 1131, # 7 Exhibit HH - Transcript of call 1244, # 8 Exhibit II - Transcript of 1257, # 9 Exhibit JJ - Transcript of call 1508, # 10 Exhibit KK - Transcript of call 1539, # 11 Exhibit LL - Transcript of call 1543, # 12 Exhibit MM Transcript of call 1563, # 13 Exhibit NN - Transcript of call 1582, # 14 Exhibit OO - Transcript of call 1667, # 15 Exhibit PP - Transcript of call 1858, # 16 Exhibit QQ - Transcript of call 556, # 17 Exhibit RR Transcript of call 976, # 18 Exhibit SS - Transcript of call 943, # 19 Exhibit TT - Transcript of 965, # 20 Exhibit UU - Transcript of call 1122, # 21 Exhibit VV - Transcript of call 1197, # 22 Exhibit WW - Transcript of call 1226, # 23 Exhibit XX - Transcript of call 1499, # 24 Exhibit YY Transcript of call 964, # 25 Exhibit ZZ - Transcript of call 966, # 26 Exhibit AB - Transcript of call 1600, # 27 Exhibit AC - Transcript of call 1675, # 28 Exhibit AD - Transcript of call 1756, # 29 Exhibit AE Transcipt of call 1824, # 30 Exhibit AF - Tranwscript of call 1848, # 31 Exhibit AG - Transcript of call 1953, # 32 Exhibit AH Transcript of call 2969, # 33 Exhibit AI - Transcript of call 1616, # 34 Notice of Exhibit Under Seal)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 154 *SEALED* SEALED Notice to File Exhibit Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit - AA Warrant and Affidavit (under seal))(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 155 *SEALED* SEALED MOTION to File Exhibit Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 20 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 40 of 71 PageID #: 10381 (Tompkins, John) (Entered: 01/05/2012) 01/05/2012 156 MOTION to Suppress Wiretap and Derivative Evidence by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 157 BRIEF/MEMORANDUM in Support re 156 MOTION to Suppress Wiretap and Derivative Evidence by TIMOTHY S. DURHAM (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Exhibit C - Fair Finance offering Circular July 2008, # 4 Exhibit D - Draft Fair Finance Offering Circular November 2009, # 5 Exhibit E - Cover Letter to Fair Finance Offering Circular dated March 8, 2007, # 6 Exhibit I Wiretaps, # 7 Exhibit J - Civil Seizure Complaint dated November 24, 2009, # 8 Exhibit K - Letter Offering to Dismiss the Civil Complaint dated November 25, 2009, # 9 Exhibit M - Loan Collateral and Cash Flow Analysis Reports submitted to the State of Ohio November 24, 2009, # 10 Exhibit O - FBI Agent Dan Harris Affidavit in Support of Criminal Complaint against Thomas Petters and Larry Reynolds, # 11 Exhibit Q Unsigned Copy of Minimization Instructions, # 12 Exhibit R - Exam Demand Letter from the Ohio Division of Securities dated February 6, 2009, # 13 Notice to Filing Exhibits Under Seal)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 158 *SEALED* SEALED Notice of Filing Exhibits Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit A - Application for a Wiretap, November 6, 2009, # 2 Exhibit B - Affidavit of FBI Agent Dennis Halliden in Support of a Wiretap, November 6, 2009, # 3 Exhibit F - Daniel Laiken 302, # 4 Exhibit G - Robert Laiken 302, # 5 Exhibit N Agent Halliden Affidavit dated November 23, 2009 in Support of Indiana Search Warrant, # 6 Exhibit P - Judge Barker Order Authorizing Wiretaps dated November 6, 2009)(Tompkins, John) (Entered: 01/05/2012) 01/05/2012 159 *SEALED* SEALED MOTION to File Exhibits Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) (Tompkins, John) (Entered: 01/05/2012) 01/05/2012 160 MOTION for Extension of Time to January 16, 2012 in which to 157 Brief/Memorandum in Support of Motion by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/05/2012) 01/06/2012 161 RESPONSE in Opposition re 143 MOTION to Dismiss the Indictment with Prejudice by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) (Entered: 01/06/2012) 01/06/2012 162 ORDER granting 160 Defendant's Motion for Extension of Time to File Rule 12 Memorandum as to TIMOTHY S. DURHAM (1) - The Defendant, Timothy S. Durham, Motion for Extension of Time to File Rule 12 Memorandum be, and hereby is granted and Defendant is allowed an additional ten (10) days, to and including the 17th day of January, 2012, within which to file a Memorandum into compliance with the length restrictions. Signed by Judge Jane Magnus-Stinson on 1/6/2012. https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 21 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 41 of 71 PageID #: 10382 (JKS) (Entered: 01/06/2012) 01/06/2012 163 ORDER granting 155 Defendant's Sealed Motion to File Exhibit AA Under Seal, as to TIMOTHY S. DURHAM (1). Signed by Judge Jane Magnus-Stinson on 1/6/2012.(JKS) (Entered: 01/09/2012) 01/06/2012 164 ORDER granting 159 Defendant's Sealed Motion to File Exhibits A, B, F, G, N and P Under Seal, as to TIMOTHY S. DURHAM (1). Signed by Judge Jane Magnus-Stinson on 1/6/2012.(JKS) (Entered: 01/09/2012) 01/06/2012 165 ORDER granting 151 Defendant's Motion to File Exhibits A, B, and C Under Seal, as to TIMOTHY S. DURHAM (1). Signed by Judge Jane Magnus-Stinson on 1/6/2012.(JKS) (Entered: 01/09/2012) 01/10/2012 166 SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - Presently before the Court are the following motions filed by Defendant Timothy S. Durham: The Motion to Dismiss the Indictment with Prejudice, dkt. 143 ; The Motion to Dismiss the Indictment with Prejudice for violation of 18 U.S.C. ? 2517(5), dkt. 148 ; The Motion to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Searches, dkt. 152 ; and The Motion to Suppress Wiretap and Derivative Evidence, dkt. 156 . The Court sets the foregoing motions for a combined hearing to be held on February 15, 2012, U.S. Courthouse, Indianapolis, beginning at 1:00 p.m. The room number will be set later by separate entry. If any Defendant wishes to join any of the pending motions, the Defendant must file a statement to that effect no later than January 17, 2012. If counsel propose to submit evidence outside the current record, counsel must meet and confer, no later than three days before the hearing, regarding any witnesses who will be called to testify or any documents that will be introduced as exhibits. Counsel must file a report following their meeting listing the witnesses and their potential testimony by 9:00 a.m. February 14, 2012. Signed by Judge Jane Magnus-Stinson on 1/10/2012. (JKS) (Entered: 01/10/2012) 01/13/2012 167 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Necessity by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 168 BRIEF/MEMORANDUM in Support re 167 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Necessity by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit C - Fair Finance Offering Circular July 2008, # 2 Exhibit D - Draft Fair Finance Offering Circular November 2009, # 3 Exhibit O - FBI Agent Dan harris Affidavit, # 4 Exhibit R Exam Demand Letter 02-06-09, # 5 Notice to File Under Seal)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 169 *SEALED* SEALED Notice of Filing Exhibits B and N Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit B - Affidavit of FBI Agent Dennis Halliden, # 2 Exhibit N - Agent Halliden Affidavit dated 11/23/09)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 170 *SEALED* SEALED MOTION TO FILE EXHIBITS B AND N UNDER https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 22 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 42 of 71 PageID #: 10383 SEAL by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 171 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 172 BRIEF/MEMORANDUM in Support re 171 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit C - Offering Circular July 2008, # 2 Exhibit D - Offering Circular November 2009, # 3 Exhibit E - Cover Letter to Fair Finance Circular dated 030807, # 4 Exhibit J Civil Seizure Complaint dated 112409, # 5 Exhibit K - Letter Offering to Dismiss the Civil Complaint dated 112509, # 6 Notice of Filing Exhibits Under Seal)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 173 *SEALED* SEALED Notice of Filing Exhibits A, B, F and G Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit A - Application for Wiretap 110609, # 2 Exhibit B - Affidavit of FBI Agent Dennis Halliden 110609, # 3 Exhibit F - Daniel Laikin 302, # 4 Exhibit G Robert Laikin 302)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 174 *SEALED* SEALED MOTION to File Exhibits A, B, F and G Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 175 MOTION to Suppress Wiretap and Derivative Evidence from Failure to Minimize Calls and because the Wiretap was sought for a Non-Predicate Offense by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 176 BRIEF/MEMORANDUM in Support re 175 MOTION to Suppress Wiretap and Derivative Evidence from Failure to Minimize Calls and because the Wiretap was sought for a Non-Predicate Offense by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit I - Wiretaps, # 2 Exhibit Q - Unsigned Copy of Minimization Instructions, # 3 Notice of Filing Exhibits Under Seal)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 177 *SEALED* SEALED Notice of Filing Exhibits A, B and P Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit A - Application for Wiretap dated 110609, # 2 Exhibit B - Affidavit of FBI Agent Dennis Halliden dated 110609, # 3 Exhibit P - Judge Barker Order Authorizing Wiretaps dated 110609)(Tompkins, John) (Entered: 01/13/2012) 01/13/2012 178 *SEALED* SEALED MOTION to File Exhibits A, B and P Under Seal by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) (Tompkins, John) (Entered: 01/13/2012) 01/13/2012 179 REPLY in Support of Motion re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit A - Dear Counsel Letter 2 dated 12/15/11)(Tompkins, John) (Entered: 01/13/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 23 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 43 of 71 PageID #: 10384 01/17/2012 181 ORDER granting 170 Defendant's Sealed Motion to File Exhibits B and N Under Seal as to TIMOTHY S. DURHAM (1) - Upon consideration of the Defendant's Motion, and the entire record of this case, it is hereby ORDERED that the Motion is GRANTED. Signed by Judge Jane Magnus-Stinson on 1/17/2012. (JKS) (Entered: 01/18/2012) 01/17/2012 182 ORDER granting 174 Defendant's Sealed Motion to File Exhibits A, B, F and G Under Seal as to TIMOTHY S. DURHAM (1) - Upon consideration of the Defendant's Motion, and the entire record of this case, it is hereby ORDERED that the Motion is GRANTED. Signed by Judge Jane Magnus-Stinson on 1/17/2012. (JKS) (Entered: 01/18/2012) 01/17/2012 183 ORDER granting 178 Defendant's Sealed Motion to File Exhibits A, B and P Under Seal as to TIMOTHY S. DURHAM (1) - Upon consideration of the Defendant's Motion, and the entire record of this case, it is hereby ORDERED that the Motion is GRANTED. Signed by Judge Jane Magnus-Stinson on 1/17/2012. (JKS) (Entered: 01/18/2012) 01/23/2012 187 MOTION to Unseal Document NOVEMBER 23, 2009 SEARCH WARRANT APPLICATIONS by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 01/23/2012) 01/23/2012 188 RESPONSE in Opposition re 152 MOTION to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Serches by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 01/23/2012) 01/23/2012 189 RESPONSE in Opposition re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 01/23/2012) 01/24/2012 190 MOTION FOR ADDITIONAL TIME TO RESPOND TO 167 , 171 , 175 MOTIONS TO SUPPRESS THE WIRE TAP by USA as to TIMOTHY S. DURHAM. (Ong, Winfield) Modified on 1/25/2012 (added document links) (JKS). (Entered: 01/24/2012) 01/24/2012 191 Submission of Proposed Order , re 190 MOTION FOR ADDITIONAL TIME TO RESPOND TO MOTIONS TO SUPPRESS THE WIRE TAP by USA as to TIMOTHY S. DURHAM. (Ong, Winfield) (Entered: 01/24/2012) 01/24/2012 192 MOTION For Leave to Withdraw Appearance of Attorney by INDIANA NEWSPAPERS, INC. as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Lundberg, Donald) (Entered: 01/24/2012) 01/25/2012 194 ORDER granting 190 Government's Motion for Additional Time to Respond to Motions to Suppress the Wire Tap as to TIMOTHY S. DURHAM (1) - IT IS THEREFORE ORDERED that the government be granted an additional time through and including February 10, 2012 to file its responses. Signed by Judge Jane Magnus-Stinson on 1/25/2012. (JKS) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 24 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 44 of 71 PageID #: 10385 (Entered: 01/25/2012) 01/25/2012 195 ORDER granting 192 Donald R. Lundberg's Motion for Leave to Withdraw Appearance of Attorney as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - IT IS THEREFORE ORDERED that the appearance of Donald R. Lundberg is hereby withdrawn. Signed by Judge Jane Magnus-Stinson on 1/25/2012. (JKS) (Entered: 01/25/2012) 01/26/2012 196 ORDER Unsealing The November 23, 2009 Search Warrant Applications as to TIMOTHY S. DURHAM (1) - Upon motion 187 of the government, and for good cause shown, it is hereby ORDERED that: (1) the Application and Affidavit for Search Warrant, dated November 23, 2009, No. 1:09-mj-0375 (S.D. Ind.); and (2) the Application for a Search Warrant, dated November 23, 2009, No. 5:09-mj-1048 (N.D. Ohio) (the "Applications") be unsealed for the limited purpose of the government's response to Defendant Timothy S. Durham's Motion to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Searches (ECF No. 152). The Applications remain otherwise sealed until further order of the Court. (copy sent to N.D. Ohio via US Mail). Signed by Judge Jane Magnus-Stinson on 1/26/2012. (JKS) (Entered: 01/26/2012) 01/31/2012 198 REPLY in Support of Motion re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 01/31/2012) 02/01/2012 199 REPLY in Support of Motion re 152 MOTION to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Office Serches by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit A Telephone Call - John Lawson / Stephanie Brogan 08/31/2009, # 2 Exhibit B - Audio - John Lawson / Stephanie Brogan 09/11/2009) (Tompkins, John) (Entered: 02/01/2012) 02/01/2012 200 NOTICE of Manual Filing by TIMOTHY S. DURHAM re 199 Reply in Support of Motion (Tompkins, John) (Entered: 02/01/2012) 02/08/2012 201 MOTION TO UNSEAL THE NOVEMBER 6, 2009 APPLICATION FOR INTERCEPTION OF WIRE COMMUNICATIONS by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 02/08/2012) 02/08/2012 202 MOTION for Writ of Habeas Corpus ad testificandum by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 02/08/2012) 02/08/2012 203 NOTICE AND REPORT TO THE COURT REGARDING THE FEBRUARY 15, 2012 HEARING by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW re 166 Scheduling Order (Ong, Winfield) (Entered: 02/08/2012) 02/09/2012 205 ENTRY in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 25 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 45 of 71 PageID #: 10386 RICK D. SNOW - The Hearing set for February 15, 2012 at 1:00 will be held in Room 349, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. (JKS) (Entered: 02/09/2012) 02/09/2012 206 ORDER granting 201 Motion as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - It is hereby ORDERED that the Application for Interception of Wire Communications dated November 6, 2009, No. 1:09-mc-0179-SEB-DML (S.D. Ind.) (the "Application") be unsealed for the limited purpose of the government's response to Defendant Timothy S. Durham's Motion to Suppress Wiretap and Derivative Evidence for a Lack of Necessity, Motion to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause and Motion to Suppress Wiretap and Derivative Evidence from Failure to Minimize Calls (ECF Nos. 167-68, 171-72, 175-76). The Application remains otherwise sealed until further order of the Court. Signed by Judge Jane Magnus-Stinson on 2/9/2012. (JKS) (Entered: 02/09/2012) 02/09/2012 207 ORDER granting 204 Defendant's Motion for Leave as to JAMES F. COCHRAN (2) - IT IS THEREFORE ORDERED that Defendant James F. Cochran be excused from personally appearing at the hearing currently set for February 15, 2012. Signed by Judge Jane Magnus-Stinson on 2/9/2012. (JKS) (Entered: 02/09/2012) 02/10/2012 208 NOTICE Defendant Durham's Counter-Notice to the Court Regarding the February 15, 2012 Hearing by TIMOTHY S. DURHAM re 203 Notice (Other) (Tompkins, John) (Entered: 02/10/2012) 02/10/2012 209 ENTRY denying as moot 156 Motion to Suppress as to TIMOTHY S. DURHAM (1) - Mr. Durham has advised Court staff that the relief this motion seeks is completely encompassed by the motions now pending at dkt. 167, 171, and 175. Accordingly, this motion [dkt. 156] is DENIED AS MOOT. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 2/10/2012. (JKS) (Entered: 02/10/2012) 02/10/2012 210 ORDER - regarding Agenda and format for the Hearing on 2/15/2012 as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (See Order for complete details). Signed by Judge Jane Magnus-Stinson on 2/10/2012.(MAC) (Entered: 02/10/2012) 02/10/2012 211 RESPONSE in Opposition re 167 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Necessity by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) (Entered: 02/10/2012) 02/10/2012 212 RESPONSE in Opposition re 171 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) (Entered: 02/10/2012) 02/10/2012 213 RESPONSE in Opposition re 175 MOTION to Suppress Wiretap and Derivative Evidence from Failure to Minimize Calls and because the Wiretap was sought for a Non-Predicate Offense by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 26 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 46 of 71 PageID #: 10387 (Ong, Winfield) (Entered: 02/10/2012) 02/14/2012 215 EXHIBIT LIST by TIMOTHY S. DURHAM (Attachments: # 1 Transcript of call 2645, # 2 Transcript of call 2646)(Tompkins, John) (Entered: 02/14/2012) 02/14/2012 216 NOTICE OF CORRECTION by TIMOTHY S. DURHAM re 153 Brief/Memorandum in Support of Motion (Attachments: # 1 Transcript of call 1667)(Tompkins, John) (Entered: 02/14/2012) 02/14/2012 217 SUPERSEDING INDICTMENT as to TIMOTHY S. DURHAM (1) count(s) 1s, 2s-11s, 12s, JAMES F. COCHRAN (2) count(s) 1s, 2s-11s, 12s, RICK D. SNOW (3) count(s) 1s, 2s-11s, 12s. (JKS) (Entered: 02/14/2012) 02/14/2012 220 NOTICE OF ATTORNEY APPEARANCE Henry Parker Van Dyck appearing for USA. (JKS) (Entered: 02/14/2012) 02/14/2012 221 NOTICE OF ATTORNEY APPEARANCE Winfield D. Ong appearing for USA. (JKS) (Entered: 02/14/2012) 02/14/2012 222 NOTICE OF ATTORNEY APPEARANCE Nicholas E. Surmacz appearing for USA. (JKS) (Entered: 02/14/2012) 02/14/2012 229 ORDER granting 214 Defendant's Motion for Leave as to RICK D. SNOW (3) - IT IS THEREFORE ORDERED that Defendant Rick D. Snow be excused from personally appearing at the hearing currently set for February 15, 2012. Signed by Judge Jane Magnus-Stinson on 2/14/2012. (JKS) (Entered: 02/14/2012) 02/16/2012 233 Minute Order for proceedings held before Judge Jane Magnus-Stinson On February 15, 2012, the parties appeared by counsel for a hearing on the motions filed at docket 143 , 148 , and the portions of 152 that are not implicated by expected witness testimony. Defendant Timothy S. Durham also appeared personally. Defendants James F. Cochran and Rick D. Snow waived in writing their personal presence at the hearing. With respect to the motion filed at docket 143 , the Court heard the argument of counsel and took the motion UNDER ADVISEMENT. With respect to the motion filed at docket 148 , at Mr. Durham's request and without objection, the Court deferred argument on that motion until a later date. With respect to those portions of the motion filed at docket 152 otherwise at issue, the Court took the motion UNDER ADVISEMENT after the parties rested on the papers. The deadline for Mr. Durham to file his replies to the motions filed at docket 167, 171, and 175 is extended to February 24, 2012. The Court DENIED AS MOOT the Petition for Writ of Habeas Corpus Ad Testificandum, dkt. 202 . After conferring with one another, the parties must file a report to the Court no later than February 24, 2012 the following topics listed (**SEE ENTRY**). The parties agreed that the current trial setting of June 8, 2012 remains appropriate. The Court reserves four weeks for trial. If any of the Defendants wish to waive their initial appearance and arraignment on the pending summonses, they must by Feb. 28, 2012 do so in a writing signed by the client and counsel. Signed by Judge Jane Magnus-Stinson.(Court Reporter https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 27 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 47 of 71 PageID #: 10388 Jean Knepley) (JKS) (Entered: 02/16/2012) 02/17/2012 235 ARREST Warrant Returned by US Marshal. Executed on 4/6/2011, in case as to TIMOTHY S. DURHAM (1). (JKS) (Entered: 02/21/2012) 02/24/2012 237 REPLY in Support of Motion re 171 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit AAA - Fair Finance Subscription Agreement, # 2 Exhibit BBB - Fair Holdings, Inc. and Subsidiary, Consolidated Financial Statements)(Tompkins, John) (Entered: 02/24/2012) 02/24/2012 238 REPLY in Support of Motion re 175 MOTION to Suppress Wiretap and Derivative Evidence from Failure to Minimize Calls and because the Wiretap was sought for a Non-Predicate Offense by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 02/24/2012) 02/24/2012 239 REPLY in Support of Motion re 167 MOTION to Suppress Wiretap and Derivative Evidence for Lack of Necessity by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit A - Ohio Securities Division Part 1, # 2 Exhibit B - Ohio Securities Division Part 2, # 3 Exhibit C - Ohio Securities Division Part 3, # 4 Exhibit D - Ohio Securities Division Part 4, # 5 Exhibit E - Ohio Securities Division Part 5, # 6 Exhibit F - Ohio Securities Division Part 6)(Tompkins, John) (Entered: 02/24/2012) 02/24/2012 240 MOTION for a Bill of Particulars by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 02/24/2012) 02/24/2012 241 BRIEF/MEMORANDUM in Support re 240 MOTION for a Bill of Particulars by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 02/24/2012) 02/24/2012 242 NOTICE of Status Regarding Issues Raised Following February 15, 2012 Hearing by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 02/24/2012) 02/28/2012 244 WAIVER by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 02/28/2012) 02/28/2012 246 ENTRY-marginal-Waiver of hearing is accepted and the hearing is vacated in case as to TIMOTHY S. DURHAM. Signed by Magistrate Judge Debra McVicker Lynch on 2/28/2012.(CBU) (Entered: 02/29/2012) 02/29/2012 249 SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The continued hearing on the pending motions is set for 3/9/2012 08:30 AM in room #349, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. Signed by Judge Jane Magnus-Stinson on 2/29/2012.(JKS) (Entered: 02/29/2012) 02/29/2012 250 SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - Final Pretrial Conference set for 5/24/2012 10:00 AM in room #307, United States Courthouse, 46 E. Ohio https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 28 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 48 of 71 PageID #: 10389 Street, Indianapolis, Indiana before Judge Jane Magnus-Stinson. The conference will be attorneys but parties are of course free to attend. Counsel are reminded to review the undersigned's Practices and Procedures, available on the internet at http://www.insd.uscourts.gov/Publications/CourtroomProceduresJMS.pdf. Signed by Judge Jane Magnus-Stinson on 2/29/2012. (JKS) (Entered: 03/01/2012) 03/01/2012 251 PROCEDURES AND PRACTICES before Judge Jane Magnus-Stinson as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). (JKS) (Entered: 03/01/2012) 03/08/2012 259 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - On March 9, 2012, beginning at 8:30 a.m., in Courtroom 349, and as staff have previously advised counsel, the Court will provide the parties up to three hours to present evidence and, if time allows, oral argument on the motions filed at docket numbers 152, 167, 171, and 175. The Court will permit defense counsel, collectively, oneand-a-half hours for direct/cross examination of all witnesses, with any remainder permitted for rebuttal, and the Court will permit the Government one hour for direct/cross-examination of all witnesses. The remaining time for the hearing will be divided evenly between the parties for oral argument, to address the motions in the following order: 171 (probable cause), 175 (failure to minimize/non-predicate offense), 167 (lack of necessity), and 152 (Obsidian and Fair Finance Office searches). Given the voluminous briefing, the Court will not likely permit additional written argument in lieu of final arguments. Mr. Durham may file his supplemental brief regarding the motion filed at docket 148 no later than March 16, 2012. That supplemental briefing must be limited to addressing the Donovan and Arnold issues the Court has previously identified and is limited to ten pages. The Government's Response must be filed no later than March 30, 2012 and is likewise limited to ten pages. No reply will be necessary. Signed by Judge Jane Magnus-Stinson on 3/8/2012. (JKS) (Entered: 03/08/2012) 03/09/2012 261 NOTICE OF FILING OF DANIEL LAIKIN DEPOSITION by TIMOTHY S. DURHAM (Attachments: # 1 Daniel Laikin Deposition Volume I) (Tompkins, John) (Entered: 03/09/2012) 03/09/2012 262 Minute Order for proceedings held before Judge Jane Magnus-Stinson On March 9, 2012, the parties appeared by counsel, and Defendant Timothy S. Durham (1) additionally in person, for a hearing on the motions filed at docket numbers 152 , 167 , 171 , and 175 , all of which the Court TOOK UNDER ADVISEMENT. Testimony presented. Mr. Durham will file the transcript of deposition no later than March 9, 2012. The parties rested and then presented oral argument. For the purposes of the Speedy Trial Act, the parties all agreed that the motions currently taken under advisement relate to the Superseding Indictment. The Court finds that the ends of justice served by maintaining the agreed trial date of June 8, 2012, outweigh the best interests of the public and the defendants in a speedier trial, for the reasons previously set forth on the record at https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 29 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 49 of 71 PageID #: 10390 Docket 48 and reaffirmed here. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 03/09/2012) 03/12/2012 263 RESPONSE in Opposition re 240 MOTION for a Bill of Particulars by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Surmacz, Nicholas) (Entered: 03/12/2012) 03/16/2012 264 REPLY in Support of Motion re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 03/16/2012) 03/19/2012 265 REPLY in Support of Motion re 240 MOTION for a Bill of Particulars by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 03/19/2012) 03/23/2012 266 ORDER denying 240 Defendant's Motion as to TIMOTHY S. DURHAM (1) - The motion for a bill of particulars, [dkt. 240], is, therefore, DENIED. (**SEE ORDER**). Signed by Judge Jane Magnus-Stinson on 3/23/2012. (JKS) (Entered: 03/23/2012) 03/29/2012 268 RESPONSE in Opposition re 148 MOTION to Dismiss the Indictment with prejudice for Violation of 18 U.S.C. 2517(5) by USA as to TIMOTHY S. DURHAM (Surmacz, Nicholas) (Entered: 03/29/2012) 04/05/2012 269 NOTICE Regarding Daniel Laikin Deposition by TIMOTHY S. DURHAM re 261 Notice (Other) (Tompkins, John) (Entered: 04/05/2012) 04/06/2012 270 TRANSCRIPT of Motions Hearing as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 3-9-12 before Judge Jane Magnus-Stinson. (103 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 4/27/2012. Release of Transcript Restriction set for 7/5/2012. (Knepley, Jean) Released on 7/10/2012 (SWM). (Entered: 04/06/2012) 04/06/2012 271 NOTICE of FILING of OFFICIAL TRANSCRIPT of Motions Hearing held before Judge Jane Magnus-Stinson on 3-9-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 04/06/2012) 04/06/2012 272 ENTRY re 269 Notice Regarding Daniel Laikin Deposition - Counsel is ordered to confer with the Government to see whether the Government has a copy of the transcript or can facilitate its availability. If no transcript is likely to be available, counsel should also discuss whether the parties can agree to a proffer of what the transcript would have shown. Counsel must file a status report within seven days. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 4/6/2012. (JKS) (Entered: 04/06/2012) 04/11/2012 273 ORDER as to TIMOTHY S. DURHAM (1) re 143 MOTION to Dismiss the Indictment with Prejudice - Within seven days, the Government must file an affidavit that attests to the accuracy of the facts asserted in its brief. The affidavit may come from any suitable official, including an Assistant United States Attorney with personal knowledge of the investigation, In re Grand Jury Proceedings, 757 F.2d 108, 114 (7th Cir. 1984). (***SEE https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 30 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 50 of 71 PageID #: 10391 ORDER***). Signed by Judge Jane Magnus-Stinson on 4/11/2012. (JKS) (Entered: 04/11/2012) 04/12/2012 274 NOTICE REGARDING DANIEL LAIKIN DEPOSITION, APRIL 12, 2012 by TIMOTHY S. DURHAM re 261 Notice (Other) (Attachments: # 1 Subpoena to Produce Documents, Information or Objects or to Permit Inspection On Premises)(Tompkins, John) (Entered: 04/12/2012) 04/13/2012 275 ENTRY re 274 Notice Regarding Daniel Laiken Deposition - Given the lack of objection from the parties about proceeding on the current record, the Court will not require Mr. Durham to enforce his subpoena and will proceed to adjudicate the pending motions based solely on the evidence already presented. The Court's action is without prejudice to file a motion to enforce his subpoena should Mr. Durham believe it necessary to his defense at a different stage of the proceeding. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 4/13/2012. (JKS) (Entered: 04/13/2012) 04/16/2012 276 MOTION TO ADOPT UPDATED SCHEDULING ORDER by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit A - Proposed Updated Scheduling Order)(Ong, Winfield) (Entered: 04/16/2012) 04/16/2012 277 AFFIDAVIT by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW 161 Response in Opposition to Motion filed by USA (Ong, Winfield) (Entered: 04/16/2012) 04/17/2012 278 Submission of Signature Requirement re 276 MOTION TO ADOPT UPDATED SCHEDULING ORDER by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Attachments: # 1 Exhibit A - Proposed Updated Scheduling Order)(Ong, Winfield) (Entered: 04/17/2012) 04/17/2012 279 MOTION to Strike 277 Affidavit of Dennis Halliden by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) Modified on 4/18/2012 (JKS). (Entered: 04/17/2012) 04/17/2012 280 BRIEF/MEMORANDUM in Support re 279 MOTION to Strike Affidavit of Dennis Halliden by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 04/17/2012) 04/19/2012 281 ORDER denying 143 Defendant's Motion to Dismiss as to TIMOTHY S. DURHAM (1) - The Government's evidence establishes that Mr. Durham's suspicion of unauthorized wiretapping was unfounded, and Mr. Durham has introduced no evidence to the contrary. Even if "outrageous government misconduct" existed as a basis to dismiss indictments, that theory would have no application here. Nor does 18 U.S.C. ? 2511(1)(a) or (b) provide any relief, the Government's conduct here was consistent with-not contrary to-its terms. Accordingly, Mr. Durham's motion to dismiss, [dkt. 143], is DENIED. Signed by Judge Jane Magnus-Stinson on 4/19/2012. (JKS) (Entered: 04/19/2012) 04/19/2012 282 Updated Scheduling Order as to TIMOTHY S. DURHAM (1), JAMES F. https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 31 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 51 of 71 PageID #: 10392 COCHRAN (2), RICK D. SNOW (3). (***SEE ORDER***). Signed by Judge Jane Magnus-Stinson on 4/19/2012.(JKS) (Entered: 04/19/2012) 04/19/2012 283 ENTRY denying 279 Defendant Durham's Motion to Strike - Motion DENIED. As the case agent, Agent Halliden is sufficiently familiar with the facts. Additionally, it was the Court, not Mr. Durham, who requested the affidavit in the first instance. By separate entry, the Court has found that no illegal wiretapping occurred, as this affidavit confirms. Further, Defendant's of rights to challenge the substance of the affidavit is of no consequence. All issues should be raised in a single motion. There has been more than enough piecemeal litigation by Mr. Durham. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 4/19/2012. (JKS) (Entered: 04/19/2012) 04/26/2012 284 ORDER denying 167 Defendant Durham's Motion to Suppress - Mr. Durham's Motion to Suppress Wiretap and Derivative Evidence for Lack of Necessity, dkt. 167 , joined in part by Mr. Snow and Mr. Cochran, is DENIED. (***SEE ORDER***). Signed by Judge Jane Magnus-Stinson on 4/26/2012.(JKS) (Entered: 04/26/2012) 05/09/2012 285 ORDER denying 152 Defendant Durham's Motion to Suppress - Mr. Durham's Motion to Suppress Evidence Obtained During and as a Result of the Obsidian and Fair Finance Searches, dkt. 152 , joined in part by Mr. Cochran and Mr. Snow, is DENIED. **SEE ORDER**. Signed by Judge Jane Magnus-Stinson on 5/9/2012. (JKS) (Entered: 05/09/2012) 05/10/2012 286 NOTICE OF ATTORNEY APPEARANCE Kathleen McGovern appearing for USA. (McGovern, Kathleen) (Entered: 05/10/2012) 05/11/2012 287 MOTION in Limine by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit A Fair Finance Investment Training Materials and Attendance, March 16, 2005, # 2 Exhibit B Fair Finance Certificate Training Materials and Attendance, June 20, 2007)(Tompkins, John) (Entered: 05/11/2012) 05/11/2012 288 MOTION TO EXCLUDE DEFENSE EXPERTS FOR FAILURE TO COMPLY WITH FED.R.CRIM.P.16 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit 1 - Durham's letter dated 4/20/12 to the government, # 2 Exhibit 2 - Durham's email dated 5/2/12 to the government)(Ong, Winfield) (Entered: 05/11/2012) 05/11/2012 289 TRIAL BRIEF by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 05/11/2012) 05/14/2012 290 ORDER denying 171 Motion to Suppress as to TIMOTHY S. DURHAM (1) - Mr. Durham's Motion to Suppress Wiretap and Derivative Evidence for Lack of Probable Cause is therefore DENIED. [Dkt. 171.] **SEE ORDER** Signed by Judge Jane Magnus-Stinson on 5/14/2012. (JKS) (Entered: 05/14/2012) 05/16/2012 291 ORDER denying 175 Motion to Suppress as to TIMOTHY S. DURHAM (1) - Presently before the Court is Defendant Timothy S. Durham's Motion to Suppress Wiretap and Derivative Evidence from Failure to https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 32 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 52 of 71 PageID #: 10393 Minimize Calls and Because the Wiretap Was Sought for a Non-Predicate Offense. [Dkt. 175.] Neither of Mr. Durham's Co-Defendants has joined in the motion. Mr. Durham's motion, [dkt. 175], is DENIED. (**SEE ORDER**) Signed by Judge Jane Magnus-Stinson on 5/16/2012. (JKS) (Entered: 05/16/2012) 05/17/2012 292 RESPONSE in Opposition re 288 MOTION TO EXCLUDE DEFENSE EXPERTS FOR FAILURE TO COMPLY WITH FED.R.CRIM.P.16 by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 05/17/2012) 05/17/2012 293 ORDER denying 148 Motion to Dismiss the Indictment. as to TIMOTHY S. DURHAM (1). Signed by Judge Jane Magnus-Stinson on 5/17/2012. (MAC) (Entered: 05/17/2012) 05/18/2012 294 RESPONSE AND OBJECTION TO GOVERNMENT'S TRIAL BRIEF AND SANTIAGO PROFFER, re 289 Trial Brief by TIMOTHY S. DURHAM. (Attachments: # 1 Exhibit A - 03/04/2006 Agreement to Provide Services BGBC to Obsidian, # 2 Exhibit B - 08/08/2008 Agreement to perform United Expressline Audit, Somerset to Obsidian/United, # 3 Exhibit C - 08/08/2008 Agreement to Perform U.S. Rubber Reclaiming Audit, Somerset to Obsidian/U.S. Rubber)(Tompkins, John) (Entered: 05/18/2012) 05/18/2012 295 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The final pre-trial conference in this action is scheduled for 10:00 a.m. on May 24, 2012 in Room 307, United States Courthouse, 46 E. Ohio Street, Indianapolis, IN 46204. To facilitate the conference, and ultimately the trial, the Court now ORDERS as follows. Absent specific objection raised before and sustained at the pre-trial conference, the Court will examine the venire using the questions attached as Exhibit 1. Objections to Exhibit 1 must be filed no later than noon, May 23, 2012. If defense counsel are willing to accept a spokesperson for conducting voir dire, the Defendants should file a notice to that effect no later than noon, May 23, 2012. Unless the parties file an agreed or competing proposed redacted indictment no later than May 23, 2012, the complete indictment will be used at trial. Absent specific objection raised before and sustained at the pre-trial conference, the Court will give the jury the preliminary instructions attached as Exhibit 2. Attached as Exhibit 3 are the Court's generic final instructions. The Court will schedule a deadline for objections closer to the conclusion of the evidence. Under the parties agreed scheduling order, multiple filings are due on May 23, 2012, one day before pre-trial conference. [See dkt. 282.] To permit the Court to adequately review the filings in advance of the conference, all filings called for on May 23, 2012, must be filed by noon on that date. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 5/18/2012. (Attachments: # 1 Exhibit 1 - Voir Dire Questions, # 2 Exhibit 2 - Preliminary Instructions, # 3 Exhibit 3 - Final Instructions)(JKS) (Entered: 05/18/2012) 05/18/2012 296 RESPONSE in Opposition re 287 MOTION in Limine by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 05/18/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 33 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 53 of 71 PageID #: 10394 05/22/2012 299 MOTION FOR LEAVE TO EXCUSE PERSONAL APPEARANCE OF DEFENDANT, TIMOTHY S. DURHAM by TIMOTHY S. DURHAM. (Attachments: # 1 Waiver of Appearance, # 2 Order on Motion for Leave to Excuse Personal Appearance of Defendant, Timothy S. Durham) (Tompkins, John) (Entered: 05/22/2012) 05/23/2012 300 WITNESS LIST by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 05/23/2012) 05/23/2012 301 EXHIBIT LIST by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 05/23/2012) 05/23/2012 302 NOTICE OF NOMINATIONS OF SPOKESPERSON by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 05/23/2012) 05/23/2012 303 JURY INSTRUCTIONS (Proposed Final), filed by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) Modified on 5/23/2012 (JKS). (Entered: 05/23/2012) 05/23/2012 304 RESPONSE TO COURT'S VOIR DIRE QUESTIONS by TIMOTHY S. DURHAM. (Attachments: # 1 Juror Questionnaire)(Tompkins, John) (Entered: 05/23/2012) 05/23/2012 306 OBJECTION TO PRELIMINARY INSTRUCTIONS by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 05/23/2012) 05/23/2012 307 WITNESS LIST by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) (Entered: 05/23/2012) 05/23/2012 308 EXHIBIT LIST by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Ong, Winfield) (Entered: 05/23/2012) 05/23/2012 309 ORDER granting 299 Defendant's Motion for Leave as to TIMOTHY S. DURHAM (1) - IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant, Timothy S. Durham, be excused from personally appearing at the Final Pretrial Conference currently set on May 24, 2012. Signed by Judge Jane Magnus-Stinson on 5/23/2012.(JKS) (Entered: 05/23/2012) 05/24/2012 310 Minute Order for proceedings held before Judge Jane Magnus-Stinson On May 24, 2012, the parties appeared by counsel for the final pre-trial conference in this matter. Defendant Rick D. Snow also appeared personally, confirmed that his attorney had complied with the requirements of Missouri v. Frye, 132 S. Ct. 1399 (2012), and was thereafter permitted to leave the conference. Defendants Timothy S. Durham and James F. Cochran had previously waived their right to personally appear. With respect to Mr. Durham's actual motion in limine, [dkt. 287], portion remains UNDER ADVISEMENT. With respect to the Government's motion in limine, [dkt. 288], the Court took that motion UNDER ADVISEMENT. On June 5, 2012, at 10:00 a.m., in Courtroom 307, the Court will convene an attorneys' status conference to resolve outstanding issues relating to exhibits and pre-trial rulings. (***SEE ORDER FOR FURTHER RULINGS, DATES AND DEADLINES***). https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 34 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 54 of 71 PageID #: 10395 Signed by Judge Jane Magnus-Stinson. (JKS) (Entered: 05/24/2012) 05/30/2012 311 MOTION TO UTILIZE SHORTENED JUROR QUESTIONNAIRE by TIMOTHY S. DURHAM. (Attachments: # 1 Juror Questionnaire) (Tompkins, John) (Entered: 05/30/2012) 05/30/2012 312 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - At the request of the Defendants, without objection from the Government, and with the approval of the Court, the Court now orders as follows: Any evidentiary objection by one Defendant at the trial of this matter will be deemed joined by the other co-Defendants, absent an affirmative disavowal of the objection immediately after it is raised. Signed by Judge Jane Magnus-Stinson on 5/30/2012. (JKS) (Entered: 05/30/2012) 05/30/2012 313 *SEALED* SEALED GOVERNMENT'S MISSOURI v. FRYE STATEMENT RE: DEFENDANT TIMOTHY S. DURHAM by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Ong, Winfield) (Entered: 05/30/2012) 05/30/2012 315 ORDER denying 311 Defendant's Motion To Utilize Shortened Juror Questionnaire as to TIMOTHY S. DURHAM (1) - The motion is DENIED. Again, Mr. Durham seeks to interpose questions that are either already asked on the standard questionnaire or are too far afield from questions designed to obtain a "basis for a reasonable knowledgeable exercise of the right of challenge." United States v. Torres, 191 F.3d 799, 810 (7th Cir. 1999). As an example of the latter, the Court cites proposed questions 12-15. The Court will not subject the venire to needlessly burdensome written questions, especially given the opportunity for partyconducted voir dire. (Marginal Notation). Signed by Judge Jane MagnusStinson on 5/30/2012. (JKS) (Entered: 05/31/2012) 05/31/2012 316 MOTION TO EXCLUDE DEFENSE EXPERTS FOR FAILURE TO COMPLY WITH FED.R.CRIM.P.16 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit 1 - Letter from Robert Schlegel to John Tompkins)(Surmacz, Nicholas) (Entered: 05/31/2012) 06/01/2012 317 ENTRY re 316 Renewed Motion To Exclude in case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The Court modifies the automatic briefing schedule such that any response is due by 4:00 p.m. on June 4, 2012. Counsel should be prepared to discuss this motion at the June 5 conference if asked. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 6/1/2012. (JKS) (Entered: 06/01/2012) 06/01/2012 318 *SEALED* SEALED ACKNOWLEDGEMENT REGARDING MISSOURI V. FRYE NEGOTIATIONS by TIMOTHY S. DURHAM. (Tompkins, John) (Entered: 06/01/2012) 06/04/2012 319 Submission GOVERNMENT'S STATEMENT RE ASSETS RECOVERED BY FAIR FINANCE BANKRUPTCY TRUSTEE by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Exhibit 1- Charts of Assets Recovered by Bankruptcy Trustee) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 35 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 55 of 71 PageID #: 10396 (Surmacz, Nicholas) (Entered: 06/04/2012) 06/04/2012 320 STATUS REPORT RE CONTEXT OF WIRETAPS by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Surmacz, Nicholas) (Entered: 06/04/2012) 06/04/2012 321 RESPONSE , re 316 MOTION TO EXCLUDE DEFENSE EXPERTS FOR FAILURE TO COMPLY WITH FED.R.CRIM.P.16 by TIMOTHY S. DURHAM. (Tompkins, John) (Entered: 06/04/2012) 06/05/2012 322 ORDER re 287 Mr. Durham's MOTION in Limine - The Court will, therefore, DENY paragraph 4 of the motion, but without prejudice to reraising the objections at trial if the Government fails to provide sufficient context to make the statements relevant to the matters under consideration. Signed by Judge Jane Magnus-Stinson on 6/5/2012. (JKS) (Entered: 06/05/2012) 06/05/2012 323 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 5, 2012, the parties appeared by counsel for an attorneys conference to address outstanding issues from the final pretrial conference. The Court Reporter was Jean Knepley. Given the authorities that the Government cited in its briefing and given Mr. Cochran's inability to find countervailing authority despite the opportunity to do so, the Court's prior ruling about the propriety of investor hypotheticals stands: Investors can testify hypothetically about whether they would have invested with Fair had they known the facts the Government intends to introduce into evidence. The Court makes ruling on Mr. Durham's motion in limine, dkt. 287 . The Court GRANTED the Government's motion to exclude, dkt. 288 and renewed at dkt. 316 . If Mr. Durham intends to ask the Court to reconsider its ruling excluding Mr. Schlegel, Mr. Durham must (1) file a motion to reconsider no later than June 6, 2012 at 10:22 a.m. and (2) attach to the motion an expert disclosure that fully complies Fed. R. Crim. Pro. 16(b)(1)(C). The parties discussed their ongoing attempts to resolve Fed. R. Evid. 106 objections to the portions of the wiretaps that the Government intends to introduce into evidence. If they cannot reach agreement, they should provide the Court by noon on June 7, 2012 the transcripts of the disputed wiretaps, indicating those portions that the Government intends to introduce and those portions that the defense maintains must also be introduced under Fed. R. Evid. 106. Without objection from the parties, the Court will circulate to counsel a proposed, short questionnaire that the venire will fill out upon entering the courthouse, to inquire about preexisting knowledge concerning the case. (SEE ORDER). Signed by Judge Jane Magnus-Stinson. (JKS) (Entered: 06/05/2012) 06/06/2012 324 MOTION for Reconsideration re 323 Order on MotionOrder on Motion in LimineStatus Conference by TIMOTHY S. DURHAM. (Attachments: # 1 Letter dated June 6, 2012 from Schlegel to Tompkins)(Tompkins, John) (Entered: 06/06/2012) 06/06/2012 325 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) regarding a supplemental questionnaire for the https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 36 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 56 of 71 PageID #: 10397 venire to complete the morning of jury selection. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 6/6/2012. (JKS) (Entered: 06/06/2012) 06/06/2012 326 ENTRY re 324 Motion to Reconsider Defense Expert - The Court modifies the automatic briefing schedule such that the Government's response, if any, must be filed no later than NOON on June 7, 2012. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 6/6/2012. (JKS) (Entered: 06/06/2012) 06/06/2012 327 ORDER - Cell phones/electronic devices will not be permitted in the Courtroom during the trial. A facility will be provided for their storage. Anyone found with these devices will be subject to removal and the device will be confiscated. Signed by Judge Jane Magnus-Stinson on 6/6/2012. (JKS) (Entered: 06/06/2012) 06/07/2012 328 *SEALED* SEALED NOTICE ON TRANSCRIPTS by TIMOTHY S. DURHAM. (Attachments: # 1 Call 11-09-09 at 1:11 pm, # 2 Call 11-0909 at 6:42 pm, # 3 Call 11-10-09 at 2:04 pm, # 4 Call 11-10-09 at 4:17 pm, # 5 Call 11-12-09 at 2:28 pm, # 6 Call 11-12-09 at 2:44 pm, # 7 Call 11-12-09 at 5:54 pm, # 8 Call 11-13-09 at 3:26 pm, # 9 Call 11-13-09 at 4:36 pm, # 10 Call 11-13-09 at 10:53 am, # 11 Call 11-13-09 at 12:24 am, # 12 Call 11-16-09 at 6:27 pm, # 13 Call 11-17-09 at 2:34 pm, # 14 Call 11-18-09 at 3:06 pm, # 15 Call 11-18-09 at 4:33 pm, # 16 Call 11-19-09 at 12:01 pm, # 17 Call 11-19-09 at 3:06 pm, # 18 Call 11-19-09 at 3:16 pm, # 19 Call 11-20-09 at 12:58 pm, # 20 Call 11-20-09 at 1:45 pm, # 21 Call 11-22-09 at 4:40 pm, # 22 Call 11-22-09 at 515 pm, # 23 Call 11-2209 at 9:51 pm, # 24 Call 11-24-09 at 10:15 am, # 25 Call 11-24-09 at 11:56 pm, # 26 Call 11-10-09 at 2:48 pm)(Tompkins, John) (Entered: 06/07/2012) 06/07/2012 330 ENTRY re 328 Notice On Transcripts - If time allows the Court will hear argument on the proposed additions late in the day June 8, 2012. Mr. Cochran and Snow have the right to be heard on the proposed additions as well as the Government. (Marginal Entry). Signed by Judge Jane MagnusStinson on 6/7/2012. (JKS) (Entered: 06/07/2012) 06/07/2012 331 MOTION to Strike 328 DEFENDANT TIMOTHY S. DURHAM'S NOTICE ON TRANSCRIPTS, filed by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Surmacz, Nicholas) Added document link on 6/8/2012 (JD). (Entered: 06/07/2012) 06/08/2012 332 Minute Order for proceedings held before Judge Jane Magnus-Stinson Jury Selection (voir dire) as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) held on 6/8/2012. The parties appeared in person and by counsel. Prospective jurors completed the supplemental questionnaire that had been agreed to by the parties. The venire was sworn and examined. The parties were heard on cause challenges and exercised their peremptory challenges. Twelve jurors and four alternate jurors were empanelled and admonished. The Court GRANTED Mr. Durham's motion for reconsideration with respect to his expert's report and its compliance with Rule 16, Dkt. 324 . The Court DENIED the motion to strike, Dkt. 331 . The parties reiterated that they https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 37 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 57 of 71 PageID #: 10398 had no objections to the Court's proposed preliminary instructions, as modified at the final pretrial conference. Due to the late hour, the Court recessed, to resume the trial of this matter on June 11, 2012 at 8:20 a.m. (SEE ORDER). Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/08/2012) 06/10/2012 333 EXHIBIT LIST by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Attachments: # 1 Government's Updated Exhibit List)(Surmacz, Nicholas) (Entered: 06/10/2012) 06/11/2012 334 STIPULATION re recording of telephone call by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (DW) (Entered: 06/11/2012) 06/11/2012 335 STIPULAITON re Exhibits 2 - 27 by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Financial Records)(DW) (Entered: 06/11/2012) 06/11/2012 336 STIPULATION re Exhibits from the following sources are authentic for purposes of Federal Rule of Evidence 901 and no witness need to be called to establish their authenticity by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Attachment 1 - Companies in Quickbooks)(DW) (Entered: 06/11/2012) 06/11/2012 337 STIPULATION Regarding Wire Surveillance by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (DW) (Entered: 06/11/2012) 06/12/2012 338 Submission of GOVERNMENT'S MEMORANDUM IN SUPPORT OF ADMISSION OF GOVERNMENT'S EXHIBIT NUMBER 60 by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Ong, Winfield) (Entered: 06/12/2012) 06/12/2012 339 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 11, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The Court confirmed that the parties had no objections to the revised preliminary instructions. The Court then read the jury the preliminary instructions. The Government, Mr. Durham, and Mr. Snow gave opening statements. Mr. Cochran deferred his opening statement until the beginning of the defense case. Witnesses testified. Evidence was taken. The jury was admonished at each recess. Due to the late hour, the Court recessed for the day, to reconvene on June 12, 2012 at 8:30 a.m. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/12/2012) 06/12/2012 340 Preliminary Jury Instructions as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). Signed by Judge Jane Magnus- https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 38 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 58 of 71 PageID #: 10399 Stinson. (JKS) (Entered: 06/12/2012) 06/13/2012 341 Minute Order for proceedings held before Judge Jane Magnus-Stinson June 12, 2012 as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW: On June 12, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case. The Court Reporter was Jean Knepley. Witness testimony resumed with Doug DeRose being reminded of being under oath and continued his testimony. The following witnesses were sworn, examined, cross-examined, and excused: Donald Russell. Elizabeth McClure began her testimony but did not complete it before the end of the days proceedings. The Court received the following exhibits into evidence: 100, 218, 260, 306, 307, 308, 309, 310, 311, 761, 763, 764, 768, 769, 770, 781, 788, 793, 797, 798, 800, 813, 831, and 832. The jury was admonished at each recess. Due to the late hour, the Court recessed for the day, to reconvene on June 13, 2012 at 8:30 a.m.. Signed by Judge Jane Magnus-Stinson on 6/13/2012 (Court Reporter Jean Knepley) (DW) (Entered: 06/13/2012) 06/14/2012 342 Minute Order for proceedings held before Judge Jane Magnus-Stinson The parties appeared in person and by counsel on 6/13/2012 for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The Court Reporter was Jean Knepley. The parties agreed that the Court would provide the limiting instruction that Mr. Cochran tendered to the Court before the Government posed investment hypotheticals to Fair investors. Elizabeth McClure continued her testimony, was cross-examined, and excused. Additional witnesses testifed. Evidence was taken. Due to the late hour, the Court recessed, to reconvene at 8:30 a.m. on June 14, 2012. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/14/2012) 06/15/2012 343 Minute Order for proceedings held before Judge Jane Magnus-Stinson On 6/14/2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). Upon the Government's motion, and without objection from the Defendants, the Court ordered Exhibits 69 to 95 (including subparts) UNSEALED. Dennis Halliden, who was previously sworn, resumed his testimony, was crossexamined, and excused. Additionally, the following witnesses were sworn, examined, crossexamined, and excused: Steve Eichenberger. Evidence was taken. Due to the late hour, the Court recessed for the day, to reconvene on June 15, 2012 beginning at 9:00 a.m. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/15/2012) 06/18/2012 344 Proposed Jury Instructions by TIMOTHY S. DURHAM (Tompkins, John) (Entered: 06/18/2012) 06/18/2012 345 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 15, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). Dennis Halliden, https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 39 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 59 of 71 PageID #: 10400 previously sworn, was recalled, examined, cross-examined, and excused. Additionally, the following witnesses were sworn, examined, and crossexamined: Benjamin Kimmerling, Kathleen Studebaker, and Jeffrey Osler. Exhibits were received into evidence. Due to the late hour, the Court recessed until 8:45 a.m. on June 18, 2012. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/18/2012) 06/18/2012 346 EXHIBIT LIST by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Attachments: # 1 Government's Supplemental Exhibit List)(Surmacz, Nicholas) (Entered: 06/18/2012) 06/19/2012 347 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 18, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The following witnesses were sworn, examined, cross-examined, and excused: William Bavis, Brian Bash, and Dennis Halliden. Outside the presence of the jury, the following witnesses were sworn, examined, crossexamined, and excused concerning a possible violation of the separation-of-witnesses order by Brian Bash: Brian Bash, Debra Tompkins, and Kelly Burgan. The Court found no such violation had occurred, and denied Mr. Durham's oral motion to exclude Brian Bash. Exhibits were received into evidence. By agreement, the parties substituted corrected versions of Exhibits 73B, 73C, 82A, and 85B. For the reasons stated on the record, the Court DENIED the defendants' motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(a). The Court convened an instructions conference. The Defendants were advised of their right to personally attend the conference, but they waived that right. At each recess, the Court admonished the jury. Due to the late hour, the Court recessed until June 19th, 2012 at 8:30 a.m. Signed by Judge Jane MagnusStinson.(Court Reporter Jean Knepley) (JKS) (Entered: 06/19/2012) 06/19/2012 349 CONFIRMATION OF EXHIBITS by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN and RICK D. SNOW, as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). (JKS) (Entered: 06/20/2012) 06/20/2012 350 AMENDED Confirmation of Exhibits by USA, TIMOTHY S. DURHAM, JAMES F. COCHRAN and RICK D. SNOW, as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). (Attachments: # 1 List of Admitted Exhibits)(JKS) (Entered: 06/20/2012) 06/20/2012 353 Final Jury Instructions as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). (JKS) (Entered: 06/21/2012) 06/20/2012 354 JURY VERDICT as to TIMOTHY S. DURHAM (1) Guilty on Count(s) 1s, 2s-11s, 12s; JAMES F. COCHRAN (2) Guilty on Count(s) 1s, 4s, 6s, 8s, 9s, 10s, 11s, 12s; and RICK D. SNOW (3) Guilty on Count(s) 1s, 4s, 6s, 7s, 12s. (JKS) (Entered: 06/21/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 40 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 60 of 71 PageID #: 10401 06/21/2012 351 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 19, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The Court supplemented its oral ruling on the Defendants' motion for acquittal under Federal Rule of Criminal Procedure 29(a). The following witnesses were sworn, examined, cross-examined, and excused: Christopher Hirschfeld. Exhibits were received into evidence. Mr. Durham rested. Mr. Cochran, who had previously reserved opening statement, presented his opening statement. Mr. Cochran and Mr. Snow rested. The Government declined rebuttal. The parties confirmed that they had no additional objections to the Court's final instructions and verdict forms. The parties presented their closing arguments. Due to the late hour, the Court recessed until June 20th, 2012 at 8:30 a.m. Signed by Judge Jane Magnus-Stinson.(Court Reporter Jean Knepley) (JKS) (Entered: 06/21/2012) 06/21/2012 352 Minute Order for proceedings held before Judge Jane Magnus-Stinson On June 20, 2012, the parties appeared in person and by counsel for the resumption of the jury trial in this caseas to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). The Court denied Mr. Durham's and Mr. Snow's motion for mistrial for the reasons stated on the record. The Court gave the jury its final instructions and committed the jury to charge of the Bailiffs. In response to a jury request, and with the approval of all parties, the Court provided the jury with a master exhibit list, agreed to by the parties. In response to a jury request, and with all parties present in person and by counsel, the Court re-played requested wiretaps for the jury. With the consent of the parties, the Court permitted the parties and counsel to appear telephonically for the Court to consider formulating a response to a jury question. The Court received the jury's verdict, was polled, and was excused. The remaining alternates were excused. The Court adjudged the Defendants guilty consistent with the jury's verdicts. Defendants Cochran and Snow were also adjudged not guilty of certain counts, consistent with the jury's verdict. The Government moved for detention pending sentencing. After convening a hearing required under 18 U.S.C. ? 3143, the Court found that the Defendants had not overcome the presumption against release and remanded the Defendants to the custody of the U.S. Marshal. The Court did, however, set the matter for another evidentiary hearing to be held on Monday, June 25, 2012 in Courtroom 307, to begin at 10:00 a.m. The Defendants renewed their Rule 29 motions, which the Court denied. The Court orders the probation department to prepare a presentence report, to assist the Court at sentencing. Sentencing hearings will be set at a mutually acceptable later date. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 06/21/2012) 06/21/2012 356 ORDER as to TIMOTHY S. DURHAM(2), JAMES F. COCHRAN(2), RICK D. SNOW(3) - The jury in this cause is committed to the custody of the Court's Bailiff. IT IS ORDERED that the United States District Court Clerk furnish meals for fourteen (14) jurors at the expense of the United States of America. Signed by Judge Jane Magnus-Stinson on 6/21/2012. (cc: Richard Krall) (JKS) (Entered: 06/21/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 41 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 61 of 71 PageID #: 10402 06/22/2012 357 TRANSCRIPT of Jury Trial Testimony of Brian Bash as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-18-12 before Judge Jane Magnus-Stinson. (21 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 7/13/2012. Release of Transcript Restriction set for 9/20/2012. (Knepley, Jean) Released on 9/20/2012 (SWM). (Entered: 06/22/2012) 06/22/2012 358 NOTICE of FILING of OFFICIAL TRANSCRIPT of Jury Trial Testimony of Brian Bash held before Judge Jane Magnus-Stinson on 618-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 06/22/2012) 06/22/2012 359 MOTION FOR PRETRIAL TO RELEASE CONDUCT REPORT by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order) (Tompkins, John) (Entered: 06/22/2012) 06/22/2012 360 MOTION to Continue JUNE 25, 2012 HEARING by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 06/22/2012) 06/22/2012 361 ORDER granting 360 JOINT Motion to Continue as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The Court hereby GRANTS the Joint Motion to Continue, and it is ORDERED that the evidentiary hearing on the issue of detention be rescheduled for 1:00 p.m. on June 25, 2012 to be held in Room 307 of the Birch Bayh Federal Courthouse, 46 E. Ohio Street, Indianapolis, IN 46204. Signed by Judge Jane Magnus-Stinson on 6/22/2012. (cc: USM) (JKS) (Entered: 06/22/2012) 06/25/2012 362 ORDER DENYING RELEASE OF CONDUCT REPORT as to TIMOTHY S. DURHAM (1). The Court has been advised that no such report exists, and the late timing of the motion prohibits preparation in the requested time period. However, the Court advises that representatives of the U.S. Probation Department with responsibility for pre-trial supervision of Mr. Durham and his co-Defendants will be available for questioning at the hearing now set for 1 p.m., June 25, 2012. Signed by Judge Jane Magnus-Stinson on 6/25/2012.(DW) (Entered: 06/25/2012) 06/25/2012 363 Submission of GOVERNMENT'S MEMORANDUM IN SUPPORT OF MOTION FOR DETENTION PENDING SENTENCING by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Surmacz, Nicholas) (Entered: 06/25/2012) 06/25/2012 364 LETTER from Cory Schouten, Reporter, Indianapolis Business Journal requesting list of jurors and alternates in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (DW) (Entered: 06/25/2012) 06/25/2012 365 MINUTE ORDER for proceedings held before Judge Jane MagnusStinson Hearing as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 42 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 62 of 71 PageID #: 10403 RICK D. SNOW held on 6/25/2012: On June 25, 2012, the parties appeared in person and by counsel for a detention hearing held pursuant to 18 U.S.C. ? 3143(a). The Court Reporter was Jean Knepley. The following witnesses were sworn, examined, and cross-examined: Gary Sallee, Timothy Scott Durham (the Defendant's son), Patrick Jarosh, Stacey Snow, Douglas Stephens, and Troy Adamson. The Court received the following exhibits into evidence: Defendant's A & B. The trial record was incorporated by reference into the proceedings. The parties rested and presented oral argument. The Court found that given his relative culpability and significantly less access to funds during the course of the defendants' criminal scheme, Mr. Snow rebutted the presumption in favor of detention. 18 U.S.C. ? 3143(a). The Court ordered him placed on GPS home confinement pending sentencing. Following the hearing, Probation advised that it was unable to procure a functioning GPS unit on today's date. By agreement of the parties an electronic monitoring unit will be used in the meantime. The Court found that neither Mr. Cochran nor Mr. Durham had overcome the presumption in favor of detention. Both face significant sentences, which become more significant considering their ages. The evidence established that each had access to significant funds over a lengthy period of time, though Mr. Durham had more control than Mr. Cochran. Given the convictions for crimes of dishonesty, the Court is "not required to treat [a] defendant's financial representations as reliable. " U.S. v Madoff, 316 Fed. Appx. 58-59 (2nd Cir. 2009). And under these circumstances, "flight [is] almost certain to happen." U.S. v. Jones, 938 F.2d 737, 743 (7th Cir. 1991). Accordingly, the Court remanded them to the continued custody of the U.S. Marshal. The Court reminded the parties of the prohibition on attorney contact with jurors imposed by Local Rule 47.2 (b): "In criminal cases, a party or attorney must show good cause before the court will allow communications with a juror." The Court advised that a member of the media had submitted a request for juror names and addresses. The parties will have seven days to respond to the request after it is docketed, if they wish to do so. Signed by Judge Jane Magnus-Stinson on 6/25/2012. cc: USM(Court Reporter Jean Knepley) (DW) (Entered: 06/25/2012) 06/26/2012 368 ENTRY as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The U.S. Marshal has advised the Court that the incustody Defendants will be housed outside of the Indianapolis area pending sentencing. To the maximum extent consistent with security and staffing concerns, the Marshal has assured the Court that the Defendants will have access to their attorneys to--among other things and as Mr. Durham argued at the hearing-- facilitate "the orderly disposition of... personal assets to benefit Fair" and to prepare for sentencing. Counsel should promptly advise the Court if they experience any difficulties in this or any other regard. Signed by Judge Jane Magnus-Stinson on 6/26/2012. cc: USM.(JD) (Entered: 06/26/2012) 07/02/2012 370 TRANSCRIPT of Excerpt of Jury Trial, Testimony of Donald Fair as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-11-12 before Judge Jane Magnus-Stinson. (55 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 43 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 63 of 71 PageID #: 10404 review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 7/23/2012. Release of Transcript Restriction set for 10/1/2012. (Knepley, Jean) Released on 10/1/2012 (SWM). (Entered: 07/02/2012) 07/02/2012 371 NOTICE of FILING of OFFICIAL TRANSCRIPT of Excerpt of Jury Trial, Testimony of Donald Fair held before Judge Jane Magnus-Stinson on 6-11-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 07/02/2012) 07/11/2012 372 *** SEALED PER ORDER DATED 7/25/2012 - SEE DKT. NUMBER 386 FOR REDACTED TRANSCRIPT *** TRANSCRIPT of Volume 1 of Jury Trial Proceedings beginning with Opening Statements as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-11-12 before Judge Jane Magnus-Stinson. (268 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Modified on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 373 TRANSCRIPT of Jury Trial, Volume 2 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-12-12 before Judge Jane Magnus-Stinson. (290 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 374 TRANSCRIPT of Volume 3 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-13-12 before Judge Jane Magnus-Stinson. (242 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 375 TRANSCRIPT of Volume 4 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-14-12 before Judge Jane Magnus-Stinson. (209 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 376 TRANSCRIPT of Volume 5 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-15-12 before Judge Jane Magnus-Stinson. (242 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 44 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 64 of 71 PageID #: 10405 review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 377 TRANSCRIPT of Volume 6 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-18-12 before Judge Jane Magnus-Stinson. (183 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 378 TRANSCRIPT of Volume 7 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-19-12 before Judge Jane Magnus-Stinson. (211 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 379 TRANSCRIPT of Volume 8 of Jury Trial Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-20-12 before Judge Jane Magnus-Stinson. (41 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/1/2012. Release of Transcript Restriction set for 10/9/2012. (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 07/11/2012) 07/11/2012 380 NOTICE of FILING of OFFICIAL TRANSCRIPT of Jury Trial Proceedings beginning with opening statements through the conclusion of the trial, Volumes 1 - 8, held before Judge Jane Magnus-Stinson on June 11, 2012 - June 20, 2012 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 07/11/2012) 07/23/2012 381 TRANSCRIPT of Jury Trial excerpt, Instruction Conference as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-18-12 before Judge Jane Magnus-Stinson. (82 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/13/2012. Release of Transcript Restriction set for 10/22/2012. (Knepley, Jean) Released on 10/24/2012 (SWM). (Entered: 07/23/2012) 07/23/2012 382 NOTICE of FILING of OFFICIAL TRANSCRIPT of Instruction Conference held during the Jury Trial before Judge Jane Magnus-Stinson on 6-18-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 07/23/2012) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 45 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 65 of 71 PageID #: 10406 07/25/2012 383 TRANSCRIPT of Detention Hearing Pending Sentencing as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-25-12 before Judge Jane Magnus-Stinson. (66 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 8/15/2012. Release of Transcript Restriction set for 10/23/2012. (Knepley, Jean) Released on 10/24/2012 (SWM). (Entered: 07/25/2012) 07/25/2012 384 NOTICE of FILING of OFFICIAL TRANSCRIPT of Detention Hearing Pending Sentencing held before Judge Jane Magnus-Stinson on 6-25-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 07/25/2012) 07/25/2012 385 Order to Redact 372 Transcript, Jury Trial, Volume 1. The original transcript [dkt. 372 ] will remain sealed. Signed by Judge Jane MagnusStinson on 7/25/2012. (JKS) (Entered: 07/25/2012) 08/01/2012 386 REDACTED Version of previously filed 372 TRANSCRIPT of Volume 1, Jury Trial Beginning with Opening Statements as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 6-11-12 before Judge Jane Magnus-Stinson. (Volume 1, 268 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). (Knepley, Jean) Released on 10/9/2012 (SWM). (Entered: 08/01/2012) 08/28/2012 391 MOTION for Extension of Time to October 1, 2012 in which to 389 Presentence Investigation Report by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 08/28/2012) 08/29/2012 392 ORDER granting 391 Defendant Durham's Motion for Extension of Time - It is the Court's intention to sentence each defendant separately. However, in the event any victim wishes to exercise the statutory right to be heard in open court, all defendants will be present for any such victim presentation so that only one appearance need be made by any victim. Accordingly the deadline for filing objections to the Presentence Investigation Report is extended for ALL DEFENDANTS to October 1, 2012. Signed by Judge Jane Magnus-Stinson on 8/29/2012. (cc: USPO) (JKS) (Entered: 08/30/2012) 08/31/2012 393 ENTRY in case as to TIMOTHY S. DURHAM(1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The Court has received a handwritten letter from a victim. The Clerk of the Court is directed to redact any personal identifiers pursuant to Federal Rule of Criminal Procedure 49.1, docket the letter, and forward a copy to counsel of record and the United States Probation Office. Signed by Judge Jane MagnusStinson on 8/31/2012. (JKS) (Entered: 08/31/2012) 08/31/2012 394 Letter from victim, re 393 Entry, in case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3). (cc: USPO) (JKS) (Entered: 08/31/2012) 09/24/2012 398 Second MOTION for Extension of Time to October 31, 2012 in which to https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 46 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 66 of 71 PageID #: 10407 389 Presentence Investigation Report by TIMOTHY S. DURHAM. (Attachments: # 1 Text of Proposed Order)(Tompkins, John) (Entered: 09/24/2012) 09/25/2012 399 RESPONSE in Opposition re 398 Second MOTION for Extension of Time to October 31, 2012 in which to 389 Presentence Investigation Report by USA as to TIMOTHY S. DURHAM (Ong, Winfield) (Entered: 09/25/2012) 09/25/2012 401 SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW(3) - By separate entry made this date, the Court has appointed an additional community defender to serve as lead counsel for James Cochran, with present counsel to serve as cocounsel. Lead counsel will need time to get up to speed, providing further justification for the action taken in paragraph II. The Court grants Mr. Durham's second motion for extension of time. [Dkt. 398 .] The deadline for objections to the PSRs for all defendants is October 31, 2012. This matter is set for sentencing on November 30, 2012. The day will proceed as follows: 9:00 a.m. The Court will conduct a hearing as to all defendants' objections to thepresentence investigation reports that are not administratively resolved; 10:30 a.m. The Court will hear testimony from any victim who wishes to exercise the victim's statutory right to be heard, All defendants will be present for this proceeding; 1:00 p.m. Mr. Durham will be sentenced; 2:30 p.m. Mr. Cochran will be sentenced; 3:30 p.m. Mr. Snow will be sentenced. Signed by Judge Jane Magnus-Stinson on 9/25/2012. (JKS) (Entered: 09/25/2012) 10/03/2012 403 Reassignment of Case to Magistrate Judge Mark J. Dinsmore. Magistrate Judge Kennard P. Foster no longer assigned to the case. Please include the new case number ( 1:11-cr-00042-JMS-MJD), which includes the initials of the newly assigned judge, on all future filings in this matter. (SWM) (Entered: 10/03/2012) 10/03/2012 404 NOTICE of Withdrawal of Robertson Park as Counsel for the United States by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 10/03/2012) 10/04/2012 405 ORDER OF RECUSAL in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. Clerk is directed to randomly reassign case and notify parties of newly assigned Judge. Signed by Magistrate Judge Mark J. Dinsmore on 10/4/2012. (NLR) (Entered: 10/04/2012) 10/04/2012 406 NOTICE of Reassignment of case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW to Magistrate Judge Debra McVicker Lynch. Magistrate Judge Mark J. Dinsmore no longer assigned to the case. Please include the new case number, 1:11-cr-42-JMS-DML, on all future filings in this matter. (MSD) (Entered: 10/04/2012) 10/04/2012 407 ENTRY re 404 Notice of Withdrawal in case as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - Mr. Park's appearance shall be terminated from docket. (Marginal Notation). Signed by Judge Jane Magnus-Stinson on 10/4/2012. (JKS) (Entered: https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 47 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 67 of 71 PageID #: 10408 10/04/2012) 10/23/2012 409 SCHEDULING ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The Court sets an attorney only status conference on November 6, 2012 at 2:00 p.m. in Courtroom 307, United States District Court, 46 E. Ohio Street, Indianapolis, Indiana, to discuss the upcoming sentencing hearing. Signed by Judge Jane MagnusStinson on 10/23/2012. (copy to G. Barnes, M. Fitzgerald and S. Ivie via email; copy to S. Lloyd via US Mail)(JKS) (Entered: 10/23/2012) 10/31/2012 413 OBJECTION to 389 Presentence Investigation Report, filed by TIMOTHY S. DURHAM . (Attachments: # 1 Govt Exhibit 97, # 2 Govt Exhibit 100, # 3 Govt Exhibit 218, # 4 Civil Seizure Complaint, # 5 Transcript of Brogan - Lawson 08-31-09, # 6 Transcript of Brogan Lawson 09-11-09, # 7 Transcript Douglas DeRose day one, # 8 Transcript Douglas DeRose day two, # 9 Govt Exhibit 113, # 10 Houlihan Report, # 11 Govt Exhibit 855, # 12 Transcript of William Bavis, # 13 Govt Exhibit 844, # 14 Govt Exhibit 738, # 15 Rick Snow Email 03-15-07, # 16 Transcript of Jeff Osler, # 17 Govt Exhibit 339, # 18 Fair Liquidity Report 10-23-09, # 19 Fair Liquidity Report 11-09-09, # 20 Govt Exhibit 200, # 21 Govt Exhibit 798, # 22 Call 556, # 23 Call 1819, # 24 Call 1953)(Tompkins, John) (Entered: 10/31/2012) 11/02/2012 414 MOTION TO CONSIDER OBSIDIAN CAPITAL PARTNERS BROCHURE by TIMOTHY S. DURHAM. (Attachments: # 1 Obsidian Capital Partners Brochure, # 2 Text of Proposed Order)(Tompkins, John) (Entered: 11/02/2012) 11/06/2012 417 MINUTE ORDER for proceedings held before Judge Jane MagnusStinson - On November 6, 2012, the parties appeared by counsel for a status conference to discuss the upcoming sentencing hearing. The Court GRANTED Defendant Timothy Durham's Motion to Consider Obsidian Capital Partners Brochure without objection by the Government. [Dkt. 414 .] Defendant James Cochran's 410 Motion for Extension of Time to submit objections to the pre-sentence report is GRANTED without further objection by the Government, and any objections must be submitted by November 13, 2012. Given this extension, Mr. Cochran withdrew his request to continue the sentencing hearing, and sentencing on all defendants will proceed as scheduled on November 30, 2012. As soon as possible, the Government is to post on the website it uses to communicate with the victims that the Court has adopted the following procedure. The parties shall confer and submit an agreed agenda by November 13, 2012 to divide the first three hours of the sentencing hearing among each defendant's objections and the presentation of victim testimony. Any party that wishes to submit a sentencing memorandum must do so by 12:00 p.m. on November 26, 2012. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson.(Court Reporter Jean Knepley) (JKS) (Entered: 11/06/2012) 11/13/2012 418 Submission of PROPOSED AGENDA FOR MORNING OF NOVEMBER 30, 2012 SENTENCING HEARING by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Ong, Winfield) https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 48 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 68 of 71 PageID #: 10409 (Entered: 11/13/2012) 11/14/2012 420 ENTRY re 418 Proposed Agenda - The Court approves the parties proposed agenda. (Marginal Notation). Signed by Judge Jane MagnusStinson on 11/14/2012. (JKS) (Entered: 11/14/2012) 11/19/2012 423 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - The sentencing hearing in this matter will begin at 9:00 a.m. on November 30, 2012 in Room 307 of the United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Cell phones and other electronic devices will not be permitted in Room 307 during the hearing. A storage unit will be provided, and anyone found with a prohibited device in Room 307 will be subject to removal and/or the device will be confiscated. 9:00 a.m. to 11:00 a.m.: Parties will present arguments on objections to the Presentence Report. The Government will have 45 minutes total and may respond after each defendant's argument. The defendants will have 75 minutes and may divide that time as they choose. 11:00 a.m. to 12:00 p.m.: The Government will present the testimony of approximately five victim witnesses. 1:00 p.m.: Mr. Durham will be sentenced. 2:30 p.m.: Mr. Cochran will be sentenced. 3:30 p.m.: Mr. Snow will be sentenced. Anyone attending the hearing in Room 307 is expected to stay for the duration of any session attended. Video feed will be streamed into Room 172 as an overflow room. Cell phones and electronic devices will be allowed in Room 172 and anyone in that room may come and go as they please, giving due respect to others present. Signed by Judge Jane Magnus-Stinson on 11/19/2012. (JKS) (Entered: 11/19/2012) 11/26/2012 429 SENTENCING MEMORANDUM by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit A Purchase Price Allocation, # 2 Exhibit C Fair Finance Balance Sheet, # 3 Exhibit D Offering Circular 11-24-09, # 4 Exhibit E DCI Debtor Consolidation Schedule, # 5 Exhibit F Beesley Memo, # 6 Exhibit H Goelzer Valuation, # 7 Exhibit I United Financials 2009, # 8 Exhibit J United Financials 2011, # 9 Exhibit K EBITDA Schedule 2005-2008, # 10 Exhibit M Letters, # 11 Exhibit N Letter to Investors 11-30-08, # 12 Exhibit O Call Transcripts)(Tompkins, John) (Entered: 11/26/2012) 11/26/2012 431 MOTION FOR ENLARGEMENT OF TIME TO FILE SENTENCING MEMORANDUM by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW. (Attachments: # 1 Text of Proposed Order)(Ong, Winfield) (Entered: 11/26/2012) 11/26/2012 433 ORDER granting 431 Government's Motion as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - IT IS THEREFORE ORDERED that the government and each of the defendants have until 11:59 p.m. November 26, 2012 to file their sentencing memorandum in this matter. Signed by Judge Jane MagnusStinson on 11/26/2012. (JKS) (Entered: 11/26/2012) 11/26/2012 434 OBJECTION to PRESENTENCE INVESTIGATION REPORT, filed by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 49 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 69 of 71 PageID #: 10410 SNOW . (Van Dyck, Henry) (Entered: 11/26/2012) 11/26/2012 435 SENTENCING MEMORANDUM by USA as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Van Dyck, Henry) (Entered: 11/26/2012) 11/27/2012 436 ORDER as to TIMOTHY S. DURHAM (1) - At page 20 of his 61 page sentencing memorandum [dkt. 429 ] Mr. Durham questions the source of the Government's information on which it bases its contention that the crimes in question substantially endangered the solvency or financial security of 100 or more victims. He "requests adequate time to conduct [] review and analysis" of the information obtained by the Government on which it bases that contention. To the extent the information relied upon by the Government is limited to trial evidence and/or the victim impact statement letters produced on October 3, 2012 and supplemented last week, the request for more time is denied. The Government shall notify the Court immediately as to whether any additional information was relied upon. Signed by Judge Jane Magnus-Stinson on 11/27/2012. (JD) (Entered: 11/27/2012) 11/28/2012 437 Submission of letter dated 11/27/2012 re Tim Durham sentencing. (JKS) (Entered: 11/28/2012) 11/29/2012 438 ORDER as to TIMOTHY S. DURHAM (1), JAMES F. COCHRAN (2), RICK D. SNOW (3) - Pursuant to Federal Rule of Criminal Procedure 53 and Judicial Conference policy, JCUS-SEP 94 at 46-47, filming of Court proceedings, including the remote broadcast of the Durham proceedings, is prohibited. Anyone caught photographing or filming the sentencing proceedings either within the Courtroom 307 or overflow Room 172 will be evicted from the courthouse, may have their device confiscated, and may be subject to contempt of court. Signed by Judge Jane MagnusStinson on 11/29/2012. (JKS) (Entered: 11/29/2012) 11/30/2012 441 EXHIBIT LIST by TIMOTHY S. DURHAM (Attachments: # 1 Exhibit A - Affidavit of Terry Whitesell, # 2 Exhibit B - Real Estate and Asset Purchase Agreement)(Tompkins, John) (Entered: 11/30/2012) 11/30/2012 442 NOTICE OF ATTORNEY APPEARANCE: Rodger A. Heaton appearing for TIMOTHY S. DURHAM (Retained). (JKS) (Entered: 11/30/2012) 12/05/2012 443 MINUTE ORDER for proceedings held before Judge Jane MagnusStinson - Sentencing held on 11/30/2012 as to TIMOTHY DURHAM (1). Defendant Timothy Durham appeared in person and by counsel, John Tompkins and Rodger Heaton, for sentencing. The Government appeared by counsel, Winfield Ong, Henry Van Dyck, Kathleen McGovern and Nicholas Surmacz. Stephanie Ivie and Michelle Fitzgerald appeared on behalf of the United States Probation Office. The parties were heard with respect to the sentence and application of the Sentencing Guidelines. Victims of the case were afforded their opportunity to be heard pursuant to 18 U.S.C. ? 3771(a)(4), and the Court summarized the 1035 written victim impact statements that were submitted prior to the hearing. Defendant was afforded his right of allocution and counsel were heard https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 50 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 70 of 71 PageID #: 10411 with respect to an appropriate sentence. Sentencing held. Defendant is remanded to the custody of the United States Marshal. The proceedings were adjourned. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley) (JKS) (Entered: 12/06/2012) 12/10/2012 448 JUDGMENT as to TIMOTHY S. DURHAM (1) - Defendant was found guilty on Counts 1s thru 12s. Count(s) 1s, IMPRISONMENT: 5 Years, Concurrent to Count 4s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. RESTITUTION: $202,830,082.27; Count(s) 2s, IMPRISONMENT: 8 Years, Concurrent to Counts 3s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 3s, IMPRISONMENT: 10 Years, Concurrent to Counts 2s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 4s, IMPRISONMENT: 20 Years, Concurrent to Count 1s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 5s, IMPRISONMENT: 5 Years, Concurrent to Counts 2s and 3s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 6s-11s, IMPRISONMENT: 20 Years for each count, concurrent to each other and consecutive to Count 4s. SUPERVISED RELEASE: 2 Years each Count, Concurrent. S.A. FEE: $100.00 each Count; Count(s) 12s, IMPRISONMENT: 20 Years, concurrent to Counts 6s-11s and consecutive to Count 4s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. The court makes the following recommendations to the Bureau of Prisons: That the defendant be designated to a facility as close as possible to Indianapolis, IN. The defendant is remanded to the custody of the United States Marshal. Restitution is JOINT AND SEVERAL. Signed by Judge Jane MagnusStinson on 12/10/2012. (Attachments: # (1) List of Payees)(JKS) Modified on 12/12/2012 (JKS). (Main Document 448 replaced on 12/12/2012) (JKS). (Entered: 12/11/2012) 12/14/2012 454 TRANSCRIPT of Sentencing Proceedings as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW held on 11-30-12 before Judge Jane Magnus-Stinson. (188 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686-0197). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 1/4/2013. Release of Transcript Restriction set for 3/14/2013. (Knepley, Jean) (Entered: 12/14/2012) 12/14/2012 455 NOTICE of FILING of OFFICIAL TRANSCRIPT of Sentencing Proceedings held before Judge Jane Magnus-Stinson on 11-30-12 in case as to TIMOTHY S. DURHAM, JAMES F. COCHRAN, RICK D. SNOW (Knepley, Jean) (Entered: 12/14/2012) 12/14/2012 456 AMENDED JUDGMENT as to TIMOTHY S. DURHAM (1) - Defendant was found guilty on Counts 1s thru 12s. Count(s) 1s, IMPRISONMENT: 5 Years, Concurrent to Count 4s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. RESTITUTION: $208,830,082.27; Count(s) 2s, IMPRISONMENT: 8 Years, Concurrent to Counts 3s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012 CM/ECF LIVE Page 51 of 51 Case 1:11-cr-00042-JMS-DML Document 466 Filed 12/17/12 Page 71 of 71 PageID #: 10412 Concurrent. S.A. FEE: $100.00; Count(s) 3s, IMPRISONMENT: 10 Years, Concurrent to Counts 2s and 5s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 4s, IMPRISONMENT: 20 Years, Concurrent to Count 1s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 5s, IMPRISONMENT: 5 Years, Concurrent to Counts 2s and 3s and Consecutive to Count 12s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00; Count(s) 6s-11s, IMPRISONMENT: 20 Years for each count, concurrent to each other and consecutive to Count 4s. SUPERVISED RELEASE: 2 Years each Count, Concurrent. S.A. FEE: $100.00 each Count; Count(s) 12s, IMPRISONMENT: 20 Years, concurrent to Counts 6s-11s and consecutive to Count 4s. SUPERVISED RELEASE: 2 Years, Concurrent. S.A. FEE: $100.00. The court makes the following recommendations to the Bureau of Prisons: That the defendant be designated to a facility as close as possible to Indianapolis, IN. The defendant is remanded to the custody of the United States Marshal. Defendant is entitled to a credit equal to the amount of any recovery made by the Trustee for the U.S. Bankruptcy Court (approximately $6 million as of the date of sentencing). Restitution is JOINT AND SEVERAL. Signed by Judge Jane Magnus-Stinson on 12/14/2012. (Attachments: # 1 List of Payees, PART 1, # 2 List of Payees, PART 2, # 3 List of Payees, PART 3, # 4 List of Payees, PART 4, # 5 List of Payees, PART 5)(JKS) (Entered: 12/14/2012) 12/14/2012 457 NOTICE OF APPEAL by TIMOTHY S. DURHAM re 448 Judgment. (Tompkins, John) (Entered: 12/14/2012) 12/14/2012 459 DOCKETING STATEMENT as to TIMOTHY S. DURHAM re 457 Notice of Appeal (Tompkins, John) (Entered: 12/14/2012) 12/14/2012 464 ENTRY REGARDING AMENDMENT - Pursuant to Fed. Rule of Criminal Procedure 35, the Court has this day issued an amended judgment in the above captioned cases as follows: 1. The aggregate amount of loss is shown as restitution, as required by law, with a credit or offset afforded for the amounts already recovered by the Bankruptcy Trustee. 2. The victim list attached to the original judgment inadvertently omitted a number of victims. The complete list is now attached. The aggregate amount of loss did not change. Signed by Judge Jane MagnusStinson on 12/14/2012. (MRI) (Entered: 12/14/2012) 12/17/2012 465 SEVENTH CIRCUIT APPEAL INFORMATION SHEET as to TIMOTHY S. DURHAM re 457 Notice of Appeal - Instructions for Attorneys - Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 12/17/2012) Case #: 1:11-cr-00042-JMS-DML-1 https://ecf.insd.circ7.dcn/cgi-bin/DktRpt.pl?143610296449474-L_1_0-1 12/17/2012