United States v. Kenneth Wilk

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12694 JUNE 20, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-60216-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH WILK,
a.k.a. Kenneth P. Wilk,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 20, 2006)

Before DUBINA and HULL, Circuit Judges, and RESTANI *, Judge.

HULL, Circuit Judge:

*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
 Appellant Kenneth Wilk (“Wilk”) appeals the district court’s denial of his

motion to strike the government’s Notice of Intent to Seek the Death Penalty (the

“Death Notice”) and to bar the government from seeking the death penalty in his

trial for the murder of Deputy Sheriff Todd M. Fatta (“Fatta”) and other charges.

Wilk asserts that the Death Notice was not provided to him “a reasonable time

before the trial” as required by 18 U.S.C. § 3593(a). After review and oral

argument, we affirm, concluding that a Death Notice filed six months before the

trial is reasonable notice under § 3593(a).

I. BACKGROUND

A. Fatta’s Murder

In the summer of 2001, Wilk’s domestic partner, Kelly Ray Jones (“Jones”),

was arrested and convicted on child pornography charges. Jones was sentenced to

twenty-eight months’ imprisonment and three years of supervised release. A

condition of Jones’s supervised release was that he not use the Internet. During

Jones’s prosecution, Wilk made threats to law enforcement personnel, some of

which he made online under his computer screen name “Wolfpackeines.” Wilk’s

online profile listed hobbies such as “hunting cops” and occupations such as “cop

bashing” and “alerting people about kiddy porn stings.” Around this time, Wilk

purchased several firearms and participated in firearm skill shooting contests

2
throughout Florida. Wilk purchased additional firearms in 2002 and 2003,

including a Winchester 30-30 rifle.

On July 12, 2004, while on supervised release, Jones sent images depicting

child pornography to an undercover law enforcement officer from Wilk’s Internet

account on a computer at a residence shared by Jones and Wilk. On July 15, 2004,

as a result of further investigation, police obtained a search warrant, searched the

residence, recovered numerous child pornography images, and arrested Jones on

the scene.

While Jones was incarcerated, he instructed Wilk to contact a witness whom

the police told Jones not to contact. Wilk went to the witness’s apartment and told

him that, even if the witness cooperated, the witness would still have to serve

prison time. At Jones’s direction, Wilk sent derogatory emails to the witness’s

business associate in an attempt to discredit the witness. Further communication

between Jones and Wilk suggested that Wilk planned to threaten or kill a witness

against Jones. Also at Jones’s instruction, Wilk deleted emails relevant to Jones’s

child pornography charges.

Following these events, federal agents obtained an arrest warrant for Wilk

and a search warrant for his residence. Agents initially planned to use a ruse to

lure Wilk from the residence, but abandoned the idea after learning that Wilk

3
anticipated such a tactic. On August 19, 2004, Fatta and Sergeant Angelo Cedeno

(“Cedeno”), both of the Broward County Sheriff’s Office, assisted federal agents,

including Immigration and Customs Enforcement Special Agent Christopher

Harvey, in the execution of the warrants. After surrounding the residence and

announcing themselves, the officers forcibly entered.

Upon entry, two large caliber gunshots were heard, followed by several

smaller caliber gunshots. At that point, Cedeno was injured from the shooting, and

Wilk appeared at the open front door. Wilk complied with officers’ demands to

surrender and was arrested. A gun was found in the front doorway from which

Wilk exited the residence. Inside the residence, Fatta was found shot on the floor

and did not appear to be breathing. Despite attempts to revive him, Fatta

subsequently died. Other than Wilk, no one else was found in the residence.

The next day, on August 20, 2004, the district court appointed J. Rafael

Rodriguez, who has extensive experience in capital crimes litigation, to represent

Wilk. On August 26, 2004, Wilk and Jones were indicted jointly in a five-count

indictment that charged them with child pornography and witness and evidence

tampering offenses.1 On September 1, 2004, Wilk was arraigned on this initial

1
Counts 1, 2, and 5 charged Wilk and Jones with conspiracy to possess child
pornography, possession of child pornography, and witness and evidence tampering,
respectively. Counts 3 and 4 were against Jones alone and charged him with two counts of
distribution of child pornography.

4
indictment, and on September 2, 2004, the district court set a trial date of

November 1, 2004, on the five-count indictment. As detailed below, the capital

murder charges in this case were added later.

On September 22, 2004, Wilk made a presentation to the United States

Attorney’s Office in Florida regarding the propriety of capital punishment in this

case in connection with Fatta’s murder.2 A meeting on the matter with the Capital

Case Unit of the Justice Department was scheduled for October 18, 2004, in

Washington, D.C.3

B. October Status Conferences

From the start, this case was considered a potential death penalty case. At a

status conference on October 8, 2004, the government stated that it might seek the

2
The Attorney General must authorize any federal death penalty prosecution. U.S.
Attorneys’ Manual § 9-10.020. “In any case in which a United States Attorney’s Office is
considering whether to request approval to seek the death penalty, the United States Attorney
shall give counsel for the defendant a reasonable opportunity to present any facts, including any
mitigating factors, to the United States Attorney for consideration.” Id. § 9-10.030. After the
U.S. Attorney decides to seek authorization for the death penalty, he must submit a Death
Penalty Evaluation form and a prosecution memorandum to the Department of Justice in
Washington, D.C., which is processed by the Capital Case Unit. Id. § 9-10.030-.040. Defense
counsel is also provided the opportunity to present facts to the Capital Case Unit when the Unit
considers whether to authorize the death penalty in the case. Id. § 9-10.050. The Attorney
General then makes the final decision authorizing the U.S. Attorney to seek the death penalty.
Id.
3
The meeting was rescheduled for November 1 and later postponed until December 13.
Defense counsel made presentations in Florida and Washington, D.C. arguing, among other
things, that the government should not seek the death penalty against Wilk because he had a
disease and was dying in any event.

5
death penalty in a forthcoming superseding indictment. The magistrate judge

suggested that a continuance of the November 1 trial date was probably necessary.

On October 15, 2004, Wilk moved to continue the November 1 trial, citing

outstanding discovery issues and the possibility that Wilk would be charged with a

capital offense. On October 20, 2004, the district court granted Wilk’s motion and

continued the trial until December 13, 2004.

Also on October 20, 2004 and on the ex parte request of Wilk’s counsel, the

magistrate judge appointed William Matthewman, who is qualified to handle death

penalty cases, as Wilk’s second counsel pursuant to 18 U.S.C. § 3005 and due to

the probability of this becoming a capital case. Additionally, the district court

granted funds for an investigative firm and mitigation specialist so that Wilk could

prepare for a death penalty trial.4

On October 21, 2004, the grand jury returned a six-count superseding

indictment against only Wilk charging him with the same possession of child

pornography and witness and evidence tampering offenses in the prior indictment

and adding counts for: (1) the malice murder of Fatta, while he was assisting a

federal officer engaged in official duties, designated as a capital count; (2) the

attempted murder of Cedeno; (3) the use of a firearm during the murder and

4
Because various ex parte motions remain under seal, we do not identify the names of the
persons or the tasks Wilk sought funds to have performed.

6
attempted murder, designated as a capital count; and (4) obstruction of justice in

connection with Jones’s prosecution.5 The superseding indictment also referenced

18 U.S.C. §§ 3591(a)(2)(A)-(D) and 3592(c), which set out the statutory

aggravating factors required to impose the death penalty, and then listed the

charged statutory aggravating factors in this case as: (1) Wilk was over the age of

eighteen; (2) Wilk intentionally killed Fatta; (3) Wilk knowingly created a grave

risk of death to one or more persons in addition to Fatta; (4) Wilk committed the

murder after substantial planning and premeditation; and (5) Wilk intentionally

killed or attempted to kill more than one person in a single criminal episode. On

October 28, 2004, Wilk was arraigned on the superseding indictment.

C. October 28, 2004, Conferences

At an October 28 status conference before the district court, Wilk requested

a continuance of the December 13 trial and waived his right to a speedy trial.6

Wilk stated that a continuance was necessary due to outstanding discovery issues

and a December 13 meeting with the Department of Justice Capital Case Unit

regarding whether the government would seek the death penalty.

The government opined that the case was not complicated, but

5
The superseding indictment omitted the conspiracy to possess child pornography count
charged in the first indictment.
6
It is not clear whether Wilk waived his speedy trial rights under the initial indictment or
the superseding indictment.

7
acknowledged that Wilk’s mental status was a potentially complicating matter.

The government suggested a May trial date because it believed that discovery

would have been complete by then and a decision would have been made about

seeking the death penalty. The government estimated that it would deliver its

discovery materials to the defense by the following week.

Wilk outlined the outstanding discovery issues, including access to Wilk’s

residence, review of conversations between Wilk and Jones, and review of police

reports and 911 recordings. Wilk also expressed his need to procure experts for the

guilt and penalty phases and to allow them time to analyze the evidence. Wilk then

expressed his frustration with the fact that he did not have access to his residence

for investigative purposes and noted that he was currently preparing for the

upcoming meeting with the Department of Justice regarding the death penalty in

this case. Wilk opined that the defense could not be ready by May 2005 due to its

need to prepare, especially if the government opted to seek the death penalty.

The district court reset the trial date from December 13, 2004 to April 18,

2005. Wilk objected to the April 18 trial date, believing that there was no “way we

can be ready for a potential death penalty case by that time.” The district court

overruled the objection, noting that Wilk’s two counsels were qualified and

experienced with trying capital cases, that an April 18 trial was over five months

8
away, and that the case was not complex.

At a separate status conference on October 28, 2004, the magistrate judge

addressed discovery deadlines. Wilk again expressed his dissatisfaction with the

April 18 trial date, indicating that counsel would not be ready for trial by that time.

Wilk’s counsel expressly stressed that the case was a “potential capital case[.]”

D. November and December Conferences

At a November 12, 2004, status hearing, the magistrate judge addressed the

status of discovery. The government stated that its discovery material was

available for Wilk at the copiers, but additional materials, such as DVDs and CDs

containing evidence, were still being prepared. The parties then discussed who

would pay for the duplication costs. That same day, Wilk filed ex parte motions

for four defense experts. The magistrate judge granted funding for the experts on

December 28.

At a December 2, 2004, status conference, the government stated that the

discovery issues were proceeding properly and that it had sent a second set of

materials to the copiers. Wilk noted that a motion to compel some additional

discovery materials from the government may be necessary depending on what

was already at the copiers. Wilk’s counsel noted that the case was a “potential

capital case” and expressed the “need to prepare, not only for the [December 13]

9
DOJ meeting, but also for [the April 18] trial and any death penalty issues.” Also

on December 2, Wilk filed an ex parte motion for a fifth expert, which the

magistrate judge granted on January 31, 2005. On December 21, Wilk filed ex

parte motions for his sixth and seventh experts, which the magistrate judge granted

on January 31, 2005.

E. January Conferences

At a January 5, 2005, status conference, the parties addressed a dispute

regarding access to Wilk’s house and the collection of physical evidence there.

Wilk wanted to remove certain items from the residence to prepare for trial, but the

government opposed the removal without a formal accounting of the items. Also

on January 5, Wilk filed an ex parte motion for additional investigative fees for

travel to interview relevant witnesses in preparation for the penalty phase.

Additionally, he filed a motion for his eighth expert. The magistrate judge granted

the motions on February 4 and 24, respectively.

On January 28, 2005, the district court held another status conference. The

government stated that it had made a presentation in December in Washington,

D.C. regarding the death penalty in Wilk’s case, but that the Attorney General

would not make a decision until February 25 because the new Attorney General

had not been confirmed yet. The district court noted that a Death Notice must be

10
filed a reasonable time before trial.

In this regard, 18 U.S.C. § 3593(a) provides that in a capital case the

government shall, “a reasonable time before the trial,” file with the district court

and serve on the defendant notice that the death penalty is justified and list the

aggravating factors justifying a death sentence. During the status conference, the

government contended that filing a Death Notice as late as February 25, 2005, for

the April 18 trial was “a reasonable time before the trial” under § 3593(a) because

(1) Wilk already had a second defense counsel appointed in October 2004 in

anticipation of the death penalty, and (2) the district court already had conducted

ex parte hearings regarding Wilk’s retention of experts and mitigating aspects

relating to the death penalty.

Wilk explained that, assuming the Death Notice was filed on February 25,

defense counsel still would not be ready for a capital case by April 18 and the

notice would not be reasonable under § 3593(a). Wilk argued that the fact that two

lawyers had been appointed was not relevant and that a reasonable time for filing

the notice was six months before trial. The district court stated that “it would

probably behoove the defendant to assume that the government will be seeking the

death penalty.”

Given that the statutory aggravating factors were already listed in the

11
October 21 superseding indictment, the government also agreed to provide Wilk

with a list of non-statutory aggravating factors for seeking the death penalty within

ten days so that Wilk would not be hampered in the preparation of his defense

should the Attorney General authorize the death penalty.7 Wilk objected to the

procedure, arguing that a February Death Notice could not be reasonable with

respect to an April trial date. When the district court inquired how Wilk would be

prejudiced if he already was appraised of the statutory and non-statutory

aggravating factors, Wilk responded that prejudice was irrelevant as § 3593(a)

required strict compliance.

At the January 28, 2005, conference, the district court confirmed that the

trial was set for April 18, 2005, and ordered the government to file a Death Notice

by February 18, which would provide the Attorney General sufficient time to

review the case. The parties then extensively discussed the jury questionnaire,

which, over Wilk’s objection, included questions regarding capital punishment.

F. February Conferences

On February 2, 2005, Wilk filed an ex parte motion for his ninth expert,

which the magistrate judge granted on March 9, 2005. On February 4, Wilk filed

another ex parte motion for additional funds for the mitigation specialist and

7
The government provided the non-statutory aggravating factors to the defense via letter
on February 4, 2005.

12
investigative firm already working on the penalty phase. The magistrate judge

granted the motion on March 9.

At a February 10, 2005, status conference, the government acknowledged

the February 18 deadline to file the Death Notice and explained that the Attorney

General was still reviewing the case. Wilk stated that he would file most of his

motions by the February 14 motions deadline, but requested additional time for

some motions in light of the February 18 Death Notice deadline. Wilk’s counsel

stated that “as of now the case is not a capital case” and advised the magistrate

judge that “a whole new range of motions and a whole new range of issues” would

arise should the government file a Death Notice. The government responded that it

had intended to seek approval for the death penalty from the beginning of the case.

The magistrate judge explained that Wilk should treat the case as a death penalty

case and indicated that the April 18 trial date was firm and fast approaching. The

magistrate judge also expressed reservations about extending the motions deadline,

but allowed Wilk until February 16 to file his motions.

On February 16, 2005, Wilk’s two counsels filed these thirty-nine motions:

(1) thirteen motions to dismiss various counts of the superseding indictment on

grounds such as failure to state a crime, unconstitutionality of the underlying

criminal statute, duplicity and multiplicity, lack of jurisdiction, vagueness,

13
governmental delay, and insufficient commerce clause nexus; (2) a motion for

production of legal instructions provided to the grand jury; (3) a motion for a

pretrial hearing to determine the existence of a conspiracy, the admissibility of

alleged conspiratorial statements, and to exclude alleged co-conspirator hearsay;

(4) a motion to bifurcate the forfeiture count; (5) a motion for early Jencks Act

disclosure; (6) a Federal Rule of Criminal Procedure 12(b)(4)(B) motion for notice

by the government of its intention to use evidence in its case-in-chief; (7) a motion

for change of venue based on prejudicial pretrial publicity; (8) two motions for a

bill of particulars, one each on the obstruction of justice and child pornography

counts; (9) a motion to strike the statutory aggravating factors from the

superseding indictment; (10) a motion to strike “surplusage” from the superseding

indictment; (11) a motion to sever the counts; (12) a motion to suppress the phone

calls between Wilk and Jones; (13) nine motions in limine regarding pretrial

lineups, bankruptcy cases, 911 and fire rescue tapes, conversations between Wilk

and Jones, past searches and seizures at Wilk’s residence, Jones’s guilty plea,

Wilk’s “perp walk” and mug shots, and other crimes evidence; (14) a motion to

exclude the government’s expert witnesses; (15) a motion to suppress fruits of the

search warrant executed on August 19, 2004; (16) a motion to suppress Wilk’s

medical and psychiatric records; (17) a motion to suppress Wilk’s post-arrest

14
statements; and (18) a motion to compel discovery.

On February 18, 2005, the government filed a formal Death Notice based on

the malice murder of Fatta and the use of a firearm resulting in Fatta’s death.8 The

statutory aggravating factors listed in the Death Notice were identical to those

listed in the superseding indictment filed on October 21, 2004. The Death Notice

also listed the following non-statutory aggravating factors under 18 U.S.C.

§ 3593(a)(2): (1) Wilk killed Fatta in an attempt to obstruct justice; (2) Wilk may

be convicted contemporaneously of charges in addition to the capital charges; (3)

Wilk was a danger to others; and (4) Wilk caused injury and harm to Fatta’s family

by killing Fatta.9

At a February 24, 2005, status conference, the magistrate judge scheduled

hearings commencing on February 28 primarily for Wilk’s suppression motions

and noted that she would hear oral argument on all the motions if Wilk desired.

The government expressed its intent to file a second superseding indictment to add

an additional capital count relating to Fatta’s murder. Wilk’s defense counsel

stated they had a “slew of additional motions” to file regarding the Death Notice.

8
Although the notice was postmarked February 22, 2005, defense counsel did not receive
a copy until February 24, 2005. The government explained the disparity as a result of the
Presidents’ Day holiday. Wilk was never personally served with a copy of the notice.
9
We could not locate in the record the letter, referenced at the January 28, 2005, status
conference, listing the non-statutory aggravating factors, and, thus, we do not know if Wilk had
already been advised of these factors. See supra note 6.

15
The magistrate judge responded that she had previously warned the defense to treat

the case as a capital case and to file all motions accordingly, but nevertheless

allowed additional motions to be filed by March 11. The magistrate judge heard

motions arguments on February 28, March 2, and March 9.

G. March Motions

On March 8, 2005, Wilk filed a motion to strike the Death Notice filed on

February 18. On March 10, 2005, the government filed a seven-count second

superseding indictment, which retained the six counts from the first superseding

indictment and added a third capital count charging Wilk with the murder of Fatta,

a state law enforcement officer, while Fatta was working with a federal officer in

furtherance of a federal investigation. The statutory aggravating factors listed in

the second superseding indictment were identical to those listed in the Death

Notice and the first superseding indictment.10

On March 9, 2005, Wilk filed an ex parte motion for his tenth expert. The

magistrate judge granted the motion on April 20.

On March 11, 2005, Wilk filed three separate motions to declare the Federal

Death Penalty Act unconstitutional, inter alia, (1) because of its unconstitutional

use, authorization, and treatment of aggravating factors and its failure to provide a

10
Neither the first nor the second superseding indictment included the non-statutory
aggravating factors, but the Death Notice did include them.

16
standard for jurors to employ in balancing aggravating and mitigating factors; and

(2) in light of Ring,11 Crawford,12 and Booker.13

Also on March 11, Wilk filed a motion to extend the time for filing motions,

arguing, among other things, that the government had filed only partial expert

witness disclosures, the government had not provided all discovery, and the

defense had not had time to review the second superseding indictment. The

magistrate judge granted Wilk’s motion and extended the motions deadline to

March 18. Following Wilk’s motion for reconsideration of the motions deadline,

the district court extended the deadline to March 30.

On March 15, 2005, Wilk filed an ex parte motion for his eleventh expert,

which the district court granted, in an abundance of caution, on April 20, 2005,

over the magistrate judge’s denial.

Also on March 15, the government moved for leave to file an amended

Death Notice to include the additional capital murder count contained in the second

superseding indictment. The statutory and non-statutory aggravating factors listed

in the proposed amended Death Notice were identical to those found in the initial

Death Notice. The district court granted the motion, noting that the amended

11
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002).
12
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
13
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

17
Death Notice was identical to the prior notice except for the addition of language

relating to the new capital murder charge in the second superseding indictment.

On March 25, in addition to a motion to adopt his motions on the first

superseding indictment for the second superseding indictment, Wilk filed these

motions relating to the second superseding indictment: (1) seven motions to

dismiss various counts of the second superseding indictment on grounds such as

duplicity, multiplicity, due process and double jeopardy, violation of the Grand

Jury clause and other irregularities, failure to state a crime, lack of jurisdiction, and

improper delay; (2) a motion to “trifurcate” jury deliberations; (3) a preliminary

Daubert14 motion to exclude the government’s expert witnesses; and (4) a motion

to dismiss the second superseding indictment due to violation of Wilk’s speedy

trial rights.

On March 31, 2005, Wilk filed a motion to strike the amended Death Notice

and a motion for an immediate ruling on that motion.

H. March 30, 2005, Conference

On March 30, 2005, the district court held a status conference to discuss the

pending motions. Wilk himself was not present. The district court had received

the magistrate judge’s reports and recommendations and expected to receive

14
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

18
transcripts of the pretrial motions hearings before the magistrate judge by April 11.

The district court explained that it would issue orders on the motions “shortly

thereafter.” The parties discussed evidentiary issues as to their expert witnesses.

The government did not believe a hearing on the government’s experts was

needed, as the experts would testify on non-controversial topics such as ballistics

and reconstruction of the crime scene. Wilk disagreed, stating that he had just

received the material upon which the government experts relied and needed to

provide it to defense experts for review, which would take time. The district court

made the week prior to the April 18 trial available for a hearing on the government

experts and informed the parties that completed jury questionnaires were available.

The government expressed its concern that it may not be ready for trial on

April 18 due to outstanding discovery and expert witness issues. The government

opined that it could be ready, but believed that discovery issues still were

developing. The government pointed to Wilk’s potential mental health defense,

noting that it would involve “some pretty intricate and complex expert

testimony[,]” and stated that Wilk had not yet disclosed his experts on the matter.

In light of Wilk’s possible mental health defense, the government anticipated the

need to have its own expert examine Wilk, which, under the time frame presently

in place, would have to occur while the April 18 trial was proceeding.

19
 The government believed a late summer or fall trial would provide Wilk

with sufficient time to prepare. Wilk blamed the government for delay in

disclosing various discovery materials; pointed out that he had to seek court

approval for his experts, a time-consuming process; asserted that the defense was

working as quickly as possible with the April 18 trial date in mind; noted that the

guilt and penalty phases of a capital case were inextricably intertwined; and asked

the district court “to consider these issues very carefully before it decides to go

forward on the April 18th trial date.”

The district court did not believe the government had intentionally delayed

discovery or even been dilatory in the least but reluctantly concluded that a

continuance was necessary because it was “better to err on the side of delaying the

trial and giving the defendant more time in which to prepare the defense.” Without

waiving any of his arguments, Wilk suggested the day after Labor Day as the new

potential trial date. The district court selected August 29, 2005 as the new

potential trial date. The government inquired as to whether the additional time

would be excludable under the Speedy Trial Act. Wilk’s counsel could not

respond to the proposed continuance or the exclusion of time for Speedy Trial Act

purposes because Wilk was not present, but then opined that the proper procedure

was to strike the Death Notice and proceed to trial on April 18. The district court

20
scheduled another status conference for April 1 so that Wilk could be present.

I. April 1, 2005, Conference

At the April 1, 2005, status conference, Wilk stated that he was prepared to

go to trial on April 18 if the district court granted his motion to strike the Death

Notice. If the district court denied the motion to strike, Wilk would file an

interlocutory appeal to this Court and move the district court to stay the

proceedings. Wilk conceded that the time during his interlocutory appeal would be

excludable under the Speedy Trial Act.

The government believed that Wilk was “extorting” the district court and

pointed out that the district court could find time excludable under the Speedy Trial

Act in light of Wilk’s refusal to take a firm position on the proposed continuance

of the trial date to August 29. The government believed that Wilk’s new statement

that he was prepared for a non-capital trial on April 18 was inconsistent with his

repeated requests for continuances and the outstanding discovery matters.

Wilk responded that different trial strategies would be employed depending

on whether the Death Notice was in effect. Wilk asserted that he was not trying to

exploit the district court, but wanted a ruling on the Death Notice before he was

asked to waive his right to a speedy trial. The district court did not want to rule on

Wilk’s motion to strike the amended Death Notice until the government had

21
responded.

Ultimately, the district court concluded that both sides needed additional

time to prepare for trial, stating:

[i]t’s apparent to the Court based on the argument made by [the
government], and based on the numerous submissions by Counsel for
the Defense that both sides need additional time to properly prepare
this case for trial. I am very stingy, as you know, about granting a
continuance but the bottom line is justice.
I am thoroughly convinced that the interest of justice served by
a continuance far outweighs any interest of the public and the
Defendant in a speedy trial. So as much as I hate to continue this case
because, I can tell you it’s wrecking [sic] havoc with my schedule, I
am going to continue this case until August the 29th.

J. Order Denying Wilk’s Motion to Strike the Death Notice

On April 27, 2005, the district court entered a twenty-one page order

denying Wilk’s motion to strike the Death Notice. The district court analyzed the

timeliness of the Death Notice under the factors listed in United States v. Ferebe,

332 F.3d 722, 737 (4th Cir. 2003).15 See United States v. Wilk, 366 F. Supp. 2d

1178, 1182-83 (S.D. Fla. 2005). First, the district court concluded that the August

29th trial date should be used in its timeliness analysis because the trial date was

continued for reasons unrelated to the filing of the Death Notice. Id. at 1183. As

15
The factors include: “(1) the nature of the charges presented in the indictment; (2) the
nature of the aggravating factors provided in the Death Notice; (3) the period of time remaining
before trial, measured at the instant the Death Notice was filed and irrespective of the filing’s
effects; and, in addition, (4) the status of discovery in the proceedings.” See Ferebe, 332 F.3d at
737.

22
reasons for using the August 29 trial date, the district court pointed to the issues

raised at the March 30 and April 1 status conferences, including the numerous

unresolved motions; the fact that Wilk had not yet disclosed his experts; and the

potential for a Daubert hearing on the government’s experts on April 11, one week

before the April 18 trial date. Id. at 1183-84.

Second, the district court found that the Death Notice was filed a reasonable

amount of time before trial because over six months existed between the filing of

the Death Notice and the August 29th trial date. Id. at 1185. The district court

further determined that even if it were to use the April 18th trial date, the Death

Notice was filed “a reasonable time before the trial” because the district court had

given the government until February 18 to file the Death Notice and the district

court “set this deadline because it found it would provide Defendant notice of the

government’s intent to seek the death penalty a reasonable amount of time before

trial.” Id.

Third, as to the nature of the charges, the district court found that “[t]he

homicide charges are rather basic; only the obstruction of justice and pornography

allegations, which form part of Defendant’s intent, involve any degree of intricacy.

Thus, two months, let alone six months, would be sufficient time to prepare a

defense.” Id. at 1186. The district court also determined “that the government did

23
not intentionally delay in filing the Death Notice.” Id.

Fourth, the district court found that “the aggravating factors merely track the

[death penalty] statute’s language and are reflective of the same facts that are in the

homicide charges themselves.” Id. at 1187. The district court determined that the

defendant “could have adequately prepared his death defense in two months, let

alone six, given the nature of the aggravating charges and the prior notice provided

in the first Superseding Indictment . . . .” Id. The district court further concluded

that there was nothing to suggest that the government should have filed the Death

Notice sooner. Id.

Fifth, as to the status of discovery, the district court found “that discovery

will undoubtedly be completed long before the August 29 trial date.” Id. Even

with the April 18 trial date, the district court determined that this factor did not

weigh in Wilk’s favor enough as to outweigh the other factors. It noted that Wilk

“had yet to disclose any defense experts or produce any mental health evidence

even though [Wilk] had consulted at least a dozen experts.” Id.

Finally, the district court also relied on the fact that the government included

a list of statutory aggravating factors in the first superseding indictment in October

2004, even though it was not required to do so. Id. at 1187-88. Because the

timeliness of a Death Notice is an issue of first impression in this Court, the district

24
court decided it was also necessary to engage in a prejudice analysis. Id. at 1189.

The district court found that Wilk did not suffer any prejudice from the timing of

the February 2005 Death Notice because: (1) the Death Notice was filed within the

deadline imposed by the district court; (2) defense counsel had already received the

district court’s permission for eleven experts, some of which related solely to

penalty phase issues; (3) the death penalty was addressed at each of the status

conferences; (4) the magistrate judge initially informed appointed counsel to treat

this as a death penalty case; (5) the district court and the parties had already

discussed written juror questionnaires that included questions addressing the death

penalty; and (6) the Death Notice merely parroted information that was already

known. Id. Based on these factors, the district court further found that for

“defense counsel to now suggest surprise strikes this Court as being opportunistic

and disingenuous.” Id. The district court denied Wilk’s motion to strike the Death

Notice. Id. at 1190. Wilk timely appealed.

II. DISCUSSION

A. Jurisdiction

We first examine our jurisdiction to hear Wilk’s appeal from the district

court’s order denying his motion to strike the Death Notice.16 Section 1291 of

16
We review jurisdictional questions, including the appealability of the denial of a pretrial
motion to strike a Death Notice, de novo. United States v. Cartwright, 413 F.3d 1295, 1299

25
Title 28 grants us jurisdiction over appeals “from all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. The district court’s denial of

Wilk’s motion to strike is clearly a non-final, interlocutory decision. However, we

have jurisdiction to hear appeals from non-final decisions that fall within the

“collateral order” doctrine. See Sell v. United States, 539 U.S. 166, 176, 123 S. Ct.

2174, 2182 (2003); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47,

69 S. Ct. 1221, 1225-26 (1949). Under the collateral order doctrine, we have

jurisdiction over an interlocutory order if it “(1) conclusively determines the

disputed question, (2) resolves an important issue completely separate from the

merits of the action, and (3) is effectively unreviewable on appeal from a final

judgment.” Sell, 539 U.S. at 176, 123 S. Ct. at 2182 (quotation marks and

alterations omitted) (emphasis added).

The Fourth Circuit is the only other circuit to consider whether the denial of

a motion to strike a § 3593(a) death penalty notice is reviewable under the

collateral order doctrine. See Ferebe, 332 F.3d at 726-30. In Ferebe, the Fourth

Circuit concluded that the district court’s order denying a motion to strike the

government’s death notice was reviewable as a collateral order because such orders

“are conclusive, collateral to the merits, and if wrongly decided will irreparably

(11th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 1116 (2006).

26
deprive capital defendants of an important right[.]”17 Id. at 730; accord United

States v. Breeden, 366 F.3d 369, 372-73 (4th Cir. 2004). We agree with our sister

circuit and conclude that we have jurisdiction over Wilk’s appeal.18

B. Objective Reasonableness

The sole issue on appeal is how to apply § 3593(a), which provides that the

government shall serve, “a reasonable time before the trial,” notice to the defendant

stating that the death penalty is justified and listing the aggravating factors. 18

U.S.C. § 3593(a).19 Section 3593 does not specify what constitutes “a reasonable

17
The Fourth Circuit described the right created in § 3593(a) as the “right not to be
convicted and sentenced without adequate time to prepare, but also the right not to stand trial for
one’s life absent the same[.]” Ferebe, 332 F.3d at 730.
We also agree with one court’s observation that “there are practical reasons weighing
against the post-trial assessment of whether the statute [§ 3593(a)] has been violated; to conduct
a capital trial only to strike the death-penalty notice afterwards would be a colossal waste of
time, effort and expense for both litigants and the courts.” United States v. McGriff, __ F. Supp.
2d __, __, 2006 WL 979305, at *12 (E.D.N.Y. Apr. 13, 2006).
18
Our jurisdictional conclusion is also informed by the fact that this case presents an
important issue of first impression completely separate from the merits. Furthermore, given that
we later conclude that continuances of a trial can cure any issue about whether a particular
§ 3593(a) notice is untimely, there should be little need for future interlocutory appeals as to a
§ 3593(a) notice. We may always decline collateral order review where the appeal is clearly
frivolous. See In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1095 (5th Cir. 1977)
(noting that an interlocutory appeal must address “‘serious and unsettled question(s)’ of
law . . . that this court has not previously addressed and are particularly appropriate for
resolution as a collateral order”) (citation omitted); see also Sell, 539 U.S. at 176, 123 S. Ct. at
2182 (collateral order “raises questions of clear constitutional importance”); Cohen, 337 U.S. at
547, 69 S. Ct. at 1226 (collateral order “presents a serious and unsettled question”); see generally
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981).
19
Section 3593(a) provides, in relevant part:
If . . . the attorney for the government believes that the circumstances of the

27
time before the trial.” This case presents an issue of first impression in this circuit

as to what is “a reasonable time before the trial” under § 3593(a).20

We first conclude that the applicable test is one of objective reasonableness.

See Breeden, 366 F.3d at 373 (stating that “[a]nalysis of whether the right to

reasonable notice has been violated requires an inquiry into the objective

reasonableness of the timing of the notice”); Ferebe, 332 F.3d at 731 (stating that

courts must conduct “a pretrial inquiry into the objective reasonableness of the

notice provided” under 18 U.S.C. § 3593(a)).21 Further, to determine whether

notice was filed an objectively reasonable time before trial, we must consider the

offense are such that a sentence of death is justified under this chapter, the
attorney shall, a reasonable time before the trial or before acceptance by the court
of a plea of guilty, sign and file with the court, and serve on the defendant, a
notice--
(1) stating that the government believes that the circumstances of the offense are
such that, if the defendant is convicted, a sentence of death is justified under this
chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the
defendant is convicted, proposes to prove as justifying a sentence of death.
18 U.S.C. § 3593(a).
20
The interpretation of a statute, such as § 3593, is a question of law subject to de novo
review. United States v. Searcy, 418 F.3d 1193, 1195 (11th Cir. 2005), cert. denied, __ U.S. __,
126 S. Ct. 1107 (2006).
21
When called upon to determine reasonableness in other contexts, our circuit has used an
objective reasonableness standard. See, e.g., United States v. Greer, 440 F.3d 1267, 1272 (11th
Cir. 2006); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005); United States v.
Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003).

28
totality of the circumstances,22 including, but not limited to: (1) what transpired in

the case before the formal Death Notice was filed; (2) the period of time remaining

for trial after the Death Notice was filed; (3) the status of discovery and motions in

the proceedings; (4) the nature of the charges in the indictment; (5) the nature of

the aggravating factors claimed to support the death penalty; and (6) the anticipated

nature of the defense, if known.23

Having spared no expense in the factual and procedural history discussion

above, we can now readily undertake the analysis of whether the government gave

reasonable notice before the trial. As to the first factor, the events described above

demonstrate that, from the start, all parties knew this was a likely death penalty

case, and thus, Wilk’s counsel, who had extensive capital crimes experience, began

to prepare a death defense months before the Death Notice was filed on February

18, 2005. For example, as early as September 16, 2004, he requested ex parte

22
The totality of the circumstances approach is consistent with how we have determined
reasonableness in a variety of other contexts in criminal cases. See, e.g., Padgett v. Donald, 401
F.3d 1273, 1280 (11th Cir. 2005); Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004);
Hubbard v. Haley, 317 F.3d 1245, 1252-53 (11th Cir. 2003); United States v. Hunter, 291 F.3d
1302, 1306-07 (11th Cir. 2002); United States v. Brundidge, 170 F.3d 1350, 1352-53 (11th Cir.
1999); Blanco v. Singletary, 943 F.2d 1477, 1508 (11th Cir. 1991); United States v. Tobin, 923
F.2d 1506, 1519 (11th Cir. 1991).
23
We recognize that the Fourth Circuit generally adhered to four articulated factors in
evaluating the reasonable timeliness of a Death Notice. See Ferebe, 332 F.3d at 737; Breeden,
366 F.3d at 374. However, the Fourth Circuit also described those four factors as “among other
factors that may appear relevant[.]” Ferebe, 332 F.3d at 737. Our conclusion that evaluating
objective reasonableness requires an unrestricted evaluation of all the circumstances is thus not
inconsistent with the Fourth Circuit’s approach.

29
funds for investigation and mitigation experts related to the death penalty and

made an ex parte request for a second death-qualified counsel under 18 U.S.C.

§ 3005.24 Wilk’s counsel also moved to continue the trial, originally calendared for

November 1, 2004, due to, among other things, the probability that Wilk would be

subject to the death penalty. Then, on October 28, 2004, Wilk’s counsel requested

a continuance of the December 13, 2004, trial due to discovery issues and a

December 13 meeting with the Department of Justice regarding the death penalty.

Additionally, from November 2004 to January 2005, Wilk requested and

was granted funding for eight more experts, some of whom related solely to

preparation for the penalty phase. At the January 5, 2005, status conference, the

parties discussed a jury questionnaire containing questions on capital punishment.

The statutory aggravating factors listed in the February 18, 2005, Death Notice had

already been disclosed in the October 21, 2004, superseding indictment. In short,

before the formal February 18 Death Notice, Wilk’s counsel undertook significant

preparation for a death defense.

As to the second factor, the time interval between the Death Notice and the

24
“Whoever is indicted for treason or other capital crime shall be allowed to make his full
defense by counsel; and the court before which the defendant is to be tried, or a judge thereof,
shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be
learned in the law applicable to capital cases, and who shall have free access to the accused at all
reasonable hours.” 18 U.S.C. § 3005.

30
trial was six months from February 18 to August 29 and was clearly adequate to

prepare a death defense in this case. The government’s Death Notice was

objectively reasonable notice on this basis alone.25

We reject Wilk’s argument that April 18, the scheduled trial date at the time

the original Death Notice was filed, is the outer limit and that the relevant interval

is only two months from February 18 to April 18. Wilk ignores the fact that

§ 3593(a) states that the Death Notice must be filed “a reasonable time before the

trial,” not a reasonable time before the date the trial was scheduled to begin when

the Death Notice was formally filed. See 18 U.S.C. § 3593(a) (emphasis added).

Section 3593(a) does not state “before the date of trial,” but rather states “before

the trial . . . .” See id. Simply put, there is nothing in § 3593 that restricts courts to

counting only the days between the Death Notice and a scheduled trial date at the

time of the filing of the Death Notice.26

25
Several district courts have applied the objective reasonableness standard and
concluded that even less time is reasonable. Compare United States v. Ponder, 347 F. Supp. 2d
256, 270 (E.D.Va. 2004) (notice filed within court-imposed filing deadline and approximately
four months before a possible trial date is reasonable), and United States v. Le, 311 F. Supp. 2d
527, 534-35 (E.D.Va. 2004) (113 days’ notice is reasonable), with McGriff, __ F. Supp. 2d at __,
2006 WL 979305, at *15-*17 (concluding that twelve days’ notice was not objectively
reasonable but granting a continuance of the trial date), United States v. Le, 316 F. Supp. 2d 343,
346, 352-55 (E.D.Va. 2004) (113 days’ notice still objectively reasonable, but amended Death
Notice, containing different aggravating factors and filed ninety-four days before trial, was not
objectively reasonable), and United States v. Hatten, 276 F. Supp. 2d 574, 579 (S.D.W.Va. 2003)
(suggesting that thirty-six days’ notice is unreasonable).
26
A few district courts have examined whether the amount of time the government took to
make a decision about whether to pursue the death penalty was reasonable. See Ponder, 347 F.

31
 Wilk also argues that we should not use the August 29 trial date because the

district court continued the April 18 trial date merely to cure the government’s

untimely Death Notice. We reject this argument for two reasons. First, Wilk’s

contention is not supported by the record. Rather, the record shows that, at the

April 1 status conference, the district court continued the trial date from April 18 to

August 29 due to the existence of numerous unresolved motions, the fact that Wilk

had not yet disclosed any of his eleven experts to the government, and Wilk’s

request for a Daubert hearing on the government’s experts. The district court also

emphasized that the government had filed the Death Notice by the February 18

deadline set by the district court and that this Notice was reasonable even if the

trial was to be held on April 18. The record supports the government’s position

that the district court did not continue the trial to cure an untimely notice.

Second, even if the district court continued the trial to August 29, as Wilk

argues, wholly or in part to remedy a Death Notice that would otherwise be

untimely without a continuance or to remove any issue about its timeliness, the

Supp. 2d at 263-65; Hatten, 276 F. Supp. 2d at 578. We reject that approach as § 3593(a) is
designed to protect the defendant from having to stand trial for his life without reasonable notice
and time to prepare adequately. The § 3593(a) requirement does not obligate us to examine
whether the government’s ongoing decisionmaking process took too long. The proper approach
is to focus on whether the Death Notice reasonably gave the defendant adequate time before trial
to prepare a defense, not whether the government reasonably should have made a decision earlier
than it did. In addition, there is no allegation in this case that the government actually made a
decision but then in bad faith intentionally delayed advising Wilk of its decision in order to
shorten Wilk’s preparation time.

32
district court acted properly.27 Section 3593 is silent as to the remedy for such a

Death Notice. Nonetheless, the obvious purpose of the § 3593(a) notice

requirement is to make sure a defendant has adequate time to prepare for a death

defense. Continuing the trial after the Death Notice is filed does not undermine but

rather preserves the defendant’s statutory right not to stand trial for his life without

reasonable notice of the government’s intent to seek the death penalty. Where a

district court determines that the Death Notice was filed at a time when either

party, particularly the defense, would reasonably be unprepared for a capital trial

on the previously scheduled trial date, a continuance of the trial is appropriate.28

That a district court continues an earlier scheduled trial date for a murder case after

a Death Notice is filed in order to make sure defense counsel has adequate

27
In support of his contention that the district court was motivated by concern over the
timing of the Death Notice, Wilk stresses that during the April 1 status conference, the
government expressed concern that the defense had filed motions “claiming a lack of notice,”
and that Wilk had not disclosed his expert witnesses. “If this case is tried at a time in late
summer or something of that nature or fall,” the government added, “I think the defense would
certainly not have the ability to claim that they aren’t ready to try this case, that they don’t have
sufficient notice, of the inability to defend a death penalty matter.” Appellant’s Brief at 10; R15
at 10-12, 15.
28
We recognize that the Fourth Circuit analyzed the time interval as “the period of time
remaining before trial, measured at the instant the Death Notice was filed.” Ferebe, 332 F.3d at
737. We do not find persuasive Ferebe’s suggestion that a court may not effectively address the
concerns raised by a motion to strike a Death Notice as untimely by postponing the trial. See id.
at 737-38; cf. id. at 741 (Niemeyer, J., dissenting) (“[The majority] reads the statute to require a
death penalty notice to be given a reasonable time before the date of trial . . . not before the trial,
as the statute provides.”). One district court in the Fourth Circuit has read Ferebe narrowly and
stated that it was not restricted to using the scheduled trial date when the Death Notice was filed
“if the court knows, and the parties are reasonably aware, that the matter is not actually
proceeding to trial on that date.” Ponder, 347 F. Supp. 2d at 267.

33
preparation time for a now-required death defense is to be commended even if in

the process it cures what might have otherwise been an untimely Death Notice.29

Finally, we point out practical reasons why allowing continuances is

appropriate. It is routine for trial dates to change in murder cases, and even more

so in capital cases, just as it did here. Indeed, the trial date in this case moved

twice at Wilk’s request: from November 1, 2004, to December 13, 2004, and then

to April 18, 2005. When the district court continued the trial from December 13,

2004, to only April 18, 2005, Wilk still objected, stating that he could not be ready

even by May 2005 if the government sought the death penalty.30

During this same time period, the government conducted a deliberate and

full consideration of whether this murder case should become a death penalty case,

including meeting with Wilk’s counsel in September and December 2004 about

29
Indeed, “[t]he filing of a motion to strike the death notice as untimely is an obvious
indication that the defendant needs more time to prepare for trial.” United States v. Pepin, 367
F. Supp. 2d 315, 319 (E.D.N.Y. 2005) (addressing language in 21 U.S.C. § 848(h)(1) identical to
§ 3593(a)).
We expressly do not reach the issue of whether the Death Notice would have been
untimely if the trial date had remained April 18 and not been continued. Rather, even assuming
arguendo that the Death Notice might have been otherwise problematic without the continuance,
we point out that the continuance easily cured any potential problem.
30
The government argues that Wilk’s April 1 statement that he was prepared for a non-
capital trial on April 18 is inconsistent with his repeated requests for continuances and the
outstanding motions and discovery matters. The government emphasizes that Wilk had more
than fifty motions pending and needed a continuance of the April 18 trial even if it was a non-
capital trial. We need not address that issue as we do not measure the time interval using the
date for which trial was merely scheduled at the time the Death Notice was filed.

34
that issue. That the government’s decisionmaking process affords an opportunity

for input by the defendant through counsel is a good thing, but it adds to the

protracted nature of the decisional process.31 While that protracted process is

ongoing, the district courts, understandably, endeavor to move their murder cases

along by setting early trial dates that may be realistic if the government decides not

to seek the death penalty, but may become unrealistic when the Death Notice is

filed and the case becomes a death penalty case with certainty. A rule that

measures the time interval from the date the Death Notice is filed to the scheduled

date of trial at the time of that filing unduly restricts the district court’s ability to

manage its cases and is simply not required by § 3593(a). Allowing continuances

after the Death Notice is filed (1) permits the government to receive input from

defense counsel and to make the death penalty decision with full and cautious

deliberation, while still (2) accomplishing the goal of § 3593(a) to assure that

defendants have adequate time to prepare a defense to the death penalty and do not

stand trial for their life without reasonable notice. District courts should have the

ability to set trial dates to move the case along while it is a more simple murder

case but then continue the trial date if and after a Death Notice is actually filed.

31
One court has noted that “credible statistics disclose that the average interval between
death-penalty eligibility and the filing of a death-penalty notice is approximately eight months.”
McGriff, __ F. Supp. 2d at __, 2006 WL 979305, at *15 (citing statistics derived from raw data
compiled by the Capital Defense Network). The time here was six months.

35
 Our determination that the continuance was proper and the time interval

between the Death Notice and the trial was six months allows us to dispense

quickly with the third, fourth, and fifth factors. As to the third factor, six months

was not only an objectively reasonable notice to complete the remaining discovery

and motions, it was more than enough time. Wilk stresses the fourth factor – the

nature of the charges in the indictment – and that the nineteen-page second

superseding indictment contains seven counts, spans a broad period of time (nearly

four years), involves serious and lengthy allegations, and identifies evidence

(particular computer evidence) requiring expert access and review. The indictment

also contains an obstruction of justice count involving judicial proceedings almost

four years earlier as well as a count of possession of child pornography. Even so,

we conclude that, given the six-month preparation period, the third and fourth

factors in this case both weigh in favor of the government.

As to the fifth factor, the October 21, 2004, indictment listed the same

statutory aggravating factors as did the Death Notice. Further, as noted by the

district court, the aggravating factors merely tracked the language of the statute.

While the February 18 Death Notice added some non-statutory aggravating factors,

those too were straightforward. Thus, the fifth factor does not aid Wilk.

This leaves the nature of the defense. We purposefully have not described

36
the eleven experts for whom the defense obtained funding in ex parte motions

before the Death Notice was filed. Given the ex parte nature of the motions, we

are also reluctant to describe the nature of the potential defenses revealed therein.

We do conclude, however, that six months is clearly more than sufficient time no

matter what approach the defense decides to take. Thus, this factor also does not

help Wilk.

In sum, considering all the circumstances of the case, we conclude that the

government provided objectively reasonable notice of its decision to seek the death

penalty and of the aggravating factors claimed to justify the death penalty.

Accordingly, the district court properly denied Wilk’s motion to strike the Death

Notice.

III. CONCLUSION

For the above reasons, we affirm the district court’s denial of Wilk’s motion

to strike the government’s Death Notice.32

AFFIRMED.

32
We also reject Wilk’s argument that § 3593(a) requires personal service of the Death
Notice. See Fed. R. Crim. P. 49(b) (“When these rules or a court order requires or permits
service on a party represented by an attorney, service must be made on the attorney instead of
the party, unless the court orders otherwise.”).

37