Opinion
Criminal No. C2-99-36-07.
September 13, 1999.
MEMORANDUM AND ORDER
I. Introduction
Before the Court are various pretrial motions made by the defendant, Shawn Gibree. These include: Motion for a Bill of Particulars, (doc. #112), Motion for Hearing on Use of Coconspirator Statements, (doc. #112), Motion for a Witness List, (doc. #112), Motion for Information Regarding Informants and Cooperating Individuals, (doc. #112), Motion to Disclose Evidence Affecting Witnesses, (doc. #112), Motion to Disclose Impeachment Evidence, (doc. #112), Motion to Disclose Evidence of Criminal Investigation of any Government Witness, (doc. #112), Motion to Disclose Prior or Subsequent Similar Acts, (doc. #112), Motion to Produce Case Summary Notes, (doc. #112), Motion to Require Government to Examine Personnel Files, (doc. #112), Motion to Sever Money Laundering Count, (doc. #112), Motion to Dismiss Conspiracy Count, (doc. #112), Motion to Disclose Telephone Subscriber Information, (doc. #112), and Motion to Disclose Grand Jury Transcripts, (doc. #112).
The government has responded, and is generally opposed to each of defendant's motions.
II. Analysis
A. Motion for a Bill of Particulars
The defendant has moved for an order requiring the government to answer a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. (doc. #112). The government opposes this motion on the basis that the defendant has been provided with copies of or access to all investigative materials within the file and that the indictment is specific concerning times, dates, and names.
"[T]he primary purpose of a bill of particulars is to inform the defendant of the nature of the charges against him and to prevent or minimize the element of surprise at trial." United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993) (citations omitted). A bill of particulars is not a proper tool for discovery. Id. In this case the Court finds that the plain language of the indictment is sufficient to provide the defendant with a clear picture of the charges against him, and of what he must do to defend against those charges. Moreover, in this district the United States Attorney maintains an "open file" policy for discovery which renders a bill of particulars unnecessary. See United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991) (citations omitted). The Court has no reason to believe the defendant will be prejudiced by surprise at trial. Therefore, the motion for a bill of particulars, (doc. #112), is DENIED.
B. Motion for Hearing on Use of Coconspirator Statements
The defendant requests a hearing under Federal Rule of Evidence 104 to determine whether the coconspirator statements at issue are hearsay. (doc. #112). The rules provide: statements made by a coconspirator during the course and in furtherance of the conspiracy are not hearsay. Fed.R.Evid. 801(d)(2)(E). The court determines the admissibility of coconspirator statements as a preliminary question of fact. Bourjaily v. United States, 483 U.S. 171, 175 (1987). In order to admit the evidence, the court must be satisfied by a preponderance of the evidence that the statements were made during the course and in furtherance of the conspiracy.Id. at 176.
Normally, in the Eighth Circuit, these determinations are made during trial. See United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978); See also, United States v. Moss, 138 F.3d 742, 744 (8th Cir. 1998). The defendant has not demonstrated that a pretrial determination should be had in this case. Therefore, the motion for a hearing, (doc. #112), is DENIED.
C. Motion for Witness List
The defendant has requested the Court to order the government to furnish the defense with a list of all the witnesses the government intends to call at trial, and a list of all witnesses the government does not intend to call at trial. The defendant makes this request in order to avoid delays at trial. The government asserts that it has provided defendants with all Rule 16 material pursuant to its standard discovery policy and argues that it is not required to do more.
Ordinarily, "criminal defendants in non-capital cases are not entitled to pretrial disclosure of witnesses." United States v. House, 939 F.2d 659, 663 (8th Cir. 1991) (citations omitted). "The request for statements of witnesses not to be called at trial is merely another way of determining whether the co-conspirators named in the indictment would be witnesses at the trial, but the identity of witnesses is information `the government is not normally required to supply . . . to the criminal defendant.'United States v. Hamilton, 452 F.2d 472, 479 (8th Cir. 1971) (quoting Spinelli v. United States, 382 F.2d 871, 889 (8th Cir. 1967)). This is a non-capital case, which fits squarely within the rule.
While the Court understands the defendant's interest in assuring the smooth progression of trial, the government is not required to supply the defendant a witness list at this time. Therefore, the motion for a pretrial witness list, (doc. #112), is DENIED. The Court suggests that the defendant request this information from the Assistant United States Attorney handling the case. The Court believes that the government is likely to cooperate with defendant's request in the same manner as which it provides defendant with Jencks material, discussed herein.
D. Motion for Information Regarding Informants and Cooperating Individuals
The defendant has requested that the government disclose the identity of its confidential informants and cooperating sources. (doc. #112). The government opposes this motion on the basis of privilege.
The government has a privilege to withhold the identity of its confidential informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege encourages citizens to come forward with evidence by protecting their anonymity and, thus, enhancing effective law enforcement. Id. "Where, however, disclosure is necessary to insure a fair trial or is relevant and helpful to the defense theory of the case, the privilege of nondisclosure is eroded." Id. at 60-61.
The defendant has the burden of demonstrating the need for disclosure. United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991). A bare assertion that the identity of the confidential informants is critical and crucial to the preparation of a defense will not suffice. Rather, the defendant must show that the disclosure is vital to a fair trial. United States v. Kime, 99 F.3d 870, 879 (8th Cir. 1996).
The defendant has made no showing that his interest in the identity of the confidential informants is based in fact or law. And, although, the government has not disclosed the names and addresses of potential witnesses in an effort to protect their safety and security, and to maintain the integrity of the case; the government has assured the court that it will provide all exculpatory Brady information to the defense regardless of whether those persons will be called as witnesses. Therefore, the motion to reveal the identities of confidential informants, (doc. #112), is DENIED.
E. Motion to Disclose Evidence Affecting Witnesses
The defendant has moved for an order requiring the government to disclose evidence of witness bias, narcotics habit, narcotics or controlled substance use, controlled substance treatment, psychiatric treatment, monetary incentives, monetary rewards, monetary payments, witness fees paid the government, subsistence payments to witnesses, leniency or favorable treatment shown to witnesses by local, state, and federal law enforcement agents, or other evidence showing lack of competency or lack of impartiality. (doc. #112). The government asserts that under Rule 16 of the Federal Rules of Criminal Procedure, the United States is not required to produce such information. The United States recognizes, however, that such a duty arises if that information is exculpatory and material to the defense under Brady and its progeny. See United States v. Janis, 831 F.2d 773, 776 (8th Cir. 1987).
The government has assured the Court that any information on promises or threats to witnesses which have elicited exculpatory and material information will be provided to the defense prior to or established on direct examination at trial. Based on the United States Attorney's "open file" policy, the government's recognition of its continuing duty to provide Brady material, and the government's assurances regarding witness promises or threats, the motion to disclose evidence affecting witnesses, (doc. #112), is DENIED to the extent that Brady is inapplicable .
F. Motion to Disclose Impeachment Evidence
The defendant requests the government to reveal the criminal records and/or criminal acts of the government's proposed witnesses. (doc. #112). The government opposes these disclosures. The defendant also requests early disclosure of any statements favorable to the defense, or Jencks Act Material, that those witnesses may have made during the course of the investigation. (doc. #112). The government argues that early disclosure is in direct contradiction with its responsibilities pursuant to the Jencks Act, but, in order to avoid delays it trial, the government agrees to provides a majority of witness statements several days before trial.
Under Rule 16, criminal records of government witnesses are not discoverable. United States v. Riley, 657 F.2d 1377, 1389 (8th Cir. 1981) United States v. Roach, 28 F.3d 729, 734 (8th Cir. 1994). Therefore, as to the request for criminal records of witnesses, the defendant's motion to disclose impeachment evidence, (doc. #112), is DENIED.
Likewise, Rule 16(a)(2) specifically excludes from discovery statements made by government witnesses except as provided by 18 U.S.C. § 3500 (Jencks Act). The Jencks Act specifically protects government witness statements until the witness has testified on direct examination in the trial of the case. In its response to defendant's motion, the government acknowledges its obligation under the Jencks Act and has stated that it will provide a majority of witness statements several days before trial in order to assure the smooth progression at trial. The government, however, has reserved the right to strictly comply with the Jencks Act in situations where post testimony disclosure is necessary to protect the safety and security of the witness.
The Court recognizes that there is not an absolute obligation for the government to provide Jencks Act material in advance of trial.See United States v. White, 750 F.2d 726, 729 (8th Cir. 1984). Thus, the defendant's motion as it pertains to early disclosure of Jencks Act material, (doc. #112), is DENIED. The Court recognizes the government's interest in protecting the safety and security of its witnesses. In order to assure the smooth progression at trial, however, the government is directed to turn over to the defendant Jencks Act material no later than the end of the court day previous to the day on which the subject will testify. THIS IS SO ORDERED and will be enforced unless the government gives the Court a particularized reason for a more strict application of 18 U.S.C. § 3500.
G. Motion for Evidence of Criminal Investigation of Any Government Witness
This motion, (doc. #112), is not substantially different from defendant's motion for disclosure of impeachment evidence and motion for disclosure of evidence affecting witnesses. Therefore, as explained in the two preceding discussions above, the motion for evidence of criminal investigation, (doc. #112), is DENIED to the extent that Brady and its progeny are inapplicable.
H. Motion for Disclosure of Prior or Subsequent Similar Acts
Next the defendant requests that the government reveal any evidence of his or any other defendants' prior or subsequent similar bad acts that the government has and intends to offer at trial pursuant to Federal Rule of Evidence 404(b). (doc. #112). The government assures the Court that it will give notice to the defendant of the Rule 404(b) evidence used at trial.
Under Rule 404(b) of the Federal Rules of Evidence, the prosecutor in a criminal case may introduce evidence of other crimes, wrongs, or acts of a defendant to prove matters such as motive, opportunity, or intent, among others, so long as that upon defendant's request, the prosecution provides reasonable notice in advance of trial that such evidence will be used.
The government states that it will provide the defendant with Rule 404(b) evidence that it intends to introduce at trial. The Court is satisfied that this as an assurance to provide "reasonable notice" in advance of trial of any Rule 404(b) evidence that it may introduce at trial. Absent further allegation that the government is not meeting its obligation under the rule, the defendant's motion, (doc. #112), is DENIED.
I. Motion to Produce Case Summary Memos
Defendant asks this Court to order the government agents and their supervisors to produce any and all case memos and summary memos prepared during the progress of this investigation before the case was presented to the U.S. Attorney's office. (doc. #112). The government responds that it is not aware of the existence of such memos or summaries, and believes if such information did exist it has likely been incorporated into type-written reports and not preserved. This common practice has been sanctioned by the Eighth Circuit. See United States v. Kuykendall, 633 F.2d 118, 119 (8th Cir. 1980). The Court notes that the defendant has cited no authority supporting his theory that he is entitled to discover such case summary memos.
Federal Rule of Criminal Procedure 16(a)(2) does not authorize "discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case." Thus, at this time under the auspices of this rule, and since defendant has cited no supporting authority for his motion, it does not appear that case summary memos made by government agents in the course of their investigation are subject to disclosure. Therefore, the defendant's motion to produce case summary memos, (doc. #112), is DENIED.
J. Motion to Require Government to Examine Personnel Files
The defendant next asks the Court to order the government to examine the personnel files for all testifying law enforcement officers and government agents. (doc. #112). The defendant suggests that the government should look for evidence of perjurious conduct or other evidence of dishonesty, and any other material relevant to impeachment, or any information that is exculpatory. The government resists this motion.
The personnel files of government employee witnesses are not open to absolute disclosure. United States v. Bertoli, 854 F. Supp. 975, 1039-41 (D.N.J. 1994). Rather, the defendant must assert a specific reason or purpose behind such a request, and rebut the government's representation that no Brady material exists in the file.See United States v. Navarro, 737 F.2d 625, 631-32 (7th Cir. 1984).
Here, defendant makes no specific allegation that Brady material exists in the personnel files of the government employee witnesses. Instead the defendant, in essence, is hoping that something will turn up if the prosecutor reviews the files. In rebuttal, the prosecutor has assured the Court that it is unaware of any information that the defendant would be entitled to in the personnel files of the government employee witnesses. This assurance is important in the Court's consideration of this request. The defendant's mere wish is not enough to move this Court to order the prosecutor to do an exhaustive and, likely, fruitless search of the personnel files. Therefore, the motion to require the government to examine the personnel files, (doc. #112), is DENIED.
K. Motion to Sever Money Laundering Count
The defendant requests that the money laundering count of the indictment be tried separately from the drug counts, as defendant has not been indicted on the money laundering count. (doc. #112). The government resists the motion to sever. The Court notes that the defendant has not requested a severance from the co-defendants in the case.
Rule 8 of the Federal Rules of Criminal Procedure provides for joinder of offenses and defendants. Specifically, joinder of offenses is proper when the offenses are "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). The offenses charged in the superceding indictment involve a large conspiracy to possess and possess with intent to distribute methamphetamine. The government has alleged that the money laundering offenses promoted and enhanced the effectiveness of the drug conspiracy. Therefore, the joinder of the money laundering count with the drug counts is, initially, proper.
Joinder of defendants is provided for by Rule 8(b) of the Federal Rules of Criminal Procedure. Defendants may be charged in the same indictment if they have participated in the same series of acts constituting the offense. "Defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count." Fed.R.Crim.P. 8(b). The prosecution has alleged a conspiracy to distribute methamphetamine between all the defendants. Thus, as an initial matter, joinder of all defendants is proper. The joinder is not made improper merely because this defendant has not been charged with the money laundering count.
Even if initial joinder is proper, Federal Rule of Criminal Procedure 14 authorizes a court to order separate trials of counts if it appears that a defendant is prejudiced by the joinder of the offenses. Federal law generally favors joint trials of defendants who are charged together. Zafiro v. United States, 506 U.S. 534, 537 (1993); United States v. Rodgers, 18 F.3d 1425, 1431 (8th Cir. 1994) (citing United States v. Miller, 725 F.2d 462, 467 (8th Cir. 1984)). Severance will only be allowed upon a showing of real prejudice to an individual defendant. Rodgers, 18 F.3d at 1431 (citations omitted). Joinder of counts not brought against each defendant is proper if the indictment alleges "other facts that at least suggest the existence of an overall scheme encompassing all the defendants and all the charged offenses." United States v. Davis, 882 F.2d 1334, 1341 (8th Cir. 1989) (internal quotations and citations omitted). As noted above, the money laundering count is related to the overall drug conspiracy at issue. The money laundering charge constitutes one count of a ten count superceding indictment. The additional count is not likely to confuse a jury, or complicate the trial. The Court believes that a jury would be able to compartmentalize the money laundering evidence and apply it only to the single defendant that faces the additional charge. Since there is no prejudice to the instant defendant, the motion to sever, (doc. #112), is DENIED.
L. Motion to Dismiss Conspiracy Count
The defendant requests the Court to dismiss Count One of the superceding indictment, arguing that the discovery materials do not establish a conspiracy. (doc. #112). The United States resists the motion, and counters that the conspiracy is clearly established and will be proven at trial. It is the Court's view that the superceding indictment is sufficient and satisfies the requirements of Federal Rule of Criminal Procedure 7(c). The Grand Jury was persuaded that a conspiracy existed as is reflected in Count One of the superceding indictment. This Court will not disturb that finding, the motion to dismiss the conspiracy count, (doc. #112), is DENIED.
M. Motion to Disclose Telephone Subscriber Information
The defendant requests that the government supply the names of all subscribers and owners of telephone numbers contained in the records. (doc. #112). The government states that it has provided all telephone subscriber information known to it at this time. The Court understands the government's statement to include an ongoing duty to update the defendant with the telephone subscriber information as more information becomes available to the government. Therefore, the motion to disclose telephone subscriber information, (doc. #112), is DENIED.
N. Motion to Disclose Grand Jury Transcripts
The defendant brings the motion to disclose the transcripts of witnesses who appeared before the grand jury, including but not limited to Douglas Black, Kim Spicer, Robert Pitts, Craig Spicer, Richard Branvold, and Thonya Roed. (doc. #112). The government opposes this motion.
In the Eighth Circuit, "grand jury testimony is generally not discoverable on pretrial motion." United States v. Pelton, 578 F.2d 701, 709 (8th Cir. 1978). Pretrial disclosure of grand jury testimony is not required by Rule 16 of the Federal Rules of Criminal Procedure nor the Jencks Act, 18 U.S.C. § 3500. United States v. Liuzzo, 739 F.2d 541, 544 (11th Cir. 1984); United States v. Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997) (stating that grand jury transcripts need only be released by the government insofar as required under the Jencks Act).
Under certain circumstances, however, a court may order disclosure of grand jury proceedings. See F.R.Crim.P. 6(e)(3)(C). To justify disclosure of grand jury proceedings, a court must find a "particularized need" for the requested disclosure. Wilkinson, 124 F.3d at 977. Further, it is the burden of the party seeking disclosure of grand jury transcripts to show that such disclosure is necessary "to avoid . . . injustice, . . . that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed." United States v. Sells Engineering, Inc., 463 U.S. 418, 443 (1983) (citations omitted).
The defendant does not assert nor support that such disclosure is necessary to avoid injustice, or that the defendant's need for disclosure outweighs the need to protect the secrecy of grand jury proceedings. The defendant fails to establish a strong or sufficient showing of particularized need to justify the disclosure of grand jury proceedings. Therefore, the defendant's motion to obtain grand jury transcripts, (doc. #112) is DENIED.
The Court notes, however, that under the Jencks Act, the grand jury transcripts of a government witness must be turned over after testifying on direct examination in the case. Wilkinson, 124 F.3d at 977. The Court has ruled above, in defendants motion to disclose impeachment evidence, that in order to assure the smooth progression of trial, the government should at least turn over statements to the defendant no later than the end of the court day previous to the day on which the witness will testify. This order includes the applicable grand jury testimony of the witness, IT IS SO ORDERED.
III. Conclusion
For the foregoing reasons, defendant's Motion for a Bill of Particulars, (doc. #112), is DENIED; defendant's Motion for Hearing on Use of Coconspirator Statements, (doc. #112), is DENIED; defendant's Motion for Witness List, (doc. #112), is DENIED; defendant's Motion for Information Regarding Informants and Cooperating Individuals, (doc. #112), is DENIED; defendant's Motion to Disclose Evidence Affecting Witnesses, (doc. #112), is DENIED to the extent Brady is inapplicable ; defendant's Motion to Disclose Impeachment Evidence, (doc. #112), is DENIED as explained above; defendant's Motion to Disclose Evidence of Criminal Investigation of Any Government Witness, (doc. #112), is DENIED; defendant's Motion to Disclose Prior or Subsequent Similar Acts, (doc. #112), is DENIED; defendant's Motion to Produce Case Summary Notes, (doc. #112), is DENIED; defendant's Motion to Require Government to Examine Personnel Files, (doc. #112), is DENIED; defendant's Motion to Sever Money Laundering Count, (doc. #112), is DENIED; defendant's Motion to Dismiss Conspiracy Count, (doc. #112), is DENIED; defendant's Motion to Disclose Telephone Subscriber Information, (doc. #112) is DENIED; and defendant's Motion to Disclose Grand Jury Transcripts, (doc. #112), is DENIED as explained above.
IT IS SO ORDERED.
RODNEY S. WEBB, CHIEF JUDGE UNITED STATES DISTRICT COURT