US v. Ailsworth, 94-40017-01-SAC to 94-40017-07-SAC.

• Decision Date: 27 October 1994
• Docket Number: No. 94-40017-01-SAC to 94-40017-07-SAC.,94-40017-01-SAC to 94-40017-07-SAC.
• Citation: US v. Ailsworth, 867 F. Supp. 980 (D. Kan. 1994)
• Parties: UNITED STATES of America, Plaintiff, v. Jesse AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, Kenneth R. Torain, Arnett Louise Rice, a/k/a Delores Perry, Terence J. Douglas, a/k/a "T", George T. Stewart, Jr., a/k/a "Pigg", and Calvin Lee Conway, Defendants.
• Court: U.S. District Court — District of Kansas

867 F. Supp. 980

UNITED STATES of America, Plaintiff, v. Jesse AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, Kenneth R. Torain, Arnett Louise Rice, a/k/a Delores Perry, Terence J. Douglas, a/k/a "T", George T. Stewart, Jr., a/k/a "Pigg", and Calvin Lee Conway, Defendants.

Nos. 94-40017-01-SAC to 94-40017-07-SAC.

United States District Court, D. Kansas.

October 27, 1994.

Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for defendant Jesse Ailsworth, Jr., aka "J.C."

F.G. Manzanares, Jerold E. Berger, Topeka, KS, for defendant Undra P. Mock.

James G. Chappas, Jr., Topeka, KS, for defendant Kenneth R. Torain.

Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for defendant Arnett Louise Rice aka Delores Perry aka Arnett L. Rice.

Matthew B. Works, Works, Works & Works, P.A., Amy C. Bixler, Alan G. Warner, Topeka, KS, for defendant Terence J. Douglas, aka "T" aka Terrance J. Douglas.

Stephen W. Kessler, Topeka, KS, for defendant George Stewart, Jr., aka "Pigg".

Jeannine D. Herron, William K. Rork, Rork Law Office, Topeka, KS, for defendant Calvin Lee Conway aka Calvin L. Conway.

Gregory G. Hough, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On March 24, 1994, the grand jury returned a twenty count superseding sealed indictment charging certain violations of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine base), 21 U.S.C. § 841(a)(1) (possession with intent to distribute), 7 U.S.C. § 2024(b) (unlawful acquisition of food stamps), 18 U.S.C. § 924(c)(1) (use of a firearm during and in relation to a drug trafficking crime), and 26 U.S.C. § 5861(h) (receipt or possession of a firearm without serial number or other identification).

On August 24, 1994, this court entered a seventy-two page memorandum and order disposing of several pretrial motions filed by the defendants. See United States v. Ailsworth, 1994 WL 539347, 1994 U.S. Dist. LEXIS 14413 (D.Kan. Aug. 24, 1994). In that order, certain motions were taken under advisement to be decided on the eve of or during trial.

In that memorandum and order, the court granted the defendants' motion to compel retention of notes, logs, recordings, reports and statements of government agents (Dk. 158) to the extent that the court would inspect in camera the disputed materials and decide if additional production is required. In accordance with that order, the government has provided the materials described on pages 2 and 3 of its "Response to Defendants' Motion in Limine Regarding Disclosures" of September 28, 1994 (Dk. 294). The court has reviewed those materials and concludes, based upon its review of the materials provided as well as the government's description of the items it has provided the defendants, that the government has already provided to the defendants all of the Jencks Act material in its possession which it would be obligated to turn over to the defendants. The court has returned all of those materials provided by the government to the government.

On October 3, 1994, trial was set to commence on October 31, 1994. On October 19, 1994, the grand jury returned a thirty-seven page second superseding indictment, adding twenty-five additional counts, for a total of forty-five counts. In addition to the crimes charged in the superseding indictment, the second superseding indictment charges violations of 21 U.S.C. § 843(b) (use of a communication facility to cause or facilitate a felony drug trafficking crime), 21 U.S.C. § 856 (control of a building for the purpose of storing a controlled substance), and 18 U.S.C. § 922(g) (felon in possession of a firearm). The second superseding indictment also charges another violation of 21 U.S.C. § 841 and another violation of 18 U.S.C. § 924(c)(1).

The following motions yet remain undecided:

Joint Motions filed on behalf of all the defendants:

1. Joint motion for discovery of information relating to specified evidence that the government intends to use at trial (Dk. 275).

2. Motion of defendants in limine (Dk. 277).

Motions filed by Jesse Ailsworth (represented by Joseph Johnson):

1. Motion to exclude unintelligible audio and video tapes (Dk. 187).¹

2. Motion to strike surplusage language in affidavit (Dk. 188).²

Motions filed by Undra P. Mock (represented by Jerold E. Berger):

1. Motion to exclude unintelligible audio and video tapes (Dk. 197).³

2. Motion to strike surplusage language in affidavit (Dk. 199).⁴

3. Motion in limine Re: Exclusion of certain statements by arresting officers (Dk. 244).⁵

Motions filed by Kenneth R. Torain (represented by James Chappas):

1. Motion in limine Re: Exclusion of evidence of previous convictions and juvenile proceedings (Dk. 118).⁶

2. Supplemental motion in limine Re: Exclusion of evidence of previous misdemeanor conviction for possession of a concealed firearm (Dk. 247).

3. Second supplemental motion in limine Re: Rule 404(b) evidence relating to alleged drug transaction in which Torain personally participated (Dk. 249).

4. Motion for additional grand jury selection information (Dk. 257).

5. Motion for enlargement of time to move to quash grand jury indictment (Dk. 279).

6. Third supplemental motion in limine Re: Exclusion of evidence pertaining to alleged sales of confidential informant to Torain's brothers and one sister (Dk. 282).

7. Motion for entitlement to present evidence of alibi at trial and to receive an instruction of alibi defense (Dk. 245).

8. Supplement to joint motion for discovery of information relating to specified evidence that the government intends to use at trial (Dk. 280).

Motions filed by George Stewart (represented by Stephen Kessler):

1. Motion in limine Re: Exclusion of evidence of defendant's prior conviction for possession of a controlled substance (Dk. 93).⁷

2. Memorandum in support of defendant Stewart's request to present alibi evidence and for an alibi instruction (Dk. 253).

3. Motion for order to issue subpoena Re: Issuance of subpoena under Fed. R.Crim.P. 17(b) for Eddielena Green of Montgomery, Alabama (Dk. 251).

Motions filed by the Government:

1. Motion to compel discovery (Dk. 203).

2. Motion in limine Re: Exclusion of Stewart and Torain's "alibi" witnesses' testimony (Dk. 243).

3. Motion in limine regarding Douglas' alibi evidence (Dk. 268).

4. Motion in limine Re: Evidence concerning the address or whereabouts of Johnnie Evans, the confidential informant (Dk. 256).

On October 25, 1994, the court heard oral argument on the pending motions. At the outset of the hearing, the court indicated that it would limit oral argument to thirty minutes per side, based upon the court's assessment that such an allotment of time would allow each side an opportunity to adequately present the key aspects of their respective positions. Counsel for Torain objected to that time limitation. The court simply notes the defendants did not use all of the time allotted to them, a fact essentially confirming the reasonableness of the court's time limitation.

At the hearing, based upon the defendants' uniform position that they would be unable to proceed on October 31, 1994, as they were unprepared to defend against the additional twenty-five counts added by the second superseding indictment, the trial of this case was continued and reset to commence on November 28, 1994.

Having considered the briefs and arguments of counsel, and the applicable law, the court is now prepared to rule on some of the pending motions yet undecided.

Analysis of Motions to be decided or discussed before trial:⁸

Joint Motions filed on behalf of all the defendants:

Joint motion for discovery of information relating to specified evidence that the government intends to use at trial (Dk. 275); Supplement to joint motion for discovery of information relating to specified evidence that the government intends to use at trial (Dk. 280).

Based upon their perception that the government has not provided full discovery as agreed to at the omnibus hearing, the defendants essentially renew their requests for discovery which the court previously denied in part upon the merits and in part as moot in its August 24, 1994, memorandum and order. The defendants contend that the government has misled the court and the defendants as it has not provided full discovery in this case.

The government responds, indicating that it has provided the defendants with all of the information that they seek. The government contends that it has provided the defendants with all Jencks Act material and has provided the defendants with all indicted and unindicted coconspirators' statements. The government argues that the defendants are informally seeking a bill of particulars, when their initial request for such a bill was correctly denied. The government also indicates that it will provide an exhibit list to the defendants 48 hours prior to trial.

The court accepts the government's renewed assurance that it has provided all of the information within its possession, and these motions are denied as moot.

Motions of defendants in limine (Dk. 277).

In this motion, the defendants seek to exclude from trial any and all information contained in the "facts" communique to counsel dated September 28, 1994. The defendants basically argue that not until that communique were they informed of information which the government intends to introduce through the testimony of its confidential informant. The defendants contend that the government has sandbagged them by not providing this information sooner. The defendants contend that this late disclosure will severely prejudice them and make it impossible for them to adequately prepare to defend against the charges in the indictment and proceed to trial October 31, 1994.

The government responds, indicating that the information it provided to the defendants was not a "statement" within the meaning of 18 U.S.C. § 3500(e) (...