US v. Cole, 88 CR 1002.
| Decision Date | 09 March 1989 |
| Docket Number | No. 88 CR 1002.,88 CR 1002. |
| Citation | 707 F. Supp. 999 |
| Parties | UNITED STATES of America, Plaintiff, v. Marlowe COLE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Anton R. Valukas, U.S. Atty. by Vilija A. Bilaisis, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
Robert A. Korenkiewicz, Chicago, Ill., for defendant Andre Stover.
Shelly B. Kulwin, Chicago, Ill., for defendant Ronald K. McMillen.
Jeffrey Urdangen, Chicago, Ill., for defendant Olanrewaju Raji.
Anita Rivkin-Carothers and Robert F. Nemzin, Chicago, Ill., for defendant Jackie Edwards.
Rick Halprin, Chicago, Ill., for defendant Deborah Cain.
The government has indicted defendants Deborah Cain, Jackie Edwards, Ronald McMillen, Olanrewaju Raji, and Andre Stover for their alleged participation in a drug conspiracy. On the eve of their criminal trial, these five defendants have filed a number of pretrial motions. The court will now consider each of these motions.
Each defendant has moved to adopt the pretrial motions filed by his or her codefendants. Insofar as the pretrial motions of each individual defendant could apply to any or all of his or her codefendants, the court grants defendants' motions to adopt the pretrial motions of their codefendants.
In presenting its case against defendants, the government plans to introduce into evidence the statements of certain coconspirators. To establish the admissibility of these statements under Fed.R.Evid. 801(d)(2)(E), the government must demonstrate by a preponderance of the evidence that defendants and the declarants were engaged in a conspiracy when the declarants uttered the statements, and that the statements served to further the conspiracy. If the government fails to carry this evidentiary burden, then the coconspirators' statements would amount to inadmissible hearsay. See United States v. Santiago, 582 F.2d 1128 (7th Cir.1978).
Seeking to obtain a pretrial ruling on the admissibility of the coconspirators' statements, defendants move for a pretrial hearing on the statements or, alternatively, a preliminary proffer of proof by the government. In response, the government has offered to make a pretrial proffer. In light of the government's proposed proffer, this court sees no need to conduct a pretrial hearing. The Seventh Circuit has found such a hearing unnecessary in cases where a proffer provides an adequate basis for assessing the admissibility of coconspirators' statements. See United States v. Boucher, 796 F.2d 972, 974 (7th Cir.1986); United States v. Andrus, 775 F.2d 825, 837 (7th Cir.1985). Rather than hold a pretrial hearing in the instant case, this court elects to accept the government's proposed proffer concerning the coconspirators' statements. The court asks that the government submit its proffer seven days before trial so that the court can make a pretrial determination of the statements' admissibility.
As an additional precaution against the admission of hearsay, defendants request that the court dictate the order in which the government will present its proof at trial. See Fed.R.Evid. 611. Defendants argue that the court should require the government to present all independent evidence of the conspiracy before introducing any of the coconspirators' statements. Based on the pretrial proffer, however, this court will have resolved the issue of the statements' admissibility before the trial begins. Therefore, the court sees no reason to require that the government order its proof at trial.
Pursuant to Fed.R.Crim.P. 7(f), all five defendants have moved for a bill of particulars revealing additional information about the various charges against them. A motion for a bill of particulars lies within the discretion of the trial court. United States v. Kendall, 665 F.2d 126, 134 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982). In evaluating the need for a bill of particulars, the court must determine whether the indictment adequately sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial. Id. Even if the indictment itself does not contain enough information to permit a defendant to prepare his defense, the government may obviate the need for a bill of particulars by disclosing additional details about the charges during discovery. United States v. Long, 706 F.2d 1044, 1054 (9th Cir.1983); 1 C. Wright, Federal Practice and Procedure (Criminal) § 129 (2d ed. 1982). In the instant case, the indictment and the items produced during discovery provide defendants with adequate information about the charges against them. Count I of the indictment consists of a detailed narrative of defendants' alleged participation in several drug transactions, complete with the date and place of each transaction. To supplement the information contained in the indictment, the government has provided defendants with 446 cassette tapes of electronic surveillance, all of the logs pertaining to the surveillance, lab reports concerning confiscated substances, and various other materials related to the case against defendants. These materials, when combined with the indictment's description of the charges, give defendants ample information about the government's case against them. Considering the information already made available to defendants, the court finds a bill of particulars unnecessary.
For the same reason that the court refuses to require the government to produce a bill of particulars, the court denies Edwards' motion to dismiss Count XII of the indictment. Count XII charges Edwards with distributing a quantity of a mixture containing heroin on or about November 12, 1988. Edwards moves to dismiss Count XII due to its vagueness and lack of specificity. He observes that Count XII articulates the charge against him in a rather cursory fashion. Another count in the indictment, however, supplies further detail about Edwards' alleged involvement in drug distribution. Count I states that Edwards sold a quantity of a mixture containing heroin to Marlowe Cole on or about November 12, 1988. Furthermore, the materials produced by the government during discovery contain additional information about Edwards' role in the alleged drug conspiracy. This information gives Edwards sufficient notice of the basis for the drug distribution charge against him. Therefore, the court declines to dismiss Count XII of the indictment.
Pursuant to Fed.R.Crim.P. 16, defendants move for production of a variety of documents. The government asserts that it has already produced many of the materials requested by defendants, including defendants' written and recorded statements in the government's possession, defendants' oral statements that the government plans to use at trial, tape recordings, and lab reports. The government also states that it has produced all documents that it intends to introduce in its case-in-chief, with the exception of certain photographs. The government assures the court that it will soon make these photographs available to defendants. To a large extent, the government's cooperation has rendered defendants' motion for production moot. The only remaining disputes over documents involve defendants' requests for four types of items: evidence procured through the use of a mail cover; records obtained from Illinois Bell; copies of documents acquired via grand jury subpoena; and work papers underlying scientific tests or accounting analyses. The government has refused to turn over these items, claiming that Rule 16 does not require the production of such documents. This court agrees with the government's position. The documents withheld by the government fall outside the scope of Rule 16; yet, aside from a general citation to Rule 16, defendants offer no justification for compelling production of the documents they seek. Consequently, the court denies defendants' motion for production of documents.
Based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defendants move for disclosure of any exculpatory information in the government's possession. Aware of its obligation under Brady, the government states that it knows of no exculpatory information at this time. In the event the government learns of any Brady material, the government has promised that it will promptly provide defendants with such material.
Relying on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), defendants also move for disclosure of any information in the government's possession that tends to impeach prospective government witnesses at trial, including the government's two informants. The government states that it does not intend to call the informants to testify at trial because they neither witnessed nor participated in any transactions charged in the indictment. Therefore, the disclosure of impeaching information about the informants would not serve the primary purpose of Giglio: enabling a defendant to attack the credibility of a government witness at trial. Moreover, the government offers a compelling reason for preserving the anonymity of its informants — the potential for violent reprisals if defendants discover the informants' identities. Because the disclosure of information about the informants would not appreciably assist defendants in preparing their defense, and because such disclosure could jeopardize the informants' safety, the court denies defendants' Giglio motion insofar as it relates to the informants.
With respect to other potential government witnesses, the government has agreed to disclose all Giglio material...
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