opinion testimony, Rule 16(a)(1)(D) simply requires the government to disclose the results of all medical examinations and scientific tests that relate to the charges in the indictment. By producing all laboratory reports pertaining to the charges against defendants, the government has fully complied with Rule 16(a)(1)(D). Neither Rule 16 nor any provision of the Federal Rules of Evidence justifies the comprehensive preview of the government's opinion testimony that defendants request. Consequently, the court denies defendants' motion for extensive pretrial disclosure of the government's opinion testimony.
E. Motion to Require Notice of Intention to Use Other Crimes, Wrongs, or Acts Evidence
Defendants move for the court to require that the government give notice of its intention to use evidence of other crimes, wrongs, or acts pursuant to Fed. R. Evid. 404(b). Defendants also seek disclosure of the government's intention to use specific acts of misconduct for impeachment purposes. See Fed. R. Evid. 608(b). As the government points out, however, the Federal Rules of Criminal Procedure mandate pretrial disclosure of evidence of other crimes only if the government plans to use such evidence in its case-in-chief. See Fed. R. Crim. P. 12(d)(2). The government need not disclose evidence of past crimes or misconduct that it intends to use in its rebuttal case or during cross-examination of a defendant. United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd, 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134 77 L. Ed. 2d 1370, 103 S. Ct. 3116 (1983). Thus, defendants can only obtain notice of other crimes evidence that the government intends to introduce in its case-in-chief. Because the government has no plans to present evidence of other crimes in its case-in-chief, the court denies defendants' motion for notice of such evidence.
VI. Motion to Preserve Government Agents' Notes
Defendants move for the entry of an order directing all government agents to preserve any notes that they made while investigating defendants. In response to this motion, the government has instructed its agents to preserve their notes about the investigation during the pendency of defendants' trial. Since the government has already taken steps to preserve its agents' notes, the court denies defendants' motion as moot.
VII. Motion for Early Return of Documents
Pursuant to Fed. R. Crim. P. 17(c), defendants move for the early return of documents through the issuance of subpoenas. The government does not object to the entry of an order allowing for the early return of documents in accordance with Rule 17. Therefore, the court grants defendants' motion for early return. Attorneys for the government as well as defendants may issue subpoenas under Rule 17 for the early return of documents.
VIII. Edwards' Motion for Severance
Finally, Edwards moves for severance of his trial from the trial of his codefendants. In analyzing Edwards' severance motion, this court initially observes that the government has properly joined Edwards with the other defendants pursuant to Fed. R. Crim. P. 8(b). Count I of the indictment charges all of the defendants (including Edwards) with participation in a drug distribution conspiracy. The court has no reason to believe that the government has alleged a conspiracy in bad faith. Therefore, the conspiracy charge against Edwards and his codefendants lays a proper foundation for joinder under Rule 8(b). See United States v. Garner, 837 F.2d 1404, 1412 (7th Cir. 1987), cert. denied, 486 U.S. 1035, 108 S. Ct. 2022, 100 L. Ed. 2d 608 (1988); United States v. Dounias, 777 F.2d 346, 348-49 (7th Cir. 1985).
When the allegations in an indictment satisfy the joinder requirements of Rule 8, a defendant's only hope for severance rests with Fed. R. Crim. P. 14, which requires the defendant to show that joinder will prejudice him. United States v. Lane, 474 U.S. 438, 447, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986). In arguing for severance under Rule 14, Edwards contends that he will not receive a fair trial if the government tries him jointly with the other defendants. Edwards notes that the indictment only charges him with two specified acts, whereas some of his codefendants stand accused of multiple criminal acts. He asserts that a joint trial could result in his conviction based on the voluminous evidence against his codefendants, even though much of this evidence would not relate to the charges against him. As the Seventh Circuit has repeatedly concluded, however, a disparity in incriminating evidence against various codefendants does not by itself establish prejudice or justify severance. See United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.), cert. denied, 471 U.S. 1021, 85 L. Ed. 2d 314, 105 S. Ct. 2032 (1985); Kendall, 665 F.2d at 138; United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir. 1980), cert. denied, 450 U.S. 965, 101 S. Ct. 1481, 67 L. Ed. 2d 614 (1981); United States v. Grabiec, 563 F.2d 313, 318-19 (7th Cir. 1977). Moreover, in order to minimize the potential for prejudice in Edwards' case, this court will clearly admonish the jury "to consider evidence introduced on the other counts only against the defendants charged in those counts." Hedman, 630 F.2d at 1200. Ultimately, even if this court granted Edwards a separate trial, severance would not necessarily insulate him from the evidence used against his codefendants. If the government can prove by independent evidence that a conspiracy existed and that Edwards participated in it, then evidence of coconspirators' acts in furtherance of the conspiracy would be admissible against Edwards whether or not he received a separate trial. See United States v. Hattaway, 740 F.2d 1419, 1424 (7th Cir.), cert. denied, 469 U.S. 1028 (1984); United States v. Ras, 713 F.2d 311, 315 (7th Cir. 1983). Thus, not only has Edwards failed to establish that joinder will prejudice him; he cannot even demonstrate that severance would alleviate whatever prejudice he might suffer as a result of joinder. For these reasons, the court denies Edwards' motion for severance.
To the extent that each defendant's pretrial motions could apply to any or all defendants, the court grants defendants' motions to adopt the pretrial motions of their codefendants. The court denies defendants' motion for a pretrial hearing on the admissibility of coconspirators' statements. Instead of holding a hearing concerning these statements, the court will accept a proffer of proof from the government seven days before trial. The court denies defendants' motion for a bill of particulars and Edwards' motion to dismiss Count XII of the indictment. Based on the government's representations that it will fully comply with Rule 16, Brady, and Giglio, the court denies most of defendants' discovery motions. Nonetheless, the court grants defendants' motion for disclosure of all previous occasions on which prospective government witnesses (other than informants) have testified for the government before any tribunal. The government may delay disclosure of any witness' prior court appearances until several days before the witness testifies at trial. The court denies defendants' motion to preserve the notes of government agents because the government has already instructed its agents to preserve their notes. The court grants defendants' motion for the early return of documents under Rule 17. Finally, the court denies Edwards' motion for severance.
IT IS SO ORDERED.
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