agents because he "wanted to talk", and that the totality of the circumstances shows that the incriminating statements made by Torres were voluntary, not coerced by any promises on the government's part.
The court finds that an evidentiary hearing is required to resolve this motion. Only a factual inquiry can determine whether Torres was advised of his Miranda rights prior to making the incriminating statements. A factual investigation also needs to be made to more fully flush out the "totality of circumstances" surrounding the government agents' interrogation of Torres and to ascertain what, if any, promises were made to Torres regarding leniency on the government's part if Torres agreed to cooperate. These factual questions must be settled before Torres' motion can be resolved. See U.S. v. Long, 852 F.2d 975, 976-78 (7th Cir. 1988) (holding that all of the circumstances must be reviewed in determining whether a defendant voluntarily confessed, including the nature of the promises made to defendant regarding leniency); U.S. v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) ("A statement is involuntary if it is extracted . . . [from] a suspect in response to a promise made by law enforcement personnel . . . [if] the promise [is] sufficiently compelling to overbear the suspect's will in light of all the attendant circumstances.") (emphasis added). Therefore, the court sets Torres' motion to suppress for a hearing before Magistrate Rosemond on Thursday, January 18, 1990, at 11:30am.
III. Torres' Motion to Preserve Handwriting Notes of Government Agents
Pursuant to the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), Torres has moved for the preservation of any handwritten notes of government agents relating to his case. The government has agreed to preserve all such materials and make them available to Torres. Therefore, Torres' motion is denied as moot.
IV. Torres' Motion for Notice of Intent to Use Evidence of Other Crimes, Wrongs, Acts, and Specific Instances of Misconduct
Torres moves for an order requiring the government to provide notice of its intention to use evidence of other crimes under Fed. R. Evid. 404(b) and evidence of specific acts of misconduct under Fed. R. Evid. 608(b). Torres seeks disclosure of the government's intent to use such evidence in its case-in-chief, during cross-examination, and in its rebuttal case. This court has long held, however, that the plain language of Fed. R. Crim. P. 12(b)(2) of the Federal Rules of Criminal Procedure limits pretrial discovery to evidence of other crimes and specific acts of misconduct which the government plans to offer only in its case-in-chief. See U.S. v. Marquez, 686 F. Supp. 1354, 1358 (N.D. Ill. 1988); U.S. v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979). Therefore, to the extent that Torres seeks disclosure of material which the government does not plan to use in its case-in-chief, his motion lacks foundation. In addition, to the extent that Torres seeks notice of other crimes and acts of misconduct which the government plans to offer in its case-in-chief, his motion is moot; the government has indicated that at this point it does not intend to introduce any such evidence in its case-in-chief. Accordingly, Torres' motion is denied.
V. Torres' Motion For a Pretrial Hearing or in the Alternative For a Proffer of Proof Regarding Co-conspirators' Statements
Under Fed. R. Evid. 801(d)(2)(E), a statement offered as evidence against a defendant is not excludable as hearsay if it is made by a co-conspirator of the defendant during the course of and in furtherance of the conspiracy. Before a statement of a co-conspirator may be admitted into evidence under Rule 801(d)(2)(E), however, the government must establish, by a preponderance of independent, non-hearsay evidence: (1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy at the time the declaration was made; and (3) that the statement was made in the course of and in furtherance of the conspiracy. United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir. 1978). Pursuant to Santiago, Torres has moved the court for a pretrial determination of the admissibility of his alleged co-conspirators' statements. Torres requests a pretrial hearing on the admissibility of these statements or, alternatively, a pretrial proffer of evidence from the government.
Of the two alternative methods for determining the admissibility of co-conspirators statements which Torres requests, the Seventh Circuit has recognized that requiring a written proffer of proof from the government has distinct advantages. In both United States v. Boucher, 796 F.2d 972, 974 (7th Cir. 1986), and United States v. Andrus, 775 F.2d 825, 837 (7th Cir. 1985), the court acknowledged that the procedure of accepting a written proffer instead of holding a hearing has the advantage of economy, since under that method witnesses need not be brought in twice and "the court will not spend an excessive amount of time making a determination which is only preliminary." Therefore, this court finds that a hearing on the admissibility of Torres' alleged co-conspirators' statements is unnecessary. Instead, the court will require the government to file a written proffer of proof prior to trial setting forth independent, non-hearsay evidence which satisfies the Santiago factors before the statements of Torres' alleged co-conspirators will be admitted. Accordingly, to the extent that Torres' motion requests the court to order the government to submit a written proffer of proof, it is granted; in all other respects, it is denied.
VI. Defendants' Motions For Disclosure of Agreements, Promises, and Other Consideration Between the Government and Prosecution Witnesses and For Disclosure of Exculpatory Material
Torres and Santillanes move for the production of impeaching and exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). The government has replied that it is unaware of any Brady material at this time but it will promptly provide any exculpatory material to defendants as soon as it comes into the government's possession. Regarding impeachment evidence falling within the realm of Giglio, the government has indicated that it will provide such material to defendants sufficiently in advance of each witness' testimony. Therefore, Torres' and Santillanes' motions for production of material pursuant to Brady and Giglio are denied. See Kompare v. Stein, 801 F.2d 883, 890 (7th Cir. 1986) (disclosure of Brady material need not be made until trial so long as defendant receives a fair trial).
Santillanes' motion also requests additional discovery which arguably falls outside the scope of Brady and Giglio ; for example, Santillanes requests "a list of the persons known to the government, as shown by its files, who have some knowledge of this case, but who will not be called to testify at trial." Santillanes, however, has failed to produce sufficient support showing the need for this additional discovery or his entitlement to it. Accordingly, his requests for such information are denied.
VII. Santillanes' Motions For Inspection and Copying of Documents Pursuant to Fed. R. Crim. P. 16(a)(1)
The government has represented that it has already provided Santillanes with the information to which he is entitled pursuant to Fed. R. Crim. P. 16(a)(1). Therefore, Santillanes' motions for production of that material are denied as moot.
VIII. Santillanes' Motion For Early Disclosure of Jencks Act Material
The government has indicated that it will provide Santillanes with Jencks Act material prior to the commencement of trial, so that his defense counsel has sufficient opportunity to review the material. There is simply no basis for Santillanes' request for disclosure of the material well in advance of trial. Therefore, Santillanes' motion for early disclosure is denied.
IX. Torres' Motion to Adopt Pretrial Motions of Co-defendants
Torres' motion to adopt the motions filed by his co-defendants is granted. To date, however, the only pretrial motions which have been filed by Torres' co-defendants are those submitted by Santillanes, which the court has already denied herein. Nevertheless, the court also grants Torres' motion to the extent that it relates to future motions filed by his co-defendants which are applicable to him.
For the foregoing reasons, Torres' motion to suppress confession is set for a hearing before Magistrate Rosemond on Thursday, January 18, 1990, at 11:30pm. Torres' motion requesting a pretrial determination of the admissibility of his alleged co-conspirators' statements is granted to the extent that it requests a pretrial proffer of proof from the government. Torres' motion to adopt the motions of his co-defendants is granted. In all other respects, Torres' pretrial motions are denied. Santillanes' pretrial motions are denied.
IT IS SO ORDERED.
Dated: January 16, 1990
© 1992-2004 VersusLaw Inc.