II. Motion for a Bill of Particulars
Pursuant to Fed.R.Crim.P. 7(f), Lobue and Prisco request a bill of particulars setting forth additional information regarding the extortion and bribery charges. A trial judge has discretion to grant or deny a request for a bill of particulars. United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 72 L. Ed. 2d 140, 102 S. Ct. 1719 (1982); United States v. Cole, 707 F. Supp. 999, 1001 (N.D. Ill. 1989). A bill of particulars is not necessary if the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges so that the defendant may prepare for trial. Kendall, 665 F.2d at 134; United States v. Finley, 705 F. Supp. 1272, 1278 (N.D. Ill. 1988). Although a defendant is entitled to know the facts upon which the charge is based, Rule 7(f) does not enable a defendant to demand the details of how the offense will be proved. Kendall, 665 F.2d at 135. "Evidentiary details exceed the proper scope of a bill of particulars." United States v. McDonnell, 696 F. Supp. 356, 362 (N.D. Ill. 1988).
Most of Lobue and Prisco's requests seek the names of unindicted co-conspirators and other public officials for whom Lobue and Prisco allegedly demanded payoffs. According to the government, the names of these persons were excluded from the indictment to protect their reputations. The indictment names Tocco and Molyneaux because these men have already been charged with racketeering activity, and because Tocco and Molyneaux played central roles in the alleged conspiracy with Lobue and Prisco. Defendants do not need the names of other unindicted persons to understand the nature of the extortion and bribery charges against them. The indictment describes, in considerable detail, numerous occasions on which Lobue and Prisco allegedly demanded and received payments in return for their help in securing government contracts for Fitzpatrick Brothers, Chicago Heights Disposal and Fitz-Mar. This is sufficient to inform Lobue and Prisco of the elements of the offenses charged. Accordingly, requests 1(a) and (b), 2(a), 3 (a), 4(a), 6(a), 7(a), 8(a), 10(a), and 11(a) and (b) are denied.
In a closely related request, Lobue and Prisco seek the names of the city commissioner and city engineer who, along with Lobue and Molyneaux, allegedly interviewed companies bidding for the landfill contract. In addition, defendants want the government to identify other companies that submitted bids. The names of these entities are not necessary to apprise Lobue and Prisco of the charges against them. In any event, the government asserts that the names of these individuals have already been turned over to defendants in discovery documents. Therefore, requests 5(a) and (b) are denied.
Defendants also request information regarding the place where alleged conversations occurred, and the names of any persons who were present during the conversations. Requests for a list of witnesses or other evidentiary details as to when and where conversations took place are not within the scope of a bill of particulars. Requests 4(b), 6(b), 8(b) and 10(b) are denied. Similarly, requests for further specification regarding the amounts of money obtained and/or kept by Lobue and Prisco constitute requests for evidentiary detail. Accordingly, 9(a) and (b), 11(c) and 12(a) are denied.
The remaining requests ask the government to explain paragraph 11 of count I, which alleges that Lobue and Prisco and "their co-conspirators, including Ernest Molyneaux and Albert Tocco . . ." misrepresented and concealed the purposes and acts done in furtherance of the conspiracy. In particular, defendants ask the government to specify -- in terms of time, place and persons present -- the acts that misrepresented and concealed the conspiracy. The government maintains that virtually every action taken by Lobue and Prisco constituted concealment and commission of the crimes charged. To the extent this is true, the indictment sufficiently describes the alleged conduct of Lobue and Prisco. Insofar as the requests seek further information, they must be denied as a demand for evidentiary matter not proper on a motion for a bill of particulars. Defendants' requests 3(b) and (c) are denied.
Because none of Lobue and Prisco's requests have merit, defendants' motion for a bill of particulars is denied.
III. Motion for Disclosure of "Other Act" Evidence
Pursuant to Fed.R.Crim.P. 12(d)(2), Lobue and Prisco move for an order directing the government to give notice if it intends to use evidence of defendants' past commission of other crimes, wrongs or acts for any purpose at trial. Lobue and Prisco further request that the government submit such notice under seal. Rule 12(d)(2) states that:
At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence . . . request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16. . . .
Rule 12(d)(2) authorizes Lobue and Prisco's request insofar as it seeks notice of the government's intent to use evidence of "other acts" in its case in chief.
The Federal Rules of Evidence prohibit the use of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. Fed.R.Evid. 404(b). However, evidence of "other acts" may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. If "other act" evidence is offered for a permissible purpose, the court must then determine whether the danger of undue prejudice outweighs the probative value of the evidence. Fed.R.Evid. 403. The government represents that it will notify the court and defendants if it intends to use "other acts" evidence in its case in chief on January 10, 1991, the date set for the submission of motions in limine. However, in order to give defendants a fair opportunity to frame their arguments for suppression of "other act" evidence in limine, defendants must have notice of the government's intention to use such evidence prior to January 10. Accordingly, the government shall provide notice to Lobue, Prisco and the court of its intention to use evidence of other crimes, wrongs or acts in its case in chief by December 20, 1990.
The government contests defendants' request for notice of its intention to use "other acts" evidence on cross-examination or in its rebuttal case. The government points out that Fed.R.Crim.P. 12(d)(2) only mandates pretrial disclosure of other act evidence if the government plans to offer such evidence in its case in chief. Several cases in this district have held that the government need not disclose evidence of past crimes or misconduct that it intends to use on cross-examination or in its rebuttal case. United States v. Santillanes, 728 F. Supp. 1358, 1360 (N.D. Ill. 1990); Cole, 707 F. Supp. at 1004; United States v. Marquez, 686 F. Supp. 1354, 1358-59 (N.D. Ill. 1988).
Rules 12(d)(2) and 16 of the Federal Rules of Criminal Procedure do not compel the government to disclose other act evidence intended for cross-examination or rebuttal. However, other act evidence must be scrutinized under Fed.R.Evid. 403 before it may be used at trial. The government may not offer other act evidence for impeachment purposes or in its rebuttal case unless the court first determines whether the probative value of the evidence outweighs the danger of undue prejudice to defendants. See United States v. DeGeratto, 876 F.2d 576, 582-84 (7th Cir. 1989) (where government used highly prejudicial evidence containing only slight probative value to impeach defendant under Fed.R.Evid. 608(b), trial court committed reversible error in failing to exclude the evidence under Rule 403). This determination must be made outside the jury's presence. Conducting Rule 403 arguments at sidebar would be impractical and would not be conducive to a fair and orderly trial. Accordingly, the government shall not offer other act evidence during cross-examination or in its rebuttal case unless defendants first have an adequate opportunity to object and the court has an adequate opportunity to evaluate the proffered evidence under Rule 403.
Lobue and Prisco's request for notice of the government's intent to use other act evidence is granted. The government shall file notice by December 20, 1990. Notice need not be filed under seal, as Lobue and Prisco have not shown why the government should be required to do so.
IV. Motion for Immediate Disclosure of Exculpatory or Impeaching Evidence
The government must disclose any evidence favorable to a defendant if the evidence is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The Brady obligation extends to evidence that tends to impeach a government witness' credibility, so long as this evidence is material to the outcome of the trial. Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); Barkauskas v. Lane, 878 F.2d 1031, 1033 (7th Cir. 1989). Evidence is "material" if there is a reasonable probability that its disclosure would change the outcome of the trial. Bagley, 473 U.S. at 682.
The government has informed defendants that it will immediately produce any Brady material it discovers. The government maintains that it will provide Giglio impeachment evidence before trial. However, the government contends that it has no duty to produce any impeachment evidence immediately upon defendants' request. Further, the government contends that of the twelve items requested by defendants, some are overbroad, and others are beyond the scope of Brady and its progeny.
A. The Scope of Brady Disclosure
In particular, the government objects to defendants' requests for the name, address and report of any interview of any person "whose testimony would be favorable to the defendants in any way," or "any evidence or information which contradicts or is inconsistent with the expected testimony of any witness for the government." Motion paras. 1, 3. The government is correct; it is only obligated to turn over favorable evidence that is material to Lobue and Prisco's guilt or punishment. Thus, general requests for "any favorable evidence" are too broad. The government also takes issue with defendants' request for the tax returns of Molyneaux, Martin and Harold Wondaal, Charles Fitzpatrick and Albert Tocco for the years 1982-1987. Defendants made this request as part of their general demand for "evidence or information which reflects adversely on the credibility of any witness the government intends to call at trial." Motion para. 4. Again, if the government intends to call the foregoing persons as witnesses, and if their tax returns would impeach these witnesses' testimony or would materially affect their credibility, then the government must turn over the tax returns. Otherwise, the government need not turn these documents over. See, e.g., United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (the speculative assertion that impeaching material may be in a government file did not warrant an order to disclose the contents of the file or to produce the file for the court's inspection).
B. When the Government Must Disclose Impeachment Evidence
The government asserts that it need not comply with defendants' request for Giglio impeachment evidence at this juncture; it contends that disclosure any time before trial is sufficient. Further, the government maintains that it should not be required to disclose impeachment evidence now because disclosure would give defendants advance knowledge of the government's witness list. See United States v. Bouye, 688 F.2d 471, 473-74 (7th Cir. 1982) ("a defendant in a noncapital case [is not] entitled to lists of prospective government witnesses"). Accord, United States v. Bailey, 689 F. Supp. 1463, 1471 (N.D. Ill. 1987).
If the government discloses impeachment evidence before trial, it has met its Brady obligation so long as the defendants receive a fair trial. See Kompare v. Stein, 801 F.2d 883, 890 (7th Cir. 1986) (disclosure of Brady information "need not be made until trial as long as the defendant is not prevented from having a fair trial"). The government has represented that it will provide all material impeachment evidence to defense counsel prior to trial. In order to ensure a fair and orderly trial, the court requests that the government disclose any impeachment material at least one week prior to trial. Under these circumstances, Lobue and Prisco's request for immediate disclosure of Giglio impeachment evidence is denied.
Lobue and Prisco's motion to dismiss counts I and II is denied. Their motion for a bill of particulars is also denied. Lobue and Prisco's request for disclosure of the government's intent to use "other act" evidence is granted. The government shall provide notice by December 20, 1990. Lobue and Prisco's motion for immediate disclosure of all exculpatory and impeachment evidence is granted in part and denied in part. The government shall immediately disclose any exculpatory evidence to defendants, and shall be under a continuous obligation to do so. The government is requested to disclose all Giglio impeachment evidence at least one week prior to trial.