The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
The United States has moved for reconsideration of our Andrews II order of December 4, 1990, 754 F. Supp. 1197 (N.D. Ill. 1990) which adopted, with certain revisions, the bulk of the government's proposed changes to the severance plan outlined in our Andrews I order of November 6, 1990, 754 F. Supp. 1161 (N.D. Ill. 1990). The government's concerns stem from its new claim that Andrews II, insofar as it does not wholly adopt the government's proposed changes, constitutes an impermissible amendment to the original indictment.
For the following reasons, we grant the motion in part and vacate a portion of our Andrews II order.
The government contests our preclusion of certain counts and evidence from the initial trials of this action. In particular, it challenges our: (1) holding in abeyance at Trial One the Count Three narcotics conspiracy, also alleged as predicate act 31 of the RICO counts that will be tried in Trial One; (2) holding in abeyance at Trial One the prosecution of Edgar Cooksey for the predicate act of murdering Charmaine Nathan, which will be tried against other defendants in Trial Two; (3) limiting the government's proof of murders in each of the trials only to those murders that may be proved as predicate acts against the defendants at each trial, so long as the defendants do not intend to cross-examine the government's witnesses concerning other murders alleged as part of the general conspiracy; and (4) ordering the separate trial of Alan Knox in light of the fifty-four year sentence he is currently serving.
With respect to points 1-3, the government claims that by refusing to allow it to try certain counts and racketeering acts charged in the indictment, and by precluding evidence of violent acts allegedly committed in furtherance of the RICO conspiracy at each trial, we have impermissibly amended or modified the indictment in violation of the Fifth Amendment.
In support of this claim, the government relies on a series of cases discussing the Fifth Amendment ramifications of indictment modification or amendment. See Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887); United States v. Cina, 699 F.2d 853 (7th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 481, 78 L. Ed. 2d 679 (1983); United States v. Nicosia, 638 F.2d 970 (7th Cir. 1980), cert. denied, 452 U.S. 961, 101 S. Ct. 3110, 69 L. Ed. 2d 972 (1981); see also United States v. Ford, 872 F.2d 1231 (6th Cir. 1989), cert. denied, 495 U.S. 918, 110 S. Ct. 1946, 109 L. Ed. 2d 309 (1990); United States v. Beeler, 587 F.2d 340 (6th Cir. 1978), cert. denied, 454 U.S. 860, 102 S. Ct. 315, 70 L. Ed. 2d 158 (1981); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971); Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d 1061 (D.C. Cir. 1969). These cases suggest that an amendment or modification of the indictment is impermissible under the Fifth Amendment when it changes the basic theory of the offense, alters the crime charged, unfairly surprises the defendants, or creates an opportunity for the government to prosecute the defendants a second time for substantially the same offense. Cina, 699 F.2d at 858. The government purports to rely on all four of these harms, but its discussion exclusively focuses on the last -- the double jeopardy concern.
The government maintains that subsequent trials of counts held in abeyance, in particular any subsequent RICO trial based on predicate acts originally indicted but held in abeyance, would violate double jeopardy and effectively preclude it from ever trying the defendants on these charges. In other words, the government claims that we have usurped the charging function of the grand jury in violation of the Fifth Amendment. See Stirone, 361 U.S. at 218, 80 S. Ct. at 273-74.
In fact, the government's surrogacy would appear to be unwelcome. Our discussion in both Andrews I and Andrews II makes clear that in order to effectuate the severance sought by defendants it would be necessary to hold many counts in abeyance and to limit the number of predicate acts proved with respect to the RICO counts at the initial trials. Other than a possible RICO double jeopardy concern, the government has failed to identify any other double jeopardy problem posed by our plan. With respect to the RICO contention, the government cites no authority upon which its fear is based. We found one case that might apply. See United States v. Ciancaglini, 858 F.2d 923 (3d Cir. 1988). To the extent that this concern is legitimate, however, it is one that has always been plainly evident to the defendants.
Yet, not a single defendant has objected to the plan after having had a clear opportunity to do so. See, e.g., Andrews I, mem. op. [slip op.] at 42 ("we will accept proposals from any of the parties regarding suggested improvements to our severance plan . . ."). Further, none of the defendants has attempted to respond to or join in the government's instant motion for reconsideration. The defendants are apparently willing to accept the potential but remote double jeopardy risk created by our plan in return for the comparative advantage of the trials as severed. Cf. United States v. Shea, 773 F. Supp. 500, (D. Mass. Dec. 13, 1990) (two of twenty-three defendants responding to severance order raise double jeopardy objections).
Indeed, even when viewed from the government's perspective, the indictment may be deemed "modified" only to the extent that double jeopardy would bar prosecution of all of the counts and predicate acts held in abeyance. Yet, by electing not to object to the plan's provision for holding in abeyance certain counts and predicate acts for subsequent trial, the defendants have effectively waived any double jeopardy problems. See, e.g., United States v. Goodstein, 883 F.2d 1362, 1367 n. 3 (7th Cir. 1989) (failure to challenge vagueness of indictment), cert. denied, 494 U.S. 1007, 110 S. Ct. 1305, 108 L. Ed. 2d 481 (1990); United States v. Monzon, 869 F.2d 338 (7th Cir.) (failure to properly raise Fifth Amendment Miranda challenge), cert. denied, 490 U.S. 1075, 109 S. Ct. 2087, 104 L. Ed. 2d 650 (1989). Thus, there is no barrier to prosecution for the government to complain about.
Notwithstanding the Fifth Amendment claim, the government also contends that we have impermissibly suppressed evidence critical to its success on the charges that we have permitted it to prosecute in the initial trials. In particular, the government believes that it would be impossible to establish the requisite pattern and continuity under RICO unless, in addition to proof of the many violent acts and drug-related activities presently allowed under the severance plan, we also permit it to prove every alleged murder and violent act, and every isolated drug transaction alleged to have taken place as part of a narcotics conspiracy spanning the twenty-four year history of El Rukn activity.
Consistent with the views espoused in Andrews I and Andrews II, we continue to believe that the mass of proof that the government seeks to introduce would be unnecessarily cumulative, would waste a tremendous amount of time, and would tend to mislead and confuse the jury. These were among the specific reasons that justified severance in the first place. Rule 403 of the Federal Rules of Evidence clearly grants us the discretion to act as we have done to limit evidence that may be relevant, but unnecessary. In light of the government's vehement objections at this relatively early stage of the proceedings, however, we shall give it the benefit of the doubt and reconsider the scope of our evidentiary limitation. Though by no means are we convinced that "compelling reasons" exist that would require the presentation of all of this evidence, it may be that our order was in some limited respects unduly, perhaps prematurely, restrictive. Accordingly, we vacate our order in Andrews II as to the exclusion of certain evidence under Rule 403. We shall revisit these evidentiary issues at the time of trial, when we are afforded the opportunity to consider this evidence in its most pertinent context.
We vacate the Rule 403 exclusions reluctantly. We have attempted throughout the pretrial period to streamline both trial preparation and the actual trial itself. Our pretrial rulings under Rule 403 were designed, at least in part, to simplify preparation for all parties. Indeed, we purposefully issued these rulings in Andrews I and Andrews II to reduce the costs in time and money of trial preparation. We certainly were not required to make rulings of this nature as early as we did. Vacating these Rule 403 decisions grossly enlarges the body of evidence that must be digested prior to trial, and means that ...