The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
Unfortunately, we apparently were overly optimistic when we asserted our belief in our order of January 23, 1991 (" Andrews IV ") that "the severance chapter of these proceedings is now closed." United States v. Andrews, 764 F. Supp. 1248, 1251 (N.D.Ill. 1991).
Now before us, however, is the "Government's Motion to Introduce Evidence Regarding Each Racketeering Act Charged in the Indictment." What is remarkable about the government's most recent foray is that, in essence, the government is asking us to reconsider the ruling in Andrews III that granted the government's motion to reconsider! This is yet another attempt by the government, in the wake of its convoluted indictment in this case, to further frustrate the efforts of this Court to formulate a workable trial format sensitive to the rights and obligations of all concerned.
The government brings its motion under Rule 12(e) of the Federal Rules of Criminal Procedure ("Rule 12(e)"): "A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue . . ., but no such determination shall be deferred if a party's right to appeal is adversely affected." The government seeks a definite pretrial ruling as to whether it will be permitted to prosecute and introduce evidence of each of the "non-specific" racketeering acts charged in Count II of the indictment.
The government requests such a ruling "sufficiently in advance of Trial One to allow the government to appeal an adverse ruling." Gov. Mot. at 1.
While we have accommodated the government's request for a prompt ruling, we find the request interesting in light of the tardiness of the motion itself. The motion purports to be a response to the colloquy at the April 15, 1991 status hearing at which, according to the government, "this court indicated that it would rule on the admissibility of [evidence of non-specific acts] after the jury has been empaneled, jeopardy attached, and the trial begun." Id. The government, however, has been fully aware of the court's position since December 28, 1990, when we issued our opinion in Andrews III. There, we vacated our decision in Andrews II, to exclude any evidence of non-specific acts under Federal Rule of Evidence 403 ("Rule 403"). We vacated that particular ruling primarily because of the government's representation in its motion for reconsideration that it could not prove the RICO conspiracy without the additional evidence of the non-specific acts. Andrews III, 754 F. Supp. at 1210 ("In light of the government's vehement objections at this relatively early stage of the proceedings . . . we shall give it the benefit of the doubt and reconsider the scope of our evidentiary limitation."). We made clear in that opinion, however, that our ruling was by no means tantamount to a ruling that the evidence would be admitted at trial by expressly stating: "We shall revisit these evidentiary issues at the time of trial, when we are afforded the opportunity to consider the evidence in its most pertinent context." Id.
We see nothing ambiguous or unclear about our reasons for and express reservation of the Rule 403 evidentiary issues as matters properly reserved for determination at trial. Apparently neither did the government, since its subsequent motion for clarification of Andrews III raised no objection to that form of disposition. After considering the government's motion for clarification, we again affirmed that the Rule 403 determinations would be reserved until the time of trial. Andrews IV, slip op. at 3. Having found good cause to reserve ruling, and absent any objection from the government with respect to its desire to obtain interlocutory review, our ultimate decision was entirely consistent with Rule 12(e) and within our discretion to make. See United States v. Barletta, 644 F.2d 50, 58 (1st Cir. 1981).
While the government is certainly entitled to raise Rule 12(e) in bringing a pretrial motion, as we pointed out in Andrews III and Andrews IV (perhaps to the detriment of certain defendants, Andrews IV, slip op. at 3 n. 3), Rule 12(f) provides that the failure to make any requests or objections "which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver." Just as a motion to suppress is mandatory under Rule 12(b)(3), the government's present "motion to admit" evidence must also be regarded as mandatory under Rule 12. Cf. Barletta, 644 F.2d at 55 (government's motion to admit evidence raises no broader or different issue than a defendant's motion to suppress).
The government's general concern with respect to whether it will be allowed to prosecute and adduce evidence as to each and every charged predicate act is not new. That was the subject of its motion for reconsideration of Andrews III. The time for dealing with these matters ended after our decision in Andrews III. At the latest, it ended with our disposition in Andrews IV of the government's motion for clarification which, as we have already pointed out, raised no objection to our reservation of ruling on the number of predicate acts and the amount of evidence that the government would be allowed to introduce. Thus, insofar as the government's present motion under Rule 12(e) turns on the impact that our reservation of ruling may have on the government's opportunity to secure an interlocutory appeal, that is a matter that should have been raised long ago.
Notwithstanding the fact that three months have passed since our decision in Andrews III, and that the trial begins in less than two weeks, the government has made no express effort to show good cause under Rule 12(f) that might excuse its waiver. The government makes only one claim that might conceivably be construed as an excuse. According to the government, our April 15, 1991 directive that the government refrain from commenting in its opening statement about the evidence on which we have reserved ruling, coupled with our warning that remarks beyond that scope would be made at the government's peril, "plainly indicated that there is a strong likelihood that this Court may exercise its Rule 403 discretion to entirely preclude evidence of the 'non-specific' predicates which make up part of the pattern after jeopardy has attached and we have lost our right to appeal under 18 U.S.C. § 3731."
That potential, however, was evident well prior to the time of the April 15, 1991 status. In Andrews III we plainly indicated our reluctance to vacate the evidentiary rulings we had made, yet having vacated the rulings, we advised the government that it "will have to present persuasive justification for admitting the morass of evidence we are otherwise inclined to exclude." Andrews III, 754 F. Supp. 1211. In Andrews IV we again admonished the government regarding "the considerations that will ultimately dictate the Rule 403 rulings we have reserved for the time of trial." Andrews IV, slip op. at 3.
The government, however, implies being caught by surprise by our comments on April 15, 1991, based on a revisionist interpretation of the scope of our rulings in Andrews III and Andrews IV. We find that intimation plainly lacking. The government reads our decisions as allowing it "to present evidence on each predicate act charged as part of the pattern in Count Two, subject to Rule 403 restrictions on the quantum of evidence necessary for us to meet our burden of proof." Gov. Mot. at 5. The variant between our rulings and the government's recent interpretation is a subtle one. The government separates the question whether it may place each racketeering act before the jury from the question as to how much proof it may adduce as to each act. We certainly understand the distinction, and see how it relates to the government's "legal" argument which we discuss below, but by no means may our prior opinions be read to create the impression that the government now claims. We have consistently stated in Andrews I through Andrews IV that Rule 403 considerations might warrant complete exclusion of certain non-specific acts to streamline the initial trials, in addition to any limitation on the amount of evidence needed to establish the racketeering acts that the government would be allowed to place before the jury. By the time we entered Andrews III, the government had absolutely no reason to believe that the Rule 403 determinations that we reserved for trial might not include the possibility that evidence of certain nonspecific acts would ultimately be entirely excluded from the jury's consideration at the initial trials of the defendants.
Indeed, the government surely understood that fact, since its motion for clarification of Andrews III specifically sought a definite pretrial ruling only as to whether it would be allowed to place Racketeering Act 31 before the jury.
Any lingering doubts or confusion on the part of the government as to both our meaning and possible intent were surely obviated in Andrews IV, in which we stated that
strictly as an evidentiary matter it is not necessary to compound the number of predicate acts placed before the jury. A "predicate act" . . . is simply evidence of the element "pattern of racketeering activity." Since a substantive RICO violation does not require proof of any more than two acts in establishing a "pattern of racketeering activity," the inclusion of additional racketeering acts becomes less important and less probative as the number of charged acts increase.
Andrews IV, slip op. at 2 n. 4 (emphasis added).
Thus, we are unable to find cause under Rule 12(f) sufficient to excuse the government's failure to object at the appropriate time to our decision to reserve ruling on the evidentiary questions.
We further point out that in addition to failing to raise a timely objection under Rule 12(e) based on how our disposition of this matter may have affected its right to seek an appeal, the government has specifically waived the right to advance the "legal" argument it now raises. The government in its instant motion again challenges our authority under the Fifth Amendment to ever preclude it in any manner from trying every racketeering act charged in the indictment at one proceeding. This challenge is not new. The government previously raised this issue in the motion to reconsider Andrews II. There, the government based its Fifth Amendment claim on the contention that the preclusion and holding in abeyance of non-specific acts amounted to an impermissible amendment or modification of the indictment, therefore placing the defendants at risk of double jeopardy. We rejected the government's challenge based on its lack of standing to advance the Fifth Amendment rights that only the defendants should be permitted to invoke. Andrews III, 754 F. Supp. at 1208-10. We further pointed out that "the government has offered no other grounds or theory that would otherwise justify its intervention based on the Fifth Amendment." Id. at 1210. Thus, unlike the evidentiary issue, which was reserved for trial, we specifically ruled against the government on the matter of our legal authority to preclude and hold in abeyance the presentation of non-specific acts. That decision constituted a final and binding determination which the government elected not to appeal.
All that the government is attempting to do now with its motion to admit evidence is articulate a new legal theory and cite case law that it failed to raise in support of its earlier motion. The government's present motion advances for the first time grounds for bringing a challenge on its own behalf based on the theory that we have impermissibly dismissed (as opposed to modified or amended) the indictment. See United States v. Levasseur, 846 F.2d 786, 787-90 (1st Cir. 1988). The government relies on this new theory as grounds for asserting that it clearly would have had the right to appeal our orders under 18 U.S.C. § 3731 had we not reconsidered our exclusionary rulings and definitively precluded evidence of two or more charged predicate acts against the respective defendants. Yet, even assuming that its present argument has merit,
we must reiterate that it was at the government's urging that we decided to reconsider our preclusion of the non-specific acts. If the government was so concerned about the opportunity for an interlocutory ...