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UNITED STATES v. SALERNO

September 18, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES SALERNO, et al., Defendants.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

ORDER

 Defendant, James Salerno ("Salerno"), has filed twelve pretrial motions in this criminal action. The Government has filed two consolidated responses. *fn1" Salerno has not filed a reply. We rule on each of Salerno's motions in turn.

 I. Motion to Require Notice of Intention to Use Identification Testimony at Trial2

 In this motion, Salerno seeks an order compelling the Government to give notice of its intention to use eyewitness identification testimony against him. Salerno further states that if such identification evidence exists, he may file a motion to suppress. Salerno cites no legal authority, rule of criminal procedure or rule of evidence in support of his request.

 II. Motion in Limine Regarding the Admissibility of Co-Conspirator Declarations

 In this motion, Salerno seeks an order directing the Government to submit a Santiago proffer detailing any co-conspirator statements which it intends to introduce or, alternatively, to present evidence of such co-conspirator statements at a pretrial hearing. As the Government has submitted its written Santiago proffer, this motion is denied as moot.

 The Court now addresses the admissibility of the co-conspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E). As is required by Rule 104(a) of the Federal Rules of Evidence, before admitting these statements into evidence, this Court is required to make a preliminary determination that the Government has demonstrated, by a preponderance of evidence, that "(1) a conspiracy existed, (2) the defendant and declarant were members thereof, and (3) the proffered statement(s) were made during the course of and in furtherance of the conspiracy." United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); United States v. Reiswitz, 941 F.2d 488, 1991 U.S. App. LEXIS 18709, at *26 (7th Cir. 1991). In making this determination, we may examine the hearsay statements sought to be admitted. Bourjaily v. United States, 483 U.S. 171, 181, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987). Equally important, even if the statements are made in the embryonic stages of the conspiracy, they are admissible against those who join the conspiracy later, so long as the statements are made during the course of, and in furtherance of the conspiracy. See United States v. Potts, 840 F.2d 368, 371 (7th Cir. 1987).

 The Government submitted a five-page statement of the facts and statements establishing the conspiracy and Salerno's participation in the conspiracy. The Court has reviewed the Government's submission and is satisfied that the Government has met its burden to establish the elements set forth above.

 According to the Government's written proffer, the existence of the conspiracy and Salerno's membership in it will be proved by the testimony of two of Salerno's co-defendants, Albert Castellano, Sr. ("Castellano") and Larry Schulten ("Schulten"), who have recently changed their pleas to guilty. Castellano will testify to various conversations he had with Salerno regarding Salerno's purchase of illegal explosives and his introduction of Salerno to Schulten, an explosives maker. Castellano will further testify that Salerno informed him that the person who ordered the bomb was not happy with the results.

 Similarly, Schulten will testify to conversations he had with Salerno in which the details of the bomb purchase were discussed. Schulten will also testify that he recognized certain fragments recovered from the Dunne bombing as parts of substances he used to make the bomb he sold Salerno.

 Finally, the Government will introduce tape-recorded conversations between Castellano and Salerno, which establish that Salerno picked up the bomb at Castellano's residence in Indiana and that Schulten then showed Salerno how to use the bomb. Furthermore, the tapes will reveal that in response to Castellano's inquiry about how the individual who ordered the bomb would stand up against government pressure, Salerno responded, "Great . . . 100 percent."

 This Court's examination of the Government's written proffer reveals that the Government has established by a preponderance of the evidence, that the co-conspirator statements at issue fall within the scope of Rule 801(d)(2)(E) of the Federal Rules of Evidence. Based upon the Santiago proffer, it is more likely than not that a conspiracy existed, that Salerno participated in the conspiracy, and that statements were made "during the course of" and "in furtherance of" the conspiracy.

 In this circuit, the trial judge has the option of conditionally admitting the co-conspirator declaration evidence, subject to actual proof of these matters at trial. See United States v. Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978); United States v. Cox, 923 F.2d at 526. This Court chooses to exercise that option. Accordingly, the co-conspirator statements offered by the Government are conditionally admitted under Rule 801(d)(2)(E) of the Federal Rules of Evidence, subject to actual proof of the conspiracy at trial.

 III. Motion for Pretrial Hearing to Determine the Admissibility of Declarations of Alleged Co-Conspirators

 Next, Salerno requests a hearing to determine the admissibility of co-conspirator statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. As set forth above, the Court has conditionally admitted the co-conspirator statements under Fed. R. Evid. 801(d)(2)(E). Therefore, Salerno's motion for a pretrial hearing is denied.

 IV. Motion to Require Notice of Intention to Use Other Crimes, Wrongs, or Acts Evidence

 Salerno also seeks an order requiring the Government to disclose prior to trial "bad acts" evidence which the Government intends to use in its case-in-chief, for impeachment purposes, or in rebuttal pursuant to Federal Rules of Evidence 404(b) and 608(b). Essentially, the evidence which Salerno seeks falls into two categories. First, Salerno seeks disclosure of any "crimes, wrongs, or acts," as that phrase is used in Rule 404(b) of the Federal Rules of Evidence. In response, the Government represents that it will provide such notice as is required by the Court. However, the Government represents that it will provide such notice as is required by the Court. However, the Government argues that it is not required to provide notice of its intent to use Rule 404(b) evidence in rebuttal. We agree. See United States v. Dominguez, 131 F.R.D. 556, 557 (N.D. Ill. 1990). Furthermore, as the Government has informed Salerno and the Court of Rule 404(b) evidence which it intends to use in its case-in-chief through the submission of its Rule 404(b) proffer, we deny this portion of Salerno's request in part because he is not entitled to such information, and in part because his motion is moot.

 Second, Salerno seeks disclosure of "specific instances of conduct" of any defendant as that phrase is used in Rule 608(b) of the Federal Rules of Evidence. In response to this request, the Government essentially argues that Rule 16 of the Federal Rules of Criminal Procedure does not require the Government to provide notice of its intention to use such evidence during cross-examination. We agree that Federal Criminal Rule 12(d)(2) only requires that the Government provide notice of its intent to use such evidence in its case-in-chief. See United States v. Climatemp, Inc., 482 F. Supp. 376 (N.D. Ill. 1979), aff'd sub nom., United States v. Reliable Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir. 1983), cert. denied, 462 U.S. 1134, 103 S. Ct. 3116, 77 L. Ed. 2d 1370 (1983); United States v. Dominguez, 131 F.R.D. at 557; United States v. Cole, 707 F. Supp. 999, 1004 (N.D. Ill. 1989). The Government is not required to disclose whatever evidence it may use pursuant to Rule 608(b) to impeach Salerno during cross-examination if he should testify at trial. Accordingly, this portion of Salerno's motion for discovery is denied.

 The Court now addresses the admissibility of the Government's "other crimes" evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) excludes evidence 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 wrongs or acts is admissible to prove such things as intent, plan or knowledge. Fed. R. Evid. 404(b). This circuit has established a four-part test to analyze the admissibility of "other acts" evidence under Rule 404(b). Other crimes evidence may be admitted where the following is established:

 United States v. Bloom, Nos. 90-1528 and 90-1571, 1991 U.S. App. LEXIS 18423, 1991 WL 152446, at *3 (7th Cir. Aug. 13, 1991); United States v. Briscoe, 896 F.2d 1476, 1499 (7th Cir. 1990) (citing United ...


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