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UNITED STATES v. ALEX

April 17, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
GUS ALEX, et al., Defendants.


ALESIA


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

ORDER

 Now before the court are various pretrial motions filed by defendant Gus Alex ("Alex"). The government filed a consolidated response. Alex filed a consolidated reply. The court addresses each of the motions separately.

 I. Motion for Early Return of Trial Subpoenas

 In this motion, Alex seeks an order permitting the early return of trial subpoenas. This motion is granted as the government has no objection. On a related note, to the extent that the defense intends to introduce at trial documents obtained through these subpoenas, they are ordered to provide the government copies of the documents prior to trial. See Fed. R. Crim. P. 16(b)(1).

 II. Motion for Production of Witness List

 In his second request, Alex seeks the names of all testifying government witnesses in advance of trial. This request exceeds the parameters of the Jencks Act and Federal Rule of Criminal Procedure 16. In fact, the government correctly points out that proposals to amend Rule 16 to require the production of witness lists have been rejected. In doing so, the conference committee expressed concern that requiring disclosure of names of witnesses would discourage witnesses from testifying and lead to "improper contacts directed at influencing their testimony." United States v. Bouye, 688 F.2d 471, 475 (7th Cir. 1982); see also United States v. Moore, 936 F.2d 1508, 1515 (7th Cir.), cert. denied, U.S. , 112 S. Ct. 607 (1991); United States v. Napue, 834 F.2d 1311, 1317 (7th Cir. 1987).

 In this court's view, the rationale underlying those authorities applies with great force to this case. The indictment in this case charges that the defendants operated the "Lenny Patrick Street Crew" through a pattern of racketeering activity. In fact, the indictment alleges that eleven separate acts of extortion, intimidation or arson were committed against eleven different individuals. After considering the nature of the charges alleged in the indictment, the court denies Alex's request for a witness fist.

 III. Motion for Production of Witness Statements

 Next, Alex seeks an order requiring the government to produce one month prior to trial statements of its witnesses it intends to call in its case-in-chief. Once again, this request exceeds the parameters of the Jencks Act. Section 3500(a) provides, in pertinent part, that "no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of . . . discovery . . . until said witness has testified on direct examination. . . ." 18 U.S.C. ยง 3500(a).

 In its consolidated response, the government represents that "absent a specific reason to fear harm to a particular witness," the government will produce to defendants one week prior to trial all statements of witnesses it intends to call in its case-in-chief. (Government's Response, p. 7.) *fn1" In his reply, Alex quarrels with the government's position and argues that there is no reason to believe that Alex poses harm to any witness. Moreover, Alex asserts that he will be disadvantaged because he has "no idea how much 3500 material the government intends to hold back." (Alex's Reply, p. 3.) To remedy this situation Alex requests an in chambers hearing to delve into what 3500 material the government plans not to disclose prior to trial.

 As previously stated in this opinion, Alex's request exceeds the parameters of the Jencks Act. Notwithstanding this overbroad request, the government represents that it will produce Jencks Act material one week prior to trial except in those situations where it fears harm to a witness. This is more than the government is obligated to do. Therefore, Alex's motion is denied in part because Alex is not entitled to the information requested in advance of trial, and in part as moot. *fn2"

 IV. Motion for Preservation and Production of Agents' Notes

 To the extent Alex's motion requests federal agents to preserve their investigative notes, this portion of the motion is denied as moot based on the government's representation that the agents have been instructed to preserve their handwritten notes. Similarly, Alex's request that the prosecutors preserve their interview notes is moot based on the government's representation that they will preserve any interview notes in their possession.

 Alex also requests that the government preserve all investigative notes of state officers. We deny Alex's request based on the government's representation that it has no such notes in its possession. Equally important, the government cannot be ...


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