The opinion of the court was delivered by: JAMES H. ALESIA
Now before the court are various pretrial motions filed by defendant Jeffrey Erickson ("Erickson" or "defendant"). The government filed a consolidated response. Erickson did not file a reply. In addition, the government filed pretrial motions. For ease of discussion, the court first addresses each of Erickson's motions separately. Thereafter, the court addresses the government's motions.
A. Motion to Serve Subpoenas
In this motion, Erickson seeks an order permitting him to issue subpoenas duces tecum pursuant to Federal Rule of Criminal Procedure 17(c). 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).
B. Motion for Production of Favorable Evidence
Next, Erickson seeks an order compelling the government to disclose a wide array of evidence which is favorable or which will lead to favorable evidence to Erickson or bears upon the credibility of any government witness pursuant to the dictates of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Federal Rule of Criminal Procedure 16. As Erickson also seeks impeaching information he should have cited to Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972).
First, to the extent that Erickson's requests for information fall within the scope of Brady, the government's promise to comply with the dictates of Brady renders Erickson's motion moot. Further, the government represents that it is not aware of any Brady material at present. However, the government has acknowledged its continuing obligations under Brady to produce such material, if any exists. Based on these representations, the court denies as moot those portions of Erickson's motion which seek to discovery exculpatory information under the authority of Brady.
With respect to the Giglio material, the government represents that it will disclose impeaching information to Erickson in enough time to satisfy due process. In our view, this noncomittal statement is not sufficient. The court directs the government to disclose all material impeachment evidence tending to undermine the credibility of any important government witness. Barkauskas v. Lane, 878 F.2d 1031, 1033 (7th Cir. 1989). The government is reminded that any doubt as to whether disclosure is required should be resolved in favor of disclosure. The government shall provide Erickson with Brady and Giglio materials on or before June 29, 1992. This motion is accordingly, granted in part and denied in part as moot.
C. Motion in Limine and for Evidentiary Hearing
In his motion in limine, Erickson seeks to exclude coconspirator statements pursuant to Federal Rule of Evidence 802. Furthermore, Erickson requests that this court conduct an evidentiary hearing to determine the admissibility of coconspirator statements. Alternatively, Erickson seeks an order directing the government to submit a written proffer pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), detailing any coconspirator statements which it intends to introduce at trial. As the government represents that it does not intend to introduce any coconspirator statements at trial, this motion is denied as moot.
In his next motion, Erickson requests that the government disclose any and all electronic and mechanical surveillance conducted during the course of the investigation in this criminal case. In response, the government states that there were no wiretaps and that there were no consensually monitored telephone conversations or meetings. Furthermore, the government states that there was electronic monitoring of the locations of the two stolen automobiles used by Erickson on December 15 and 16, 1991. Therefore, to the extent that the government admits there was electronic monitoring, the government is ordered to produce to the defense those documents, if any exist, which authorize such surveillance on or before June 29, 1992. Accordingly, Erickson's motion is granted.
E. Motion to Disclose "Other Acts" Evidence
Next, Erickson seeks notice of the government's intention to use evidence during cross-examination, its case-in-chief and rebuttal, which is admissible at trial pursuant to Federal Rules of Evidence 404(b) and 608(b). As the government has filed its Rule 404(b) proffer, that portion of Erickson's motion is denied as moot. The government makes no mention of whether it intends to introduce any evidence under Rule 608(b). Erickson cites no case law for the proposition that he is entitled to advance notice of Rule 608(b) evidence. Accordingly, that portion of Erickson's motion is denied.
We now address the government's "other acts" proffer. The government seeks to admit evidence of the November 4, 1991 shooting of a Palatine police officer against Erickson pursuant to Rule 404(b) of the Federal Rules of Evidence and the "inextricably intertwined" standard established by the Seventh Circuit. Erickson filed a memorandum in opposition. On June 17, 1992, the government filed its response. Because we believe the probative value of this evidence is substantially outweighed by its prejudicial effect, the government's proffered "other acts" evidence is not admissible against Erickson under either theory.
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). This circuit has established a four-part test to analyze the admissibility of "other acts" evidence under Rule 403 and 404(b). Other crimes evidence may be admitted where the following is established:
(1) the proffered evidence must be relevant to a matter in issue other than the defendant's propensity to commit the charged crime; (2) the prior bad act must be similar in nature and close in time to the crime charged; (3) the prosecution must establish that the defendant in fact committed the prior bad act; [and] (4) the probative value of the evidence must not be outweighed by its prejudicial effect.
United States v. Goodapple, 958 F.2d 1402, 1406-07 (7th Cir. 1992); see also United States v. Scop, 940 F.2d 1004, 1009 (7th Cir. 1991); United States v. Briscoe, 896 F.2d 1476, 1499 (7th Cir.), cert. denied, U.S. , 111 S. Ct. 173 (1990). "The fourth prong of the test covers Rule 403, which provides for exclusion of relevant evidence on grounds ...