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UNITED STATES v. SIMS

September 28, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
RUFUS SIMS, et al., Defendants.


ALESIA


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

Judge James H. Alesia

MEMORANDUM OPINION AND ORDER

 In this case, nineteen defendants are charged in a nineteen count indictment with various offenses including conspiracy to possess with intent to distribute heroin and cocaine, money "laundering", criminal racketeering and murder. In a Memorandum Opinion and Order dated September 17, 1992, the court addressed the motions to suppress evidence. This memorandum opinion addresses the remaining pretrial motions filed in this case.

 I. DEFENDANTS' PRE-TRIAL MOTIONS

 A. Motion for Determination on Admissibility of Co-Conspirator's Statements and to Require Production of Santiago Memorandum

 Defendant Delwin Langston's Motion for Determination on Admissibility of Co-conspirator's Statements and to Require Production of a Santiago Memorandum is denied as moot. The government has produced a Santiago proffer. The Determination on Admissibility of Co-Conspirator's Statements will be held in abeyance until the court has had adequate time to review the Santiago proffer.

 B. Motion to Preserve Agents' Notes

 Defendant Delwin Langston's Motion to Preserve Agents' Notes is denied as moot since the government has instructed the agents to preserve their notes. Government's Consolidated Response to Defendants' Pretrial Motions [hereinafter Government's Consolidated Response], at 5.

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

 The defendant seeks production of the following information pursuant to Rule 404(b); the dates, times, places and persons involved in the specific crimes or acts; the statements of each participant; the documents which contain such evidence; and a statement of the issues to which the government believes such evidence may be relevant. The government objects to the specificity of the information sought by the defendant. The Senate Judiciary Committee "considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging document." FED. R. EVID. 404(b) advisory committee's note. Instead, the Advisory Committee "opted for a generalized notice provision which requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts." Id. No language in the rule or the Committee Notes supports the discovery of the type of specific information Langston seeks. Therefore, to the extent Langston requests notice beyond the requirements of 404(b), Langston's motion is denied.

 Defendant Langston also seeks disclosure before trial of the government's intent to use "specific instances of conduct" or Rule 608(b) material. *fn2" Rule 608(b) restricts the use of specific instances of conduct of a witness to the cross-examination of that witness and even then at the discretion of the trial judge. FED. R. EVID. 608(b). Rule 12(d)(2) of the Federal Rules of Criminal Procedure allows the "defendant [to] request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations in Rule 16." FED. R. CRIM. P. 12(d)(2) (emphasis added). By its terms, Rule 608(b) evidence may not be used by the government in its case-in-chief and therefore such evidence is not discoverable under Rule 12 of the Federal Rules of Criminal Procedure. See United States v. Hartmann, 958 F.2d 774, 789 n.5 (7th Cir. 1992) ("defendants are not entitled access to Rule 608(b) materials which are not discoverable under FED. R. CRIM. P. 16"); United States v. Cerro, 775 F.2d 908, 914-15 (7th Cir. 1985); United States v. Swano, 1992 U.S. Dist. LEXIS 7554, *16-17 (N.D. Ill. 1992); United States v. Santillanes, 728 F. Supp. 1358, 1360 (N.D. Ill. 1990). Therefore, Langston's request for notice of the government's intent to use Rule 608(b) evidence is denied.

 In summary, Langston's motion is denied in part as moot since the government has agreed to provide notice as required under Rule 404(b) and denied in part insofar as Langston requests information more specific than the notice the government is required to provide under Rule 404(b) and specific instances of conduct pursuant to Rule 608(b).

 D. Motion for a Bill of Particulars

 Defendants Ruby Chambers and Estella Sims have each filed a Motion for a Bill of Particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. Chambers requests the dates, times and locations regarding counts of the indictment that relate to her. Estella Sims seeks the names of any witnesses the government intends to call to establish the allegations in the indictment pertaining to Sims along with the time, place, and persons present. The decision whether to grant a motion for a bill of particulars rests with the sound discretion of the trial court. United States v. Glecier, 923 F.2d 496 (7th Cir.), cert. denied, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991).

 Rule 7(f) authorizes the court to order the filing of a bill of particulars whenever the indictment fails to sufficiently apprise the defendant of the charges in the indictment so that the defendant can prepare an adequate defense. United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 72 L. Ed. 2d 140, 102 S. Ct. 1719 (1982). See also Wong Tai v. United States, 273 U.S. 77, 82, 71 L. Ed. 545, 47 S. Ct. 300 (1927). A bill of particulars should be supplied:

 to clarify the nature of the offenses charged and the ultimate facts necessary to avoid surprise or double jeopardy. When more than that is requested, the request is in the nature of the demand for evidentiary detail. The government is not required to supply its evidence in advance of trial.

 United States v. Isaacs, 347 F. Supp. 743, 762 (N.D. Ill. 1972). Although the defendant is entitled to know the factual details surrounding the offense with which he or she is charged, the defendant is not entitled to know the details of how the offense will be proved. United States v. Glecier, 923 F.2d 496, 502 (7th Cir.), cert. denied, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991); Kendall, 665 F.2d at 135. The court has reviewed the indictment and finds that it contains sufficient information concerning the charges against the defendants to adequately inform them of the charges they face without the necessity of a bill of particulars. The indictment sets forth the time period of the offense, the enterprise, the locations of the charged acts, the names of the primary actors, and the methods, means and nature of the charged criminal activity. These factors obviate the need for a bill of particulars since the indictment provides adequate information concerning the charges against the defendant. United States v. Glecier, 923 F.2d at 502; United States v. McAnderson, 914 F.2d 934 (7th Cir. 1990). Therefore, these motions are denied.

 E. Motion for Disclosure of Agreement, Promises, Payments or Other Consideration for Testimony or Cooperation of Government Witnesses

 Defendant Ruby Chambers moved the court to enter an order directing the government to disclose all agreements, promises, payments, assistance with other court matters, leniency, plea agreements, grants of immunity, assistance with disposition of state prosecutions, fees or rewards pursuant to 18 U.S.C. ยง 3059 or otherwise with respect to any prospective government witness. Defendant Chambers argue that this information may be used to impeach the testimony of witnesses under the Federal Rules of Evidence 609(a) or Rule 611(b) or is otherwise discoverable pursuant to Federal Rule of Criminal Procedure 16. Chambers is essentially asking for Giglio information. The government has stated that it is aware of its responsibilities under Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Defendant's motion is therefore denied as moot.

 F. Motion for List of Government Witnesses and to make Witnesses Available for Interviews

 Defendants Ruby Chambers and Estella Sims have moved the court for an order requiring the government to produce a list of government witnesses and to make those witnesses available for interviews. The government is not required to provide a defendant with a list of all prospective government witnesses. *fn3" United States v. Braxton, 877 F.2d 556, 560 (7th Cir. 1989); United States v. Napue, 834 F.2d 1311, 1317 (7th Cir. 1987); United States v. Bouye, 688 F.2d 471, 473-74 (7th Cir. 1982) ("not even under Rule 16 is a defendant in a noncapital case entitled to lists of prospective government witnesses"). Nonetheless, a Federal District Court may require the government to produce its list of witnesses. See United States v. ...


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