later stricken. At the retrial, the government will not be permitted to present this evidence.
The government moves in limine to limit defendant Baker's cross-examination of Brian Sledz regarding his investments in a liquor store. The government has contended that Sledz paid Baker with cash and checks for Baker's share of profits from illegal trading activity. There is a $ 60,000 check from Sledz to Baker with the notation liquor store. The government does not dispute Baker's right to cross-examine on the issue of whether payments from Sledz to Baker were related to the liquor store, not illegal trading activity. It contends, however, that the cross-examination at the first trial strayed well beyond this point. Baker is certainly entitled to cross-examine on this issue and some background as to the liquor store is fair cross-examination. Baker's questioning should be directed toward the purpose of showing what the $ 60,000 payment was for. Baker is directed to so limit his cross-examination.
The government moves for disclosure by defendant Baker of evidence concerning a defense based on mental disease or defect. Prior to the first trial, Baker disclosed that he might introduce evidence regarding alcohol consumption and his mental state during some of the conduct alleged in the indictment. It was stated that this might include expert testimony. Such testimony, however, was not used at the first trial and no defense based on alcoholism or alcohol consumption was argued to the jury. Defendant Baker has again informed the government that such a defense might be presented at the second trial. Discovery under Rule 16 is very limited in scope. Discovery from the defendant is limited to books, papers, documents, photographs, tangible objects, and reports of examinations and tests. Fed. R. Crim. P. 16(b). The government is only entitled to documents and tangible evidence, it cannot request that Baker answer interrogatories about his defense or provide a list of witnesses. United States v. Peters, 937 F.2d 1422, 1424-25 (9th Cir. 1991). cf. United States v. Shue, 766 F.2d 1122, 1135 (7th Cir. 1985), cert. denied, 484 U.S. 956, 98 L. Ed. 2d 376, 108 S. Ct. 351 (1987); United States v. Alex, 791 F. Supp. 723, 729 (N.D. Ill. 1992). Baker does not object to complying with Rule 16, but declines revealing such information until shortly before such testimony is presented. Just as with practices regarding the revelation of Jencks Act material to defendants, the government should not expect to receive particulars as to defense witnesses until shortly before they are to testify. See United States v. Pulvirenti, 408 F. Supp. 12, 14 (E.D. Mich. 1976). Waiting until later to reveal the documents is particularly appropriate where, as here, defendant Baker may again decide not to present the defense. Defendant Baker is to make the required disclosures sufficiently in advance of testimony so as not to delay the trial.
Defendants Smith and Marren have moved to renew previously filed motions and to adopt motions of codefendants. Defendant Baker has also moved to renew his motions. This court has previously entered an order that, where there is no indication to the contrary, the motion of a particular defendant will be treated as being brought on behalf of all defendants for whom the issue raised would apply. That order continues to apply. In today's order and future orders, reference to a defendant bringing a particular motion is only for the purpose of identifying the motion. The motion should be understood as applying to any defendant against whom there are charges involving the same issues. All evidentiary rulings from the first trial shall continue to apply except to the extent that further rulings are made that are expressly or implicitly inconsistent with the prior rulings. It is the obligation of the parties to bring to the court's attention any prior rulings on the same evidence or issues.
Defendant Baker has moved for the production of exculpatory evidence. FBI agent Volk is a key witness of the government who went undercover to pose as a trader in the yen pit. Baker points to numerous computational errors that Volk made during his trading activity. Baker requests that the government reveal any information it may have as to Volk having a disability or infirmity that could have contributed to making such errors. Without expressly stating that no such evidence exists, the government responds that it is well aware of its obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The court understands this to be a representation that the government has no such information. If, on the other hand, the government meant that it has such information, but that it need not be disclosed to the defendants, within five days the government shall file a brief not to exceed five pages explaining why it need not disclose such information.
Defendant Baker's motion regarding the designation of tape recordings is denied without prejudice based on the government's representation that it will provide such a designation by January 31, 1993.
Defendant Baker has moved for the presentation of a revised Santiago proffer in light of the evidence to be presented at the second trial. See generally United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978); United States v. Rodriguez, 975 F.2d 404, 405-06 (7th Cir. 1992). As the government points out, this court found the Santiago proffer for the first trial to be sufficient and also held, in ruling on a posttrial motion, that sufficient evidence remained to support the existence of a conspiracy. See June 26, 1991 Order at 6-7. For these reasons, presentation of a revised Santiago proffer would be unnecessary. The court already has sufficient information from which it can make the preliminary determination that there is sufficient evidence to support the existence of a conspiracy. Cf. United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991) (there are a variety of methods by which a court may make the preliminary determination of the existence of a conspiracy). Also, the jury was not instructed at the first trial that it could treat any statements as co-conspirator admissions and it is assumed that the same will be true of the second trial. A preliminary determination of the existence of a conspiracy, however, is still necessary for a determination that there is a foundation to prove the acts of all ten defendants relevant to showing the existence of a conspiracy. See Fed. R. Evid. 104(a). It is found that a sufficient basis exists for the government to seek to prove the existence of a conspiracy involving all defendants.
Defendants Baker, O'Malley, and Sidel move for severance of the wash sale counts, Counts 140, 359, 362, 366, and 367. These counts involved transactions between traders; they do not involve trading on behalf of a customer. The indictment does not specifically charge that these transactions are part of the conspiracy. At the first trial, however, the government argued that these transactions were part of the scheme. Such a use is permissible. This court previously held that these counts could be joined in the indictment, see July 17, 1990 Order at 5-6, and no reason is found to change that determination in light of evidence presented at the first trial and the reduced number of counts for the second trial. These counts may properly be joined under Rule 8. See United States v. Koen, 982 F.2d 1101 (7th Cir. 1992). Also, defendants are not prejudiced such that severance should be granted under Rule 14. Cf. September 21, 1990 Order at 5.
Defendant Greenfield represents that he is going to adopt the defense that the allegedly improper trading was standard practice at the Chicago Mercantile Exchange and condoned by officials of the Exchange and the Commodity Futures Trading Commission. Defendants Cali and Pace adopted such a defense at the first trial, and Greenfield objected to their presence at trial. Although Cali's and Pace's defense was not mutually antagonistic with the defenses of the other defendants, see September 21, 1990 Order at 1-3, the charges against those two defendants were eventually severed from the trial when it became evident that the other defendants would be unduly prejudiced. See October 22, 1990 Order at 1-3. Greenfield and Baker have moved for severance of the charges against Greenfield based on the inconsistencies between Greenfield's defense and the defenses of the other 9 remaining defendants. The government contends that Greenfield has not adequately set forth facts or law in support of his defense to permit the court to presently consider it to be a basis for severance. The court agrees. No legal or factual support has been advanced to support such a defense by Greenfield.
IT IS THEREFORE ORDERED that:
(1) Government's (a) motion for a pretrial ruling to admit certain evidence [#1098] is granted in part and denied in part; (b) motion in limine [#1096] is granted in part and denied in part; and (c) motion for disclosure of information relevant to defendant Baker's evidence concerning mental disease or defect [#1124] is granted in part and denied in part.
(2) Defendant Greenfield's (a) motion seeking an order of dismissal as to his three counts [#1083] is denied and (b) motion to sever [#1082] is denied.
(3) Motion of defendants Smith and Marren to renew pretrial motions previously filed and to adopt motions of codefendants [#1091] is granted in part and denied in part.
(4) Defendant Baker's (a) motion to renew motions in limine previously granted by the court [#1085] is granted in part and denied in part; (b) motion for production of exculpatory evidence [#1086] is denied without prejudice; (c) motion for designation of tape recordings to be offered at trial [#1087] is denied without prejudice as moot; (d) motion for revised Santiago proffer [#1088] is denied; (e) motion to sever Counts 359, 362, 366, and 367 of superseding indictment [#1089) is denied; and (f) motion for severance from Michael Greenfield is denied.
(5) Defendant O'Malley's motion for severance of Count 366 [#1099] is denied.
(6) Defendant Sidel's motion for severance of Counts 140, 359, 362, and 367 pursuant to Federal Rules of Criminal Procedure [#1095] is denied.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: JANUARY 22, 1993