in the motion prior to the court's ruling on the moving defendant's motion.
The court notes that rulings on certain motions will be fact specific to the moving defendant and the court will note in those rulings when other defendants will not benefit from the court's ruling on that specific motion. Any defendant who wishes to disavow adoption of a co-defendant's motion must do so either in writing or orally, on the record.
The court denies Stoecker's motion to supplement any previously filed motions without prejudice, based on the reasoning in the court's ruling on Stoecker's motion to file additional motions.
C. Motion In Limine to Preclude Introduction of 404(b) Evidence
Stoecker has filed a motion in limine to preclude the introduction of six areas of evidence of which the government gave defendants notice pursuant to Fed. R. Evid. 404(b). Stoecker argues that the evidence is inadmissible because it is being used to show only that Stoecker is a "bad guy." The government asserts that each of the areas of evidence are admissible either as direct evidence of the charged offenses, under Fed. R. Evid. 402, or pursuant to Fed. R. Evid. 404(b). Stoecker's motion is denied in part and granted in part.
"Rule 404(b) permits the introduction of evidence of another crime, wrong, or act unless the sole purpose for the offer is to establish the defendant's propensity for crime," and the probative value of such evidence is not substantially outweighed by the prejudicial impact on the jury. United States v. Yusufu, 63 F.3d 505, 511 (7th Cir. 1995) (Emphasis in original). "Bad acts" evidence may be admitted to demonstrate, among other things, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Gregory, 74 F.3d 819 (7th Cir. 1996).
The test for admissibility under Rule 404(b) is "whether the evidence: (1) is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) is sufficient to support a jury finding that the defendant committed the similar act; and (4) has probative value which is not substantially outweighed by the danger of unfair prejudice." Id.
The government has given defendants notice of six items. Five of the items pertain solely to Stoecker and the sixth item pertains to both Stoecker and his co-defendant Pace. Each of the six items occurred within the time frame of the scheme alleged in the indictment. Further, Stoecker does not claim that the acts are not similar enough to be relevant or that there is insufficient evidence to support a jury finding. Instead, Stoecker asserts that the six items of evidence fail to meet the first and fourth part of the Gregory standard.
Stoecker argues that the items are more prejudicial than probative because the government intends to present an "overwhelming" amount of evidence concerning the indicted offenses without the addition of these six items. The sheer amount of evidence against a defendant does not determine whether the evidence itself is more prejudicial than probative. None of the evidence is "shocking" or highly prejudicial in itself. Further, there is no evidence before the court at this time to find that the evidence is cumulative of evidence that will otherwise be admitted at trial.
Addressing the items in the order they appear in defendant's motion, the court finds that items one through five are relevant and admissible as evidence in the government's case-in-chief for the following reasons: (1) item one is admissible under Rule 404(b) to show opportunity and a common scheme or pattern, United States v. Goichman, 547 F.2d 778, 781-82 (3rd Cir. 1976); United States v. Krohn, 560 F.2d 293, 296 (7th Cir. 1977); (2) item two is admissible under Rule 402 as evidence that is relevant to the charges in the indictment; (3) item three is admissible both as relevant evidence under Rule 402, and under Rule 404(b) as evidence of the onset of the course of dealings alleged in the indictment, United States v. Mancari, 875 F.2d 103, 105 (7th Cir. 1989); United States v. Currier, 821 F.2d 52, 55 (1st Cir. 1987); (4) item four is admissible under Rule 402, and pursuant to Rule 404(b) as evidence necessary to fill a gap and show the chain of alleged false pledges, United States v. Lashmett, 965 F.2d 179, 185 (7th Cir. 1992); and (5) item five is admissible under Rule 402.
The court finds that item six is not admissible because it is not relevant to the elements of any of the indicted crimes. Accordingly, the court grants Stoecker's motion to preclude the evidence outlined in item six in the government's case-in-chief. The government argues that the evidence in item six is necessary to negate a defense that Pace may raise at trial. In the event that such a defense is raised at trial, the court will consider a motion to admit this evidence in the government's rebuttal case.
D. Motion In Limine Concerning Co-Defendants' Proffers
Stoecker has filed a motion in limine for an order precluding proffers of co-defendants from being introduced at trial. Based on the government's representations in its response, the court denies Stoecker's motion as moot.
II. RULING ON DEFENDANT RICHARD J. BOCK'S PRETRIAL MOTIONS
Defendant Richard J. Bock ("Bock") has filed four pretrial motions: (1) for an order requiring the government to give notice of its intention to use other crimes, wrongs or acts evidence; (2) for a Santiago hearing on admissibility of co-conspirators' statements or for a proffer four weeks prior to trial; (3) to adopt certain motions of defendant Pace; and (4) for continuing disclosure of favorable evidence.
A. Motion for An Order Requiring the Government To Give Notice of Its Intention to Use Other Crimes, Wrongs, or Acts Evidence
Bock has moved for an order requiring the government to give specific notice of its intention to use evidence of "other crimes, wrongs, or acts" pursuant to Fed R. Evid. 404(b) or "specific instances of conduct" pursuant to Fed R. Evid. 608(b) during the government's case-in-chief, during cross-examination, or in its rebuttal case. The government represents that it has already complied with this court's previous order to give defendants notice of all Rule 404(b) evidence. Based on the government's representation, Bock's motion for notice of Rule 404(b) evidence is denied as moot. The court notes that the government is under a continuing order for immediate disclosure of any Rule 404(b) evidence that may come to the government's attention in the future.
The government objects to Bock's request for additional disclosure of names, statements, and other materials based on Bock's alleged failure to comply with Local Criminal Rule 2.04(c) and asks that such requests be stricken. In this district the parties are bound both by Fed.R.Crim.P. 16, and N.D.Ill. Local Criminal Rule 2.04 ("Local Rule 2.04"), which specify the parties' discovery obligations. Under these rules, the parties are to present and discuss their discovery requests with the opposing party before demanding court intervention. Certain judges on this court routinely strike any discovery motion that fails to contain a statement that a Local Rule 2.04 conference has been held and that an agreement could not be reached regarding the subject of the relevant motion. United States v. Davis, 673 F. Supp. 252, 255 (N.D.Ill. 1987).
Based on judicial time and interest, the court denies the government's motion to strike Bock's requests, but denies Bock's request for specific details of any Rule 404(b) evidence and his request for Rule 608(b) information for the following reasons.
The admission of other crimes, wrongs or acts evidence is governed by Rule 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.