The opinion of the court was delivered by: GETTLEMAN
MEMORANDUM OPINION AND ORDER ON DEFENDANTS'
The instant ninety-eight page indictment
includes fifty-eight charges against William J. Stoecker ("Stoecker"), Richard J. Bock ("Bock"), Lawrence E. Pluhar ("Pluhar"), Gregory P. Pace ("Pace"), and Richard A. Asta ("Asta"). During the time period charged in the indictment Stoecker was the controlling stockholder of Grabill Corporation ("Grabill") and various other companies. Bock and Pluhar were both officers of Grabill. Pace was an officer of Bankers Trust Company, which extended loans to Grabill, and Asta was a certified public accountant with the firm of Laventhol & Horwath.
The indictment alleges that starting in 1984, Stoecker, Bock, Pluhar, and Pace, together with an unindicted attorney, participated in a scheme to defraud banks and to obtain money from those banks by means of false and fraudulent pretenses, representations, and promises. The banks included some twenty-five financial institutions located across the country. These banks loaned Grabill and affiliated entities a total of over $ 400,000,000.
To perpetrate the scheme, Stoecker, Bock, Pluhar, and Pace allegedly repaid the earlier victim banks by obtaining loans from other banks. It is further alleged that Stoecker and Pace knowingly caused collateral to be pledged to more than one bank, all the while representing that the collateral was unencumbered.
The indictment alleges that Stoecker, Pluhar, Bock, and Pace made a series of intentional misrepresentations to banks to cause them to extend loans or to continue established lending relationships. These alleged misrepresentations involved collateral pledged for loans, Stoecker's past performance in servicing his debt obligations, and the status of impending sales of assets. These defendants then allegedly made false promises to induce banks to release collateral.
As a further part of the scheme the above named defendants employed Laventhol & Horwath, for whom Asta was an accountant, to perform audits of Grabill and affiliated entities as of June 30, 1987 and June 30, 1988. Stoecker and Bock allegedly submitted to Laventhol false information, including altered financial documents. Asta allegedly knew that Laventhol & Horwath's audits for 1987 and 1988 were not conducted in accordance with generally accepted auditing standards ("GAAS"), yet he nonetheless caused the audit reports to be released.
I. DEFENDANT WILLIAM J. STOECKER'S PRETRIAL MOTIONS
Defendant William J. Stoecker ("Stoecker") has filed four pretrial motions: (1) motion for leave to file additional pretrial motions; (2) motion to adopt certain motions filed by co-defendants; (3) motion in limine to preclude introduction of 404(b) evidence; and, (4) motion in limine concerning co-defendants' proffers.
A. Motion for Leave to File Additional Motions
Stoecker has filed a motion asking the court to enter an order granting him leave to file a motion to dismiss for preindictment delay and motions in limine at a later date. The government objects to the filing of any such motions after the set briefing schedule without a showing of good cause for the delay on a case-by-case basis.
The court established a schedule for the filing of pretrial motions pursuant to Federal Rule of Criminal Procedure 12(c). Under Rule 12(f), "failure by a party...to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c),... shall constitute waiver thereof, but the court for cause shown may grant relief from waiver."
Accordingly, Stoecker's motion is denied without prejudice. Additional motions may be filed upon a showing of good cause why such additional motions are necessary and why the motion could not be filed earlier.
B. Motion to Adopt Certain Motions Filed by Co-Defendants
Stoecker has moved to adopt certain specified motions of his four co-defendants, along with a request to supplement co-defendant Pace's motion to dismiss for undue pre-indictment delay at a later date. The government does not object to Stoecker's adoption of his co-defendant's motions, but objects to the request to supplement a previously filed motion after the motion schedule set by the court.
The court grants in part and denies in part Stoecker's motion. The court grants Stoecker's motion to adopt certain previously filed motions. The court further holds that in the interest of justice and to conserve the court's time all future motions are deemed adopted by all co-defendants unless expressly disavowed. In ruling, the court will consider the facts relating to the adopting co-defendants as identical to the moving defendant unless an adopting co-defendant files a statement of the difference in the facts addressed 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 ...