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UNITED STATES v. BALOGUN

July 28, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
MUSILIU BALOGUN, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 The twenty-four *fn1" defendants in this case allegedly were part of a Nigerian heroin ring. Each was charged with various offenses such as conspiracy to import or distribute heroin and money laundering. Trial is approaching, and each defendant has filed the gamut of pre-trial motions, which are now before the court.

 A. Motions to dismiss Count One on the ground that it is duplicitous or, in the alternative, to require the government to elect on which charge it wishes to proceed

 Defendants Olajumoke Hall, Mukaila Balogun, Victoria Olabunmi Onimole, Adebayo Majekodunmi, and Anthony Smith have moved to dismiss Count One of the indictment against them. Count One charges all 24 defendants with violations of 21 U.S.C. ยงยง 846 and 963, for conspiracy to import heroin and to possess with intent to distribute heroin. Defendants make essentially the same argument: that Count One is duplicitous because it charges two offenses. Defendants contend that a count that charges two or more offenses must be dismissed or severed.

 The government responds that it intends to seek return of a superseding indictment charging all 24 defendants with separate counts of conspiracy to import heroin and conspiracy to distribute and possess with intent to distribute heroin. The government thus argues that defendants' motions to dismiss Count One or to require the government to elect only one charge on which to proceed should be denied as moot.

 Based on the government's representation, the court agrees that defendants' motions should be denied as moot. However, the motions are denied without prejudice and with leave to renew if the government does not obtain the superseding indictment.

 B. Motions for severance

 Defendants Olajumoke Hall, Mukaila Balogun, Kafayat Adedolapo Windokun, Adebayo Majekodunmi, and Victoria Olabunmi Onimole have brought motions to sever themselves from the trial of the remaining defendants. Each defendant makes essentially the same argument: he or she should not have been joined in the indictment to begin with, but even if joinder was proper, it is severely prejudicial to that defendant.

 
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

 FED. R. CRIM. P. 8(b).

 Thus, where, as here, a defendant in a multiple-defendant case challenges his joinder in the case, the court asks whether the co-defendants participated in the "same series of acts or transactions constituting an offense or offenses." FED. R. CRIM. P. 8(b); United States v. Diaz, 876 F.2d 1344, 1355 (7th Cir. 1989). The "'usual meaning [of 'same series of acts or transactions'] is acts or transactions that are pursuant to a common plan or common scheme, which is to say (in the usual case) that the acts or transactions are parts of a single conspiracy.'" Diaz, 876 F.2d at 1355 (quoting United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir. 1985) (citations omitted)). Consequently, "'a conspiracy charge is a proper basis for joinder under Rule 8(b).'" Diaz, 876 F.2d at 1355-56 (quoting United States v. Garner, 837 F.2d 1404, 1412 (7th Cir. 1987), cert. denied, 486 U.S. 1035, 108 S. Ct. 2022, 100 L. Ed. 2d 608 (1988)). Proper joinder is determined from the face of the indictment. Diaz, 876 F.2d at 1356. "'Rule 8(b) only requires that the conspiracy be alleged -- there is no requirement that the government demonstrate, at the pleading stage, sufficient evidence to support joinder.'" Diaz, 876 F.2d at 1356 (quoting Garner, 837 F.2d at 1412.

 "'Once the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14....'" Diaz, 876 F.2d at 1357 (quoting United States v. Lane, 474 U.S. 438, 447, 106 S. Ct. 725, 731, 88 L. Ed. 2d 814 (1986)). Federal Rule of Criminal Procedure 14 provides that even properly joined defendants may obtain a severance "if it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants." FED. R. CRIM. P. 14. However, "[the] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 938, 122 L. Ed. 2d 317 (1993). Furthermore, "'the trial judge should give deference to the "strong public interest in having persons jointly indicted tried together."'" Diaz, 876 F.2d at 1357 (quoting United States v. Percival, 756 F.2d 600, 610 (7th Cir. 1985) (quoting United States v. Papia, 560 F.2d 827, 836 (7th Cir. 1977))).

 Defendants make virtually identical arguments, but because the allegations against each defendant differ in some respects, the court will address each defendant's motion separately.

 1. Olajumoke Hall

 Hall contends that she is named in only three counts of the 39-count indictment, and that she is not charged with any substantive heroin distribution or money laundering counts as are the other defendants. Hall thus argues that she was misjoined with the other defendants in the indictment; and that even if she was not misjoined, her joinder severely prejudices her right to a fair trial.

 a. Joinder under Rule 8(b)

 Hall contends that she has not been named as a participant in the money laundering conspiracy. She also contends that her only connection with any other of her co-defendants is through co-defendant Jumoke Soneye, with whom she allegedly had a conversation that facilitated either the conspiracy to import or to possess with intent to distribute heroin as charged in Count One. Thus, Hall argues that the charges against her are not alleged to have arisen out of the same series of acts or transactions as nearly all of the conduct alleged in Count One or any other count, and that her sole connection to her co-defendants and the allegations of the indictment, two conversations with Soneye, cannot support her joinder in the indictment.

 The court finds that the requirements of Rule 8(b) are met with respect to Hall. A "conspiracy charge provides a sufficient basis to join the defendants." United States v. Briscoe, 896 F.2d 1476, 1515 (7th Cir.), cert. denied, 498 U.S. 863, 111 S. Ct. 173 (1990). Count One names all 24 defendants as co-conspirators. It charges defendants, including Hall, with engaging in a common scheme to import or distribute and possess with intent to distribute heroin. Furthermore, the government has represented that in the superseding indictment, Hall and her co-defendants will be charged in two separate conspiracy counts, one for importation and one for distribution of heroin. The indictment alleges that the importation and distribution of heroin were two closely related core functions of the overall scheme headed by Soneye, and that Hall participated in and furthered this scheme by supplying heroin to Soneye and conducting phone conversations to facilitate Soneye's heroin operations.

 Consequently, the court finds that Hall was properly joined as a defendant in this case, given Hall's alleged participation in the conspiracy charged in Count One.

 b. Severance under Rule 14

 Hall has not pointed to any specific trial right of hers that will be compromised by a joint trial. She also has failed to explain how the jury will not be able to make a reliable judgment about her guilt or innocence in a joint trial. For example, as the government notes, Hall has not asserted any of the well-known forms of prejudice, such as co-defendants' antagonistic defenses or the introduction of a co-defendant's extrajudicial confession that incriminates Hall.

 Rather, Hall merely speculates that she will be prejudiced by a joint trial because of the large amount of evidence attributable to other defendants that would not be attributable to her. But "mere 'disparity in the evidence' does not support severance." United States v. Alex, 788 F. Supp. 1013, 1015 (N.D. Ill. 1992) (quoting United States v. Caliendo, 910 F.2d 429, 438 (7th Cir. 1990)). Moreover, "'disparity in the evidence ... does not independently establish "actual prejudice."'" Alex, 788 F. Supp. at 1015 (quoting Caliendo, 910 F.2d at 438 (quoting United States v. Moya-Gomez, 860 F.2d 706, 754-44 (7th Cir. 1988))). Further, the court notes that Hall acknowledges that none of this evidence will be admissible or used against her. Hall's speculation raises no danger that careful trial management and jury instructions cannot prevent. See Alex, 788 F. Supp. at 1015 (noting that court would instruct the jury to give separate consideration to each defendant and to separate each charge against him).

 Hall also argues that because all defendants are black and of Nigerian descent, most are not citizens of the United States, and some are illegal aliens, the jury, with its "nativist tendency," will tend to group persons of like race and ancestry "as birds of a feather," and therefore will be unable to sort out the evidence against Hall from the evidence against the rest of the defendants. Aside from the fact that Hall's presumption is an affront to the jury, the court finds that it is mere conjecture and unsupported by any credible facts.

 Such speculation and conjecture as Hall raises do not establish that Hall will not receive a fair trial if she is tried with her co-defendants, and do not outweigh the strong public interest in having persons jointly indicted tried together. Because Hall has not established that a severance is necessary to protect her trial rights, the court denies Hall's motion for a severance.

 2. Mukaila Balogun

 a. Joinder under Rule 8(b)

 Balogun contends that he has not been named as a participant in the money laundering conspiracy, and that no allegations in Count One involve him in the importation conspiracy. He also contends that his only connection with any other of his co-defendants is through co-defendants Jumoke Soneye and Musiliu Balogun. Thus, Balogun argues that the charges against him are not alleged to have arisen out of the same series of acts or transactions as nearly all of the conduct alleged in Count One or any other count, and that his sole connection to his co-defendants and the allegations of the indictment, two alleged wire transfers of drug proceeds, cannot support his joinder in the indictment.

 In response, the government contends that Balogun's misjoinder argument has no merit because Balogun was an integral member of the conspiracy. The government contends that the indictment charges that Balogun actively participated in the conspiracy with the two leading figures of the conspiracy -- Musiliu Balogun, Balogun's brother, who supplied the heroin out of Thailand, and Jumoke Soneye, the hub of the Chicago portion of the conspiracy. The government contends that the indictment charges, and the government will prove at trial, that Balogun assisted Musiliu Balogun and Soneye by wire-transferring heroin proceeds, paying couriers' travel expenses, and interceding with his brother, Musiliu Balogun, on Soneye's behalf to enable Soneye to continue purchasing heroin from Musiliu Balogun.

 The court agrees with the government that the requirements of Rule 8(b) are met with respect to Balogun. A "conspiracy charge provides a sufficient basis to join the defendants." Briscoe, 896 F.2d at 1515. Count One names all 24 defendants as co-conspirators. It charges defendants, including Balogun, with engaging in a common scheme to import or distribute and possess with intent to distribute heroin. The indictment alleges specific acts taken by Balogun in furtherance of the conspiracy, and the government has represented that its evidence will show that Balogun was an integral part of the conspiracy. Balogun has not contradicted the government's representations.

 The court also agrees with the government that Balogun need not participate in every act in furtherance of the conspiracy to be properly joined, but need only have knowingly joined the conspiracy. The government contends that the indictment charges and its evidence will show that this was the case with Balogun. Again, Balogun has not contradicted the government's representations.

 Consequently, the court finds that Balogun was properly joined as a defendant in this case, given his alleged participation in the conspiracy charged in Count One.

 b. Severance under Rule 14

 Balogun has not pointed to any specific trial right of his that will be compromised by a joint trial. He also has not explained how the jury will be unable to make a reliable judgment about his guilt or innocence in a joint trial. For example, Balogun has not asserted any of the well-known forms of prejudice, such as co-defendants' antagonistic defenses or the introduction of a co-defendant's extrajudicial confession that incriminates Balogun.

 Rather, Balogun states that Count One sets forth two separate conspiracies in violation of two separate statutory offenses, and since he is not named in the importation conspiracy, the presumption of a joint trial that normally attends those charged in a conspiracy does not apply in this case. Balogun also argues that because he was not named in the importation conspiracy, co-conspirator statements relating to the importation conspiracy may not be introduced against him.

 Both arguments fail. The government has stated that it intends to obtain a superseding indictment that will set forth the importation conspiracy in one count and the distribution conspiracy in another count, and that all 24 defendants, including Balogun, will be named in each count. Moreover, the government has represented that Balogun was an integral part of the importation conspiracy, and that evidence regarding the importation conspiracy will be offered against Balogun as well as his co-defendants.

 Balogun also speculates that he will be prejudiced by a joint trial because of the large amount of evidence attributable to other defendants that would not be attributable to him. As the court noted in addressing Hall's severance motion above, mere disparity in evidence does not support severance or in itself create actual prejudice to a defendant. See Alex, 788 F. Supp. at 1015. Also as the court noted above, Balogun's speculation raises no danger that careful trial management and jury instructions cannot prevent. See id. Moreover, the government has represented that all of the heroin sought to be introduced against Balogun's co-defendants will be offered against Balogun, as well, since he was a core member of the importation conspiracy who facilitated the heroin dealings between his brother in Thailand and Soneye in Chicago.

 Balogun also contends that the benefits of a joint trial are not present here. He contends that given the slight evidence against Balogun, his absence from a joint trial will not decrease appreciably the time to try the remaining defendants, and a separate trial of him will not impose a significant burden on the government. The government counters that because of Balogun's role in facilitating the heroin-dealing relationship between Musiliu Balogun and Soneye, a separate trial of Balogun would require the government to duplicate most of the evidence offered at the trial of the rest of the defendants, thereby wasting, not conserving, judicial resources. The court agrees that based on the allegations in the indictment and the government's representations regarding the evidence against Balogun, a separate trial of Balogun would waste judicial resources.

 Finally, Balogun argues, as did Hall, that because all defendants are black and of Nigerian descent, most are not citizens of the United States, and some are illegal aliens, the jury, with its "nativist tendency," will tend to group persons of like race and ancestry "as birds of a feather," and therefore will be unable to sort out the evidence against him from the evidence against the rest of the defendants. As the court noted in addressing Hall's motion, that presumption is mere speculation and unsupported by any credible facts.

 The court finds that Balogun has not established that he will not receive a fair trial if he is tried with his co-defendants, overcome the presumption of trying properly joined members of a conspiracy together, or shown that his interest in being tried separately outweighs the strong public interest in having persons jointly indicted tried together. Moreover, Balogun's contention that no connection, or at least only a tenuous one, exists between him and his co-defendants is belied by the indictment and the government's representations.

 Because Balogun has not established that a severance is necessary to protect his trial rights, the court denies Balogun's motion for a severance.

 3. Kafayat Adedolapo Windokun

 Windokun moves to sever her trial from the trial of her co-defendants pursuant to Federal Rule of Criminal Procedure 14. Windokun claims that exculpatory evidence may exist that may not be available to her if she is tried with the other defendants; that the evidence indicates that Windokun did not know of the heroin importation scheme; and that the jury would not be able to sort out the evidence against Windokun or exculpating Windokun if it is faced with a massive body of damning evidence regarding the other defendants.

 Windokun bases her severance request on Zafiro. There, the Supreme Court stated:

 
When many defendants are tried together in a complex case and they have markedly different degrees of culpability, the risk of prejudice is heightened. .... Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. .... Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. ....

 Zafiro, 506 U.S. at 539, 113 S. Ct. at 938 (citations omitted).

 Zafiro is of no help to Windokun. First, it appears that the government will present evidence that she was a major part of the heroin importation and distribution conspiracy, in that she laundered money for Soneye, the alleged leader of the conspiracy. Thus, at least based on the government's representations regarding its evidence against Windokun, Windokun does not have a degree of culpability that is markedly different from the other defendants.

 Finally, Windokun's claim that some exculpatory evidence may exist does not mandate that Windokun be tried separate from the other defendants. Windokun claims that Soneye made a statement that may exculpate Windokun, and that Windokun herself was captured on tape stating that she should call police about a large sum of money being stolen from her on one of her trips to the Far East. She claims that this exculpatory evidence would not be available to her, or could not be presented with the requisite force, if she were tried with the other defendants.

 When a defendant requests a severance based upon an allegation that a co-defendant will offer exculpatory testimony, the court considers "'(1) whether the co-defendant's testimony would be exculpatory; (2) whether the co-defendant would in fact testify; and (3) whether the testimony would bear on defendant's case.'" Granada v. United States, 51 F.3d 82, 84 (7th Cir. 1995) (quoting United States v. Chrismon, 965 F.2d 1465, 1476 (7th Cir. 1992)), cert. denied, U.S. , 116 S. Ct. 970 (1996). When deciding the motion for severance, the court keeps in mind the strong interest in joint trials in conspiracy cases. Granada, 51 F.3d at 84; Briscoe, 896 F.2d at 1516-17.

 Windokun has not shown that any of these factors militate in favor of a severance. She does not even hint at the nature of Soneye's exculpatory statement, nor suggest that Soneye would be willing to testify on her behalf at a separate trial. Moreover, Windokun has not submitted an affidavit by Soneye stating that Soneye would testify on Windokun's behalf at a separate trial and setting forth the nature of her testimony. Windokun merely offers the unsupported statement of her attorney that the government had informed him that Soneye had made statements that may exculpate Windokun, *fn2" and that he believed that another defendant may have made similar statements. At most, then, Windokun "presented only a possibility that [Soneye] would testify to exculpate [her] at a separate trial." United States v. Lopez, 6 F.3d 1281, 1285 (7th Cir. 1993). "That is not enough to require severance." Id. (citing United States v. Studley, 892 F.2d 518, 525 (7th Cir. 1989)).

 Accordingly, Windokun's motion for a severance is denied.

 4. Adebayo Majekodunmi

 Majekodunmi contends that his joinder in the indictment with his co-defendant Jumoke Soneye is severely prejudicial to him, because Soneye, his sister, wishes to present exculpatory information regarding Majekodunmi but probably will refuse to testify at a trial in which she is a participant.

 As the court noted above, where the reason for a severance is the need for a co-defendant's testimony, the defendant must show that (1) the co-defendant's testimony would be exculpatory; (2) the co-defendant would testify at the trial; and (3) the testimony would bear upon the defendant's case. See Granada, 51 F.3d at 84; Lopez, 6 F.3d at 1285. Majekodunmi claims that he needs the testimony of Soneye to exculpate him, that the testimony will not be cumulative, that the only way Soneye will testify is if she is tried separately from Majekodunmi, and that Soneye has told Majekodunmi's counsel that she would testify that Majekodunmi is innocent of the charges and that she has related that to the government.

 Majekodunmi therefore asks the court to hold a hearing to determine whether Soneye is willing to testify with exculpatory evidence on behalf of Majekodunmi; and whether Soneye will refuse to testify at a trial in which she is a participant, but will testify at a separate trial of Majekodunmi. Majekodunmi urges that if the court determines that Soneye would present exculpatory testimony at a severed trial, the court should order severance.

 The government responds that a request for a hearing is unprecedented. It contends that Majekodunmi has the burden to establish some basis for his contention in the form of an affidavit, and to establish with specificity what the exculpatory testimony would be; the relevance of such testimony to his defense, in light of the evidence against him; the likelihood of prejudice from the absence of such testimony; the likelihood that such testimony would be impeached; and the effects on judicial economy. See United States v. Dirden, 38 F.3d 1131, 1141 n.13 (10th Cir. 1994). The government argues that Majekodunmi has done no more than offer conclusory statements that Soneye had advised that she would testify that he is innocent of the charges. The government also denies that Soneye told the government that she would testify that Majekodunmi is innocent of the charges and states that Soneye made no statements to the government exculpating Majekodunmi.

 The court agrees with Majekodunmi that hearings on motions for severance are not unprecedented. See, e.g., Lopez, 6 F.3d at 1285 (noting that the district court had held a severance hearing). However, the court agrees with the government that it was Majekodunmi's burden to show that a severance is necessary, and Majekodunmi has offered nothing but his own conclusory statements to support a severance.

 Like Windokun, Majekodunmi has failed to offer an affidavit by Soneye setting forth with some specificity the nature of her testimony on Majekodunmi's behalf and stating that she will testify on his behalf at a separate trial of him. As the court noted above, at most, Majekodunmi has "presented only a possibility that [Soneye] would testify to exculpate him at a separate trial," and "that is not enough to require severance." Lopez, 6 F.3d at 1285 (citing Studley, 892 F.2d at 525).

 While the court has the option to hold a severance hearing, nothing requires it to do so. Because Majekodunmi has not even submitted an affidavit in support of his severance request, the court declines to hold a hearing on the severance.

 Accordingly, the court denies Majekodunmi's motion to sever.

 5. Victoria Olabunmi Onimole

 Onimole contends that she was improperly joined in the indictment with her co-defendants. She claims that she is not alleged to have been involved in heroin distribution in Chicago, but is alleged to have negotiated with heroin supplier Tijani and to have introduced co-defendant Jumoke Soneye to Tijani. She claims that heroin supplied by Tijani is not alleged to be heroin distributed by Soneye in Chicago. Thus, according to Onimole, she is not alleged to have participated in "the same acts or transactions or same series of acts or transactions constituting an offense or offenses" as her co-defendants. United States v. Moya-Gomez, 860 F.2d 706, 766 (7th Cir. 1988).

 Onimole also contends that even if she was properly joined in the indictment, she would suffer prejudice from the joinder. She claims that multiple conspiracies make a joint trial more difficult in this case. She also contends that to the extent she is not alleged to have been involved in the Chicago-based Soneye/Balogun/Olubi/Smith importation conspiracy or the Soneye distribution conspiracy, co-conspirator statements relating to those conspiracies may not be introduced against her. She also claims that she will be prejudiced from the spillover emanating from proof on counts to which she has no connection. Finally, she makes the same arguments as the foregoing defendants regarding being grouped with her co-defendants as "birds of a feather" because of their like race and ancestry.

 The court finds that the indictment makes clear that Onimole is charged as an integral member of the heroin importation and distribution conspiracies, and that she engaged in many of the same acts and transactions as her co-defendants. Because of Onimole's alleged relatively substantial role in the conspiracies, the court fails to see how she will be prejudiced by a joint trial with her co-defendants. Furthermore, the government's representations indicate that to try Onimole separately from her co-defendants would simply waste judicial resources, since the same evidence likely will be offered against Onimole as against her co-defendants. Last, the court has addressed the "birds of a feather" argument sufficiently to make repeating its conclusion here redundant. Suffice it to say that the argument is without merit.

 Accordingly, the court denies Onimole's motion to sever.

 C. Motion for a bill of particulars

 Defendants Olajumoke Hall, Mukaila Balogun, Adebayo Majekodunmi, and Anthony Smith move for bills of particulars to provide them with more details about the allegations in the indictment against them.

 Federal Rule of Criminal Procedure 7(f) authorizes the court to order the filing of a bill of particulars whenever the indictment fails to set forth the elements of the offense charged and sufficiently apprise the defendant of the charges to enable him to prepare for trial. See United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981) (quotation omitted) ("the test for whether a bill of particulars is necessary is 'whether the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial'"), cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L. Ed. 2d 140 (1982). While the defendant is entitled to know the factual details of the offense with which he is charged, he 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, 502 U.S. 810, 112 S. Ct. 54, 116 L. Ed. 2d 31 (1991); Kendall, 665 F.2d at 135. Thus, a bill of particulars cannot be used to explore the government's list of witnesses or the evidentiary details of its case. Kendall, 665 F.2d at 134.

 Though defendants' arguments are basically the same, the allegations against defendants differ in some respects; therefore, the court will address each defendants' motion individually.

 1. Olajumoke Hall

 Hall seeks details about the allegation in the indictment that Hall supplied co-defendant Jumoke Soneye with heroin to distribute when Jumoke's own supply ran low. Specifically, Hall wants the government to identify on what days she is alleged to have supplied heroin to her co-defendant Jumoke Soneye; what quantities she is alleged to have provided; and where the transactions occurred.

 In the court's view, Hall seeks evidentiary details that exceed the proper scope of a bill of particulars. See United States v. Alex, 791 F. Supp. 723, 727 (N.D. Ill. 1992). The court finds that the indictment informs Hall of the statutory violations with which she is charged, the time frame for the acts charged, and her alleged role in the conspiracy. Thus, the indictment provides sufficient factual details to inform Hall adequately of the charges she faces and to allow her to prepare for trial. See id. (citing United States v. McAnderson, 914 F.2d 934, 946 (7th Cir. 1990)).

 A bill of particulars will be denied when the indictment, combined with the discovery provided by the government, adequately informs the defendant of the charges. See, e.g., Swano, 1992 WL 137588, *8. This is such a case; the indictment against Hall and the discovery that has been made available to her clearly provide enough information to allow Hall to know with what she is charged and to prepare an adequate defense to the charge. The additional information that Hall seeks by way of a bill of particulars amounts to a request for details about the government's evidence against Hall. The government is not obligated to provide such evidentiary detail to Hall.

 Accordingly, the court denies Hall's motion for a bill of particulars.

 2. Mukaila Balogun

 Balogun moves for a bill of particulars that would provide details about the allegation in the indictment that Balogun assisted co-defendant Jumoke Soneye by wire-transferring heroin proceeds, paying travel expenses, and interceding on Soneye's behalf. Specifically, Balogun wants the government to identify on what days he is alleged to have made wire transfers of proceeds; what courier's expenses he is alleged to have paid; and where the transactions occurred.

 As the court found with respect to Balogun's co-defendant Hall, what Balogun seeks are evidentiary details about the government's case against him. The indictment informs Balogun of the allegations against him -- assisting Soneye's drug business by laundering drug proceeds and funding the travel of drug couriers. While the allegation is general, it advises Balogun of what he is accused.

 Furthermore, extensive discovery should have provided Balogun with all of the details about his alleged offense that he now seeks through a bill of particulars. The government has stated that Balogun has a copy of every intercepted call that he made; a draft transcript of all calls to be used at trial; summaries of those calls; a summary of his actions, including phone calls, in the criminal complaint and preliminary examination; and copies of all law enforcement reports regarding surveillance of himself and others, and his arrest and others' arrests that occurred in the charged conspiracy.

 The government has represented that the dates and times of Balogun's actions are specifically referred to in the intercepted calls and their draft transcripts, as well as in Western Union wire transfer documents that were made available to Balogun. The government claims, and the court agrees, that the information sought by Balogun is readily available to him in the foregoing materials, and that all he need do is examine the tapes, transcripts, wire transfer documents, documents, and reports already provided to him.

 Because the indictment and extensive discovery made available to Balogun provide him with sufficient information to allow him to prepare for trial, the court denies Balogun's motion for a bill of particulars.

 Majekodunmi asks for very detailed information regarding the allegations against him in the indictment. For example, he wants the government to identify and describe each act or communication that relates to his participation in the importation and distribution conspiracies, and the locations and times of and people involved in the acts alleged in the indictment.

 The court finds that Majekodunmi's information request goes far beyond simply seeking enough information to allow him to know the offense with which he is charged to enable him to prepare for trial. See Kendall, 665 F.2d at 134. Rather, it seeks very detailed information regarding the government's evidence against Majekodunmi.

 The court finds the indictment sufficiently clear to allow Majekodunmi to know with what he is charged and to prepare his defense to the charges. Moreover, as the court has noted repeatedly above, the discovery in this case has been extensive. The government has given Majekodunmi's counsel access to the law enforcement reports that led to the return of the indictment; tape recordings of all intercepted conversations made during the course of the investigation; Title III logs summarizing each intercepted conversation; and physical evidence obtained during the course of the investigation. Further, Majekodunmi participated in a preliminary hearing on the conspiracy charge, and was able to cross-examine the government's witness regarding the specific events detailed in the criminal complaint. Finally, the government will provide a Santiago proffer, and will turn over to defense counsel all Jencks Act, Brady, and Giglio information.

 Based on the indictment and discovery that has been made available to Majekodunmi, the court finds that he has sufficient information to know with what he is charged and to prepare an adequate defense to the charges. Thus, a bill of particulars is unnecessary.

 Accordingly, the court denies Majekodunmi's motion for a bill of particulars.

 4. Anthony Smith

 Defendant Anthony Smith asks for very detailed information regarding the allegations against him in the indictment. For example, he wants the government to identify and describe the times and places where he allegedly engaged in all of the conduct alleged in Count One; the method or means by which he allegedly committed the offenses alleged in Count One; the names of any unindicted co-conspirators; when, where, and how he became a member of the conspiracy; and all overt acts done in furtherance of the conspiracy that are not set forth in the indictment but that the government intends to prove at trial.

  Smith's request goes far beyond simply seeking enough information to allow him to know the offense with which he is charged to enable him to prepare for trial. See Kendall, 665 F.2d at 134. Rather, it seeks very specific information regarding the government's evidence against Smith.

  The court finds the indictment sufficiently clear to allow Smith to know with what he is charged and to prepare his defense to the charges. While Smith was recently extradited to the United States from Thailand, speaks little English, and apparently is illiterate, he has competent counsel to represent him. Moreover, as the court has noted repeatedly above, the discovery in this case has been extensive. While Smith was just brought to the United States and Smith's counsel just recently became involved in this case, the court notes that it set a trial date in November because of those factors, gave Smith leave to file additional pre-trial motions, and otherwise has taken into account the unique circumstances affecting Smith's defense. All of the discovery that has been made available to other defendants and defense counsel has been or will be made available to Smith and his counsel, and the court has given Smith and his counsel more than enough time to evaluate the discovery and prepare a defense.

  Based on the information that Smith either has or will have, the court finds that he will have sufficient information to know with what he is charged and to prepare an adequate defense to the charges. Thus, based on the indictment and discovery that has been or will be made available to Smith, a bill of particulars is unnecessary.

  Accordingly, the court denies Smith's motion for a bill of particulars.

  D. Motions for order requiring government to file a written Santiago proffer, and/or for pre-trial hearing on admissibility of co-conspirator statements

  1. Motions for written Santiago proffer

  Defendants Olajumoke Hall, Tajudeen Aroworade, Folake Olukoga, Victoria Olabunmi Onimole, Adabayo Majekodunmi, Kafayat Adedolapo Windokun, and Anthony Smith move the court to order the government to submit, no later than between 45 and 60 days prior to trial, a written proffer of evidence that it deems sufficient to support the introduction of any co-conspirator statements, pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), and Federal Rules of Evidence 801(d)(2)(E) and 104(b).

  The government responds that it already has represented to all defense counsel that it will file a written Santiago proffer 21 days prior to trial, making part of defendants' motions moot. The government contends that filing the proffer three weeks prior to trial is sufficient to satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E).

  The court agrees with the government that a written Santiago proffer submitted three weeks prior to trial is sufficient to allow the court to determine conditionally the admissibility of co-conspirator statements. Accordingly, the court denies defendants' motion seeking a written Santiago proffer as moot.

  2. Motions for pre-trial hearing on admissibility of co-conspirator statements

  Defendants Akintoye Sode, Tajudeen Aroworade, Adebayo Majekodunmi, and Kafayat Adedolapo Windokun ask the court to hold a hearing pursuant to Federal Rule of Evidence 104(a) to determine whether or not the statements of any alleged co-conspirators are admissible. As the court noted above, the government has offered to submit a written Santiago proffer 21 days prior to trial. The government argues that a written proffer is sufficient and a hearing unnecessary to determine conditionally the admissibility of co-conspirators' statements.

  The court agrees with the government. The Seventh Circuit has expressly approved of the use of written pre-trial proffers to allow the court to determine the admissibility of co-conspirator statements. See United States v. Andrus, 775 F.2d 825, 836-37 (7th Cir. 1985); see also United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); United States v. Doerr, 886 F.2d 944, 967 (7th Cir. 1989); United States v. Boucher, 796 F.2d 972, 974 (7th Cir. 1986). In fact, the Seventh Circuit has openly discouraged the use of pre-trial Santiago hearings as inefficient and potentially duplicative. See id. In short, the written Santiago proffer is an acceptable, and preferable, means of allowing the court to determine the admissibility of co-conspirator statements.

  Accordingly, the court denies defendants' motions for a pre-trial Santiago hearing.

  3. Requests to bar reference to co-conspirator statements

  Olukoga and Onimole also ask the court to bar the government and its witnesses from making any direct or indirect reference to co-conspirator statements until the court has made an admissibility determination. To the extent that the court will not allow the government and its witnesses to introduce or refer to co-conspirator statements before the court has made a conditional determination as to the admissibility of such statements, Olukoga's and Onimole's requests are granted.

  E. Motion for disclosure of favorable evidence

  Defendants Olajumoke Hall, Akintoye Sode, Tajudeen Aroworade, Folake Olukoga, Victoria Olabunmi Onimole, Mornkat Adola Asanike, Mukaila Balogun, and Adebayo Majekodunmi want the court to require the government to disclose prior to trial any evidence or information known to it or in its possession, custody, or control, or of which it comes to know, that is favorable to defendants and material to the issues of their guilt, innocence, or sentencing, or that bears upon the credibility of a government witness. In other words, defendants ask for exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and impeaching evidence under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, ...


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