United States District Court, N.D. Illinois, Eastern Division
Februrary 3, 2003
UNITED STATES OF AMERICA, Plaintiff,
PIERRE DAWSON, Defendant.
The opinion of the court was delivered by: BUCKLO, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Pierre Dawson is charged with attempt and conspiracy
to distribute a controlled substance. He has filed five pretrial
motions which are granted and denied as follows.
Motion for Immediate Disclosure of Favorable Evidence. Mr. Dawson moves
[243 F. Supp.2d 781]
to compel production of any exculpatory evidence the government may
have, as required by Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972). In response, the government
acknowledges its obligation to produce such evidence and asserts that it
will do so promptly. The motion's general request for evidence is thus
denied as moot. See United States v. Bontkowski, 49 F. Supp.2d 1075, 1076
(N.D. Ill. 1999) (Buckle, J.). Mr. Dawson's motion also includes requests
for specific information, most of which is relevant to the impeachment of
possible government witnesses. In response to these requests, the
government is ordered to produce material impeachment evidence of which
it has notice, including favorable treatment received by government
witnesses in exchange for their cooperation, information relating to the
criminal records, drug use, or psychiatric history of government
witnesses, and documents recording exculpatory statements made about Mr.
Dawson by government witnesses. See Id. at 1076.
Motion for Production of 404(b) Material. Rule 404(b) of the Federal
Rules of Evidence governs the admission of a defendant's prior bad acts.
Mr. Dawson moves that the government be required to disclose any 404(b)
evidence it intends to use at trial thirty days before the trial begins.
The government offers to provide the evidence ten days before trial.
While some courts have held that such evidence may be disclosed as late
as a week before trial, see, e.g., United States v. French, 974 F.2d 687,
695 (6th Cir. 1992), a defendant is entitled to the amount of notice
reasonably necessary to prepare for trial. See FED. R. EVID. 404(b). If
Mr. Dawson wishes to locate favorable witnesses or otherwise counter the
404(b) evidence, ten days is very little time to do so. See United States
v. Rusin, 889 F. Supp. 1035, 1036 (N.D. Ill. 1995) (Bucklo, J.). The
government is ordered to produce its 404(b) evidence, if any, thirty days
Motion to Require Preservation of Rough Notes and Logs. The government
asserts that it has instructed its agents to preserve its notes from
interviews with witnesses. The motion is therefore denied as moot. See
United States v. Benavides, No. 93-507, 1993 U.S. Dist. LEXIS 13914, at
*5 (N.D. Ill. Sep. 28, 1993) (Plunkett, J.).
Motion for Production of Government Informants. Mr. Dawson moves to
compel the government to produce its informant for the purpose of service
of a subpoena and an interview request. The government's privilege to
withhold the identity of an informant must be balanced against a
defendant's ability to defend himself without access to the informant.
United States v. Bender, 5 F.3d 267, 269 (7th Cir. 1993). Where an
informant is a mere "tipster," whose involvement in the activity in
question is minimal, the public's interest in protecting informants
outweighs the defendant's interest in obtaining access to the informant
in order to prepare his defense. See United States v. Valles, 41 F.3d 355,
359 (7th Cir. 1994). But where the informant was a co-conspirator who was
heavily involved in the alleged criminal activity, the defendant's right
to prepare an adequate defense outweighs the government's privilege to
keep the informant's identity secret. United States v. Delgado, No.
02-50002-4, 2002 U.S. Dist. LEXIS 12999, at *4 (N.D. Ill. Jul. 3, 2002)
Here, the informant was far more than a "tipster"; he or she
participated in numerous recorded criminal conversations and meetings with
Mr. Dawson. His or her testimony might be the only way Mr. Dawson could
support his version of the facts. The government is therefore ordered to
produce the individual referred to
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as the "Confidential Source" at a
mutually convenient time and place no later than thirty days before trial
for the purpose of service of subpoena and request for pretrial
Motion for Early Return of Subpoenas. The government agrees that an
order for early return of subpoenas should be entered so long as it
specifies that the order is mutual, that notice of the subpoena should be
sent at the time the subpoena is issued, and that any information
produced pursuant to subpoena should be exchanged promptly. It is so
Defendant's Motion for Immediate Disclosure of Favorable Evidence is
GRANTED in part and DENIED in part. Defendant's Motion for Production of
404(b) Material is GRANTED. Defendant's Motion to Require Preservation of
Rough Notes and Logs is DENIED as moot. Defendant's Motion for Production
of Government Informants is GRANTED. Defendant's Motion for Early Return
of Subpoenas is GRANTED as modified.
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