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U.S. v. ESAWI

February 3, 2003

UNITED STATES OF AMERICA,
v.
ESAWI, ET AL., DEFENDANT.



The opinion of the court was delivered by: Blanche M. Manning, United States District Court Judge

MEMORANDUM AND ORDER

Defendants were indicted on charges of conspiring to knowingly possess, import, with intent to distribute millions of tablets of pseudoepherdrine, a List I chemical, knowing and having reasonable cause to believe that this chemical would be used to manufacture metamphetamine, a controlled substance, in violation of 21 U.S.C. § 841, 846, and 963, and 18 U.S.C. § 2. The present matter comes before this Court on Defendants pretrial motions.*fn1

I. Motion for Disclosure of Favorable Evidence

Defendants have moved this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), for an order requiring the Government to produce all evidence that is favorable to Defendants and material to issues of guilt, innocence, or sentencing or which bears upon the credibility of the Government's witnesses.

The Government has agreed, to the extent it has not done so already, to disclose evidence relating to its obligations under Brady, Giglio, and 18 U.S.C. § 3500 at least 21 days prior to trial. Consequently, to the extent the Government is required to do so, Defendants' motion for discovery is GRANTED as to Brady, Giglio, and section 3500 material.

II. Motion for a Santiago Statement

Defendants have also moved for an order requiring the Government to file, before trial, a written Santiago proffer for determining the admissibility of any alleged co-conspirator statements. The Government acknowledges its obligations under Santiago and proposes to tender its Santiago proffer no later than 30 days prior to the trial. The Court believes that, under the present circumstances, 30 days is a sufficient time for Defendants to analyze and assimilate the Santiago material in preparation for trial. Defendants' motion for a Santiago proffer is accordingly GRANTED and the Government is ordered to submit a written Santiago proffer no later than 30 days before trial.

III. Motions For Notice of Intention to Use Other Crimes, Wrongs, and Acts Evidence

Defendants additionally seek notice of the Government's intention to use other crimes, wrongs, or acts evidence. Federal Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show that he likely acted in conformity therewith on a particular occasion. Fed.R.Evid. 404(b). The purported rationale for the exclusion of evidence of other crimes, wrongs, or acts is that such evidence is of slight probative value and tends to distract the trier of fact from the facts at issue. United States v. Smith, 103 F.3d 600, 602 (7th Cir. 1996). This evidence may be admissible, however, for any other relevant purpose including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Id.

Rule 404(b) requires that the government, upon request of the defendant, provide reasonable advance notice of its intention to use such evidence and the general nature thereof. The purpose of this notice requirement is to "reduce surprise and promote early resolution on the issues of admissibility." Fed.R.Evid. 404(b), Notes of Committee on the Judiciary, Sen Rep. No. 93-1277. This Rule does not, however, provide for unbridled discovery and, to that end, the government need only "appraise the defense of the general nature of the evidence of extrinsic acts." Id.

The Government acknowledges its obligations under Rule 404(b). The Court believes that, under the present circumstances, 28 days is sufficient for Defendants to analyze and assimilate Rule 404(b) material in preparation for trial. By providing this information 28 days before trial, the Government will meet Rule 404(b)'s provision requiring "reasonable notice" in advance of trial. Fed.R.Evid. 404(b). Accordingly, Defendants' motion for notice of the government's intention to use Rule 404(b) material is GRANTED to the extent that it requests "the general nature" of the evidence of extrinsic acts.

IV. Motion for Payment of Travel Expenses and Appointment of an Investigator

The Government does not object to the motion for payment of travel expenses and appointment of an investigator as to Defendant Banieh, the only Defendant with a court appointed attorney in this case. Therefore, the Court GRANTS this motion with respect to Defendant ...


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