United States District Court, N.D. Illinois, Eastern Division
November 2, 2004.
UNITED STATES OF AMERICA, Plaintiff,
DEBBIE SHORTER, et al. Defendants.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
On June 23, 2004, a three count indictment was returned against
Defendant Shorter charging her with: (1) conspiring to possess
with intent to distribute and possessing with intent to
distribute in excess of 500 grams of cocaine, in violation of
21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2 (Counts I and II); and
(2) importing in excess of 500 grams of cocaine from Jamaica, in
violation of 21 U.S.C. § 952.
The present matter comes before this Court on Shorter's
pre-trial motions: (1) to require notice of intention to use
other crimes, wrongs, or acts evidence; (2) to discover use of
electronic devices; (3) for pre-trial access to witnesses; (4)
for leave to file additional pre-trial motions; (5) to preclude
the Government from conferring with its witnesses; (6) for
attorney voir dire; (7) for disclosure of impeaching information;
and (8) early return of trial subpoenas. The Court will address
each of these motions in turn.
I. Motions For Notice of Intention to Use Other Crimes,
Wrongs, and Acts Evidence
Shorter seeks notice of the Government's intention to use other
crimes, wrongs, or acts evidence under Federal Rules of Evidence
404(b) and 608(b). 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.
Federal Rule of Evidence 404(b) requires that the Government in
a criminal case, upon request of an accused, 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 "apprise the defense of the general nature of the
evidence of extrinsic acts." Id.
Here, the Government acknowledges its obligations under Rule
404(b) and will give Shorter notice two weeks before trial if it
intends to introduce any Rule 404(b) material. The Court believes
that, under the present circumstances, this is sufficient time
for Shorter to analyze and assimilate Rule 404(b) material in
preparation for trial. By providing this information two weeks
before trial, the Government will come within Rule 404(b)'s
provision requiring "reasonable notice" in advance of trial.
Fed.R. Evid. 404(b).
Shorter also seeks pretrial notice of the Government's
intention to use "specific instances of conduct" or Rule 608(b)
material. Rule 608(b) restricts the use of specific instances of
conduct of a witness for the cross examination of that witness.
Fed.R. Evid. 608(b). Unlike Rule 404(b), however, Rule 608(b) does not require disclosure of
any evidence which might be used for impeachment purposes.
It is well established that defendants are not entitled access
to Rule 608(b) material which is not discoverable under Federal
Rule of Criminal Procedure 16. See United States v. Hartmann,
958 F.2d 774, 789 n. 5 (7th Cir. 1992); United States v. Cerro,
775 F.2d 908, 914-15 (7th Cir. 1985). Rule 16 explicitly limits
compelled discovery to information the Government intends to
introduce during its case-in-chief. Fed.R. Crim. P. 16(b)(1)(A).
By definition, Rule 608(b) evidence may not be used during the
government's case-in-chief, and therefore, it is not discoverable
under Rules 12 or 16. See United States v. Sims,
808 F. Supp. 607, 611 (N.D. Ill. 1992).
Accordingly, Shorter's motion for notice of the Government's
intention to use Rule 404(b) material is GRANTED, and the
Government is ordered to produce all Rule 404(b) material no
later than two weeks before trial. The motion for the production
of Rule 608(b) material, however, is DENIED.
II. Motion to Discover Use of Electronic Devices
Shorter has also moved for an order requiring the Government to
disclose whether it utilized any electronic recording devices in
the investigation of this case. According to the Government, no
electronic devices were used in the investigation of this case.
Therefore, the Court DENIES this motion as moot.
III. Motion for Pretrial Access to Witnesses
Additionally, Shorter requests that this Court order the
Government to provide her with pre-trial access to its witnesses.
The Government asserts that it will not prevent any of its witnesses from speaking with counsel for Shorter but notes that
these witnesses have the discretion on whether to speak with
defense counsel. At this point in time, without any allegation
that any particular witness will not speak to Shorter or that the
Government is preventing them from doing so, this Court finds
this motion premature and is thus DENIED.
IV. Motion for Leave to File Additional Pretrial Motions
Shorter has further moved for an order permitting her to file
unspecified future motions to the extent they become necessary.
Pursuant to Federal Rule of Criminal Procedure 12(c), this Court
established a schedule for the filing of all pretrial motions.
Rule 12(f) provides that the "[f]ailure by a party . . . to make
requests which must be made prior to trial, at the time set by
the court pursuant to subdivision (c), or prior to any extension
thereof made by the court, shall constitute a waiver thereof, but
the court for cause shown may grant relief from the waiver."
Fed.R. Crim. P. 12(f).
Accordingly, Shorter's motion is denied without prejudice to
the extent it seeks permission to file additional, unspecified
pretrial motions. Additional pretrial motions may be filed upon a
showing of good cause for the delay. See id.; United States
v. Stoecker, 920 F. Supp. 876, 880 (N.D. Ill. 1996); United
States v. McCarroll, No. 95 CR 48, 1996 WL 99442, at *1 (N.D.
Ill. March 5, 1996); United States v. Pelini, 896 F. Supp. 795,
796 (N.D. Ill. 1995).
V. Motion to Preclude the Government from Conferring with its
Shorter additionally moves for an order precluding the
Government from conferring with its witnesses during trial. The
Government acknowledges that it may not confer with its witnesses
during cross-examination. Moreover, this Court instructs
witnesses not to discuss their testimony during breaks in the
trial. Therefore, this Court GRANTS this motion to the extent it seeks to prohibit the Government from conferring with its
witnesses during cross-examination but DENIES this motion to the
extent it seeks a prohibition during the entire trial.
VI. Motion for Attorney Voir Dire
Furthermore, Shorter seeks permission from this Court to
conduct voir dire. As a general practice, this Court permits both
defendants and the Government to voir dire prospective jurors.
Therefore, this motion is GRANTED.
VII. Motion for the Disclosure of Exculpatory and Impeaching
Shorter also seeks disclosure of all favorable evidence
including any exculpatory and impeaching information and the
existence and substance of any promises of immunity, leniency, or
preferential treatment. The Government acknowledges its
continuing obligations under Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 150 (1972), and
to the extent it has not already done so, proposes to produce all
known evidence that is both favorable to Shorter and material to
the issues of guilt, innocence or sentencing or which bears upon
the credibility of the Government's witnesses. The motion for the
disclosure of all exculpatory and impeaching evidence pursuant is
VIII. Motion for Early Return of Trial Subpoenas
In her final motion, Shorter seeks early return of trial
subpoenas. The Government has no objection to this motion. The
Court thus GRANTS this motion. CONCLUSION
For the foregoing reasons, Defendant Shorter's motion
for notice of the Government's intention to use
Rule 404(b) material is GRANTED, and the Government
is ordered to produce all Rule 404(b) material no
later than two weeks before trial;
for the production of Rule 608(b) material is
to discover use of electronic devices is DENIED as
for pre-trial access to its witnesses is DENIED as
to file additional pretrial motions is DENIED
to prevent the Government from conferring with its
own witnesses is GRANTED to the extent it seeks to
prohibit the Government from conferring with its
witnesses during cross-examination but DENIED to the
extent it seeks a prohibition during the entire
to conduct voir dire is GRANTED; and
for the disclosure of all exculpatory and
impeaching evidence is GRANTED.
It is so ordered.
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