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United States v. Cerro

August 23, 2006

UNITED STATES OF AMERICA
v.
MARIO DAL CERRO



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Mario Dal Cerro's ("Dal Cerro") pre-trial motions. For the reasons stated below, we deny the motions in part and deny the motions in part as moot.

DISCUSSION

We first note that Dal Cerro is listed in the complaint and the indictment as "Mario Dal Cerro." (Compl. Cap., Par. 1)(Ind. Cap., 1). However, Dal Cerro inexplicably refers to himself in the captions and text of all his motions as "Mario DelCarro." (D Mots. 1). For the purposes of this ruling, we shall use the name for Defendant that is listed in the complaint and indictment.

I. Brady and Giglio Materials

Dal Cerro requests that the court order the Government to immediately disclose information concerning promises of immunity, leniency, or preferential treatment made to Government witnesses and other matters required to be disclosed pursuant Giglio v. United States, 405 U.S. 150 (1972). Since the Government indicates that it will produce all Giglio materials, including evidence concerning promises of immunity, leniency, or preferential treatment made to Government witnesses one week prior to trial, which we find is reasonable, we deny as moot Dal Cerro's motion.

Dal Cerro also requests that the court order the Government to produce all materials required in accordance with Brady v. Maryland, 373 U.S. 83 (1963). Since the Government acknowledges its ongoing obligation to comply with Brady and Dal Cerro has failed to show that the Government has not complied thus far with Brady, we deny as moot the motion for the production of Brady materials.

II. Proffer Statement

Dal Cerro requests that the court order the Government to make a proffer in accordance with United States v. Santiago, 582 F.2d 1128, 1130 (7th Cir. 1978) and its progeny. Pursuant to Santiago and its progeny, a court generally should make a determination concerning "the admissibility of co-conspirator statements" after viewing a pre-trial proffer made by the Government. United States v. Irorere, 228 F.3d 816, 824 n.1 (7th Cir. 2000). Since the Government indicates that if it decides to introduce evidence that would necessitate a proffer, it will provide such a proffer one week before trial, which we find is reasonable, we deny as moot the motion for a proffer.

III. Motion to File Additional Motions Regarding Videos, Cassettes, and CDs

Dal Cerro requests that the court grant him the right to file additional motions relating to the videos, audio cassettes, or compact disks the Government intends to introduce at trial because Del Cerro has not yet had an opportunity to view and listen to the materials. The Government argues that Dal Cerro had an opportunity to do so earlier in this case and that his request is untimely. Dal Cerro states only in a cursory fashion in his motion that he has not had an opportunity to view or listen to the materials, but he has not provided any explanation regarding why he lacked such an opportunity. Therefore, we deny Dal Cerro's motion for leave to file additional motions relating to the videos, audio cassettes, or compact disks the Government intends to introduce at trial.

IV. Rule 404(b) Disclosures

Dal Cerro requests that the court order the Government to immediately disclose its intention to use evidence of other crimes, wrongs, or acts in accordance with Federal Rule of Evidence 404(b) ("Rule 404(b)"). Since the Government agrees to provide such disclosures one week before trial, which complies with the requirement in Rule 404(b) that the defendant is to be provided with "reasonable ...


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