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United States v. Burns

April 29, 2008

UNITED STATES OF AMERICA,
v.
BRIAN BURNS.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Defendant Brian Burns ("Burns") has been indicted on two counts of receiving and distributing child pornography. Burns has filed various pre-trial motions: (1) motion for a bill of particulars; (2) motion and supplemental motion to quash search warrants and suppress evidence seized; (3) motion for immediate disclosure of favorable evidence; (4) motion for production of Rule 404(b) evidence; (5) motion for early return of the trial subpoena.*fn1 For the reasons stated below, Burns's motions for a bill of particulars and for early return of the trial subpoena are granted, and all other motions are denied as indicated below.

BURNS'S PRE-TRIAL MOTIONS

I. Motion for a Bill of Particulars [19]

Burns seeks details, for both counts, of the images described in the indictment and the method by which the images were transported in interstate commerce. The government contends that the information is readily identifiable and so a bill of particulars is unnecessary. The trial court has discretion over a motion for bill of particulars. United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981). The test 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." Id. (internal citation and quotation marks omitted). Identification of the precise images at issue and the mode of transportation are critical elements of the charges in this case. The requested information appears to be easily accessible to the government, since it asserts that it is available in documents produced to the defendant; therefore, providing a bill of particulars should pose little burden. The motion is granted. The court orders the government to provide Burns with a bill of particulars within 15 days.

II. Motion to Quash Search Warrants and Suppress Evidence Seized [20]

Burns was granted time to file a memorandum in support of this motion. In addition to the memorandum, he filed a supplemental motion to suppress which incorporates the same arguments and adds factual detail [37]. Therefore, the original motion is denied as moot. See section VI, infra, for analysis of the supplemental motion.

III. Motion for Immediate Disclosure of Favorable Evidence [21]

Burns demands immediate disclosure of favorable evidence, arguing that a specific request is needed under United States v. Bagley, 473 U.S. 667 (1986), and Agurs v. United States, 427 U.S. 97 (1976), to ensure a heightened standard of review is applied on appeal. It is true that the government has a duty to disclose material evidence that would tend to exculpate the defendant or that would impeach a government witness pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Here, the government acknowledges its obligation to turn over material information and assures the court that it will comply. Those assurances are sufficient. See, e.g., United States v. Butler, No. 93 CR 720, 1994 WL 69387, at *2 (N.D. Ill. Feb. 4, 1994) (collecting cases in the district that so hold). The motion is denied as moot.

IV. Motion for Production of 404(b) Evidence [23]

Burns requests that he be provided with notice of the government's intent to rely on 404(b) evidence at least 45 days before trial. The government objects to the timeline and scope of the request. Rule 404(b) requires the prosecution to "provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial." Fed. R. of Evid. 404(b). What constitutes "reasonable notice" depends on the circumstances of each case, and courts have found notice as short as 48 hours to be sufficient. See United States v. Blount, 502 F.3d 674, 677-78 (7th Cir. 2007) (finding one week sufficient where other courts have found 48 hours and several days sufficient). The government states it will provide notice one week prior to trial. The government's assurance is sufficient. Nevertheless, disclosure at least two weeks before trial would provide sufficient time for motions necessitated by the evidence and would obviate the possibility of last minute needs for a continuance and if the government can provide disclosures more than a week before trial, its effort would be helpful. Further, to the extent that Burns's motion seeks more than the "general" nature of such evidence, it is beyond the scope of Rule 404(b). The motion is denied as moot.

V. Motion for Early Return of Trial Subpoena [24]

Burns moves for the early return of trial subpoenas but provides few details on the scope of his request. The government does not oppose this motion to the extent that it requests the early return of subpoenas duces tecum pursuant to Rule 17(c) and provided that the court: (1) grants the government similar permission to issue Rule 17(c) subpoenas; and (2) requires that any party receiving materials pursuant to a Rule 17(c) subpoena disclose the materials to the opposing party upon ...


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