The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Friday, 08 July, 2011 03:15:17 PM Clerk, U.S. District Court, ILCD
On June 9, 2010, Defendant, Todd Sutton, was indicted on one count of possession of 50 grams or more of a mixture and substance containing cocaine base (crack) with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii). Defendant's jury trial is set for August 29, 2011, with a final pretrial conference scheduled for August 4, 2011, at 9:00 am. Defendant has filed several pretrial motions: Motion for Disclosure of Favorable Evidence (#33), Motion for Disclosure of Impeaching Evidence (#34), Motion for Disclosure of Prior Crimes, Wrongs, or Bad Acts the Government Intends to Introduce at Trial (#35), Motion in Limine to Exclude Prior Convictions (#36), and Motion to Exclude Video Evidence (#38). For the following reasons, all of Defendant's Motions are DENIED.
Motions #33-35: Disclosure of Favorable and Impeaching Evidence and Motion to Disclose Prior Crimes, Wrongs, or Bad Acts the Government Intends to Introduce at Trial In the motion seeking disclosure of favorable evidence, Defendant asks the government to turn over all evidence in its possession that is favorable to Defendant pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In the motion seeking disclosure of impeaching evidence, Defendant seeks any evidence that may lead to impeachment of a government witness pursuant to United States v. Giglio, 504 U.S. 150 (1972). This court has carefully reviewed Defendant's requests and the government's Response (#39). In his Motions (#33, #34), Defendant did not include a statement, required by Rule 16.1(D) of the Local Criminal Rules of the Central District of Illinois, that Defendant's counsel requested a conference with the appropriate Assistant United States Attorney regarding the production of additional discovery and agreement could not be reached concerning the discovery sought. In its Response (#39), the government stated that, in fact, no such conference was requested by Defendant's counsel even though such a conference is required by Rule 16.1(C) of the Local Criminal Rules. The government also stated that it is aware of its obligations under Brady, and that it has already provided any potential information of which it is aware to the Defendant, and to the extent the government obtains such information in the future, it will provide it at that time. Further, the government notes that any Giglio information is often obtained when witnesses are identified and prepared for trial, and in this case such preparation will not begin in earnest until after the Defendant's July 25, 2011 acceptance of responsibility deadline passes.
The court finds the government's Response to be complete and persuasive. This court accepts the government's arguments and sees no need to repeat the reasoning and analysis contained in the government's Response. Based upon the government's Response and its lengthy history of compliance with its discovery obligations in cases before this court, this court concludes that both of Defendant's Motions (#33 and #34) must be denied as unnecessary.
Defendant also filed a Motion for Disclosure of Prior Crimes, Wrongs, or Bad Acts the Government Intends to Introduce at Trial (#35), in which he requested "an entry of an order requiring the United States to provide notice of its intention to use evidence of other crimes, acts and wrongs of Defendant, either in its case-in-chief, for impeachment, or in rebuttal..." Defendant wanted to know dates and times, places and persons, statements, documents, relevance, and notice of any other evidence viewed by the government as "intricately related to the facts of the case." In its Response (#39), the government acknowledges that it intends to use Defendant's conviction for delivery of a controlled substance (Case No. 99-CF-491) in Illinois state court, Kankakee County, during its case-in-chief, in rebuttal, or as impeachment. The government argues that a court order compelling it to disclose is unnecessary, as it has herein disclosed its intention to use the Defendant's prior drug trafficking conviction. Further, to the extent the government becomes aware of any other evidence of other crimes, wrongs, or acts, it will provide reasonable notice advance of trial, or during trial for good cause shown, of the general nature of such evidence in compliance with the explicit requirements of Federal Rule of Evidence 404(b).
The court will address below, in ruling on Defendant's Motion in Limine to Exclude Prior Convictions (#36), about whether or not to let the conviction in. However, as it pertains to this other acts motion, the court again finds the government's Response to be complete and persuasive. This court accepts the government's arguments and sees no need to repeat the reasoning and analysis contained in the government's Response. The government has notified Defendant of its intent to introduce his prior Kankakee County conviction and the court believes the government will give notice if it intends to introduce other prior bad act evidence. Based upon the government's Response and its lengthy history of compliance with its discovery obligations in cases before this court, this court concludes Defendant's Motion (#35) should be denied.
Motion in Limine to Exclude Prior Convictions (#36)
Defendant next filed a Motion in Limine to Exclude Prior Convictions (#36). In this Motion, Defendant notes that he has been convicted of two prior drug offenses. Defendant asks that the court preclude the government from introducing evidence of these convictions at trial. The government has given Defendant notice of its intent to introduce into evidence one of Defendant's prior convictions, a conviction for delivery of a controlled substance in Kankakee County, Illinois (99-CF-491). Defendant argues that any introduction of his prior convictions would be precisely the type of propensity evidence rendered impermissible under Rule 404(b) and any probative value would be based entirely on the assumption that someone who commits a specific act on one occasion is more likely to commit the same act on another. Defendant believes the evidence is far more prejudicial than probative under Rule 404(b) and 403. The government counters that case law allows admission under Rule 404(b) and Rule 609 of the Federal Rules of Evidence.
Rule 404(b) of the Federal Rules of Evidence states:
"Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed. R. Evid. 404(b).
Rule 403 of the Federal Rules of Evidence states:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or ...