Opinion
No. 3:08-CR-11.
August 9, 2008
MEMORANDUM AND ORDER
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This criminal action is before the Court on defendant Jose Alberto Aguirre's Request for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 33], Motion for Pretrial Production of Witness Statements [Doc. 34], Motion for Disclosure of Impeaching Information [Doc. 35], Request for Notice of Electronic Surveillance [Doc. 36], and Motion for Bill of Particulars [Doc. 39], and the government's Motion to Quash Rule 17 Subpoena. [Doc. 43] On July 30, 2008, the parties appeared before the Court for a hearing on the instant motions. Attorney Craig P. Fickling appeared on behalf of defendant Melgar, and attorneys John Passanante, Randall E. Reagan, and Richard L. Gaines appeared on behalf of defendant Aguirre. Assistant United States Attorney Hugh B. Ward, Jr. appeared on behalf of the government. During the hearing, the Court heard argument as to the government's motion to quash [Doc. 43], and the parties stated that they relied on their briefs for the remainder of the motions. [Docs. 33, 34, 35, 36, 39] After the hearing, the Court took the motions under advisement and they are now ripe for adjudication. The Court will address each of the motions in turn.
That same day, the Court also conducted an evidentiary hearing as to defendant Aguirre's Motion to Suppress Statements [Doc. 37] and defendant Aguirre's and defendant Mario Melgar's Joint Motion to Suppress Evidence. [Doc. 38] The suppression hearing was continued, however, to allow defense counsel to determine whether a legal conflict would prevent Mr. Regan and Mr. Gaines from representing defendant Aguirre in this matter. As of the entry of this Order, the completion of the evidentiary hearing is still pending and the Court has not yet taken the two suppression motions under advisement.
I. Request for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 33]
Defendant Aguirre moves the Court to require the government to disclose sixty days in advance of trial any evidence the government will seek to introduce at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. The defendant contends that "[t]he disclosure of this information is necessary so that Mr. Jordan [sic] can meaningfully review the evidence and properly prepare to meet such evidence or seek its exclusion if justice so requires." [Doc. 33 at p. 2]
The Court assumes that the reference to "Mr. Jordan" is a typographical error and that the reference should have been to Mr. Aguirre.
The Court notes that its Order on Discovery and Scheduling states that:
Upon request, the government 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 Rule 404(b) — type evidence it intends to introduce at trial. Unless otherwise ordered by the Court "reasonable notice" shall be deemed to be seven (7) calendar days before trial.
[Doc. 11 at ¶ I] The defendant's motion provides no specific reason why the Court should alter the deadline established in the Order on Discovery and Scheduling, nor did the defendant seek to offer such a reason during the hearing. Accordingly, the defendant's motion [Doc. 33]is hereby DENIED. The deadline for the disclosure of Rule 404(b) shall remain as stated in the Court's Order on Discovery and Scheduling.
II. Motion for Pretrial Production of Witness Statements [Doc. 34] and Motion for Disclosure of Impeaching Information [Doc. 35]
III. Request for Notice of Electronic Surveillance [Doc. 36]
Brady v. Maryland373 U.S. 83Brady See United States v. Bencs 28 F.3d 555561Brady compare United States v. Kendricks623 F.2d 11651168with United States v. Presser844 F.2d 12751285Brady Brady DENIED. 18 U.S.C. § 2510DENIED.
In addressing the topic of bills of particulars, the Sixth Circuit has held that:
[t]he purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution of the same offense when the indictment itself is too vague, and indefinite for such purposes.United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). However, a bill of particulars may not be used as "a tool for the defense to obtain disclosure of all evidence held by the government before trial", nor as a means of gaining insight into the government's legal theories. United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993); United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983).
After a review of the Indictment [Doc. 9], the Court finds that the Indictment, coupled with the discovery in this case, specifically the video footage from Trooper Self's police cruiser, provide sufficient detail to the defendant to allow him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution of the same offense.Birmley, 529 F.2d at 108. Accordingly, the defendant's motion [Doc. 39] is DENIED.
V. Motion to Quash Rule 17 Subpoena. [Doc. 43]
IT IS SO ORDERED.
Given that the evidence sought by the subpoena does not exist, the Court need not, and does not, address the parties' arguments as the propriety of the defendants' Rule 17 Subpoena.