Opinion
NO. CR-02-O26O-EFS, NO. CR-02-O261-EFS, NO. CR-02-O264-EFS, NO. CR-02-O265-EFS, NO. CR-02-O266-EFS
August 19, 2003
ORDER RULING ON PRETRIAL MOTIONS
On May 8, 2003, the Court conducted a pretrial conference in the above-captioned matters. Assistant United States Attorney Frank Wilson appeared for the Government. The Defendants were represented by Carl Joseph Oreskovich, Leslie R. Weatherhead, Carl Hueber, Phillip Wetzel and Peter Schweda, respectively.
The Court considered Defendant Michael Cosand's Motions to Suppress Evidence (CR-02-O26O-EFS, Ct. Rec. 49), to Dismiss Counts One Through One-Hundred Twenty-Two (CR-02-O26O-EFS, Ct. Rec. 51), to Extend Time for Filing Motions in Limine (CR-02-26O-EFS, Ct. Rec. 53), to Disclose Brady Material (CR-02-26O-EFS, Ct. Rec. 55), and for a James Hearing (CR-02-26O-EFS, Ct. Rec. 57). The Court further considered Defendant Janice Cosand's Motions to Suppress Evidence of Testimonial Conduct (CR-02-O261-EFS, Ct. Rec. 55), to Dismiss Counts One-Hundred Twenty-Three Through One-Hundred Thirty-Three (CR-02-0261-EFS, Ct. Rec. 59), in Limine to Exclude Evidence for Untimely Production (CR-02-O261-EFS, Ct. Rec. 61), to Dismiss Counts One Through One-hundred Thirty-Eight for Failure to Comply with Order to Provide Bill of Particulars, Alternative Motion for Order Directing Government to Comply with Court's Prior Order to Issue Bill of Particulars and Alternative Motion for Bill of Particulars (CR-02-0261-EFS, Ct. Rec. 64), and for Joinder in Michael Cosand's Motion to Suppress Evidence Obtained by Means of an Overbroad Search Warrant (CR-02-O261-EFS, Ct. Rec. 66). The Court further considered Defendants Richard Joel Shafer and Dee Ann Shafer's Motion in Limine to Exclude "Bank Fraud" Evidence (CR-02-O264-EFS, Ct. Rec. 50; CR-02-0265-EFS, Ct. Rec. 49).
The Court also considered Defendant Milton Friedley's Motions to Dismiss Counts One-Hundred Seventy-Two Through One-Hundred Eighty-Two (CR-02-O266-EFS, Ct. Rec. 52); and to Extend Time to File Responses (CR-02-O266-EFS, Ct. Rec. 63). Finally, the Court considered the United States Motions in Limine Requesting the Court Conditionally Admit Business Records (CR-02-O26O-EFS, Ct. Rec. 46; CR-02-O261-EFS, Ct. Rec. 53; CR-02-O264-EFS, Ct. Rec. 46; CR-02-O265-EFS, Ct. Rec. 45; CR-02-O266-EFS, Ct. Rec. 49), and for Discovery and Reciprocal Discovery (CR-02-O26O-EFS, Ct. Rec. 48; CR-02-O261-EFS, Ct. Rec. 54; CR-02-O264-EFS, Ct. Rec. 47; CR-02-O265-EFS, Ct. Rec. 46; CR-02-0266-EFS, Ct. Rec. 50). The Court declined to address Defendant Michael Cosand's Motion to Sever (CR-02-O26O-EFS, Ct. Rec. 70), and Defendant Milton Friedley's Motions to Suppress (CR-02-O266-EFS, Ct. Rec. 51) and to Sever (CR-02-O266-EFS, Ct. Rec. 66), because they were not briefed before the deadline for the May 8, 2003 hearings. This Order memorializes and supplements the oral rulings of the Court.
I. Motions filed by Michael Cosand
A. Motion to Suppress Evidence
1. Facts
On April 30, 2002, the Government requested and obtained two search warrants, one for the Cosand's house and one for the business, to obtain evidence relating to the charges here presented. That warrant described the property to be seized thus:
1. Any and all business documents associated with Geronimo Holdings, LTD, Valley Car and RV's, and Westridge Leasing, including bills of sale, invoices, payment receipts, bank drafts, bank transaction records, odometer statements, automobile titles, reassignment of title supplements, applications for titles and replacement titles, ledger books, records of purchases and sales, vehicle detailing records, automobile auction company records, correspondence with automobile auction companies or used car dealers, repair records, vehicle transportation records, vehicle logs, or other documents or records referring or relating to odometer conversion. "Records," as used in this paragraph, includes, but is not limited to, computers, computer terminals, modules, modems, and connectors, floppy drives, tapes, backup tapes and discs, hard drives, printers, printouts, and hard copy user documentation pertaining to files and/or programs.
2. Those vehicles on the premises whose odometers appear to have been physically altered.
3. Records evidencing occupancy or ownership of the premises located at 13417 East Trent Avenue, Spokane, Washington, including, but not limited to, utility and telephone bills, mail envelopes, or addressed correspondence.
4. Records and evidence identifying the location of an off-site storage facility utilized to house and maintain records and documents listed above.
5. Such other property as constitutes evidence or the instrumentalities of criminal conduct, the facts of such conduct, and such conduct, and such contraband and other property intended for use in the commission of criminal acts, as evidence of violations of 18 U.S.C. § 452, 371 and 1341.
(CR-02-O26O-EFS, Ct. Rec. 49.)
On June 30, 2002 the Government requested and obtained another search warrant for the Cosand's home. That search warrant requests that the following property be seized:
The list of items to be seized is as follows: evidence of violation of 26 U.S.C. § 7206 (1, fraud and false statements filing a false tax return):
For the years 1994 to present:
A. all receipts and invoices for income and expenditures;
B. financial statements, business income and expense records, bank account records, correspondence or notes reflecting income or expenses;
C. loan applications, contracts, pledges of collateral, stock certificates, and records regarding payment of loans;
D. all records of travel expense, credit cards, telephone tolls and usage records, and business expense;
E. records of expenses (including education and travel) related to the children or other relatives of Mike and Janice Cosand, including Geoffrey Cosand and others;
F. all records relative to expenditures for the acquisition, ownership, transfer, maintenance, deposit, withdrawal or disposition of any assets held in the names of, or on behalf of Michael or Janice (Bulbach) Cosand, including but not limited to: payment receipts, bills of sale, promissory notes, mortgages, deeds, vehicles licenses or registrations, insurance policies, and related files, notes memoranda and correspondence.
(CR-02-O26O-EFS, Ct. Rec. 49.)
2. Discussion
In this motion, Mr. Cosand argues that the warrants issued fail the Fourth Amendment requirement that they particularly describe the items to be seized. (CR-02-O26O-EFS, Ct. Rec. 49.) While ordinarily, the particularity requirement exists to prevent general searches, United States v. Cardwell, 680 F.2d 75,77 (9th Cir. 1982), it can be violated by a warrant that, while specific, is overbroad. Determination of overbreadth is analyzed by three factors:
(1) whether probable cause exists to seize all items of the particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).
First, the Defendant has not provided the affidavit in support of the search warrants in this case. Therefore, the Court is unable to determine that probable cause did not exist as to each of the items to be seized. The Defendant has asserted that probable cause only existed as to fifty-five of the vehicles. However, the Defendant has not supported that assertion. In the absence of the warrant affidavit or any suggestion in Defendant's reply that he disagrees with the United States statement of the case, the Court accepts the United States statement of the facts (CR-02-O26O-EFS, Ct. Rec. 66) as describing the search warrant affidavit. That description provides probable cause to seize the items identified in the April 30, 2002 search warrant: (1) as it provides probable cause to believe Mr. Cosand had been importing cars with rolled back odometers, there was probable cause to seize records of those transactions. (2) For the same reason there was probable cause to seize cars with altered odometers as instrumentalities of the crime of rolling back odometers. (3) Because it provided probable cause to believe evidence of the crimes charged would be found at the requested addresses, it provided probable cause to seize evidence of the ownership or occupancy of those properties. (4) As there was probable cause to believe Mr. Cosand kept, records of his business at an off-site storage location, and there was probable cause to believe those records might involve his dealings with Geronimo Holdings, LTD, Valley Car and RV's, or Westridge Leasing, there was probable cause to seize records identifying such a facility. {5} As there was probable cause to believe these listed crimes had been committed, there was probable cause to seize evidence of those crimes.
Second, the warrants do set out objective standards by which executing officers can differentiate items subject to seizure from those which are not because they specifically describe the documents to be seized, rather than simply permitting the police to seize evidence of certain crimes. See Cardwell, 680 F.2d at 77 ("The only limitation on the search and seizure of appellants' business papers was the requirement that they be the instrumentality or evidence of violation of the general tax evasion statute, 26 U.S.C. § 7201. That is not enough."). By contrast, the warrants here directed the officers to seize particularly described business records of Mr. Cosand's dealings with identified entities, identified objects and records, and other evidence. It did not permit the executing officers to rummage indiscriminately.
Finally, the Defendant has suggested that the government was able to describe the items more particularly in light of the information available to it at the time the warrants were issued. Unlike in Cardwell the warrants here described the documents as particularly as was reasonably possible at the time the warrants were issued. There, the Court found that the government agents knew they were looking for corporate books and records pertaining to Midwest's 1974 and 1975 taxable years, but failed to limit the warrant to those items. Cardwell, 680 F.2d at 76. Here, Mr. Cosand identifies two aspects in which he alleges the warrant could have been more specific: time limit and vehicle identification. The Defendant argues that the April 30, 2002 warrant should have limited itself only to the last few years, during which the allegedly fraudulent activity occurred. Further, the Defendant asserts that the warrant did not limit itself to the limiting descriptions provided by the affidavit. However, based on the assertion that at least fifty-five vehicles sold by Mr. Cosand and imported by Geronimo Holdings had their odometers altered, it appears that probable cause existed for all cars passing between those two organizations. For that reason, the Court rules that the warrant described the items to be seized as particularly as was possible at the time.
The Defendant further asserts that the warrants are effectively seeking all business records of the Defendants. That would possibly trigger the heightened requirements for the "permeated with fraud" doctrine which the Defendant asserts are not met in this case. The "permeated with fraud" doctrine states that a "generalized seizure of business documents may be justified if the government establishes probable cause to believe that the entire business is merely a scheme to defraud or that all the business's records are likely to be evidence of criminal activity." United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995). However, the "permeated with fraud" doctrine does not apply in this case, as the warrants do not authorize seizure of all business documents. While certainly seeking a large variety of documents, rather than seeking all records, the search warrant limits the records sought to those associated with identified entities.
For the abovementioned reasons the motion to suppress evidence on the basis of lack of particularity is denied. Furthermore, the motion to suppress evidence is also denied on the basis of the good faith doctrine. The Government is entitled to rely on a warrant issued by a magistrate, and the good faith exception to the exclusionary rule applies unless, inter alia, a warrant is so facially deficient that the executing officer cannot reasonably presume it valid. United States v. Leon, 468 IKS. 897, 923 (1983). The Defendant asserts that the warrants here are so facially overbroad as to render reliance unreasonable. However, the warrants are not so deficient as to justify suppression because the application of the three factors mentioned above suggests that the warrants are not overbroad. Therefore, the Government was entitled to rely on the warrants issued by the magistrate and Mr. Cosand's motion to suppress evidence is denied.
B. Motion to Dismiss Counts 1-122
In the first 122 counts of the indictment, the Defendants are accused of altering odometers in violation of 42 U.S.C. § 32703(2). The Defendant asserts, and the government has not disputed, that the physical act of rolling back the odometers allegedly occurred in Canada. The Government has asserted that the kilometer-speedometer/odometer clusters were replaced at Allison's Motor's in Spokane, and the cars with the allegedly altered odometers were sold to U.S. citizens and residents.
The crime of odometer altering requires that the defendant (1) knowingly and willfully, (2) alter an odometer; (3) intending to change the mileage registered. 42 U.S.C. § 32703(2); Schmuck v. United States, 489 U.S. 705, 721-22 (1989); cf. United States v. Hubbard, 96 F.3d 1223, 12230 (9th Cir. 1996) (affirming district court interpretation of odometer tampering that crime ended as soon as the odometers were rolled-back). Because the act of rolling-back the odometers is alleged to have occurred exclusively in Canada, the Defendant argues that this Court lacks subject matter jurisdiction over the offense. While there is no constitutional bar to extraterritorial application of the United States penal laws, ordinarily they are presumed not to apply extraterritorially. United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir. 1991) (affirming extraterritorial application of criminal statute to Defendant convicted of being accessory after the fact to the kidnaping and murder of a DEA agent).
The Government argues that the crime was not complete until the kilometer-speedometer/odometer clusters were replaced. As that act occurred in the United States, the Government argues that the Court need not address the extraterritorial application of United States penal laws. The Court rejects this argument. The crime of odometer tampering is complete when the odometer is rolled back. As that act occurred in Canada, the crimes charges in Counts 1 through 122 was complete in Canada.
Traditionally, courts "look to congressional intent, express or implied, to determine whether a given statute should have extraterritorial application." Id. at 1204.(citing United States v. Bowman, 260 U.S. 94, 98, 43 S. Ct. 39, 41, 67 L.Ed. 149 (1922)). As Congress may constitutionally apply criminal statutes extraterritorially, a finding of explicit Congressional intent would end the inquiry with no need to analyze international law on extraterritorial application. The statute in Felix-Gutierrez was silent on the subject of extraterritorial application. Felix-Gutierrez then examined the nature of the offense and Congress's "other legislative efforts to eliminate the type of crime involved," id at 1204, to determine whether it could infer Congressional intent to apply the statute extraterritorially. It inferred such Congressional intent because the crime was not dependent on the locality in which it was committed, and because the statute was enacted under the right of the Government to defend itself against obstruction, or fraud wherever perpetrated. Id. at 1204; 1205 n. 3 (quoting Bowman, 260 U.S. at 98). Because the Court had conferred Congressional intent for extraterritorial application, it then proceeded to analyze whether such application would violate international law. Id. at 1205. International law permits the exercise of extraterritorial criminal jurisdiction under five theories: territorial, national, protective, universality and passive personality. Id.; see also Restatement (Third) of Foreign Relations Law of the United States § 402 (1987).
According to the Court's reading, the international law analysis would be unnecessary in a case where Congress explicitly intended extraterritorial application. While Congressional intent not to violate principles of international law can be presumed when the court implies Congressional intent, the Court has found no bar to Congress deliberately and explicitly violating international law to apply a criminal statute extraterritorially.
Felix-Gutierrez held that the cumulative effect of three bases supported extraterritorial application: territorial, national and passive personality theory. 940 F.2d at 1206. Territorial theory allows jurisdiction if the acts performed outside the United States produce detrimental effects within the United States. United States v. Hill, 279 F.3d 731. National jurisdiction permits a country to apply its penal laws to extraterritorial acts of its own nationals. Id. Finally, passive personality theory bases jurisdiction on the nationality of the victim. United States v. Vasquez-Velasco, 15 F.3d 833, 840 n. 5 (9th Cir. 1994). As the Defendant in Felix-Gutierrez caused detrimental effects in the United States, adversely affected the national interest, and the victim was a U.S. citizen, international law supported extraterritorial application. 940 F.2d at 1206.
In Vasquez-Velasco, the Ninth Circuit upheld the extraterritorial application of commission of violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959. 15 F.3d at 839 n. 4. Vasquez-Velasco held that congressional intent would be inferred where "the locus of the conduct is not relevant to the end sought by the enactment of the statute, and the statute prohibits conduct that obstructions the functioning of the United States government." Id. at 839. This test was satisfied, based on Felix-Gutierrez. Id. at 840. The court further found that because the murders were committed in an attempt to intimidate the DEA from continuing enforcement activities inn Mexico, and because there is a national interest in eliminating the flow of illegal drugs into the United States, international law supported extraterritorial application. Id. at 841. Further, Vasquez-Velasco added a requirement that exercise of jurisdiction be reasonable under international law. Id. at 840. The court cited the Restatement as providing non-exhaustive list of factors bearing on reasonableness:
(2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:
(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;
(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;
(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted;
(d) the existence of justified expectations that might be protected or hurt by the regulation;
(e) the importance of the regulation to the international political, legal, or economic system;
(f) the extent to which the regulation is consistent with the traditions of the international system;
(g) the extent to which another state may have an interest in regulating the activity; and
(h) the likelihood of conflict with regulation by another state.
Id. at 840 n. 6 (citing Third Restatement § 403(2)). Based on its finding of territorial and protective extraterritorial jurisdiction, and the further finding that drug smuggling was a serious and universally condemned offense not likely to create regulatory conflict with another state, Vasquez-Velasco held that jurisdiction was reasonable. Id. at 841.
Finally, in 2002, the Ninth Circuit issued two opinions on extraterritorial application of United States penal laws, United States v. Hill, 279 F.3d 731, (9th Cir. 2002), and United States v. Neil, 312 F.3d 419 (9th Cir. 2002). In Hill, the court found that there was extraterritorial jurisdiction to prosecute a Defendant for harboring an individual in Mexico who was wanted for violation of the Deadbeat Parents Punishment Act. 279 F.3d at 739. Hill articulated the test for extraterritorial application thus: "to determine whether a given statute has extraterritorial application, we examine (1) the statue's text for any indication that Congress intended it to apply extraterritorially and (2) compliance with principles of international law." Id. at 739.
While Congress did not explicitly state that violation of the Deadbeat Parent's Punishment Act, 18 U.S.C. § 228 applied to those violating it outside its borders, a section of that act, under which the deadbeat was not charged, made it a punishable offense to travel in interstate or foreign commerce with the intent of evading a support obligation. Id. From this inclusion, the Court concluded that Congress intended the Act apply to offenders not found in the United States. Hill also found that international law supported jurisdiction under the territorial, national and passive personality theories because the detrimental effects occurred in the United States, the Defendants were U.S. citizens, and the victim mother and child were also U.S. citizens. Id. at 740.
Neil concluded that extraterritorial jurisdiction to prosecute the offense of sexual contact with a minor in violation of 18 U.S.C, § 2244(a)(3) by a citizen of St. Vincent and the Grenadines against a U.S. citizen on a cruise ship in Mexican waters. 312 F.3d at 420. The court slightly varied the test for jurisdiction:
We undertake a two-part inquiry to determine whether extraterritorial jurisdiction is proper. First, we look to the text "of the statute for an indication that Congress intended it to apply extraterritorially. Second, we look to the operation of the statute to determine whether the exercise of extraterritorial jurisdiction comports with the principles of international law.
Id, at 421. Finding that the criminal statute was given scope "to the extent permitted by international law," the court proceeded to the second inquiry. Id. at 422 (citing 18 U.S.C. § 7(8)). On the second inquiry, the Neil stated "[i]n general, we consult international law as part of our analysis of statutes that do not make explicit their intent to exercise extraterritorial jurisdiction." Id.. The court found jurisdiction appropriate under two theories: (1) territorial because the detrimental effects of the sexual conduct occurred in the United States after the victim returned home, id. at 422; (2) passive personality theory because the victim was a U.S. citizen, id. at 422-23,
The Court concludes that the test for exterritorial application of criminal statutes is Congressional intent. If Congress explicitly provides that a statute applies extraterritorially, a court should so find, without further analysis. Without explicit intent, a court examines the nature of the offense and Congress's other legislative efforts to determine whether the crime is logically dependent on the locus of the act, or whether the statute was enacted to protect the Government from against obstruction or fraud, wherever perpetrated. Only when a court infers congressional intent does it proceed to the second step, whether exercise of jurisdiction comports with principles of international law. In this case, no party has cited any explicit Congressional intent to apply 42 U.S.C. § 32703(2) extraterritorially. Neither is there a basis to infer such Congressional intent: 42 U.S.C. § 32703(2) does depend on the locus of the act because it was not enacted under the United States Government's right to protect itself from obstruction or-fraud, and limitation to the territorial boundaries of the United States would not curtail its scope or usefulness as a penal statute. See Felix-Gutierrez, 940 F.2d at 1204-05. Without explicit or implicit Congressional intent, 42 U.S.C. § 32703(2) cannot apply extraterritorially. As the acts alleged to violate 42 U.S.C, § 32703(2) did not occur in the United States, Counts one through one-hundred and twenty-two are dismissed, without prejudice to refiling in Canada. C. Motion to Extend Time for Filing Motions in Limine
The deadline for filing motions, because it is triggered by the date of the pretrial conference, has occurred before the Government is required to disclose its final expert witness list, its final witness list, or 404(D) evidence the Defendant requests an extension of the deadline to file motions in limine until that information has been disclosea. As the Court has moved the pretrial conference, the Court grantee this motion, and extended the deadline for filing motions in limine accordingly., as set forth in the Court's order continuing trial (CR-02-O26O-EFS Ct. Rec. 64).
D. Renewed Motion to Disclose Brady Material
In this motion, the Defendant asserts that the Government has not identified which portions, if any of the discovery that it has produced constitute Brady material. Consequently, the Defendant requests that the Court order the Government (1) disclose Brady material, or (2) identify which portions of the discovery it has produced are Brady material. However, the Defendant has cited no authority for the proposition that the Government is obligated to identify what material it produces constitutes Brady material. As the Court has found no authority for Defendant's request, the motion was denied.
E. Motion for a James Hearing
The Government anticipate introducing the statements of co-conspirators. The coconspirator exception to the hearsay rule is stated in Federal Rule of Evidence 801(d)(2)(E). The rule was primarily interpreted by the Supreme Court in the case of Bourjaily v. United States. 483 U.S. 171 (1987). In Bourjaily the Court held that, before a coconspirator's statement may be introduced as hearsay testimony, rule 801(d)(2)(E) requires that: (1) there was a conspiracy; (2) the defendant was a part of the conspiracy; (3) the statement was made during the conspiracy; and (4) that the statement was in furtherance of the conspiracy. Id. at 175. Each of these factors must be proved by the offering party by a preponderance of the evidence. Id. at 176. The Court elaborated that the offered hearsay testimony could be used to prove there was a conspiracy, but did not hold as to whether the hearsay testimony alone could prove the existence of a conspiracy. Id. at 181. The existence of these requirements are preliminary questions of fact, to be resolved by the Court under Federal Rule of Evidence 104. Id. In this motion, the Defendant requests a pretrial hearing at which the Court will determine these preliminary questions. Under Federal Rule of Evidence 104(b), the Government requests that the Court admit the evidence, conditioned on the United States's ability to prove the requirements of Rule 801(d)(2)(E). The Defendant has replied that the whole point of United States v. James, 590 F.2d 575 (5ht Cir. 1979), is that by admitting the evidence conditionally, the Court would expose the Defendant to the very prejudice that ruling by the Court on preliminary questions of fact is designed to avoid. Because the Government's request is within the discretion of the trial court, United States, v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980), the Court adopts it. If the Defendant proves to be correct, that the Government has not proved the required items by preponderance of the evidence, a Rule 29 motion will lie with respect to a number of the counts. The motion is therefore denied.
II. Motions Filed by Janice Cosand
A. Motion to Suppress Evidence of Testimonial Conduct
1. Facts
On May 2, 2002, approximately 6-8 law enforcement officers executed a search warrant at the residence of Ms. Cosand. She has submitted a declaration stating that she was told that she was "to sit and remain in the living room, which I did. I had to ask to get a glass of water from the kitchen." (CR-02-O261-EFS, Ct. Rec. 57 ¶ 5.) The Customs Agent Lonn Hansen testified that upon entry into the residence, he advised Ms. Cosand, among other things, that she was free to leave, and if she chose to stay she would have to remain seated in one place and not interfere with the search. It appears that she asked permission to get a glass of water. She entered the kitchen and allegedly moved a Geronimo Holdings sale document. (CR-02-0261-EFS, Ct. Rec. 58 Ex. A.) When the agent discovered that the document was now missing, he asked Ms. Cosand about it. She denied any knowledge. The deputy informed her that she could be arrested for interfering with a search warrant. She responded by going to the kitchen and pulling the document out of a magazine. (Id.)
2. Discussion
The Defendant raises two issues in this motion: (1) her testimonial conduct in revealing the location of the missing document was involuntary (2) she was entitled to Miranda warnings before being asked questions regarding the document.
When the government seeks to introduce a statement by the defendant, it bears the burden of demonstrating that the statement was voluntary. Lego v. Tweomey, 404 U.S. 477, 489, 92 S. Ct, 619, 626-27, 30 L. Ed, 2d 618 (1972). While ordinarily, the compelled production of evidence does not violate the privilege against self-incrimination, Schmerber v. California, 384 U.S. 757, 764, n. 6 (1966), a communication that either explicitly or implicitly relates a factual assertion or discloses information is testimonial. Doe v. United States, 487 U.S. 201, 210 (1988). Here, the Government apparently intends to introduce the exchange as evidence that Ms. Cosand moved the document, and that she had must have done so because she knew that it was evidence of odometer tampering. This conduct is being offered because it relates these factual assertions. It is therefore subject to the privilege against self-incrimination.
The test for voluntariness is whether, under the totality of the circumstances "the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Beatty v. Stewart, 303 F.3d 992 (9th Cir. 2002) (citing Haynes v. Washington, 373 U.S. 503 513, 83 S.Ct. 1336, 10 L.Ed.2d 53 (1961)). Factors that may be considered in determining voluntariness include: the youth of the accused; education of the accused; intelligence of the accused; advice regarding constitutional rights; length of detention; repeated and prolonged nature of questioning; and the use of physical punishment. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Further, confessions obtained by threats, or through the exertion of improper influence, may be involuntary. Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976). For example, unfounded threats to arrest family members may make a statement involuntary. Rogers v. Richmond, 365 U.S. 534, 81S. Ct. 735, 5 L.Ed.2d 760 (1961). Here Ms. Cosand alleges that her testimonial conduct was coerced because she was threatened with arrest if she did not produce the document, and was interrogated by the six police officers in her house. While it is certainly true that unfounded threats to arrest may be coercive, here it appears that Ms. Cosand could have been arrested. The officers were thus threatening to do something they had a legal right to do. A confession is not involuntary because of "threats to do what the agents have a legal right to do (i.e. bring the defendant to trial and seek a conviction and a realistic penalty)." United States, v. Barnett, 814 F. Supp. 1449, 1456 (D. Alaska 1992) (citing United States v. Crespo de Llano, 838 F.2d 1006, 1015-16 (9th Cir. 1987). In Crespo de Llano, the police officers, in possession of a search warrant, asked the defendant to reveal the location the narcotics so that they would not have to tear the house apart. Id. at 1C11. The defendant responded by telling the officers were the narcotics were located. Id. The officers then proceeded to that location and found the cocaine. Id.
The court rejected her challenge to the voluntariness of her disclosure of the location of the cocaine because the police merely threatened authorized action:
Because the officers were in possession of a search warrant, they were authorized to search into all hidden places to find the cocaine. They did not threaten to take any unauthorized action against Dominguez personally if she remained silent as in Tingle. They simply suggested to her that her cooperation would avoid an unnecessary albeit authorized interference with her household.
Id. at 1016. Similarly in this case, it appears that the officers were authorized to arrest Ms. Cosand for willfully interfering with a search warrant, and thus did not threaten to take any unauthorized action if she remained silent. For that reason, the Court has concluded that in the absence of the other factors typically present in a coerced confession, such as a young, uneducated, or unintelligent subject, lengthy detention, repeated or prolonged questioning or use of physical punishment, the Court rules that Ms. Cosand's testimonial conduct of retrieving the Geronimo Holdings document was voluntary.
Ms. Cosand also raises the lack of Miranda warnings. Miranda warnings are required before interrogation of a suspect in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). The questioning of Ms. Cosand was interrogation because it was reasonably likely to elicit an incriminating response. United States v. Salgado, 292 F.3d 1169, 1172 (9th Cir. 2002) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). An individual is "in "custody" where a reasonable person would believe that he or she was not free to leave. United States v. Kim, 292 F.3d 969, 974-75 (9th Cir. 2002). There are several relevant factors to deciding that question: (1) language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; (5) the degree of pressure applied to detain the individual. Id. at 974 (quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)). The Defendant cites Kim as holding that a Defendant who is confined to one place during a search is in custody for Miranda purposes. See id. at 978. However, the facts the Kim found justified an "in custody" finding are not present here. There, the court founds that the Defendant would reasonably have not felt free to leave because: (!) the officers locked the doors of the building searched while the defendant was inside to secure the premises to be searched; (2) the officers isolated her by locking her husband out, and restricting her communication with her son; (3) the officers ordered her not to speak in Korean; (4) the officers limited her a particular sitting area; (5) the full-fledged interrogation occurred for at least 50 minutes. Id.
By contrast, here, there is no evidence that the doors to the residence were locked; there is no evidence that Ms. Cosand was isolated from relatives or others during the questioning; the officers permitted her to call her attorney; the questioning was brief; the questioning occurred in her home; and she was explicitly told that at: the time the officers arrived that she was free to leave. A defendant who was explicitly told that she was free to leave, and no evidence suggests that her ability to leave was restrained in any way, the defendant is not in custody for Miranda purposes. Hayden, 260 F.3d at 1066. Turning to the relevant factors: (1) the defendant was not summoned, rather she remained at the house voluntarily after being told she was free to leave; (2) the defendant does not appear to have been confronted with evidence of guilt; (3) the questioning occurred at the home of the defendant, an atmosphere less likely to produce coercion; (4) the defendant was not detained; and (5) the pressure applied to the Defendant was a threat to arrest her if she did not produce the document. The Court finds this last factor conclusive. While at the moment that Ms. Cosand was initially asked about the document, no pressure was applied, once she was told that she would be arrested for willfully interfering with a search warrant, she was in fact not free to leave. This restraint, while not a formal arrest but a threat of formal arrest if she did not comply with the officer's order to retrieve the document, was sufficient to lead a reasonable person in Ms. Cosand's position to believe that she was not free to leave — no reasonable person when told that she will be arrested unless she performs a specified action would feel free to ignore the officer and walk away. Kim, 292 F.3d at 973-74. As the Court has concluded that at the moment Ms. Cosand was told she would be arrested if she did not retrieve the document, she was in custody, and was being subject to interrogation, she was entitled to Miranda warnings.
As it is undisputed that Miranda warnings were not given, the Court must next address the remedy for such a violation. Firstly, the testimonial conduct itself is not admissible in the Government's case-in-chief. Pollard v. Gallaza, 290 F.3d 1030, 1033 (9th Cir. 2002). However, if voluntary, such testimony may be used to impeach a defendant who testifies inconsistently with the prior statement. Id. (citing Harris v. New York, 401 U.S. 222, 224-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)). As the Court has found Ms. Cosand's testimonial conduct was voluntary, the Government may not introduce evidence of Ms. Cosand' retrieval in its case-in-chief, but, should Ms. Cosand testify inconsistently with her conduct in retrieving the document, the Government may impeach her with that conduct. Second, the document itself is admissible. Non-testimonial physical evidence obtained in violation of Miranda is admissible, so long as the Miranda violation did not encompass coercion or a violation of due process. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990). Again, as the Court has found the testimonial conduct was voluntary, the document is admissible.
The Court notes that even in the absence of voluntary testimonial conduct, the document might still be admissible. The Fifth Amendment only bars compelled testimonial evidence. Fisher v. United States 425 U.S. 391, 408, 96 S.Ct. 1569 1579-80, 48 L.Ed.2d 39 (1976). A criminal defendant may be compelled to produce other sorts of evidence, such as blood samples or handwriting samples, without any Fifth Amendment problem. Id, (citing cases). For that reason, the document itself would be admissible even were Ms. Cosand compelled to produce it.
B. Motion to Dismiss Counts 123-133
In this Motion, Janice Cosand seeks dismissal of counts 123-133, which allege Entry of Good by Means of Fraud, in violation of 18 U.S.C. § 542 for failure to state an offense.
18 U.S.C. § 542 provides:
Whoever enters or introduces, or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance, or makes any false statement in any declaration without reasonable cause to believe the truth of such statement, or procures the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, whether or not the United States shall or may be deprived of any lawful duties; or
Whoever is guilty of any willful act or omission whereby the United States shall or may be deprived of any lawful duties accruing upon merchandise embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission
Id. The indictment alleges that the Defendants
did knowingly and wilfully enter and introduce, and attempt to enter and introduce, into the commerce of the United States, imported merchandise, that is motor vehicles, by means of false and fraudulent practices, and did make false statements without reasonable cause to believe the truth of such statements, specifically, invoices, declarations and papers concerning the vehicles identified below by "Veh. No," which said documents were false and fraudulent in that they did reflect a value that was more than each of the defendants had reasonable cause to believe was the true value of the motor vehicle.
(CR-O2-O261-EFS, ct. Rec. 1 at 9-10.) The Defendant here alleges that the indictment was required to allege that the false statements were material to the decision whether to allow the cars to be imported to state an offense. The failure of an indictment to include a required element is fatal and subjects the indictment to dismissal. United States v. Du Bo, 186 F.3d 1177, 1180 (9th Cir. 1999). In United States v. Rose, 570 F.2d 1358, 1363 (9th Cir. 1978), the court rejected cumulative sentencing for convictions under 18 U.S.C. § 542 and 18 U.S.C. § 1001 because to be convicted of 18 U.S.C. § 542, the Government was required to prove materiality of the false statement. Id. ("If the false statement is not material, it cannot be said that the attempt was made to import the merchandise "by means of" the statement"). The Ninth Circuit reaffirmed that position in United States v. Teraoka, 669 F.2d 577 (9th Cir. 1982). In Teraoka, the Government charged a salesman with violating § 542 by falsely stating the sales price of imported nails to avoid paying an anti-dumping assessment. Id. at 578-79. The Ninth Circuit affirmed dismissal of the indictment because the false statement did not enable the goods to enter the United States, the salesman had not violated Section 542, id. at 579; id. at 579 n. 3 ("Under the clear language of Section 542, the false statement must have significance not to any aspect of the importation process, but rather to the actual admission of the goods in question."). If materiality is required to prove a violation of Section 542, the Government would have to allege in the indictment that the false statements enabled the cars to be admitted. As the indictment does not allege that, it should be dismissed.
In United States v. Corcuera-Valor, 910 F.23d 198 (5th Cir. 1990), the Fifth Circuit reversed the conviction of shirt importers under Section 542 because the Government had not proved that the false statements were material to the ability to import the goods. Id. at 200. The court rejected the Government's argument that to interpret Section 542 to require proof of materiality would eviscerate the purpose of Section 542, which was to prevent importers from lying to customs officials about their merchandise:
This argument is groundless-the government is free to prosecute without proof of materiality under the latter part of § 542, which imposes criminal liability purely for making a false statement in a customs declaration. The government, unfortunately, indicted Corcuera-Valor and Berlanga-Garcia under the first part of § 542, failing to read further to the cart of § 542 that requires no proof that the false statement was the reason the goods were allowed to enter the United States.
Id. Corcuera-Valor read Section 542 to state two different offenses: (1) the importation of goods by means of a false statement, and (2) making a false statement in a declaration without reasonable cause to believe the truth of the statement. Neither Rose nor Teraoka, the Ninth Circuit cases, parse Section 542 in this manner, nor do they quote the language of the indictment against those defendants. The Court adopts Corcuera-Valor's reasoning and rules that an indictment under Section 542 states an offense if it alleges that the defendant made a false statement in a declaration without reasonable cause to believe its truth. The indictment here satisfies that requirement by alleging that the defendants made statements of the value of the vehicles in declarations without reasonable cause to believe they were the true value of the vehicles. As such, the motion is denied.
C. Motion in Limine to Exclude Evidence for Untimely Production
On February 3, 2003, the Court granted the Defendants' motions to establish discovery deadlines in these cases. Specifically, the Court ordered:
The Government is to provide the Defendants with:
a. the areas of expertise about which the Government's experts will testify NO LATER THAN January 24, 2003;
b. all tangible evidence, including tax returns, NO LATER THAN January 24, 2003;
c. he names of co-conspirators NO LATER THAN thirty days before trial, which given the current trial date, calculates to April 4, 2003;
d. all Jencks act material NO LATER THAN March 14, 2003;
e. all 404(b) evidence NO LATER THAN thirty days before trial, which given the current trial date, calculates to April 4, 2003.
(CR-02-O261-EFS, Ct. Rec. 49 at 6.) The Government has disclosed tangible evidence since January 24, 2003, on February 10, 2003, February 25, 2003, and March 4, 2003. The Defendants seek exclusion of this evidence at trial because it was disclosed after the Court imposed deadline for tangible evidence. In view of the continuance of the trial date to September of 2003, the Court finds that the Defendants have suffered little, if any, prejudice by the late disclosures. However, the Court will exclude any documents or tangible evidence, except for documents produced by the Simpsons, not disclosed to the Defendants on or before May 8, 2003.
The Court further set deadlines for the remaining disclosures by the Government. The United States is to produce all evidence relating to co-conspiratcrs by August 22, 2003, all Jencks Act material by August 8, 2003, seven weeks prior to trial, and all 404(b) evidence no later than July I, 2003.
D. Motion to Dismiss Counts 1 through 138 for failure to Comply with Order to Provide Bill of Particulars, Alternative Motion for Order Directing Government to Comply with Court's Prior Order to Issue Bill of Particulars and Alternative Motion for Bill of Particulars
On February 3, 2003, the Court granted in part this Defendant's motion for a bill of particulars (CR-0261-EFS, Ct. Rec. 49). That order, along with the United States's answers is as follows: The United States is directed to file, within 30 days from the date of this order, a bill of particulars specifying the following information:
a. Whether Janice Cosand is alleged to have personally reset odometers, and if so, on which vehicles?
The Government responded as to Janice and Michael Cosand that it does not think so, but investigation continues.
b. Whether Janice Cosand is alleged to have personally introduced or attempted to introduce imported merchandise into the United States by means of fraudulent or false practices?
The Government responded as to Janice Cosand Yes, but not on all counts. As to Michael Cosand, the Government responded Yes.
c. Whether Janice Coasand is alleged to have personally transported, transferred or transmitted money obtained by fraud to Canada?
The Government responded as to Janice Cosand that it does not think so, but investigation continues, and it has not received and/or reviewed all of the relevant documents or interviewed all of the relevant witnesses. As to Michael Cosand, the Government responded Yes.
d. Whether Janice Cosand is alleged to have personally, transferred or transmitted falsely made securities from Idaho to Washington?
The Government responded as to Janice Cosand No. As to Michael Cosand, the Government responded Yes.
e. Whether Janice Cosand is alleged to have (or attempted to have) personally transported, transferred or transmitted monetary instruments and funds to Canada with the intent to promote unlawful activity?
The Government responded as to Janice Cosand No. As to Michael Cosand, the Government responded Yes.
Having received those responses, Janice Cosand seeks three forms of relief: (1) dismissal of the counts related to the Bill of Particulars granted for failure to comply; (2) an order directing the Government to Comply with the Court's prior order to issue a bill of particulars; (3) renewal of her motion for a bill of particulars as to those requests denied earlier.
At the May 8, 2003 hearing, the United States orally supplemented its response to the first question with the definite answer of "No." The Court found that, with this oral supplementation, the Government's answers to questions one, four and five were sufficient. However, the Court found that the answers to questions two and three were inadequate as they did not fairly apprize MS. Cosand of the charges against her because the second answers does not specify which items of merchandise Ms. Cosand is alleged to have personally introduced, and the third answer does not definitively answer the question at all. Due to these shortcomings, the second and third responses failed to comply with the Court's order to provide a bill of particulars. The Court declined to dismiss the counts involved, as first requested by the Defendant, but did order the Government to provide final responses to the Defendant no later than the end of May, 2003.
Finally, Defendant's renewed motion for a Bill of Particulars seeks answers for the remaining 20 questions to which she earlier sought to require answers from the United States. This Court has discretion whether to order the Government to file a bill of particulars. Wong Tai v. United States, 273 U.S. 77, 82 (1927). Full discovery obviates the need for a bill of particulars. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979); see also United States v. Discesare, 765 F.2d 890, 897 (9th Cir. 1985) (holding that the motion for a bill of particulars may not be used to obtain information on the overt acts comprising the charge); Yeargain v. United States, 314 F.2d 881, 882 (9th Cir. 1963) (holding that a bill of particulars may not be used to compel disclosure of witnesses or evidence the government intends to use). With those principles in mind, the Court declined to order any further bill of particulars.
E. Motion for Joinder in Michael Cosand's Motion to Suppress Evidence Obtained by Means of an Overbroad Search Warrant
Ms. Cosand seeks to join in Mr. Cosand's motion to suppress. She has standing to object to the searches because they were of her home as well. See e.g. Mancusi v. Defrote, 392 U.S. 364, 392 88 S.Ct. 2120, 20 L.Ed.2d 869 (1968). Hence, to the extent that she simply seeks joinder, the motion is granted. To the extent she seeks actual suppression, her motion is governed by the result of his motion, which was denied. See supra.
III. Motion Filed by Defendants Richard Joel and Dee Ann Shafer
In this motion, the Shafers seek exclusion of any reference to alleged bank fraud that is the subject of a separate, ongoing investigation. The Shafers also request the Court exclude any reference by the government to the Shafers' alleged financial distress. The Government apparently intends to offer this evidence pursuant to Federal Rule of Evidence 404(b). Rule 404(b) provides:
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.
To be admissible in the Ninth Circuit, 404(b) evidence must (1) tend to prove a material point; (2) not be too remote in time; (3) include sufficient evidence that the defendant committed the prior act; and (4) be similar to the offense charged if offered to prove knowledge or intent. United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994). In order to satisfy the first inquiry, the government must "must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." Id. (quoting United States v. Merhmanesh, 689 F.2d 822, 830 (9th Cir. 1982). The Ninth Circuit has also adopted the Rule 403 balancing approach to 404(b) inquiries. Mayans, 17 F.3d at 1183.
In this case, the government has articulated the relevance of the bank fraud and financial condition evidence thus:
The facts will show that the defendants here had the "inclination and desperation" to commit the "bad acts," in that defendants were paying their employees with checks that bounced, were collecting health insurance premiums from their employees but not paying the health care providers, and were collecting extended warranty premiums from customers but not paying the warranty company. The "bank fraud" evidence is but one of many prior "crimes, wrongs or acts" committed by defendants which will be offered to prove motive, intent, knowledge, and absence of mistake or accident.
As cited above, to establish that the proffered evidence tends to prove a material point, the government has to articulate the precise evidential hypothesis by which the material point may be inferred from the 404(b) evidence. The Government's articulation simply doesn't meet that requirement. The Government asserts that the bank fraud evidence will be used to prove motive, intent, knowledge and absence of mistake or accident. But, that assertion simply begs the question under consideration: how does the bank fraud evidence prove what the government says it does? Without articulating the precise hypothesis by which the bank fraud evidence proves a material issue in this case, the Government has failed to meet the rest for admissibility under 404(b) and the motion must be granted. See Mayans, 17 F.3d at 1181; Merhmanesh, 689 F.2d at 830. Accordingly, the Court granted the Defendant's motion and excluded evidence of ""bank fraud."
III. Motions Filed by Defendant Milton Friedley A, Motion co Dismiss Counts 172-182
In counts 172-182 of the indictment, Mr. Friedley is charged with committing the offenses of mail fraud and conspiracy to commit mail fraud. Mr. Friedley asserts that the indictment on these counts charges him with two separate offenses:
1. mail Fraud, or conspiracy to commit mail fraud, in an alleged scheme to defraud purchasers of vehicles by rolling back odometers; and
2. mail fraud, or conspiracy to commit mail fraud, in an alleged scheme to defraud the State of Washington of sales taxes.
An indictment can only charge one offense in each count, because to charge more than one offense raises the possibility that a jury could find the defendant guilty by a non-unanimous verdict wherein some jurors find that the defendant is guilty beyond a reasonable doubt of one crime alleged, while others find the defendant guilty beyond a reasonable doubt of the other crime alleged in the indictment. United States v. Gordon, 844 F.2d 1397, 1400-1401 (9th Cir. 1988). In Gordon, the court found that an indictment that charged conspiracy to defraud the government as well as a conspiracy to obstruct justice by covering up the fraud alleged two distinct conspiracies and was therefore duplicitous. Id. at 1401, However, a single scheme that defrauds different people over an extended period of time using different means and representations may constitute a single crime where they are within the "conceivable contemplation of a greedy mind." United States v, Bryan, 868 F.2d 1032, 1037-38 (9th Cir. 1989). In the context of a conspiracy, "relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency and duration of each conspirator's transactions; and the commonality of time and goals." United States v. Zemek, 634 F.2d 1159, 1168 '9th Cir. 1980). As alleged in the indictment, Mr. Friedley and Michael Cosand devised a scheme to obtain money from the buyers of used vehicles, that as part of that scheme, they altered odometers, and that also as part of that scheme, they collected money from the buyers of used vehicles ostensibly as Washington sales taxes, but did not transmit that money to the State of Washington. Applying the factors, one could conclude that this was two separate schemes, but one could also conclude that this was one scheme, to obtain money from used car buyers. The participants were the same in both. The quality frequency and participation of each conspirator's transaction would presumably be almost exactly the same under each because they both occur in connection with the sale of a used car. Finally, the commonality of time and goals appears identical for the same reason. Finding that these counts charge only one conspiracy, the Court denies the motion.
B. Motion to Extend Time to File Responses
In this motion, the Defendant requests leave to file an out-of-time response to the Government's consolidate response. There has been no prejudice. Therefore, the Court granted the motion.
IV. Motions Filed by the United States
A. Motion in Limine Requesting the Court Conditionally Admit Business Records
The Government, during its case-in-chief, plans on offering numerous records from businesses owned and operated by the defendants, owned and operated by people with whom the defendants did business in the United States and Canada, public records from the Provinces of Alberta and British Columbia, and public records from state and federal agencies in the United States. In this motion, the United States seeks an order conditionally admitting all business records, with counsel reserving the right to object on the grounds of relevancy.
To be admissible, the business records must satisfy the hearsay exception for records of regularly conducted activity, Rule 803(6), and be properly authenticated. Rule 803(6) defines as not subject to the hearsay rule:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11) or Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
This rule requires that the prospective record: (1) be made at or near the tine; (2) by or from information transmitted by a person with personal knowledge; (3) be kept in the course of regularly conducted business activity; (A) be kept in the course of that business activity; and (5) be authenticated by the records custodian or under the self-authentication provisions of rule 902(11) (authentication of domestic business records by a written certification from the records custodian or other qualified individual of the facts set forth in points 1-4 or Rule 902(12) (authentication of foreign business records by written certification of the records custodian or other qualified individual of the facts set forth in points 1-4, signed in a manner that would subject the signatory to criminal penalties if false). On the present record, the showing made by the government establishes none of these five requirements of admissibility. Hence, the Court denied the motion, with leave to renew.
B. Motion for Discovery and Reciprocal Discovery
In this motion, the United States, pursuant to Federal Rule of Criminal Procedure 16(b), has requested reciprocal disclosure of (I) Documents and Tangible Objects; (II) Reports of Examinations and Tests; (III) Expert Testimony; and (IV) Witness Lists and Exhibit Lists the Defendants Intend to Offer in their Case in Chief. Under Federal Rule of Criminal Procedure 16(b), the United States is entitled to Reciprocal Discovery of Documents and Tangible Objects, Rule 16(b)(1)(A); Reports of Examinations and Tests, Rule 16(b)(1)(B); and Expert Testimony, Rule 16(b)(1)(C). To that extent, the motion is granted. The United States has provided no authority for its request that the Court order the Defendants turn over witness and exhibit lists. As part of an earlier order granting the Defendant's motion to establish discovery deadlines, the Court only ordered production of the Government's witness and exhibit lists to the degree the Government had agreed to produce them. The Court hereby imposes that same limitation: the Defendants are ordered to produce their witness and exhibit lists only to the extent they agree to disclose them. Accord
IT IS HEREBY ORDERED:
1. Defendant Michael Cosand's Motion to Suppress Evidence (CR-02-0260-EFS, Ct. Rec. 49) is DENIED.
2. Defendant Michael Cosand's Motion to Dismiss Counts One Through One-Hundred Twenty-Two (CR-02-O26O-EFS, Ct. Rec. 51) is GRANTED.
3. Counts 1 through 122 of the Indictment are DISMISSED WITHOUT PREJUDICE co refiling in Canada as to all Defendants.
4. Defendant Michael Cosand's Motion to Extend Time for Filing Motions in Limine (CR-02-26O-EFS, Ct. Rec. 53) is GRANTED.
5. Defendant Michael Cosand's Motion to Disclose Brady Material (CR-02-26O-EFS, Ct. Rec. 55) is DENIED.
6. Defendant Michael Cosand's Motion for a James Hearing (CR-02-260-EFS, Ct. Rec. 57) is DENIED.
7. Defendant Janice Cosand's Motion to Suppress Evidence of Testimonial Conduct (CR-02-O261-EFS, Ct. Rec. 55) is GRANTED IN PART AND DENIED IN PART.
8. Defendant Janice Cosand's Motion to Dismiss Counts One-Hundred Twenty-Three Through One-Hundred Thirty-Three (CR-02-O261-EFS, Ct. Rec. 59) is DENIED.
9. Defendant Janice Cosand's Motion in Limine to Exclude Evidence for Untimely Production (CR-02-O261-EFS, Ct. Rec. 61) is GRANTED IN PART AND DENIED IN PART.
10. The Government is to provide the Defendants with:
a. all evidence relating to co-conspirators NO LATER THAN August 22, 2003;
b. all Jencks Act material NO LATER THAN August 8, 2003;
and
c. all 404(b) evidence NO LATER THAN July 1, 2003.
11. Defendant Janice Cosand's Motion to Dismiss Counts One Through One-hundred Thirty-Eight for Failure to Comply with Order to Provide Bill of Particulars (CR-02-O261-EFS, Ct. Rec. 64-1) is DENIED.
12. Defendant Janice Cosand's Alternative Motion for Order Directing Government to Comply with Court's Prior Order to Issue Bill of Particulars (CR-02-O261-EFS, Ct. Rec. 64-2) is GRANTED IN PART AND DENIED IN PART.
13. Defendant Janice Cosand's Alternative Motion for Bill of Particulars (CR-02-O261-EFS, Ct. Rec. 64-3) is DENIED.
14. Defendant Janice Cosand's Motion for Joinder in Michael Cosand's Motion to Suppress Evidence Obtained by Means of an Overbroad Search Warrant (CR-02-O261-EFS, Ct. Rec. 66) is GRANTED.
15. Defendants Richard Joel Shafer and Dee Ann Shafer's Motion in Limine to Exclude "Bank Fraud" Evidence, (CR-02-O264-EFS, Ct. Rec. 50; CR-02-O265-EFS, Ct. Rec. 49) is GRANTED IN PART.
16. Defendant Milton Friedley's Motion to Dismiss Counts One-Hundred Seventy-Two Through One-Hundred Eighty-Two (CR-02-O266-EFS, Ct. Rec. 52) is DENIED.
17. Defendant Milton Friedley's Motion to Extend Time to File Responses (CR-02-O266-EFS, Ct. Rec. 63) is GRANTED.
18. The United States's Motion in Limine Requesting the Court Conditionally Admit Business Records (CR-02-O26O-EFS, Ct, Rec. 46; CR-02-0261-EFS, Ct. Rec. 53; CR-02-O264-EFS, Ct. Rec. 46; CR-02-O265-EFS, Ct. Rec. 45; CR-02-O266-EFS, Ct. Rec. 49) is DENIED.
19. Tne United States's Motion for Discovery and Reciprocal Discovery (CR-02-O26O-EFS, Ct. Rec. 48; CR-02-O261-EFS, Ct. Rec. 54; CR-02-O264-EFS, Ct. Rec. 47; CR-02-O265-EFS, Ct. Rec. 46; CR-02-0266-EFS, Ct. Rec. 50) is GRANTED IN PART AND DENIED IN PART. IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to all counsel.