Opinion
No. 02 CR 678
September 23, 2003
MEMORANDUM OPINION AND ORDER
Defendants Jeffrey Grossman and Donald Grauer are charged in a thirty-five-count superseding indictment with wire fraud, bank fraud, money laundering, and obstruction of justice in a multi-year scheme to defraud banks and investors in connection with loans and investments for businesses and real estate projects. Mr. Grossman and Mr. Grauer allegedly fraudulently obtained monies from banks and investors and then converted the monies to other uses. The defendants entered pleas of not guilty as to all counts.
On July 3, 2003, Mr. Grossman and Mr. Grauer filed motions for a bill of particulars and for immediate disclosure of exculpatory evidence. The motions are DENIED.
The defendants' motion for a bill of particulars seeks to uncover the identities of the "co-conspirators" and "co-schemers" referred to in the indictment. Federal Rule of Criminal Procedure 7(f) permits a court to direct the filing of a bill of particulars.
The purpose of such a bill is to ensure that the defendant has the information required to mount an adequate defense. United States v. Finley, 705 F. Supp. 1272, 1277-78 (N.D. Ill. 1988) (Rovner, J.), Therefore, a bill of particulars is required only where the indictment fails to provide enough information to enable the defendant to prepare for trial. United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991). Factors a court may consider when judging the need for a bill of particulars include "the complexity of the charges, the clarity of the indictment, and the degree of discovery available to the defense without a bill." United States v. Esteves, 886 F. Supp. 645, 646 (N.D. Ill. 1995) (Bucklo, J.).
The defendants point to United States v. McDonnell, 696 F. Supp. 356 (N.D. Ill. 1988) (Alesia, J.) in support of their argument that they cannot properly defend themselves without the bill they seek. The McDonnell defendant, an Illinois state court judge, moved to dismiss the bribery indictment against him on the grounds that it was unconstitutionally vague. The court granted the motion as to one of the counts, a catch-all count alleging that during a period of three years, the defendant accepted bribes of unknown amounts from unnamed attorneys who appeared before the defendant in unnamed cases. Id. at 360. However, similar counts in the indictment, which identified the cases for which the defendant allegedly solicited bribes, were permitted to stand. Id. at 359. In the present case, the superseding indictment is 54 pages long and proceeding to disclose information is limited to information known to the prosecution." United States v. Young, 20 F.3d 758, 764 (7th Cir. 1994). Put another way, " Brady and its progeny do not require the government to conduct an investigation for the defense." United States v. Senn, 129 F.3d 886, 893 (7th Cir. 1997). The information on witness' backgrounds sought by the defendants is readily available to them without government assistance. As long as "the defendant has access to the evidence before trial by the exercise of reasonable diligence," United States v. White, 970 F.2d 328, 337 (7th Cir. 1992), the evidence unknown to the government is not being suppressed by the government, and Brady is not implicated.
This analysis applies equally to the defendants' requests for information regarding "any and all consideration" prosecution witnesses have received from the government, as well as the "alcoholism, drug use, and psychiatric history" of those witnesses. The government is willing to provide material detailing the plea agreements or other consideration provided by the government to its witnesses in exchange for truthful testimony in this case, but objects to the broad language of the request, which appears to cover any deal the witnesses have struck with any government entity at any time. Similarly, it is willing to reveal any information in its possession regarding the mental health of its witnesses, but refuses to engage in a "fishing expedition" in search of such information. The government has no affirmative responsibility to conduct such research on its witnesses, and the defendants may freely do so if they choose. Therefore, the Brady motion is DENIED insofar as it seeks to compel the government to seek out exculpatory information available to the defendants through the exercise of reasonable diligence.
Next, the defendants seek evidence of inconsistent or exculpatory statements by government witnesses. The government objects to the inclusion in this portion of the motion of a demand for agents' notes. The Seventh Circuit has held that the government need not produce an agent's handwritten notes if the government does produce a report which includes all the information contained in the original. United States v. Coe, 220 F.3d 573, 583 (7th Cir. 2000). The Brady motion is DENIED insofar as it seeks handwritten notes not discoverable under Coe.
Finally, the government objects to what it deems, the defendants' "over broad" catch-all requests for information regarding "potential prosecutions" or investigations of witnesses, "exculpatory statements of other persons," and "exculpatory data or other information." It also specifically objects to the request regarding potential prosecutions "to the extent that it appears to require the government to produce evidence of ongoing grand jury investigations." I agree that these requests are extremely broad and might require productions beyond what Brady and Giglio require. To the extent that these portions of the motion seek information