Opinion
No. 00-40104-01/02-RDR.
January 29, 2001.
O R D E R
This order is issued to summarize the rulings of this court during a motions hearing conducted January 10, 2001. It should be noted that during the hearing the court permitted each defendant to join in the motions of his codefendant.
MOTIONS FOR PRODUCTION, DISCOVERY and DISCLOSURE — Doc. Nos. 33, 49, 40, 47 and 48.
These motions contain broadly stated requests for multiple categories and subcategories of information. At the time the motions hearing in this case was conducted, the government produced significant amounts of information for defendants, although this remained a closed file case. The government's response to the motions indicates a willingness to produce information in accordance with the well-recognized legal rules in this area. But, given the general nature of the requests and the general nature of the response, it was difficult or impossible to determine exactly what was at issue at the time of the hearing. Accordingly, the court directed counsel for the parties to meet by February 1, 2001 to determine what items related to these motions are actually in dispute. Defense counsel shall be granted time until March 12, 2001 to file motions regarding these items. The government shall have time until March 26, 2001 to file a response.
While the court did not attempt to address every item in these motions, the court made the following rulings. The court will not direct the government to provide the names and addresses of persons who will not be called to testify in the government's case in chief. The court will not direct the government to provide the addresses of persons who will be called to testify in the government's case in chief. The court will direct that any Brady material be produced 21 days prior to trial; any impeachment material be produced 14 days prior to trial; and any Jencks Act material be supplied to the defense seven days prior to trial. The court will not order the production of grand jury testimony except as required by the Jencks Act. Finally, the court will not direct the production of personnel files of government witnesses for exploration by defense counsel.
The motions were denied without prejudice. However, future such motions should more specifically describe what discovery or disclosures are actually in dispute between the parties.
MOTION FOR BILL OF PARTICULARS — Doc. Nos. 35 and 45.
The indictment in this case reads:
From on or about the 3rd day of November 2000 to on or about the 6th day of November 2000 in the District of Kansas, the defendants WILLIAM LEONARD PICKARD, A.K.A. "John Connor," "William Harlow," and CLYDE APPERSON did knowingly, willfully and unlawfully combine, conspire, confederate and agree with each other and with other persons whose identities are unknown to the grand jury, to manufacture, distribute and dispense 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD), a Schedule I controlled substance . . .
The Tenth Circuit has noted: "`The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.'" United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988) (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)). The indictment in this case identifies a specific conspiracy occurring during a narrow period of time in the District of Kansas. The object of the conspiracy is identified by a specific type of controlled substance. The court believes the indictment places defendants upon fair notice of the crime being charged. We find no good grounds for ordering a bill of particulars. Therefore, these motions were denied.
MOTIONS FOR ADDITIONAL TIME TO FILE MOTIONS — Doc. Nos. 44 and 30.
These motions were granted. As stated earlier, defendants will be granted additional time until March 12, 2001 to file motions. The government shall have time until March 26, 2001 to respond.
MOTION FOR PRETRIAL DISCOVERY OF PROMISES MADE TO WITNESSES — Doc. No. 50.
This motion was filed seeking an order directing the government to produce within ten days an account of all promises and inducements made to any witnesses, any agreements with witnesses and any money or other remuneration paid to witnesses. Other impeachment material such as criminal records, psychiatric records, and promises of immunity was also sought within this time frame.
The court held that these kinds of material should be produced in accordance with the schedule previously stated: Brady material 21 days before trial and impeachment material 14 days before trial. Given these conditions, the motion was denied.
MOTION FOR DISCOVERY OF RULE 404(b) EVIDENCE AND A HEARING UPON ITS ADMISSIBILITY — Doc. No. 42.
This motion seeks discovery of and an opportunity to challenge 404(b) evidence. The government has already given adequate notice of this evidence to defendants. Of course, if new 404(b) evidence is developed, additional notice should be provided. If a defendant seek to bar this evidence, then his counsel may file a motion in limine which will be heard prior to trial. In any event, counsel for the government is directed to approach the bench during trial prior to introducing evidence under Rule 404(b). The motion was denied.
MOTION TO STRIKE ALIAS — Doc. No. 43.
Two aliases are listed in the indictment. Defendant Pickard seeks to have them stricken. If the government intends to introduce evidence regarding these aliases, the court shall not strike them from the indictment. However, the court shall ask the government to refrain from mentioning the aliases during voir dire or in opening statement. The government may say that it anticipates proving that aliases were used. But, the alias itself should not be stated during voir dire or in opening statement. Upon these conditions, the motion was denied.
MOTION TO REQUIRE GOVERNMENT WITNESSES TO BE MADE AVAILABLE FOR RECALL BY THE ACCUSED — Doc. No. 46.
The court denied this motion. If a defendant objects to excusing a witness, counsel may state that objection at the proper time during trial.
MOTION TO PRODUCE AND INSPECT GRAND JURY MINUTES — Doc. No. 39.
The standard for such production is "particularized need." See U.S. v. Troutman, 814 F.2d 1428, 1452 (10th Cir. 1987). This motion fails to establish a valid need for the grand jury minutes. The motion seeks production to look for exculpatory evidence; to get an advance look at the government's case; to obtain information regarding cooperating witnesses; and to obtain Jencks Act statements. None of these reasons is sufficient for the court to order a general examination of the grand jury minutes, given the rulings the court has made upon other pretrial motions. The motion was denied.
MOTION TO CONTROL PREJUDICIAL PUBLICITY — Doc. No. 37.
This motion seeks an order from the court which: 1) excludes print and electronic media from proceedings; 2) prohibits attorneys and associated persons from releasing information to the media; 3) directs that all records and transcripts be sealed until a jury is picked; and 4) prohibits cameras from filming defendants on the courthouse grounds. The Tenth Circuit has held that a trial court may restrict extrajudicial comments by trial participants, including lawyers, parties and witnesses, based on a determination that those comments present a "reasonable likelihood" of prejudicing a fair trial. U.S. v. Tijerina, 412 F.2d 661, 666-67 (10th Cir.) cert. denied, 396 U.S. 990 (1969). The Supreme Court has suggested that a more demanding standard would be applied to assess any standard which regulated the press. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). In this case, the court is aware that there have been articles printed in newspapers and some electronic media coverage. But, the amount of publicity does not seem so extensive or prejudicial as to present a reasonable likelihood of causing an unfair trial, especially in light of the various measures which can be taken to protect against the unfair influence of publicity and press coverage. Accordingly, this motion was denied.
MOTION FOR A JAMES HEARING — Doc. No. 31.
As it appears that the government will attempt to introduce coconspirators' statements into evidence, the court shall follow the favored Tenth Circuit approach and conduct a James hearing. The date and time of the hearing shall be determined at a later time. The motion is granted.
MOTION FOR SEVERANCE — Doc. No. 32.
Defendant Apperson has asked for severance in this case on the grounds that he would only receive the benefit of codefendant Pickard's testimony if a severance is granted. An affidavit from Pickard has been received in support of this motion. The possibility of a Bruton problem has also been raised.
The Tenth Circuit has stated that seven factors should be considered when motions to sever are based on potential exculpatory testimony: 1) the likelihood that the potential witness would testify at a severed trial; 2) the significance of his testimony to the theory of the defense; 3) the exculpatory nature and effect of the testimony; 4) the likelihood that the testimony would have been impeached; 5) the amount of prejudice caused by the absence of such testimony; 6) the effect of severance on judicial economy; and 7) the timeliness of the motion. U.S. v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996).
The government opposes the motion for severance and argues that Pickard's purported testimony is false and would be impeached at trial.
The court has considered the transcripts of the tapes which the government has submitted to prove its argument. Although these transcripts place Pickard's proffered testimony in question, at this point the court shall continue to hold this motion under advisement. Since a James hearing will be held in this case and there will probably be another pretrial motions hearing, additional opportunities exist to flesh out the arguments regarding exculpatory testimony and Bruton problems. The court shall attempt to take advantage of these opportunities before issuing a final decision upon the motion for severance.
MOTION TO DISCLOSE IDENTITY OF THE CONFIDENTIAL INFORMANT — Doc. No. 41.
The court believes the identity of the confidential informant has been made known to defendants and that this motion is moot. If defendants disagree, they may file another motion consistent with the schedule previously set forth in this order.
IT IS SO ORDERED.
O R D E R
This order is issued to summarize the rulings of this court during a motions hearing conducted January 10, 2001. It should be noted that during the hearing the court permitted each defendant to join in the motions of his codefendant.
MOTIONS FOR PRODUCTION, DISCOVERY and DISCLOSURE — Doc. Nos. 33, 49, 40, 47 and 48.
These motions contain broadly stated requests for multiple categories and subcategories of information. At the time the motions hearing in this case was conducted, the government produced significant amounts of information for defendants, although this remained a closed file case. The government's response to the motions indicates a willingness to produce information in accordance with the well-recognized legal rules in this area. But, given the general nature of the requests and the general nature of the response, it was difficult or impossible to determine exactly what was at issue at the time of the hearing. Accordingly, the court directed counsel for the parties to meet by February 1, 2001 to determine what items related to these motions are actually in dispute. Defense counsel shall be granted time until March 12, 2001 to file motions regarding these items. The government shall have time until March 26, 2001 to file a response.
While the court did not attempt to address every item in these motions, the court made the following rulings. The court will not direct the government to provide the names and addresses of persons who will not be called to testify in the government's case in chief. The court will not direct the government to provide the addresses of persons who will be called to testify in the government's case in chief. The court will direct that any Brady material be produced 21 days prior to trial; any impeachment material be produced 14 days prior to trial; and any Jencks Act material be supplied to the defense seven days prior to trial. The court will not order the production of grand jury testimony except as required by the Jencks Act. Finally, the court will not direct the production of personnel files of government witnesses for exploration by defense counsel.
The motions were denied without prejudice. However, future such motions should more specifically describe what discovery or disclosures are actually in dispute between the parties.
MOTION FOR BILL OF PARTICULARS — Doc. Nos. 35 and 45.
The indictment in this case reads:
From on or about the 3rd day of November 2000 to on or about the 6th day of November 2000 in the District of Kansas, the defendants WILLIAM LEONARD PICKARD, A.K.A. "John Connor," "William Harlow," and CLYDE APPERSON did knowingly, willfully and unlawfully combine, conspire, confederate and agree with each other and with other persons whose identities are unknown to the grand jury, to manufacture, distribute and dispense 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD), a Schedule I controlled substance . . .
The Tenth Circuit has noted: "`The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.'" United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988) (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)). The indictment in this case identifies a specific conspiracy occurring during a narrow period of time in the District of Kansas. The object of the conspiracy is identified by a specific type of controlled substance. The court believes the indictment places defendants upon fair notice of the crime being charged. We find no good grounds for ordering a bill of particulars. Therefore, these motions were denied.
MOTIONS FOR ADDITIONAL TIME TO FILE MOTIONS — Doc. Nos. 44 and 30.
These motions were granted. As stated earlier, defendants will be granted additional time until March 12, 2001 to file motions. The government shall have time until March 26, 2001 to respond.
MOTION FOR PRETRIAL DISCOVERY OF PROMISES MADE TO WITNESSES — Doc. No. 50.
This motion was filed seeking an order directing the government to produce within ten days an account of all promises and inducements made to any witnesses, any agreements with witnesses and any money or other remuneration paid to witnesses. Other impeachment material such as criminal records, psychiatric records, and promises of immunity was also sought within this time frame.
The court held that these kinds of material should be produced in accordance with the schedule previously stated: Brady material 21 days before trial and impeachment material 14 days before trial. Given these conditions, the motion was denied.
MOTION FOR DISCOVERY OF RULE 404(b) EVIDENCE AND A HEARING UPON ITS ADMISSIBILITY — Doc. No. 42.
This motion seeks discovery of and an opportunity to challenge 404(b) evidence. The government has already given adequate notice of this evidence to defendants. Of course, if new 404(b) evidence is developed, additional notice should be provided. If a defendant seek to bar this evidence, then his counsel may file a motion in limine which will be heard prior to trial. In any event, counsel for the government is directed to approach the bench during trial prior to introducing evidence under Rule 404(b). The motion was denied.
MOTION TO STRIKE ALIAS — Doc. No. 43.
Two aliases are listed in the indictment. Defendant Pickard seeks to have them stricken. If the government intends to introduce evidence regarding these aliases, the court shall not strike them from the indictment. However, the court shall ask the government to refrain from mentioning the aliases during voir dire or in opening statement. The government may say that it anticipates proving that aliases were used. But, the alias itself should not be stated during voir dire or in opening statement. Upon these conditions, the motion was denied.
MOTION TO REQUIRE GOVERNMENT WITNESSES TO BE MADE AVAILABLE FOR RECALL BY THE ACCUSED — Doc. No. 46.
The court denied this motion. If a defendant objects to excusing a witness, counsel may state that objection at the proper time during trial.
MOTION TO PRODUCE AND INSPECT GRAND JURY MINUTES — Doc. No. 39.
The standard for such production is "particularized need." See U.S. v. Troutman, 814 F.2d 1428, 1452 (10th Cir. 1987). This motion fails to establish a valid need for the grand jury minutes. The motion seeks production to look for exculpatory evidence; to get an advance look at the government's case; to obtain information regarding cooperating witnesses; and to obtain Jencks Act statements. None of these reasons is sufficient for the court to order a general examination of the grand jury minutes, given the rulings the court has made upon other pretrial motions. The motion was denied.
MOTION TO CONTROL PREJUDICIAL PUBLICITY — Doc. No. 37.
This motion seeks an order from the court which: 1) excludes print and electronic media from proceedings; 2) prohibits attorneys and associated persons from releasing information to the media; 3) directs that all records and transcripts be sealed until a jury is picked; and 4) prohibits cameras from filming defendants on the courthouse grounds. The Tenth Circuit has held that a trial court may restrict extrajudicial comments by trial participants, including lawyers, parties and witnesses, based on a determination that those comments present a "reasonable likelihood" of prejudicing a fair trial. U.S. v. Tijerina, 412 F.2d 661, 666-67 (10th Cir.) cert. denied, 396 U.S. 990 (1969). The Supreme Court has suggested that a more demanding standard would be applied to assess any standard which regulated the press. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). In this case, the court is aware that there have been articles printed in newspapers and some electronic media coverage. But, the amount of publicity does not seem so extensive or prejudicial as to present a reasonable likelihood of causing an unfair trial, especially in light of the various measures which can be taken to protect against the unfair influence of publicity and press coverage. Accordingly, this motion was denied.
MOTION FOR A JAMES HEARING — Doc. No. 31.
As it appears that the government will attempt to introduce coconspirators' statements into evidence, the court shall follow the favored Tenth Circuit approach and conduct a James hearing. The date and time of the hearing shall be determined at a later time. The motion is granted.
MOTION FOR SEVERANCE — Doc. No. 32.
Defendant Apperson has asked for severance in this case on the grounds that he would only receive the benefit of codefendant Pickard's testimony if a severance is granted. An affidavit from Pickard has been received in support of this motion. The possibility of a Bruton problem has also been raised.
The Tenth Circuit has stated that seven factors should be considered when motions to sever are based on potential exculpatory testimony: 1) the likelihood that the potential witness would testify at a severed trial; 2) the significance of his testimony to the theory of the defense; 3) the exculpatory nature and effect of the testimony; 4) the likelihood that the testimony would have been impeached; 5) the amount of prejudice caused by the absence of such testimony; 6) the effect of severance on judicial economy; and 7) the timeliness of the motion. U.S. v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996).
The government opposes the motion for severance and argues that Pickard's purported testimony is false and would be impeached at trial.
The court has considered the transcripts of the tapes which the government has submitted to prove its argument. Although these transcripts place Pickard's proffered testimony in question, at this point the court shall continue to hold this motion under advisement. Since a James hearing will be held in this case and there will probably be another pretrial motions hearing, additional opportunities exist to flesh out the arguments regarding exculpatory testimony and Bruton problems. The court shall attempt to take advantage of these opportunities before issuing a final decision upon the motion for severance.
MOTION TO DISCLOSE IDENTITY OF THE CONFIDENTIAL INFORMANT — Doc. No. 41.
The court believes the identity of the confidential informant has been made known to defendants and that this motion is moot. If defendants disagree, they may file another motion consistent with the schedule previously set forth in this order.
IT IS SO ORDERED.