Opinion
No. 00-4024-01/25-SAC
April 26, 2001
MEMORANDUM AND ORDER
The case comes before the court on the motions set for hearing on April 18, 2001, at 9:30 a.m. (Dk. 764) and on the following additional motions:
Timothy Cline's motion for leave to file reply briefs (Dk. 763);
Rudolph Maio's motion for order to preserve evidence (Dk. 769);
Lori George's motion to join (Dk. 779);
and defendant Velia Wittenmyer's supplemental motion to join (Dk. 787).
After hearing the parties' arguments on these matters, the court took them under advisement on April 18, 2001. As for the other motions pending before the court, the parties can expect to receive soon the notices of hearings. Having reviewed the parties' submissions and researched the issues raised, the court rules as follows on motions under advisement.
MOTION TO SEVER PARTIES
Mickey Wittenmyer (Dk. 164)
Gary Wininger (Dk. 191)
Mark Wittenmyer (Dk. 192)
Velia Wittenmyer (Dk. 344)
Rhonda Hibbard (Dk. 552)
Charles Hopkins (Dk. 573)
Michael Hopkins (Dk. 581)
Melissa Bunce (Dk. 598)
Velia Wittenmyer (Dk. 609)
Defendants Specifically Joining Motions to Sever Parties
Charles Hopkins (Dk. 184)
Ginger Breuil (Dk. 716)
Fed.R.Crim.P. 8 provides that "two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transactions constituting an offense or offenses." In the Tenth Circuit, defendants charged jointly under Rule 8 are not entitled to separate trials as a matter of right. In this group of motions, the defendants do not challenge the propriety of joinder under Rule 8 and focus instead on the prejudice and problems associated with a joint trial.
Under proper circumstances, the court may grant severance even if joinder under Rule 8 is appropriate. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993). Fed.R.Crim.P. 14 provides in pertinent part: "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires . . ." "In determining the merits of a motion for severance, the court must weigh the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874, and overruled on other grounds, Mathews v. United States, 485 U.S. 58 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. Hollis, 971 F.2d at 1456. "The Supreme Court has emphasized that trial courts have `a continuing duty at all stages of the trial to grant a severance if prejudice does appear.'" United States v. Peveto, 881 F.2d 844, 857 (10th Cir.) (quoting Schaffer v. United States, 362 U.S. 511 (1960)), cert. denied, 493 U.S. 943 (1989).
The Supreme Court discussed the issue of severance under Rule 14 in Zafiro:
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 774-775, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, [ 481 U.S. 200 (1987)] less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U.S. at 211, 107 S.Ct. 1702.Zafiro, 506 U.S. at 539. Rule 14 does not compel severance even when the risk of prejudice is shown, for the trial court still retains the discretion to create a remedy that abates the risk of prejudice. Id. at 538-39.
Besides being a "preference in the federal system," joint trials "`play a vital role in the criminal justice system.'" Zafiro v. United States, 506 U.S. at 537 (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)). Joint trials promote economy and efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent trials." Richardson, 481 U.S. at 209. Such interests are obviously served in having a joint trial of defendants who are indicted together and are alleged to have participated mutually in the charged offense. See U.S. v. Jenkins, 904 F.2d 549, 557 (10th Cir.), cert. denied, 498 U.S. 962 (1990). Consequently, "[c]ourts generally adhere to the principle that `those indicted together, especially co-conspirators, should be tried together.'" Peveto, 881 F.2d at 857 n. 16 (quoting 8 J. Moore, W. Taggert J. Wicker, Moore's Federal Practice ¶ 14.05, ¶ 14-82 (2 ed. 1989)); see Jenkins, 904 F.2d at 556-557 (persons jointly indicted should be tried together); United States v. Brantley, 986 F.2d 379, 383 (10th Cir. 1993) (defendants indicted together should be tried together).
More Incriminating Evidence Against Other Defendants. An argument oft-repeated in the defendants' motions to sever is the gross disparity of evidence against the different defendants and the disparity in their culpability or involvement in the alleged conspiracy. The fact that evidence against one defendant is more incriminating than another is not, standing alone, a basis for severance. United States v. Dill, 693 F.2d 1012 (10th Cir. 1982); see also United States v. Cox, 934 F.2d 1114, 1120 (10th Cir. 1991) (that the government's evidence was stronger on some counts than on others does not mandate severance under Rule 14). Nor is severance required just because a defendant might have a better chance of acquittal if the trials had been severed. Peveto, 881 F.2d at 857; United States v. Petersen, 611 F.2d 1313 (10th Cir.), cert. denied, 447 U.S. 905 (1980). Similarly, a complaint that the "spillover effect" from the evidence that was overwhelming or more damaging against a co-defendant than the evidence against the moving party is insufficient to warrant severance. United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184 (1986); United States v. Cox, 934 F.2d at 1119. A court must remain mindful, however, that complex cases involving multiple defendants with significantly different degrees of culpability do present a heightened risk of prejudice. Zafiro, 506 U.S. at 539.
A court may reduce the risk of prejudice by instructing the jury that it should consider individually the charges against each defendant and the evidence presented and that it should not consider any evidence admitted solely against one defendant against another defendant. See United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992) (severance not required if some evidence is admissible against some defendants and not others); see also United States v. Cardall, 885 F.2d 656 (10th Cir. 1989) (the assumption that juries can and will follow the instructions they are given is fundamental to our system). This case certainly involves a number of counts, and the defendants do appear to have varying degrees of culpability. Even so, the defendants have yet to persuade the court that a jury here will be unable to follow the court's instructions and compartmentalize the evidence and counts. This factor does not warrant a severance.
Mutually Antagonistic Defenses. By reason of their number and the complexity of the case, the defendants argue the likelihood of antagonistic defenses. The mere fact that one defendant seeks to cast blame on the other does not create prejudice. In United States v. Linn, 31 F.3d 987 (10th Cir. 1994), the Tenth Circuit rejected a claim of "mutually antagonistic" defenses as a ground for a severance:
Here, the mutual antagonism complained of by defendants amounts to no more than finger pointing. The Sturlins maintained that they had nothing to do with the fire at all and that Mr. Linn and others committed the arson as part of a scheme to coerce Guy Sturlin to invest money. Likewise, Mr. Linn contended that he had nothing to do with the fire and that the Sturlins and Mr. Kerns committed the arson. Of course, Defendants also posited that each had nothing to do with the fire and that it was either accidental or due to an unknown arsonist. These defenses simply are not so contradictory that the jury must have necessarily disbelieved one to believe another.
31 F.3d at 992. Other than generally referring to the possibility of antagonistic defenses, the defendants here do not offer any details or specifics about those defenses and whether a jury would be forced to disbelieve one defense in order to believe the another defense. Vague and speculative arguments will not win a severance.
Testimony of Co-Defendant. The defendants argue that if there was a severance then each could be called to testify for the other. A motion to sever based on the need for a co-defendant's testimony triggers consideration of the following factors: "the likelihood that the co-defendant would testify; the significance of the testimony, the exculpatory nature of the testimony; the likelihood that the testimony would be impeached; the prejudice caused by the lack of the testimony; the effect of a severance on judicial administration and economy; and timeliness of the motion." United States v. Scott, 37 F.3d 1564, 1579 (10th Cir. 1994) (citation omitted), cert. denied, 513 U.S. 1100 (1995). The defendants present nothing substantiating that other defendants would testify for them or that the expected testimony would be helpful or exculpatory. The bare allegation that a co-defendant will testify is not enough. United States v. Neal, 27 F.3d 1035, 1047 (5th Cir. 1994), cert. denied, 513 U.S. 1179 (1995); United States v. Espinosa, 771 F.2d 1382, 1408 (10th Cir.), cert. denied, 474 U.S. 1023 (1985).
Bruton Remedy. The defendants throw out the possibility of Bruton issues with a joint trial. In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when his co-defendant's confession, which incriminates both defendants, is introduced at their joint trial, even if the jury is instructed to consider that confession only against the non-testifying co-defendant. See Richardson v. Marsh, 481 U.S. at 206, 107 S.Ct. 1702 ("[W]here two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand."). "'[F]or Bruton to apply, a co-defendant's statement must be clearly inculpatory standing alone.'" United States v. Arias, 984 F.2d 1139, 1142 (11th Cir.) ( quoting United States v. Satterfield, 743 F.2d 827, 849 (11th Cir.), cert. denied, 471 U.S. 1117 (1985)), cert. denied, 508 U.S. 979 (1993); see United States v. Glass, 128 F.3d 1398, 1402-04 (10th Cir. 1997) (distinguishing Arias); United States v. Hill, 901 F.2d 880, 884 (10th Cir. 1990) ( Bruton applies only to "`clearly inculpatory' comments that are `vitally important to the government's case.'") (quoting United States v. Espinosa, 771 F.2d 1382, 1399 (10th Cir.), cert. denied, 474 U.S. 1023 (1985)). Thus, there is not a Bruton problem when "the statement `was not incriminating on its face, and became so only when linked with evidence introduced later at trial'" United States v. Brazel, 102 F.3d 1120, 1140 (11th Cir.) (quoting Richardson v. Marsh, 481 U.S. at 208), cert. denied, 522 U.S. 822 (1997). "Bruton, . . ., does not hold that defendants in joint trials involving Bruton problems are entitled to separate trial." United States v. Hill, 901 F.2d at 883. Bruton problems are avoided, however, by severance, but severance is not required. Id., see United States v. Ridley, 814 F. Supp. 992, 1000-1001 (D.Kan. 1993) (severance not compelled when confronted with a potential Bruton problem). "Severance is required `only where admission of the statement in its edited form distorts the meaning of the statement or excludes information substantially exculpatory of the declarant.'" U.S. v. Comeaux, 955 F.2d 586, 590 (8th Cir.) (quoting U.S. v. Long, 900 F.2d 1270, 1279 (8th Cir. 1990)), cert. denied, 506 U.S. 845 (1992).
In short, if an irreconcilable Bruton problem exists, the government will not be permitted to introduce a co-defendant's statements at trial. As no defendant has identified which statements the other co-defendant has made that, if introduced into evidence, are potentially violative of his or her own confrontation clause rights, it is impossible for the court to evaluate the merits of this claim. Because the defendants have not demonstrated that an actual Bruton problem exists, the court denies the request for a severance on this basis.
Scope and Complexity of Trial. The court shares the defendants' concerns over the court having the physical resources necessary to manage a trial of this size should all defendants proceed to trial. It seems premature to place substantial weight on this factor or to even balance the competing concerns of economy to the parties and the court. Believing that with time it will have gained a better understanding of what facts and contentions remain for trial, the court will reconsider the motions to sever at a time closer to the trial date. For now, the court denies the motions to sever without prejudice to the defendants' renewing their motions later.
MOTION TO SEVER COUNTS
Gary Wininger (Dk. 568)
Defendants Specifically Joining Motion to Sever Counts
Ginger Breuil (Dk. 716)
Melissa Bunce (Dk. 643)
Rudolph Maio (Dk. 726)
Though couched as a motion to sever counts, this motion refers only to Rule 8(b) which governs the joinder of defendants and not Rule 8(a) which governs the joinder of offenses. See United States v. Dominguez, 226 F.3d 1235, 1239 (11th Cir. 2000), petition for cert. filed, ___ U.S.L.W. ___ (Apr. 9, 2001) (No. 00-1569). In the motion, the defendant Wininger argues that the indictment explicitly charges two separate conspiracies: Count 1 — conspiracy to manufacture and distribute methamphetamine — and Count 59 — conspiracy to launder drug proceed, and the indictment implicitly charges five or more conspiracies. The defendant seeks a severance of the different conspiracy counts and, in particular, a severance of Count 1 arguing that the evidence at trial will not "play out" to prove one overarching conspiracy. The defendant devotes the balance of his motion arguing improper joinder of defendants pursuant to Rule 8(b). For purposes of this motion, the court presumes the defendant's issue is with the propriety of joining the different defendants pursuant to Rule 8(b) and not with the joining of the different counts pursuant to Rule 8(a).
In cases of multiple defendants, courts traditionally look only to Rule 8(b), in deciding the propriety of joinder. See 1 Charles A. Wright, Federal Practice and Procedure: Federal Rules of Criminal Procedure § 144 p. 494 (2d ed. 1982); see, e.g., United States v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1453 (8th Cir. 1994) (Court may still apply Rule 8(a) where all the defendants are charged with and tried on the same counts).
Defendants who "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the offense or offenses" may be charged in the same indictment. Fed.R.Crim.P. 8(b). "Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count." Id. Rule 8(b) "is construed broadly to allow liberal joinder to enhance the efficiency of the judicial system." United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1233 (10th Cir. 1997) (citation omitted), cert. denied, 522 U.S. 847 (1997). In this circuit, courts generally look to the allegations in the indictment to determine the propriety of Rule 8(b) joinder. See United States v. Esch, 832 F.2d 531, 538 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988); United States v. Pack, 773 F.2d 261, 266 (10th Cir. 1985).
In United States v. Kiister, No. 97-40061, 1997 WL 823571, at *2 (D.Kan. Nov. 25, 1997), judgment aff'd, 208 F.3d 227 (10th Cir.), cert. denied, 530 U.S. 1282 (2000), this court cited other circuits that had looked beyond the indictment for proof of relatedness:
"In determining whether joinder of multiple defendants in a single prosecution is proper, the trial court may consult the indictment as well as any other pretrial evidence offered by the Government. United States v. Wilson, 26 F.3d 142, 153 (D.C. Cir. 1994), cert. denied, 514 U.S. 1051 (1995). Consequently, Rule 8(b) can be satisfied either by the indictment itself, such as a conspiracy linking the offenses and defendants, or by "[s]ubsequent pre-trial representations." United States v. Perry, 731 F.2d [985] at 990 [(D.C. Cir. 1984)]. If the proof required for Rule 8(b) joinder is lacking, the court has no choice but to require severance. United States v. Jorgenson, 451 F.2d 516, 522 (10th Cir. 1971), cert. denied, 405 U.S. 922 (1972)."
Regardless of the approach taken here — indictment only or indictment first and then subsequent representations or proof — the government here has alleged one conspiracy in the indictment and matched those allegations with additional representations sufficient to meet the requirements for joinder.
In deciding whether the offense or offenses involving the same series of acts or transactions, courts look for a logical relationship between the offenses. United States v. Elder, 90 F.3d 1110, 1119 (6th Cir. 1996), cert. denied, 519 U.S. 1131 (1997). The Ninth Circuit explains it in these terms:
"[W]e have stated that `transactions' has a flexible meaning and that the existence of a `series' depends upon the degree to which the events are related. Mere factual similarity of events will not suffice. Rather, there must be some greater `logical relationship' between the occurrences. Such a logical relationship may be shown by the existence of a common plan, scheme, or conspiracy."
United States v. Sarkisian, 197 F.3d 966, 976 (9th Cir. 1999) (quoting United States v. Ford, 632 F.2d 1354, 1371-72 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981)), cert. denied, 530 U.S. 1220 (2000). Put another way, "[t]he test for proper joinder is a common thread to each of the defendants." United States v. Rogers, 921 F.2d 975, 984 (10th Cir.), cert. denied, 498 U.S. 839 (1990). "Joined defendants can be linked by common evidence on different counts." Id. "Joinder is proper where two or more persons' criminal acts are unified by some substantial identity of facts or participants, or arise out of common plan or scheme." United States v. Cervone, 907 F.2d 332, 341 (2nd Cir. 1990) (citations omitted), cert. denied, 498 U.S. 1028 (1991). Joinder is proper "where one criminal activity naturally flows from separate criminal conduct." United States v. Sarkisian, 197 F.3d at 976 (citing in part United States v. Golb, 69 F.3d 1417, 1426 (9th Cir. 1995) ("Obviously the laundering of drug proceeds through the purchase of airplanes to smuggle drugs is logically related to drug smuggling."), cert. denied, 517 U.S. 1127 (1996)). Joinder is also proper "where all the criminal activities logically fall under the umbrellas of one big conspiracy." United States v. Sarkisian, 197 F.3d at 976 (citing Ford, 632 F.2d at 1372 ("holding various criminal activities were `all part of an onging scheme to enrich [union trust fund] trustees at the expense of the trusts.")).
The government charges all twenty defendants in count one with conspiracy to manufacture and distribute methamphetamine. Generally, all persons indicted together on conspiracy charges are properly joined and tried together. United States v. Sanders, 929 F.2d 1466, 1469 (10th Cir.), cert. denied, 502 U.S. 846 (1991). "Defendants who are charged with conspiring together are properly joined in a single indictment." United States v. Posada-Rios, 158 F.3d 832, 862 (5th Cir. 1998) (citation omitted), cert. denied, 526 U.S. 1031 (1999). Joinder here is proper simply by reason of the allegations in count one.
The defendant's contentions about separate conspiracies and about some defendants lacking any knowledge about others involved or aspects of other conspiracies are to no avail. The conspiracies here as alleged are substantially interrelated by their facts and common aims — the ongoing manufacture and distribution of methamphetamine — and by their common participants — Timothy Cline, Janet Cline and Johnny Shane Wright. See United States v. Posada-Rios, 158 F.3d at 862-63. The defendant Wininger's speculation over whether the evidence at trial will "play out" this scenario is not a sound basis for granting the relief he requests. This motion is denied.
MOTION FOR CRIMINAL HISTORY OF ALL DEFENDANTS, UNINDICTED CO-CONSPIRATORS, TESTIFYING INFORMANTS, AND NON-GOVERNMENTALLY EMPLOYED WITNESSES
Mickey Wittenmyer (Dk. 166)
Mark Wittenmyer (Dk. 169)
Gary Wininger (Dk. 189)
Defendants Specifically Joining Motion for Criminal History
Charles Hopkins (Dk. 184)
Mark Wittenmyer (Dk. 587)
The defendants seek this information arguing it is necessary for showing witness bias and credibility, serving as a mitigating factor for the defendant, and for preventing prejudicial joinder and surprise. The government responds that it has provided each defense counsel with criminal history information regarding his or her particular client and that it has agreed to provide criminal history information regarding each of its witnesses at the time it provides the Jencks materials which is no later than fourteen days before trial. The government refuses to provide criminal history information on anyone, including co-defendants, who will not be testifying as a witness for the government.
In the absence of any contrary authorities cited by the defendants, the court is satisfied that what has been and will be disclosed by the government in response to these motions are all that the law requires. The defendants have learned through the government's other discovery responses what Rule 404(b) may be offered against co-defendants. As will be discussed at more length later in the order, the court directs the government to include in its in camera submission that criminal history which it intends to withhold producing until fourteen days before trial. The court otherwise denies the defendants' motions.
MOTION FOR BILL OF PARTICULARS
Mickey Wittenmyer (Dk. 518)
Johnny Shane Wright (Dk. 526)
Lori George (Dk. 546)
Rhonda Hibbard (Dk. 553)
Gary Wininger (Dk. 561)
Defendants Specifically Joining Motion for Bill of Particulars
Charles Hopkins (Dk. 575)
Mark Wittenmyer (Dk. 587)
Steven Rawlins (Dk. 613)
Tim Cline (Dk. 632)
Melissa Bunce (Dk. 643)
Janet Cline (Dk. 698)
Johnny Shane Wright (Dks. 714 719)
John Keaney (Dk. 717)
Rudolph Maio (Dk. 726)
Ginger Breuil (Dk. 716)
The defendant Wininger seeks to know the government's theory on who were the agreed manufacturers, who were the agreed distributors, and what was the precise amount of methamphetamine that each individual conspirator agreed either to manufacture or distribute pursuant to the conspiracy charged in count one. The defendant George asks for a laundry list of details about the charged conspiracy but emphasizes her need to know the identities of co-conspirators not named in the indictment. The defendant Mickey Scott Wittenmyer complains that count one charging the drug conspiracy fails to allege overt acts and the manner in which the individual conspirators entered into the conspiracy. The defendant Wittenmyer also wants the government to acknowledge that the particular transcripts attached to its motion are the telephone calls described in counts 13, 28, and 31 and to clarify who are the co-defendants charged in those counts. Finally, the defendant Hibbard seeks the date, time and place of the alleged overt acts.
Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment be merely a "plain, concise and definite written statement of the essential facts constituting the offense charged." An indictment is held only to minimal constitutional standards, and the sufficiency of an indictment is judged "by practical rather than technical considerations." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). "An indictment is sufficient `if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense.'" United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir. 1989), cert. denied, 493 U.S. 1020 (1990)). In the Tenth Circuit, it is usually enough for the indictment to track the statute when the statute adequately expresses all of the elements to the offense. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988).
The defendant has the burden of showing that failure to grant the request would result in prejudicial surprise, would preclude an opportunity for meaningful defense preparation, or would cause double jeopardy problems, unless the matter is clear on the face of the defendant's request. United States v. Anderson, 31 F. Supp.2d 933, 938 (D.Kan. 1998); see United States v. Barbieri, 614 F.2d 715, 719 (10th Cir. 1980). The district court has broad discretion in deciding a motion for bill of particulars. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir. 1992).
"`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.'" Dunn, 841 F.2d at 1029 (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)); see United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.), cert. denied, 519 U.S. 901 (1996); United States v. Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995). Though it may provide more information, a bill of particulars is not intended to serve as a discovery device or to compel the government's disclosure of the factual proof planned for trial. Dunn, 841 F.2d at 1029. Nor is it a way to require the Government to disclose evidentiary details or explain the legal theories upon which it intends to rely at trial. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (affirming denial of bill of particulars where the Government had fully disclosed all the documentary and physical evidence it intended to produce at trial, and relied upon alternative theories of defendant's participation); but see United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992) (stating that the defendant is entitled to know the theory of the government's case). A factor to consider is whether the defendant has received access to the same information through other avenues. United States v. Kunzman, 54 F.3d at 1526.
The indictment here includes the dates of the alleged conspiracy, defines, nature of the conspiracy, describes the location of the conspiracy, identifies the co-conspirators, and identifies the specific controlled substance involved. An indictment for conspiracy to manufacture and distribute controlled substances "need not go further and allege `in detail the factual proof that will be relied upon support the charges.'" Dunn, 841 F.2d at 1029 (quoting United States v. Crippen, 579 F.2d 340, 342 (5th Cir. 1978), cert. denied, 439 U.S. 1069 (1979)). The omission of overt acts is not a deficiency, for "a conspiracy indictment under 21 U.S.C. § 846 need not allege any specific overt acts in furtherance of a conspiracy." United States v. Brown, 934 F.2d 886, 889 (7th Cir. 1991). A general request for the overt acts seeks evidentiary material and is an improper discovery request. United States v. Welch, 198 F.R.D. 545, 550 (D.Utah 2001). This is not to say that the court would be within its discretion to order the disclosure of this information if necessary to avoid unfair prejudice or surprise. See United States v. Anderson, 31 F. Supp.2d at 938.
The defendants' different requests for additional information about the conspiracy, like Wininger's request to identify the specific roles of each conspirator and the precise amounts of drugs involved, are mere discovery requests. It is not necessary for a conviction that a conspirator "`know of the existence or identity of the other members of the conspiracy [as long as he has] a general awareness of both the scope and the objective of the enterprise.'" United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (quoting United States v. Evans, 970 F.2d 663, 669-70 (10th Cir. 1992), cert. denied, 507 U.S. 922 (1993)), cert. denied, 530 U.S. 1231 (2000). The government is not obligated to provide information on unindicted coconspirators. See United States v. Guebara, 80 F. Supp.2d 1226, 1229 n. 3 (D.Kan. 2000); United States v. Villata-Gomez, 994 F. Supp. 1322, 1335 (D.Kan. 1998); but see United States v. Anderson, 31 F. Supp.2d at 938 . Given the extensive discovery provided to date and the government's written proffer provided in response to the James hearing request (Dk. 747), the court is not persuaded that additional disclosure is necessary to avoid prejudice. The government has provided and further states its ongoing commitment to provide full statutory discovery to the defendants in order to prevent surprises at trial or the occurrence of any prejudice to the defendants. See United States v. Ivy, 83 F.3d at 1281 ("Given the full disclosure here, the district court's denial [of the defendant's request for bill of particulars] was appropriate, and certainly not an abuse of discretion."); United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991) ("A bill of particulars is not required when information necessary for a defendant's defense can be obtained through `some other satisfactory form' ") (citations omitted), cert. denied, 504 U.S. 910 (1992). Under these circumstances, the defendants' request for a bill of particulars is denied.
MOTION TO STRIKE ALIAS
Tim Cline (Dk. 532)
Defendant Specifically Joining Motion
John Cervine (Dk. 708)
The defendant Timothy Cline seeks a court order striking the alias of "Pony" from indictment (Dk. 532). Besides the caption of the case, additional references to this defendant as "Pony" occur in Count 77 of the indictment. Defendant admits that he is sometimes called by the nickname "Pony," (Dk. 533, p. 2), but contends that given this admission, his alias is not necessary to identify him and should be deleted as "inherently prejudicial surplusage." (Id.)
Rule 7(d) of the Federal Rules of Criminal Procedure provides a "means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may . . . be prejudicial." Notes of Advisory Committee on Rules, 1944 Adoption, Note to Subdivision (d). A motion to strike surplusage "should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. . . . Defendants are usually unsuccessful in their attempts to have aliases expunged from an indictment." United States v. Battle, 1997 WL 447814 at *3 (D.Kan. 1997) (quoting Charles A. Wright, Federal Practice and Procedure § 127 (1982)), aff'd in part, 188 F.3d 519 (10th Cir.), cert. denied, 528 U.S. 1056 (1999); see United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990); United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982).
As this court has previously held:
Notwithstanding these standards, [c]ourts generally disapprove of including aliases in the indictment as an ordinary course and believe that their use "should be curbed." United States v. Wilkerson, 456 F.2d 57, 59 (6th Cir.) (citing Petrilli v. United States, 129 F.2d 101, 104 (8th Cir.), cert. denied, 317 U.S. 657 (1942)), cert. denied, 408 U.S. 926 (1972). The rule most often followed is that aliases may be used when "the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged in the indictment." United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976) ( citing United States v. Skolek, 474 F.2d 582, 586 (10th Cir. 1973); United States v. Miller, 381 F.2d 529 (2nd Cir. 1967), cert. denied, 392 U.S. 929, (1968).Battle, 1997 WL 447814 at *3.
Defendant has not demonstrated how the use of the nickname "Pony" is prejudicial. Unlike other possible nicknames whose very mention could engender adverse sentiment, the name "Pony" conveys nothing that is inherently prejudicial.
Defendant contends that because he admits that "Pony" is his nickname and was his nickname during the time frame at issue in this case, additional proof of any alleged alias is not necessary to identify him. (Dk. 533, p. 3). Nonetheless, the United States contends that because its evidence includes telephone calls in which Cline and other defendants are referred to only by their nicknames, inclusion of the alias in the indictment will be helpful to the jury in following the evidence presented. The government's proffer constitutes sufficient justification for the inclusion of Cline's alias in the indictment . See Battle, 1997 WL 447814 at *3-*4.
In the event the proffered evidence, or other evidence using Cline's nickname "Pony" is not admitted at trial, defendant will be permitted to renew this motion at the close of the evidence. See United States v. Clark, 541 F.2d 1016,1018 (4th Cir. 1976); United States v. Ramos, 839 F. Supp. 781 (D.Kan. 1993). The same ruling is made to any co-defendant who has an alias listed on or in the indictment and who has joined in this motion, specifically including defendant Cervine, whose nickname is "Chief."
MOTION FOR DISCLOSURE UNDER JENCKS ACT
Lori George (Dk. 532)
Defendants Specifically Joining Motion for Jencks Act Disclosure
Tim Cline (Dk. 710)
Velia Wittenmyer (Dk. 609)
Steven Rawlins (Dk. 613)
Rudolph Maio (Dk. 726)
Because of the anticipated number and complexity of Jencks Act statements in this case, the defendant Lori George asks that the government be required to disclose all Jencks Act materials no later than thirty days before trial. While the government has agreed to furnish these materials fourteen days before trial, the defendants argue this is insufficient time to investigate and prepare for trial particularly considering that the persons alleged to be involved are geographically scattered.
The government expresses its concerns for the safety of cooperating witnesses in this case. Specifically, the government says that a witness early in the case received direct threats and that "more than one defendant in this case has indicated a profound fear of testifying or providing information about the co-defendants." (Dk. 663, p. 26). The government also offers that a defense counsel's investigator was "harassed and threatened" while obtaining information on likely testimony of co-defendants.
"A criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Government's witnesses before they have testified." Degen v. United States, 517 U.S. 820, 825 (1996). Rule 16(a)(2) of the Federal Rules of Criminal Procedure only authorizes discovery of statements of government witnesses as provided by the Jencks Act, 18 U.S.C. § 3500. United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 451 (10th Cir. 1984). The Jencks Act provides for discovery of statements of prosecution witnesses after direct examination of the witnesses at trial. The substance of the Jencks Act is set out in Fed.R.Crim.P. 26.2.
"The Jencks Act prohibits a district court from ordering production of statements of witnesses the government intends to call at trial before they testify." United States v. Bennett, 158 F.R.D. 482, 484 (D.Kan. 1994) (citations omitted); see United States v. Aiken, 76 F. Supp.2d 1339, 1344 n. 7 (S.D.Fla. 1999). Nonetheless, pretrial Jencks Act disclosures "greatly facilitate the trial proceedings," and agreements providing the same "are common and encouraged." United States v. Mavrokordatos, 933 F.2d 843, 847 (10th Cir. 1991). "Pretrial access to Jencks material gives the defense a greater opportunity to examine the reports that would be available during trial, but delays the progress of the examination of witnesses." Id.
It is this court's practice to encourage agreements between the parties that provide for pretrial disclosure of Jencks material. An agreement exists in this case providing for disclosure no later than fourteen days before trial. Short of a constitutional concern, the court lacks the authority to modify that agreement and provide for an earlier disclosure deadline. "Jencks Act requirements do not rise per se to constitutional stature." United States v. Aigbevbolle, 827 F.2d 664, 667 (10th Cir. 1987) (quotation omitted). The defendants articulate no constitutional reasons that would empower this court to require earlier pretrial disclosure. The motion is denied.
MOTIONS TO JOIN CO-DEFENDANTS' MOTIONS
Lori George (Dk. 540)
Gary Wininger (Dk. 567)
William Mulkey (Dk. 572)
Charles Hopkins (Dk. 578
Johnny Shane Wright (Dk. 526)
Melissa Bunce (Dk. 595)
Velia Wittenmyer (Dk. 609)
Steven Rawlins (Dk. 613)
Carroll Flowers (Dk. 638)
Melissa Bunce (Dk. 643)
Paula Boyd (Dk. 648)
John Keaney (Dk. 717)
The court grants these motions to join on the conditions that no joining party will be allowed to raise any legal or factual arguments that are additional to or different from those found in the original motion unless separately advanced in the motion to join. Any arguments or issues unique to the joining party not raised in the motion to join will be treated as having been waived.
MOTION FOR GRAND JURY TRANSCRIPTS
Lori George (Dk. 536)
Defendants Specifically Joining Motion for Grand Jury Transcripts
Janet Cline (Dk. 693)
Mickey Wittenmyer (Dk. 588)
Ginger Breuil (Dk. 716)
Johnny Shane Wright (Dk. 719)
Despite all the discovery furnished to date, the defendant George contends she is unable to develop any defenses as she cannot determine from discovery what proof of her involvement in the charged conspiracy exists. She maintains the grand jury transcripts are essential to her trial preparation. The government opposes the request as a mere fishing expedition with the defendant casting about for anything helpful.
"Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy." United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983). The standard for disclosure of grand jury matters under Rule 6 comes from Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), where the Court held:
Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.
441 U.S. at 222. A defendant seeking disclosure has the burden of showing that there exists a "particularized need" for the material to avoid possible injustice and that the "particularized need" outweighs "the public interest in the secrecy of the proceedings." In re Lynde, 922 F.2d 1448, 1452 (10th Cir. 1991) (citing Douglas Oil, 441 U.S. at 223). The trial court in the exercise of sound discretion decides whether the defendant has demonstrated a particularized need. United States v. Warren 747 F.2d 1339, 1347 (10th Cir. 1984).
Particularized need is more than a wish to go fishing for useful material. United States v. Kim, 577 F.2d 473, 478 (9th Cir. 1978); see Cullen v. Margiotta, 811 F.2d 698, 715 (2nd Cir.) ("Requests for wholesale disclosures should generally be denied."), cert. denied, 483 U.S. 1021 (1987). A general claim that the grand jury transcript possibly contains exculpatory evidence does not suffice. In re Lynde, 922 F.2d at 1454. The defendant does not demonstrate a particularized need for the pretrial discovery of the grand jury transcript. It is not sufficient to request wholesale disclosure of the grand jury proceeding on the mere hope of finding something useful. The defendant's request is denied.
MOTION TO COMPEL DISCLOSURE OF THE EXISTENCE AND SUBSTANCE OF PROMISES OF IMMUNITY, LENIENCY, OR PREFERENTIAL TREATMENT
Lori George (Dk. 541)
Velia Wittenmyer (Dk. 608)
Johnny Shane Wright (Dk. 711)
MOTION TO COMPEL PRODUCTION OF PRETRIAL REPORTS, PLEA AGREEMENTS AND PRESENTENCE REPORTS OF GOVERNMENT WITNESSES
Rhonda Hibbard (Dk. 555)
Janet Cline (Dk. 701)
Defendants Specifically Joining Motion to Compel
Ginger Breuil (Dk. 716)
John Keaney (Dk. 717)
Johnny Shane Wright (Dk. 719)
Mickey Wittenmyer (Dk. 588)
Tim Cline (Dk. 632)
Melissa Bunce (Dk. 643)
Janet Cline (Dks. 698 701)
Rudolph Maio (Dk. 726)
The defendants seek this information under the authority of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). As reflected in its response, the government fully recognizes its obligation to provide exculpatory and impeachment materials. The government asks that it be allowed to delay disclosure of these materials until fourteen days prior to trial out of concern for the safety of its witnesses. The defendants complain here and in other motions that they will be prejudiced in preparing for trial if the government is permitted to postpone its disclosure until fourteen days before trial.
"There is no general constitutional right to discovery in a criminal case and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). A defendant's allegation that the requested information might be material does not entitle him to an unsupervised search of the government's files. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). Brady did impose a duty on the prosecution to disclose evidence in its possession that is both exculpatory and material either to guilt or punishment. 373 U.S. at 87; see United States v. Bagley, 473 U.S. 667, 676 (1985) (the obligation of disclosure encompasses not only exculpatory evidence, but also evidence that may be used to impeach the Government's witnesses by showing bias or interest). Grounded on due process principles, Brady does not require the prosecutor "to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." Bagley, 473 U.S. at 675 (footnotes omitted). In short, "it is a rule of fairness and the constitutionally minimal prosecutorial obligation." United States v. George, 778 F.2d 556, 560 (10th Cir. 1985).
The government's response correctly recites its constitutional obligation to search and disclose information pursuant to Brady and Giglio. Except as noted in this order regarding other motions, the government does not reserve any objection to searching the particular documents recited in these motions for information to be disclosed under this rule of fairness. The government's only dispute is with the timing of its disclosure.
Due process disclosures under Brady and Giglio are not subject to any established procedures. Courts have said that the government should disclose such material "as it becomes known to the government, since the information and material must be available to the defense in sufficient time to make fair use of it." United States v. McVeigh, 954 F. Supp. 1441, 1449 (D.Colo. 1997). The government asserts witness safety as a concern justifying some delay in its disclosure of Brady material. The government in this district routinely does not assert such concerns nor use them to delay Brady disclosures. The government refers to specific statements by witnesses and co-defendants that showing these concerns to be valid, if not real.
The defendants' argued need for additional time to investigate these disclosures in preparation for trial remains speculation at this point, simply because the defendants do not know what will be disclosed and the government has not given any indication of the quantity or extent of information awaiting disclosure. The unique circumstances of this case warrant some concern that fourteen days before trial may not be sufficient time for the defendants to consider and investigate what may well be some of the more important evidence in this prosecution. Rather than engaging in speculation or comparing this case to other cases involving less defendants and smaller conspiracies, the court believes it must know more about the anticipated disclosures to decide now whether fourteen days is sufficient time for the defendants to make fair use of this information. Thus, the court directs the government to submit for the court's in camera inspection all discovery matters, excluding Jencks Act statements, that it intends to withhold from disclosure until fourteen days before trial. The government should make this submission no later than twenty days from the filing date of this order. At this time, the court denies the defendants' motions for an order requiring the government to provide these requested materials sooner than the fourteen days before trial subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures.
MOTION FOR DISCLOSURE UNDER FED. R. EVID 803(24)
Lori George (Dk. 544)
Defendant Specifically Joining Motion For Disclosure
Mickey Wittenmyer (Dk. 588)
Citing the residual hearsay exception that formerly appeared at Fed.R.Evid. 803(24) and was transferred to Fed.R.Evid. 807 effective December 1, 1997, the defendant George seeks notice of any statements that the government intends to offer under this provision. The government knows of no information that it will attempt to offer under this provision and represents that it will provide immediate notice in the event it becomes aware of any such information. In light of these representations, the court denies the motion as moot.
MOTION FOR DISCLOSURE OF RULE 404(B) EVIDENCE
Lori George (Dk. 542)
Melissa Bunce (Dk. 593)
Velia Wittenmyer (Dk. 607)
Defendants Specifically Joining Motion For Disclosure
Tim Cline (Dk. 632)
Janet Cline (Dk. 698)
Ginger Breuil (Dk. 716)
John Keaney (Dk. 717)
Johnny Shane Wright (Dk. 719)
Rudolph Maio (Dk. 726)
In response to the defendants' standard requests for Rule 404(b) notice, the government states it is unaware of any evidence to be offered pursuant to Rule 404(b) against Johnny Shane Wright, Gary Wininger, Lori George, Velia Wittenmyer, Charles William Hopkins, William Mulkey, Steven Keith Rawlins, or Paula Boyd. The government generally describes the 404(b) evidence it plans to offer against Melissa Bunce, Tim Cline and Carroll Flowers. The government further represents that it will disclose immediately any additional 404(b) evidence should it become aware of the same. In light of these representations, the court denies the defendants' motions as moot.
MOTION FOR ORDER DIRECTING GOVERNMENT TO EXAMINE ALL PERSONNEL FILES OF LAW ENFORCEMENT PERSONNEL INVOLVED IN THIS CASE AND DISCLOSE ALL IMPEACHMENT MATERIAL
Lori George (Dk. 545)
Defendant Specifically Joining Motion for Order
John Keaney (Dk. 717)
The defendant wants the government to look through the personnel files of all law enforcement officers "involved" in this case for evidence of "perjurious conduct or other like dishonesty, any evidence of specific instances of insubordination or deceitful behavior or any other relevant documentation such as lying to superior officers or filing false reports or any other materials relevant under Fed.R.Evid. 608." (Dk. 545, p. 2). The government responds that it will review the personnel files of law enforcement officers who will be witnesses or have been affiants for certain impeachment information and then disclose any such matters to the defendant or advise that none was found. The court accepts as reasonable and appropriate the limitation of the government's search to those law enforcement officers who will testify to or have averred to certain matters in the case. The court denies the motion as moot in part and as overly broad.
MOTION FOR ADDITIONAL AND SEPARATE PEREMPTORY CHALLENGES
Lori George (Dk. 543)
Defendants Specifically Joining Motion
Janet Cline (Dk. 698)
Mickey Wittenmyer (Dk. 588)
Tim Cline (Dk. 632)
Melissa Bunce (Dk. 643)
Ginger Breuil (Dk. 716)
John Keaney (Dk. 717)
Johnny Shane Wright (Dk. 719)
Rudolph Maio (Dk. 726)
The defendants seek three additional peremptory challenges for each defendant to be exercised separately from the ten challenges allowed to all defendants. After reading this court's prior decisions on this issue, the government objects to additional peremptory challenges without certain limitations. The government has no objection to additional peremptory challenges calculated on the basis of those defendants actually proceeding to trial, so long as the government is given a proportionate increase in its peremptory challenges.
Rule 24(b) of the Federal Rules of Criminal Procedure provides in pertinent part:
If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. . . . If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.
The law is settled that multiple defendants have no right to more peremptory challenges than given them by Fed.R.Crim.P. 24(b). United States v. Espinosa, 771 F.2d 1382, 1406 (10th Cir.) ("'when several defendants are indicted and tried together, they have a right to no more challenges than a single defendant.'" (quoting United States v. Stidham, 459 F.2d 297, 299 (10th Cir.), cert. denied, 409 U.S. 868 (1972)), cert. denied, 474 U.S. 1023 (1985). Thus, the trial court has no obligation to provide additional challenges, United States v. Magana, 118 F.3d 1173, 1206 (7th Cir. 1997), cert. denied, 522 U.S. 1139 (1998), and its decision whether to allow additional peremptory challenges is committed to its sound discretion, Magana, 118 F.3d at 1206; Espinosa, 771 F.2d at 1406. The court shall deny the motion at this time on the condition that this ruling will not prejudice in any way the defendants' right to make this same request at the pretrial status conference. A decision on the number of challenges will be based on the number of defendants that remain in the case and the nature of their defenses.
"A court apparently lacks authority to grant the government additional peremptory challenges in multi-defendant cases, and at least one court has held that a district court lacks authority to add to the government's six allotted peremptory challenges unless defendants consent." United States v. Walters, 188 F.R.D. 591, 604 n. 5 (D.Kan. 1999); (citing United States v. Bruno, 873 F.2d 555, 560-61 (2d Cir.), cert. denied, 493 U.S. 840 (1989); United States v. Anderson, 39 F.3d 331, 344 n. 8 (D.C. Cir. 1994), modified on other grounds, 59 F.3d 1323 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 999, 116 S.Ct. 542, 133 L.Ed.2d 445 (1995); United States v. Ailsworth, 1996 WL 413590, at *1-2 (D.Kan. 1996)).
MOTION TO COMPEL PRODUCTION OF FIELD NOTES
Rhonda Hibbard (Dk. 550)
Melissa Bunce (Dk. 600)
Defendants Specifically Joining Motion
Mickey Wittenmyer (Dk. 588)
Janet Cline (Dk. 698)
Ginger Breuil (Dk. 716)
Johnny Shane Wright (Dk. 719)
Both defendants Hibbard and Bunce have requested from the government copies of law enforcement agents' field notes taken during or following their respective individual interviews. The government has declined their request. The government contends these notes are not subject to production at trial or at any other time, as they are subject to the non-disclosure rule of Fed.R.Crim.P. 16(a)(2) for "reports, memoranda or other internal government documents made by . . . [a] government agent investigating or prosecuting the case." The government further argues that the defendants have not shown these notes to be statements covered by the Jencks Act, because the notes were not signed, adopted or approved and do constitute "substantially verbatim reports" of the interviews. The defendants maintain the notes are oral statements covered by Rule 16(a)(1)(A) and excepted from the non-disclosure provision in Rule 16(a)(2) and are Brady material in being a more accurate and complete representation of the interview than the official reports subsequently prepared.
Rule 16(a)(1)(A) provides that on request the government must disclose, inter alia:
that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent;. . . . The government must also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial.
The Advisory Committee Notes to the 1991 Amendment explain:
The amendment to Rule 16(a)(1)(A) expands slightly government disclosure to the defense of statements made by the defendant. The rule now requires the prosecution, upon request, to disclose any written record which contains reference to a relevant oral statement by the defendant which was in response to interrogation, without regard to whether the prosecution intends to use the statement at trial. The change recognizes that the defendant has some proprietary interest in statements made during interrogation regardless of the prosecution's intent to make any use of the statements.
The written record need not be a transcription or summary of the defendant's statement but must only be some written reference which would provide some means for the prosecution and defense to identify the statement.
. . . .
. . . . Although the rule does not specify the means for disclosing the defendant's statements, if they are in written or recorded form, the defendant is entitled to inspect, copy, or photograph them.
Because of the plain terms of this rule and the Advisory Committee's notes, the government's opposition to this discovery request is not well taken. "`Oral' statements[, as appearing in Rule 16(a)(1)(A),] encompass written summaries and notes of oral statements prepared by government agents." United States v. Hoffman, 794 F.2d 1429, 1432 n. 4 (9th Cir. 1986) (citing in part United States v. McClure, 734 F.2d 484, 493 (10th Cir. 1984)); see United States v. Griggs, 111 F. Supp.2d 551, 554 (M.D.Pa. 2000). The government's reliance on case law applying the Jencks Act is misplaced, and its reliance on Rule 16(a)(2) is likewise flawed in that this provision is plainly made subject to the disclosure provision in Rule 16(a)(1)(A).
The defendants' motion for disclosure pursuant to Fed.R.Crim.P. 16(a)(1)(A) is granted. For those defendants making or joining this motion, the government shall disclose to each defendant any portions of notes taken by law enforcement officers during or as a result of the interrogation of the defendant that contain the substance of any relevant oral statement made by that defendant. The government shall make this disclosure no later than twenty days from the filing date of this order.
MOTION TO COMPEL PRODUCTION OF BRADY MATERIALS
Rhonda Hibbard (Dk. 557)
Defendants Specifically Joining Motion
Janet Cline (Dk. 698)
Ginger Breuil (Dk. 716)
The defendant Hibbard seeks an order compelling the government to produce "any and all reports relating to the search of Mrs. Hibbard's vehicle on the date of her arrest." (Dk. 557). The government responds in its memorandum that no such reports exist. At the hearing, the defendant Hibbard modified her motion asking the court either to order the government to have the officers prepare a report about their search and disclose it to her or to order the government to disclose the names of the officers involved in searching her car on the date of her arrest. In response to this new request, the government represented that the case agent present in the courtroom did not know the names of those officers. The court directs the government to make a Brady inquiry into the identity of those officers arresting and/or searching Ms. Hibbard's vehicle and furnish that information to the defendant. The court otherwise denies the motion in light of the government's representations.
MOTION FOR DISCOVERY
Gary Wininger (Dk. 559)
Defendant Specifically Joining Motion
Ginger Breuil (Dk. 716)
Citing Fed.R.Crim.P. 16(a)(1)(E), the defendant Wininger seeks an order compelling the government to provide a written summary of the testimony it intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence during its case-in-chief at trial. Specifically, Wininger requests disclosure of expert opinion testimony "concerning the interpretation of code or slang words" heard during telephone calls intercepted by wiretaps and expert opinion testimony "concerning the amount and type of drugs involved." (Dk. 559). The government responds that it does not anticipate offering testimony on these specific two areas through expert witnesses. Rather, the government intends to provide evidence from co-defendants and cooperating witnesses regarding the types and amount of drugs and the interpretation of intercepted conversations. The government represents that it will provide promptly the requested information should it decide later to use expert witnesses.
At the hearing, the government represented that it would be calling chemists to testify as expert witnesses regarding the drug evidence. Even though the defendant's motion specifically mentions some possible areas of expert testimony, the court construes the motion as seeking Rule 16(a)(1)(E) information regarding any expert testimony that the government intends to use during its case-in-chief. The government shall comply with this provision. The motion is granted in part and denied in part as moot.
MOTION TO PRODUCE DISCOVERY
Rudolph Maio (Dk. 727)
The defendant seeks an order compelling the government to provide discovery of reports and materials pertaining to the traffic stop of the defendant Maio on February 22, 2000. Because the government agrees to the defendant's request, has provided the defendant with all such materials currently in its possession, and is determining whether any additional materials exist, the court denies the motion as moot.
MOTION TO DISMISS COUNT 1
Gary Wininger (Dk. 563)
Defendants Specifically Joining Motion
Janet Cline (Dk. 698)
Ginger Breuil (Dk. 716)
Tim Cline (Dk. 632)
Melissa Bunce (Dk. 643)
John Keaney (Dk. 717)
Johnny Shane Wright (Dk. 719)
In his one and one-half page memorandum in support of his motion to dismiss, the defendant Wininger asserts that Count One should be dismissed because the penalty enhancement provisions in 21 U.S.C. § 841 are facially unconstitutional, given Apprendi's holding. The defendant insists that § 841 indicates "that drug quantity is a fact that increases the penalty for a crime beyond the prescribed statutory maximum," (Dk. 564, p. 2), and that § 841 permits a judge to find the quantity of drugs upon which the defendant's sentence is based, in violation of Apprendi's admonition that the jury must find such facts beyond a reasonable doubt. The defendant does not articulate the "prescribed statutory maximum" he believes applicable here, and instead argues that any determination of facts made by the court and not the jury that increases the prescribed range of penalties is unconstitutional under Apprendi. (Dk. 564, p. 1).
Defendant has not cited any legal authority in support of his position, has not offered any reason why the statute should be deemed unconstitutional, and has failed to recognize and distinguish cases which have specifically rejected this very argument. See e.g., United States v. Vigneau, ___ F.3d ___, 2001 WL 273094, at *1 (1st Cir. Mar. 13, 2001) (Table); United States v. Brough, 243 F.3d 1078 (7th Cir. 2001); United States v. Slaughter, 238 F.3d 580 (5th Cir., Jan. 12, 2001) (holding that Apprendi did not render § 841 unconstitutional on its face) ; United States v. Austin, 232 F.3d 890, 2000 WL 1532889, at *1 (4th Cir. Oct. 17, 2000) (Table) (finding nothing in Apprendi that renders § 841 unconstitutional). In light of the cases cited above, the absence of any language in Apprendi that would compel the result defendant seeks, and the presumption that statutes are constitutional , see United States v. Morrison, 529 U.S. 598 (2000), the defendant's motion to dismiss Count One will be denied.
MOTION SEEKING DECLARATION THAT DRUG AMOUNTS ARE ELEMENTS OF OFFENSE TO BE PROVEN BEYOND A REASONABLE DOUBT AND TO STRIKE SURPLUSAGE
Gary Wininger (Dk. 565)
Defendants Specifically Joining Motion
Tim Cline (Dk. 622)
Janet Cline (Dk. 703)
Ginger Breuil (Dk. 716)
Melissa Bunce (Dk. 643)
The defendant Wininger requests "an early determination that the defendants are entitled to a jury instruction explaining that, before the jury may find any given defendant guilty of Count One of the superseding indictment, it must find that that particular defendant conspired to manufacture and distribute 500 grams or more of a mixture or substance containing methamphetamine." (Dk. 565, p. 1). Because the amount of drugs alleged in count one of the indictment, "more than one kilogram" of methamphetamine, exceeds the threshold of 500 grams of a mixture containing methamphetamine established in 21 U.S.C. § 841(b)(1)(A), the government agrees that the amount of drugs should be treated as an element of the offense in count one and submitted to the jury for its determination. Accordingly, this part of the defendant's motion is denied as moot.
The defendant Wininger further seeks to have this court strike, as "mere surplusage," the reference to the amount currently contained in the indictment, i.e., that the defendant conspired to manufacture and distribute controlled substances, including "more than one kilogram" of methamphetamine. Wininger asserts that because the penalty section allegedly applicable to the offense, 21 U.S.C. § 841 (b)(1)(A), bears a 500 gram threshold, any amount alleged in excess of 500 grams is mere surplusage and should be stricken from the superseding indictment. The defendant would prefer for the indictment to read "more than 500 grams" because stating any greater amount allegedly serves no purpose, and is prejudicial and inflammatory.
Rule 7(d) provides a "means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may . . . be prejudicial." Notes of Advisory Committee on Rules, 1944 Adoption, Note to Subdivision (d). A motion to strike surplusage "should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. United States v. Battle, 1997 WL 447814 at *3 (quoting Charles A. Wright, Federal Practice and Procedure § 127 (1982)); see United States v. Scarpa, 913 F.3d at 1013; United States v. Napolitano, 552 F. Supp. at 480.
The defendant has not cited any legal authority or rationale for his unsupported assertion that it would be inflammatory to present evidence of the specific amounts of methamphetamine in excess of 500 grams attributed to him. The government offers that the amount of drugs is factually and legally relevant in showing the "size, scope" and profitability of the alleged conspiracy. Thus, the indictment's statement of the specific amount is relevant and is not merely surplusage. See Fed.R.Crim.P. 7(d); United States v. Zabawa, 39 F.3d 279, 285(10th Cir. 1994). The motion to strike is denied.
MOTION TO COMPEL DISCOVERY REGARDING INFORMANTS AND MOTION FOR DISCLOSURE OF IDENTITY OF CONFIDENTIAL INFORMANTS
Charles Hopkins (Dk. 574)
Tim Cline (Dk. 622)
Janet Cline (Dk. 703)
Defendants Specifically Joining Motion
Ginger Breuil (Dk. 716)
Melissa Bunce (Dk. 643)
Defendants Timothy Cline and Janet Cline have filed identical motions and briefs, requesting immediate disclosure of the true identity and address of any confidential informants. The government has agreed to disclose the requested information and any Jencks Act material fourteen days before trial. The Cline defendants allege that immediate production is warranted because (1) the government's investigation has been ongoing for so long; (2) there is no safety risk to the informants; (3) the Speedy Trial Act requires a minimum of thirty days even for a one count indictment; (4) this is a big case involving many defendants and the informants may be out of state.
Defendants Timothy Cline and Janet Cline rely in part upon the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), in arguing that the discovery requested should be provided at least thirty days before trial. The cited provision affords counsel for the defendant at least thirty days to prepare for trial, in stating:
Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.
18 U.S.C. § 3161. Defendants cite no authority for the novel proposition that this or any other subsection of the Speedy Trial Act has any application to discovery deadlines, or compels disclosure of the requested information. At the hearing, the defendants explained that they cited these provisions to show what the government believes is a fair period of time for preparing for trial.
The Jencks Act provides no support for defendants' position. It provides in pertinent part:
In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified in the trial of the case.
18 U.S.C. § 3500. Here, the United States has agreed to produce all Jencks Act material fourteen days before trial.
Defendants rely primarily upon Roviaro v. United States, 353 U.S. 53, 62 (1957). Rovario recognized "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." 353 U.S. at 59. This privilege is "by no means absolute." United States v. Brodie, 871 F.2d 125, 128 (D.C. Cir. 1989). Instead, the determination whether to disclose the identity of a confidential police informant requires the court to balance the public interest in protecting the flow of information in a manner necessary for effective law enforcement, against an individual's right to prepare his defense. 353 U.S. at 62. In making the determination as to whether disclosure is necessary, the court must consider the particular circumstances of the case, including the crime charged, the possible defenses, and the significance of the informer's testimony. Id. "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992), cert. denied, 507 U.S. 1022 (1993). A defendant seeking disclosure has the burden of proof. United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997).
As a general rule, the Tenth Circuit requires disclosure when the informant's testimony "might be relevant to the defendant's case and justice would best be served by disclosure." United States v. Reardon, 787 F.2d 512, 517 (10th Cir. 1986). In practice, the Tenth Circuit has not required disclosure "where the information sought `would be merely cumulative,' or where the informer did not participate in the illegal transaction," Mendoza-Salgado, 964 F.2d 993, 1001 (10th Cir. 1992) ( quoting United States v. Scafe, 822 F.2d 928, 933 (10th Cir. 1987)) (other citations omitted), where the informant is not a participant or witness to the crime, United States v. Brantley, 986 F.2d 379, 383 (10th Cir. 1993), or where the informant is a mere tipster, United States v. Wynne, 993 F.2d 760, 766 (10th Cir. 1993). Accordingly, defendants face "a heavy burden . . . to establish that the identity of an informant is necessary to [the] defense." Mere speculation about the usefulness of an informant's testimony is not sufficient to warrant disclosure. Mendoza-Salgado, 964 F.2d at 1001.
Defendants Timothy and Janet Cline have not met this burden. Nothing in the record establishes that the informant was a participant, an eyewitness, or a person who was otherwise in a position to give direct testimony concerning the crime. The government has not asserted that the informants were mere tipsters, but has agreed to disclose their identity fourteen days before trial. The government raises a legitimate concern over producing this information earlier, based upon its assertion that "direct threats were made against a witness early in this case, and more than one defendant has indicated a profound fear of testifying or providing information about the co-defendants." (Dk. 663, p. 26). The court directs the government to include this information in its in camera submission in order for the court to consider whether the fourteen days is sufficient time for the defendants to make fair use of this information. At this time, the court denies the defendants' motions for an order requiring the government to provide these requested materials sooner than the fourteen days before trial subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures.
Defendant Hopkins' motion to compel discovery regarding informant(s) seeks not only disclosure of the identity and address of confidential informants, but also requests a host of additional information relative to the confidential informants, including but not limited to: prior records including misdemeanors, psychiatric treatment, drug habits, results of any polygraph taken, extent of prior involvement in investigation in other cases, and transcripts of grand jury testimony. Defendant Hopkins relies primarily upon Rovario, but cites no particularized need for the requested information except to prepare for cross-examination. Among the laundry list of items that defendant Hopkins seeks to discover in his motion to compel, and illustrative of the nature of his requests, is any grand jury testimony the confidential informant gave in this or any other case involving him. The court's previous ruling against disclosure of the grand jury transcripts applies with equal force here.
The government has agreed to produce, or has already produced, all Brady material, all Fed.R.Crim.P. 16 material, all Giglio material (regarding promises to witnesses) as soon as the government decides which witnesses it will call at trial, and all Jencks Act material two weeks before trial. Defendant Hopkins has not met his burden to show entitlement to any more information, or to any sooner disclosure. His motion to compel discovery regarding informants is therefore denied.
MOTION FOR DISCLOSURE OF INFORMATION WHICH MAY BE FAVORABLE OR USEFUL TO THE DEFENSE
Mickey Wittenmyer (Dk. 589)
Defendants Specifically Joining Motion
Melissa Bunce (Dk. 643)
John Keaney (Dk. 717)
Mickey Wittenmyer seeks an order requiring the government to produce this discovery forthwith. The government has told defendants that it will produce the remaining discovery no later than fourteen days before trial out of concerns for witness safety. In his motion, Wittenmyer generally complains that such delay will prejudice his defense and make it difficult to verify or rebut the matters eventually disclosed.
The government soundly articulates its concerns for witness safety and comes forth with evidence and statements in support of the same. Depending on the quality and quantity of evidence eventually produced by the government, fourteen days may or may not be sufficient for the defendants to prepare for trial. The court directs the government to include this information in its in camera submission in order for the court to consider whether the fourteen days is sufficient time for the defendants to make fair use of this information. At this time, the court denies the defendants' motions for an order requiring the government to provide these requested materials sooner than the fourteen days before trial subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures.
MOTION FOR DISCLOSURE OF IMPEACHING EVIDENCE
Melissa Bunce (Dk. 603)
Defendants Specifically Joining Motion
Janet Cline (Dk. 698)
Ginger Breuil (Dk. 716)
The defendant seeks an order directing the government to furnish the following information concerning government witnesses: (1) convictions, guilty verdicts and juvenile adjudications; (2) prior misconduct or bad acts; (3) consideration or promises given to or expected by the witness; (4) all threats and coercion against the witness; (5) identification of each time the witness has testified in relation to this case or narrated the details of this investigation; (6) identification of each occasion any informer, accomplice, co-conspirator or expert has testified or furnished a statement in any case; (7) personnel or other government files of any government witness; and (8) all matters useful to the defense in impeaching the government's witness. The government responds that the defendant's request is overbroad and that it will provide the required Brady and Giglio on the same terms as discussed under the earlier motions.
Accepting the government's representation that it understands its obligation under Brady and Giglio to provide all exculpatory evidence, including evidence used to impeach government witnesses, the court denies the defendant's motion as moot. Because the defendant's discovery request is overbroad in several respects and largely boilerplate, the court is satisfied with the government's general response to this motion. The court denies the motion in part as moot in light of the government's response and denies the balance of the motion as overbroad. The court directs the government to include this information in its in camera submission in order for the court to consider whether the fourteen days is sufficient time for the defendants to make fair use of this information.
MOTION TO PRESERVE EVIDENCE
Defendant Rudolph Maio (Dk 769)
Defendant Rudolph Maio's motion to preserve evidence is unaccompanied by any memorandum of law. He seeks an order of this court requiring the government and all law enforcement authorities to preserve evidence seized in this case, including but not limited to a red pickup truck and motorcycle seized by Oklahoma Highway Patrol Trooper Lambert in Craig County, Oklahoma on February 22, 2000, and any alleged trace or residue of marijuana or any other alleged controlled substances seized from the motorcycle cargo compartments. Counsel for Maio represented at the hearing that the government had agreed to her motion and that an order would be submitted soon for the court's signature. In light of this representation, the court denies the motion as moot.
IT IS THEREFORE ORDERED that all specific and general motions to join (Dks. 184, 526, 540, 567, 572, 575, 578, 587, 588, 595, 609, 613, 632, 638, 643, 648, 693, 698, 701, 708, 710, 714, 716, 717, 719, 726) are granted on the conditions that no joining party will be allowed to raise any legal or factual arguments that are additional to or different from those found in the original motion unless separately advanced in the motion to join and that any arguments or issues unique to the joining party not raised in the motion to join will be treated as having been waived;
IT IS FURTHER ORDERED that the motions to sever parties filed by the defendants Mickey Wittenmyer (Dk. 164), Gary Wininger (Dk. 191), Mark Wittenmyer (Dk. 192), Velia Wittenmyer (Dk. 344), Rhonda Hibbard (Dk. 552), Charles Hopkins (Dk. 573), Michael Hopkins (Dk. 581), Melissa Bunce (Dk. 598), and Velia Wittenmyer (Dk. 609), are denied without prejudice to the defendants' renewing their motions later;
IT IS FURTHER ORDERED that defendant Gary Wininger's motion to sever counts (Dk. 568) is denied;
IT IS FURTHER ORDERED that the motions for criminal history of all defendants, unindicted co-conspirators, testifying informants, and non-governmentally employed witnesses filed by the defendants Mickey Wittenmyer (Dk. 166), Mark Wittenmyer (Dk. 169), and Gary Wininger (Dk. 189), are denied except that the court directs the government to include in its in camera submission that criminal history which it intends to withhold producing until fourteen days before trial;
IT IS FURTHER ORDERED that the motions for bill of particulars filed by the defendants Mickey Wittenmyer (Dk. 518), Johnny Shane Wright (Dk. 526), Lori George (Dk. 546), Rhonda Hibbard (Dk. 553), and Gary Wininger (Dk. 561) are denied;
IT IS FURTHER ORDERED that the motion to strike alias filed by the defendant Tim Cline (Dk. 532) is denied;
IT IS FURTHER ORDERED that the motion for disclosure under Jencks Act filed by the defendant Lori George (Dk. 537) is denied;
IT IS FURTHER ORDERED that the motion for grand jury transcripts filed by the defendant Lori George (Dk. 539) is denied;
IT IS FURTHER ORDERED that the motions to compel disclosure of the existence and substance of promises of immunity, leniency, or preferential treatment filed by the defendants Lori George (Dk. 541), Velia Wittenmyer (Dk. 608), and Johnny Shane Wright (Dk. 711) and the motions to compel production of pretrial reports, plea agreements and presentence reports of government witnesses filed by the defendants Rhonda Hibbard (Dk. 555) and Janet Cline (Dk. 701) are denied insofar as they seek an order requiring that the government provide these requested materials sooner than fourteen days before trial, but this ruling is subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures to be submitted in camera no later than twenty days from the filing date of this order;
IT IS FURTHER ORDERED that the motion for disclosure under Fed.R.Evid. 803(24), now Fed.R.Evid. 807, filed by the defendant Lori George (Dk. 544) is denied as moot;
IT IS FURTHER ORDERED that the motions for disclosure of Rule 404(b) evidence filed by the defendants Lori George (Dk. 542), Melissa Bunce (Dk. 593), and Velia Wittenmyer (Dk. 607) are denied as moot;
IT IS FURTHER ORDERED that the motion for order directing government to examine all personnel files of law enforcement personnel involved in this case and disclose all impeachment material filed by the defendant Lori George (Dk. 545) is denied as moot in part and as overly broad;
IT IS FURTHER ORDERED that the motion for additional and separate peremptory challenges filed by the defendant Lori George (Dk. 543) is denied at this time on the condition that this ruling will not prejudice in any way the defendants' right to make this same request at the pretrial status conference;
IT IS FURTHER ORDERED that the motion to compel production of field notes filed by the defendants Rhonda Hibbard (Dk. 550) and Melissa Bunce (Dk. 600) are granted for disclosure pursuant to Fed.R.Crim.P. 16(a)(1)(A). For those defendants making or joining this motion, the government shall disclose to each defendant any portions of notes taken by law enforcement officers during or as a result of the interrogation of the defendant that contain the substance of any relevant oral statement made by that defendant. The government shall make this disclosure no later than twenty days from the filing date of this order;
IT IS FURTHER ORDERED that the motion to compel production of Brady materials filed by the defendant Rhonda Hibbard (Dk. 557) denies the motion in light of the government's representations but directs the government to make a Brady inquiry into the identity of those officers arresting and/or searching Ms. Hibbard's vehicle and furnish that information to the defendant;
IT IS FURTHER ORDERED that the motion for discovery filed by the defendant Gary Wininger (Dk. 559) is denied in part as moot but granted as to any expert testimony that the government intends to use during its case-in-chief;
IT IS FURTHER ORDERED that the motion to produce discovery filed by the defendant Rudolph Maio (Dk. 727) is denied as moot;
IT IS FURTHER ORDERED that the motion to dismiss Count 1 filed by the defendant Gary Wininger (Dk. 563) is denied;
IT IS FURTHER ORDERED that the motion seeking declaration that drug amounts are elements of offense to be proven beyond a reasonable doubt and to strike surplusage filed by the defendant Gary Wininger (Dk. 565) is denied in part as moot and in part on the merits;
IT IS FURTHER ORDERED that the motion to compel discovery regarding informants and motion for disclosure of identity of confidential informants filed by the defendants Charles Hopkins (Dk. 574), Tim Cline (Dk. 622), and Janet Cline (Dk. 703) are denied insofar as they seek an order requiring that the government provide these requested materials sooner than fourteen days before trial, but this ruling is subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures to be submitted in camera no later than twenty days from the filing date of this order, and the defendant Hopkins' motion is denied as overbroad;
IT IS FURTHER ORDERED that the motion for disclosure of information which may be favorable or useful to the defense filed by the defendant Mickey Wittenmyer (Dk. 589) is denied insofar as it seeks an order requiring that the government provide these requested materials sooner than fourteen days before trial, but this ruling is subject to the court's reconsideration after an in camera inspection of the government's anticipated disclosures to be submitted in camera no later than twenty days from the filing date of this order;
IT IS FURTHER ORDERED that the motion for disclosure of impeaching evidence filed by the defendant Melissa Bunce (Dk. 603) is denied in part as moot and in part as overbroad, but the court directs the government to include this information in its in camera submission in order for the court to consider whether the fourteen days is sufficient time for the defendant to make fair use of the government's anticipated disclosures responsive to this motion;
IT IS FURTHER ORDERED that the motion to preserve evidence filed by the defendant Rudolph Maio (Dk 769) is denied as moot;
IT IS FURTHER ORDERED that the defendant Tim Cline's motion for leave to file reply briefs (Dk. 763) is granted;
IT IS FURTHER ORDERED that the defendant Lori George's motion to join (Dk. 779) and the defendant Velia Wittenmyer's supplemental motion to join (Dk. 787) the defendant Tim Cline's reply brief are granted.