The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This matter came before the Court upon the following pretrial motions, all of which have been resolved by previous oral ruling of this Court, or by agreement of the parties, as set forth herein:
1. Motion to Exclude Hearsay Statements of Co-Defendants or Any Testimonial Statements of Non-Testifying Individuals From Any Joint Trial, Or, In The Alternative, For Severance [Doc. 56]
This motion filed by defendant Vicente Corona, along with his supporting memorandum of law filed as [Doc. 57], sought remedy for issues anticipated to arise at a joint trial with co-defendant Jermaine Hughes, citing the Sixth Amendment Confrontation Clause; Federal Rules of Criminal Procedure, Rule 14(a); Bruton v. United States, 391 U.S. 123 (1968); and Crawford v. Washington, 541 U.S. 36 (2004). The parties agreed that this motion had become moot by the time of the hearing because Jermaine Hughes will not be proceeding to trial pursuant to an agreement reached with the government. Accordingly, Motion to Exclude Hearsay Statements of Co-Defendants or Any Testimonial Statements of Non-Testifying Individuals From Any Joint Trial, Or, In The Alternative, For Severance [Doc. 56] is DENIED as moot.
2. Motion for Hearing to Determine Existence of Conspiracy [Doc. 58]
Mr. Corona asks the Court to conduct a hearing to determine the existence of the criminal conspiracy alleged by the government, or, alternatively, to direct the government to file a brief (as described more fully below) seven days before trial [Doc. 58] and [Doc. 59]. At the hearing of this motion, counsel for Mr. Corona made a thorough argument that a pretrial hearing to determine whether or not the government may satisfy its burden of proof on the existence of a conspiracy is appropriate before any co-conspirator statements may be admitted in the government's case-in-chief at trial. In addition to the authority cited in his memorandum of law, including Bourjaily v. United States, 483 U.S. 171, 180 (1987); United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917 (1979), and United States v. Vinson, 606 F.2d 149, 152-153 (6th Cir. 1979), Mr. Corona argued that Crawford v. Washington, 541 U.S. 36 (2004) has so dramatically changed the landscape for admission of statements that a pretrial determination of these issues is both prudent and necessary. Mr. Corona drew the Court's attention to a pretrial order issued by Magistrate Judge Dennis H. Inman, filed as an exhibit to his motion. Judge Inman's order, filed in United States v. Gunter, 2:05-CR-75, directs the government to submit "an 801(D) (2) (E) statement" to the District Court, with the purpose and procedure of such statement set forth as follows:
If the indictment charges defendant(s) with a conspiracy, and if the government intends to offer evidence under F.R.E. 801(d)(2)(E), then the admissibility of an alleged co-conspirator's statements under F.R.E. 801(d)(2)(E) will be determined in accordance with United States v. Vinson, 606 F.2D 149 (6 Cir. 1979); specifically, such statements will be admitted subject to a later demonstration during the trial by a preponderance of the evidence that the statements were made during the course and in furtherance of the conspiracy.
If the government intends to introduce a co-conspirator's statements under F.R.E. 801(d) (2) (E), the government shall submit to the District Judge, and serve upon opposing counsel, on the Friday preceding the commencement of the trial, a trial brief which must include the following: (1) the substance of the statements to be introduced under F.R.E. 801(d) (2) (E); (2) when those statements were made, where those statements were made, and to whom they were made; and (3) a summary of the evidence which the government will present to establish the existence of the conspiracy, that the declarant was a member of that conspiracy, and that the statements were made during and in furtherance of the conspiracy. ...
Order on Discovery and Scheduling [Doc. 59-1, ¶ 11].
The government resists this request as burdensome, time-consuming and uneconomic.
The government further objects that Mr. Corona would be unfairly afforded additional discovery of the government's case beyond that otherwise provided [Doc. 101].
Under Federal Rules of Evidence Rule 801(d) (2) (E), "a statement is not hearsay if ... [t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." In order for the government to avail itself of the co-conspirator exception of the hearsay rule, it must show by a preponderance of the evidence that a conspiracy existed, that the defendant against whom the hearsay is offered was a member of the conspiracy and that the hearsay statement was made in the course and in the furtherance of the conspiracy. United States v. Vinson, 606 F.2d 144, 152 (6th Cir. 1979). This three-tiered review is known as an "Enright finding." See United States v. Enright, 579 F.2d 980 (6th Cir. 1978).
The Sixth Circuit approves of three alternative methods by which a district court can make a determination as to the admissibility of hearsay statements under the coconspirator exception to the hearsay rule: (1) conduct a pretrial mini-hearing outside the presence of the jury and listen to the proof of the conspiracy, (2) require the government to produce non-hearsay evidence during the course of trial before making the necessary finding, and (3) admit the hearsay statements subject to a later demonstration of their admissibility. Vinson, 606 F.2d at 152-53. While all three methods for making an Enright finding are valid, the Sixth Circuit has criticized the first alternative as burdensome, time consuming and uneconomic.
While the District Court in Gunter, supra, devised a permissible alternative methodology for an Enright finding, this Court notes that it is the custom and general practice in this district to use the third of the Vinson options. In any event, the request relates directly to trial procedures and the admissibility of evidence at trial and will be addressed by the trial judge, District Judge Thomas W. Phillips. As to the timing of an Enright finding, District Judge Phillips will decide whether he desires to choose a method besides the third option before or during trial, as he deems appropriate. Accordingly, Mr. Corona's Motion For Hearing to Determine the Existence of Conspiracy [Doc. 58] is DENIED.
3. Motion to Compel Government to Provide Defendant With Exhibit and Witness List in Advance of Trial [Doc. 60]
Mr. Corona next moves the Court to exercise its discretion to order the government to produce a list of witnesses and exhibits it intends to use at trial. Mr. Corona argues that, while the government ordinarily is not required to produce such information, the Sixth Circuit has provided that in the rare case it is appropriate. Mr. Corona asserts that this is just such a case. Mr. Corona argues that a witness list is necessary and material to his defense because it is impossible for him to ascertain and interview persons who could be witnesses for the government. Mr. Corona argues that the instant case "spans the continent," allegedly involving people and events in Tennessee, Georgia and California. He presents that there were several search warrants executed in California, a search warrant in Georgia, and a great volume of documentary and recorded evidence. Mr. Corona asks for a witness and exhibit list a short time before the commencement of the trial in order to prepare his defense.
During argument of the motion, counsel for Mr. Corona gave two examples of the order he seeks: United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir. 1980) (ordering disclosure of witness list 30 days before trial, exhibit list 45 days before trail); and United States v. Moss, No. 02-20145 (W.D. Tenn., 06/15/2005, Order [Doc. 538] at 5-7). In Kendricks, the issue of a witness list arose in the context of a remedy. The trial court had ordered the production of such a list and the government failed to comply. The Kendricks court was called upon to address the absence of any sanction for the government's disregard of the trial court's order. The 1980 Sixth Circuit opined:
It is well recognized that defendants cannot obtain lists of prosecution witnesses as a matter of right, although the district court has discretion to order the prosecution to produce it. We do not condone the prosecution's failure to comply with the district court's order. However, the fashioning of a proper remedy to ameliorate any potential prejudice to the defendant's ability to prepare an effective defense is within the district judge's discretion. Inasmuch as there were few witnesses, their identity was revealed by other discovery, and the prosecution's theory of the case was relatively straightforward, we do not believe the district court abused its discretion in denying the motion to dismiss.
Kendricks, 623 F.2d at 1168 - 1169) (citing United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978); United States v. Harris, 542 F.2d 1283 (7th Cir.), cert. denied, United States v. Clay, 430 U.S. 934 (1976)).
In Moss, the pretrial motions and pleadings, as well as the Order cited by Mr. Corona, describe a terrible tangle of discovery-related issues. Moss involved one disclosure of 167 banker boxes of papers, referenced as but one example by Judge Donald as she described the unusual chronology of that case, along with data on 20 desktop computers, seven mainframe computers and material reportedly in the possession of two foreign governments. Moss, 2005 WL 1972583, *1 (W.D.Tenn., 2005); and Order to Provide Witness and Exhibit List [Doc. 61-2], at 1-3.
The government responded in argument, as well as in its written submission, [Doc. 104] that the defendant is not entitled to know before trial whom it will call to testify. The government cites a number of Sixth Circuit cases holding that a defendant is not entitled to compel production of the government's witness list. United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993); United States v. McCullah, 745 F.2d 350, 353 (6th Cir. 1984); United States v. Algie, 667 F.2d 569, 571 (6th Cir. 1982); United States v. Dark, F.2d 1097, 1099 (6th Cir. 1979). The government argues that Federal Rules of Criminal Procedure, Rule 16 does not provide for the routine discovery of witness lists, but does not assert that the Court has no discretion to order the disclosure of witness lists in light of the rule and Sixth Circuit case ...