The opinion of the court was delivered by: C. Clifford Shirley, Jr. 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 case came before the Court for a Motion Hearing on October 15, 2007. Assistant United States Attorney Hugh Ward ("AUSA Ward") appeared on behalf of the government. Attorney Joseph Saint-Veltri ("Attorney Saint-Veltri") appeared on behalf of Defendant Ramirez. Attorney Aubrey Davis ("Attorney Davis") appeared on behalf of Defendant Arreola. Attorney Stephen Burroughs ("Attorney Burroughs") appeared on behalf of Defendant McLaughlin. Attorney Charles Burkes ("Attorney Burkes") appeared on behalf of Defendant Sugameli. Attorney Robert Vogel ("Attorney Vogel") appeared on behalf of Defendant Willyard. Defendants Ramirez, Arreola, Sugameli, McLaughlin, and Willyard were also present.
The Court will endeavor to address the pending pretrial motions largely in the order in which they were taken up at the Motion Hearing on October 15, 2007, although three preliminary matters must logically be addressed at the outset.
First, the Court notes that Defendant Sugameli filed two motions asking for leave to file additional motions after the previously established deadline. At the hearing, the Court orally granted Defendant Sugameli's motions to file the motions after the deadline. Thus, Defendant Sugameli's Motion for Leave to File Motion for Notice of Government's Intention to Use Evidence [Doc. 152] and Motion for Leave for File Additional Motions [Doc. 156] are GRANTED.
Second, four motions have been filed requesting leave to adopt the filings of certain co-defendants. [Doc. 98], [Doc. 103], [Doc. 156], and [Doc. 106]. Defendant Ramirez moves the Court [Doc. 98] for permission to adopt certain specified motions of Defendant Nommenson [Docs. 83 and 49]. Defendant Sugameli moves the Court [Docs. 103 and 156] for permission to adopt certain motions of Defendant Nommenson [Docs. 83, 127, 128, and 129] and Defendant Willyard [Docs. 91, 92, 93, 94, 100, and 102]. Defendant Willyard moves this Court [Doc. 106] for permission to adopt certain specified motions of Defendant Nommenson [Docs. 45, 46, 49, 83, 102].
To the extent the issues raised in the underlying motions may be applicable to those requesting leave to adopt, the above motions are granted. All parties are advised that rulings of the Court on adopted motions are applicable as well to the adopting party, whether or not his name appears separately in the written order addressing that motion. If the Court reaches a conclusion as to the adopting party that is different than for the original filer, the same will be clearly specified. Defendant Ramirez's Motion to Adopt Co-Defendant's Motions, [Doc. 98], Defendant Sugameli's Motions to Adopt Co-Defendants' Motions [Docs. 103 and 156], and Defendant Willyard's Motion to Adopt Co-Defendants' Motions [Doc. 106] are GRANTED.
Third, subsequent to the October 15, 2007 motion hearing, counsel for Defendant Nommenson orally advised the Court that Ms. Nommenson wished to withdraw all pending motions. Thus, Ms. Nommenson's motions are denied as moot as applicable to her. In the case her motions have been adopted by co-defendants, the Court will address those motions as argued by co-defendants.
1. MOTION FOR RULE 10(b)WAIVER OF APPEARANCE
Defendant Nommenson requests this Court for a waiver of appearance as it relates to the Superseding Indictment filed on July 18, 2007 [Doc. 82]. As stated above, Defendant Nommenson withdraw her pending motions. Accordingly, Defendant Nommenson's Motion for Rule 10(b) Waiver of Appearance [Doc. 82] is DENIED AS MOOT.
2. REQUEST FOR EXCULPATORY EVIDENCE
Defendant Nommenson filed this Motion [Doc. 127] formally requesting any evidence within the possession, custody, or control of the government that is favorable to or exculpates her in any way. Defendant acknowledges this request for information is covered by the Court's Order on Discovery and Scheduling and does not ask the Court for further action. However, Defendant filed the motion in light of the Supreme Court's ruling in United States v. Bagley, 473 U.S. 667 (1985), which makes apparent that Brady requests are favored. Defendant Nommenson's Request for Disclosure of Exculpatory Evidence [Doc. 127] is DENIED AS MOOT.
Defendant Willyard makes a general request for all information and material known to the government or in the possession of the government which may be described as exculpatory or favorable to his defense, including any information that may be used for the impeachment of government witnesses called to testify at trial [Doc. 94].
The government, in response, contends that "so long as the Defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial, we fail to see how the constitution is violated." United States v. Presser, 844 F.2d 1275 (6th Cir. 1988). The government further argues that the Sixth Circuit has stated that Brady does not create a constitutional right to discovery in a criminal case.
The information sought has largely been previously addressed in the Court's Order on Discovery and Scheduling [Doc. 11]. As to Mr. Willyard's request for the criminal records of government witnesses, see Order on Discovery and Scheduling [Doc. 11] at ¶ F. As to material to be used in impeachment of government witnesses, the Court's Order on Discovery and Scheduling [Doc. 11] at paragraph E provides:
The government shall reveal to the defendant and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1965), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence), and United States v. Bagley, 473 U.S. 6676 (1985) (impeachment evidence).
The Court finds that it has already ordered the government to turn over materials within the scope of Brady. Should Mr. Willyard become aware of specific material that may be subject to this provision, he may make a specific Brady request of the government, then bring the matter to the attention of the Court if necessary. The document also includes a request for specific items allegedly recovered from Mr. Willyard when he was arrested in Lonoke, Arkansas on January 27, 2006, including log books and a laptop computer. This information is more fully covered by Mr. Willyard's First Demand for Supplemental Discovery [Doc. 81], accordingly it is addressed below. Accordingly, Defendant Willyard's Request for Disclosure of Exculpatory Evidence [Doc. 94] is DENIED.
3. PRETRIAL DISCLOSURE OF RULE 404(b)EVIDENCE [DOC.45]
Rule 404(b) provides that upon Defendant's request, the government, "shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). This Court's Order on Discovery and Scheduling [Doc. 11] at paragraph I states that "reasonable notice" under Rule 404(b) is deemed to be seven calendar days before trial unless the Court notes otherwise. Defendant has not shown such time to be unreasonable nor good cause for an earlier disclosure requirement. Accordingly, Defendant Willyard's Motion for Notice and Disclosure of Rule 404(b) Evidence the United States seeks to introduce at Trial [Doc. 45] is DENIED.
4. MOTION FOR PRETRIAL NOTICE OF GOVERNMENT'S INTENT TO USE EVIDENCE [DOCS.49 AND 152]
Defendants Nommenson [Doc. 49] and Sugameli [Doc. 152] move this Court to compel the government to comply with Fed. R. Crim. P 12(b)(4)(B) and to provide written notice of all the evidence they may be entitled to discover pursuant to Fed. R. Crim. P. 16, that the government intends to use during its case-in-chief at trial, and all Jencks Act statements and material from witnesses. Defendant Nommenson's motion was adopted by co-defendants Ramirez and Willyard.
The government, in response, argues that the scope of Fed. R. Crim. P 12(b)(4)(B) is limited and only requires the government give notice to the Defendant of its intent to use certain evidence. The government contends the rule limits disclosure to evidence the government intends to use in its case-in-chief and that the rule is intended to facilitate the making of pretrial suppression motions. The government argues it has complied with the rule in that it has provided the information necessary to allow any pretrial motions to be made.
Rule 12(b)(4)(B) requires the government, upon request of a defendant, to give notice to the Defendant of the government's intent to use certain evidence at trial. The rule is limited in scope. By its own terms, it is limited to evidence the Defendant would be entitled to discover under Rule 16, Federal Rules of Criminal Procedure. It also explicitly limits disclosure to evidence the government intends to use in its case-in-chief. Furthermore, this "provision contemplates motions filed in preparation for actual or potential motions to suppress evidence." United States v. Lanier, 578 F.2d 1246, 1254 (8th Cir. 1978). Rule 12(b)(4)(B) is not designed nor intended to be used to obtain more specific discovery than that provided by Rule 16. Rather, Rule 12(b)(4)(B) is intended to facilitate the making of pretrial suppression motions by allowing the Defendant to avoid filing a motion to suppress when the government does not intend to use the evidence.
Based upon the government's representation, and absent any showing to the contrary, that it has complied with the requirements of the Rule by providing defense counsel with the required information and will continue to comply with its discovery obligations, Defendants' Motion for Pretrial Disclosure of Government's Intent to Use Evidence [Docs. 49 and 152] are DENIED.
5. MOTIONS TO SEVER [DOCS.92,99, AND 104]
Defendants Ramirez [Doc. 99], Sugameli [Doc. 104], and Willyard [Doc. 92] move the Court, pursuant to Fed. R. Crim. P 14, to sever their trials. Defendant Ramirez contends that the only link between him and the other defendants is a "tenuous allegation" by a non-defendant that he served as a source of supply for the marijuana sent to the Eastern District of Tennessee and that most of the evidence the government would introduce in a joint trial would not be admissible in a separate trial in which he is the only defendant, resulting in undue prejudice that could not be cured by a limiting instruction [Doc. 99]. Defendant Sugameli contends a severance is proper because the indictment simply alleges violations of a conspiracy to distribute drugs in the Eastern District of Tennessee and does not set forth any information that alleges overt acts that he had any involvement in with any of the co-defendants listed in the indictment [Doc. 104]. Defendant Sugameli further contends that the discovery provided by government does not reveal any connection between him and the other indicted defendants [Doc. 104]. Defendant Willyard moves this Court to sever his trial on the grounds that failure to sever will result in substantial, undue, or compelling prejudice. [Doc. 92]. Defendant contends one trial will result in the admission of otherwise inadmissible evidence and deny him the right to confront witnesses offered by the government who will testify against him. Defendant further requests an in camera inspection of any statements allegedly made by Defendant that the government intends to use against him at trial.
The government, in response, argues that severance is inappropriate in this case because the Court can issue a limiting instruction on the issue of possible prejudice resulting from joinder. The government argues that prejudicial joinder is particularly unlikely in this case because it would not be difficult for the jury to compartmentalize and distinguish the evidence concerning the different offenses charged. The government, further contends that Willyard's motion fails to make a showing for severance beyond formalistic complaints of possible prejudice. As to Willyard's in camera inspection request for any statements allegedly made by Willyard that the government intends to use at trial, the government argues that Willyard incorrectly suggests that Rule 14(b) requires such a procedure.
Assuming proper joinder in the indictment, it is well-settled that absent a serious risk of compromise to a specific trial right, individuals indicted together should be tried together. United States v. Davis, 170 F.3d 617, 621 (6th Cir. 1999). Initially, the Court notes that Defendants do not contend that joinder in this case is improper under Rule 8 of the Federal Rules of Criminal Procedure. Rather, Defendants contend that joinder is so prejudicial that severance should be ordered pursuant to Rule 14 of the Federal Rules of Criminal Procedure.
In assessing the propriety of severance under Rule 14, the Court must balance the public's interest in avoiding multiple trials with Defendants' interest in a fair trial. United States v. Wirsing, 719 F.2d 859, 864-65 (6th Cir. 1983). No right to severance arises because the evidence against one defendant is "far more damaging" than the evidence against another defendant, United States v. Causey, 834 F.2d 1277, 1288 (6th Cir. 1987), or merely because the likelihood of acquittal would be greater is severance were granted. United States v. DeFranco, 30 F.3d 664, 669 (6th Cir. 1994).
To the contrary, it is well-established that to be entitled to a severance, a defendant must show "substantial," "undue," or "compelling" prejudice. United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (defendant failed to demonstrate "substantial," "undue," or "compelling" prejudice due to spillover evidence against co-conspirator).
After considering the arguments presented for and against severance, the Court finds that Defendants have not made the showing of substantial, undue, or compelling prejudice necessary to support his motion to sever. Accordingly, Defendant Ramirez's, Sugameli's, and Willyard's Motions [Docs. 99, 104, and 92] are DENIED.
6. DISCOVERY RELATED MOTIONS
Defendant Nommenson, citing Rovairo v. United States, 353 U.S. 53 (1957), moves the Court to order the government to inform defense counsel in writing of the identities and addresses of all persons known to the government to have been present at the times and places of the offenses alleged in the indictment [Doc. 46]. The government opposes Defendant's motion, arguing that Defendant is not entitled to this information [Doc. 141]. In light of Defendant Nommenson advising the Court she has withdrawn her motions, her Motion for Disclosure of Material Witnesses [Doc. 46] is DENIED AS MOOT.
Defendant Willyard moves the Court to order the government to produce a laundry list of certain items in his First Demand for Supplemental Discovery [Doc. 81], Motion to Compel Discovery of Related Indictments and Warrants [Doc. 95], Motion for Disclosure of Grand Jury Transcripts [Doc. 110], Demand for Disclosure of Expert Witness Testimony [Doc. 117], and Motion for Order to Compel Compliance with Discovery Requests [Doc. 118]. Each motion will be discussed in turn.
A. First Demand for Supplemental Discovery [Doc. 81]
Defendant's First Demand for Supplemental Discovery [Doc. 81] requests lists of names and telephone numbers stored in cell phones seized by law enforcement on the day he was arrested; copies of forms signed when arrested; copies of police reports generated on the day of his arrest; copies of any audio or video made during the search and interview of Defendant; any relevant photographs; and copies of log books and any other items seized from Defendant on the day of his arrest. The government responds that it has provided the information sought to the extent it is required to do so and invited counsel for Defendant to contact DEA Special Agent Dave Lewis to view all the materials not listed in the discovery provided by the government [Doc. 144]. At the motion hearing on October 15, counsel for Defendant Willyard advised the Court that he had one meeting with Agent Lewis which was "very adversarial" and has not had the chance to go to meet with him again, but had not tried to do so.
To the extent that the parties may resolve issues related to this information among themselves, all counsel are encouraged to resolve this issue without intervention of the Court. Thus the Court encourages Attorney Vogel to contact Agent Lewis to set up a time to view these requested materials. However, should a dispute continue and/or should counsel for Defendant Willyard be unable to view the requested information seized from him, counsel for Defendant is invited to seek judicial relief at the appropriate time. Accordingly, Defendant Willyard's First Demand for Supplemental Discovery [Doc. 81] is DENIED at this time.
B. Motion to Compel Discovery of Related Indictments and Warrants [Doc. 95]
Defendant Willyard moves the Court to order the government to produce copies of any related indictments and all search warrants related to, or that pertain to, a part of the conspiracy changed in the indictment [Doc. 95]. The government, in response, argues Defendant's attorney has received several items of discovery and other documents, including early Jencks Act material as set forth and documented in correspondence dated July 20, 2007 and Notice of Discovery [Doc. 80 & 138]. The government contends these materials specifically direct him to the Court record of several other cases, copies of search warrants and affidavits, as well as notification of all plea agreements filed on the record. At the motion hearing on October 15, counsel for ...