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. The following motions are pending and subject to disposition by this Court:
(1) Motion For Bill of Particulars [Doc. 32];
(2) Request for Disclosure of Exculpatory Material [Doc. 33];
(3) Motion For Hearing to Determine the Existence of Conspiracy [Doc. 34];
(4) Motion For Pretrial Written Summary of Expert Testimony [Doc. 36];
(5) Motion For Pretrial Notice of Government's Intent to Use 404(b)-Type Evidence [Doc. 37];
(6) Motion For Pretrial Notice of Government's Intent to Use 608 or 609 Impeachment Evidence [Doc. 38];
(7) Motion to Extend Motion Deadline [Doc. 40]; and
(8) Motion for Pretrial Notice of Government's Intent to Use Evidence [Doc. 43].
The United States has filed a Consolidated Response to Defendants' Motions [Doc. 44], registering the government's opposition to the relief requested. All pending pretrial motions are addressed herein, a hearing being unnecessary to their disposition.*fn1
1. MOTION FOR BILL OF PARTICULARS [DOC.32]
In their Joint Motion For Bill of Particulars [Doc. 32], James Woods and Lauren Woods move the Court to order the government to provide a bill of particulars more clearly identifying a variety of details regarding the nature and circumstances of the criminal conduct alleged in the indictment. James Woods and Lauren Woods are charged in the sole count of the one-count indictment with participation in a heroine distribution conspiracy over the course of seven months along with two other defendants in the indictment, Ashley Schuman and Tim Travis. [Doc. 3].
Relying upon Federal Rules of Criminal Procedure Rule 7(f), James Woods and Lauren Woods ask that the Court order the United States to provide a Bill of Particulars more specifically describing the allegations. Paraphrasing the list of 12 categories of information the defendants seek, their request is directed to particularity as to the basis and manner and means, including the date, place, time, and names of other alleged conspirators, other than the named co-defendants, that James Woods and Lauren Woods allegedly "conspired, confederated and agreed" with in the conspiracy alleged in the indictment; any overt criminal acts, or other crimes, committed in furtherance of the alleged conspiracy. James Woods and Lauren Woods do not assert that without further detail they do not have the appropriate information necessary to prepare their respective defenses nor that they are at risk of unfair surprise at trial, but these concerns are implicit in their request.
The government responds that the indictment is adequate to provide notice of the nature of the charges, which is all that is required. [Doc. 44]. The government argues that James Woods' and Lauren Woods' requests seek to discover details of the government's case and evidence that go beyond that to which they are entitled. The government distinguishes that, "[w]hile the defendant is entitled to the pretrial details of the charges against him, he is not entitled to details of the evidence against him beyond the provisions of the rules of discovery." [Doc. 44 at 1] (emphasis in original). It is the government's position that the instant motion seeks discovery of the evidence against James Woods and Lauren Woods.
The government argues that the Court's Order on Discovery and Scheduling already provides for all the disclosure to which the defendants are entitled, [Doc. 8]. Further, the United States informs the defendants and the Court that: most of what is requested in the motion is fully detailed in the affidavit in support of the search warrant application in this case. In fact, it is practically a "blueprint" of the government's case-in-chief. [Doc. 44 at 2]
There has been a Notice of Pretrial Discovery filed November 15, 2007, by Assistant United States Attorney David Jennings on behalf of the government. [Doc. 19] which documents 44 items provided in discovery as of that date.
The Federal Rules of Criminal Procedure provide broad authority for the Court to order the government to provide a bill of particulars when warranted. Rule 7(f) reads:
[t]he court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.
However, the rules do not delineate under what circumstances it is appropriate for the Court to order such remedy. The Sixth Circuit has had occasion to addressed this issue a number of times and had provided ample guidance for lower courts. "A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes. It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial." United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) (citations omitted). The granting of a bill of particulars is within the court's discretion. See id. (holding that the appellate court reviews the denial of a bill of particulars for an abuse of discretion). The level of detail in the indictment can be a basis for denying the motion for a bill of particulars. Id. Additionally, "a defendant is not entitled to a bill of particulars with respect to information which is available through other sources." United States v. Paulino, 935 F.2d 739, 750 (6th Cir. 1991), superseded on other grounds by statute, United States v. Caseslorente, 220 F.3d 727 (6th Cir. 2000) (on sentencing issue).
While the government relies, in part, upon the disclosure of information in the search warrant affidavit, that document has not been filed with the Court for consideration in this context and is not part of the record otherwise. The ...