Opinion
No. 03-40032-01-SAC
July 29, 2003
MEMORANDUM AND ORDER
The case comes before the court on defendant's numerous pretrial motions (Dks. 15-24). By letter dated July 3, 2003, defense counsel has informed the court that all but four of the defendant's motions are moot by reason of the government's cooperation with the defendant's requests. The four motions that remain pending are: Motion for Disclosure of Rule 404(b) Evidence (Dk. 17); Motion for Early Production of Giglio Material (Dk. 19); Motion for Disclosure of Grand Jury Voir Dire Questions (Dk. 23); and Motion for Disclosure of Grand Jury Minutes and Records (Dk. 24). As there is no evidence to be submitted and the motions have been fully briefed, the court will decide the pending matters without a hearing.
MOTION FOR DISCLOSURE OF RULE 404(B) EVIDENCE (Dk. 17)
In his motion for disclosure, the defendant requests a detailed disclosure of the evidence that the government intends to introduce pursuant to Fed.R.Evid. 404(b). The defendant, in part, seeks the names and addresses of all persons who were witnesses to or have knowledge of the prior bad acts; copies of all documents, materials or tangible objects to be introduced in proof of the 404(b) evidence; and all exculpatory evidence bearing on these prior bad acts. The defendant cites no authority in support of his request for this particularized disclosure of 404(b) evidence. The government agrees to provide the notice required by 404(b) but refuses to provide "a script of how it will use the evidence" or its "argument in support of admission." (Dk. 27).
The language of Rule 404(b) mandates notice by the government, upon request by the defendant, "of the general nature of any such evidence it intends to introduce at trial." As reflected in the 1991 the Advisory Committee Notes, a "particularity" requirement similar to that required in charging documents was considered and rejected in favor of a generalized notice provision that requires the prosecution simply to disclose the general nature of the extrinsic act evidence. The notice "`need not provide precise details regarding the date, time, and place of the prior acts,' but it must characterize the conduct to a sufficient degree to fairly apprise the defendant of its general nature." United States v. Jackson, 850 F. Supp. 1481, 1493 (D.Kan. 1994) (quoting United States v. Long, 814 F. Supp. 72, 74 (D.Kan. 1993)). The 404(b) notice requirement does not dictate that the government produce documents or specific evidence which it intends to introduce at trial. United States v. Williams, 792 F. Supp. 1120, 1134 (S.D.Ind. 1992). "Rule 404(b) does not require the production of any report substantiating the alleged conduct as part of the notice. It is not a rule of documentary discovery." United States v. McElhiney, 2002 WL 31498985, *1 (D.Kan. 2002). Nor is it a tool for open ended discovery. Jackson, 850 F. Supp. at 1493. Generally, courts have denied requests for greater particularity in 404(b) notice. See, e.g., United States v. Erickson, 75 F.3d 470, 478 (9th Cir.), cert. denied, 517 U.S. 1222 (1996); United States v. Kern, 12 F.3d 122, 124 (8th Cir 1993); United States v. Watt, 911 F. Supp. 538, 556-557 (D.D.C. 1995); United States v. Schoeneman, 893 F. Supp. 820 (N.D.Ill. 1995). The government's agreement to furnish an adequate 404(b) notice no later than two weeks prior to trial moots the defendant's motion in part, and the court denies the defendant's request for a more particularized disclosure than required by Rule 404(b).
MOTION FOR EARLY PRODUCTION OF GIGLIO MATERIAL (Dk. 19)
The defendant seeks an order requiring the government to provide all impeachment material "well in advance of the commencement of the trial." (Dk. 19). The government represents that it has provided all existing Giglio materials. Based on the government's representation, the motion is denied as moot.
MOTION FOR DISCLOSURE OF GRAND JURY VOIR DIRE QUESTIONS (Dk. 23); and MOTION FOR DISCLOSURE OF GRAND JURY MINUTES AND RECORDS (Dk. 24)
The defendant argues that voir dire questions can have a prejudicial effect and "can be used to eliminate grand jurors who might have been fair to Defendant." (Dk. 23). Citing Rules 12(b)(1) and 6(e) of the Federal Rules of Criminal Procedure, the defendant seeks an order requiring disclosure of grand jury minutes and records that include voting procedures and instructions given to the grand jury which returned this indictment and the records of any other grand jury which has investigated or considered the allegations in the indictment. The defendant summarily contends that without these records he will be deprived of his rights to due process and equal protection of the law.
The traditional rule of grand jury secrecy is codified in Rule 6 of the Federal Rules of Criminal Procedure. 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:
As stated in Rule 6, protection extends to all matters occurring before the grand jury, that includes the substantive content or aspects of anything that could reveal what has transpired before the grand jury. United States v. Welch, 201 F.R.D. 521, 523-24 (D.Utah 2001). Grand jury instructions fall within this protection, id.; see United States v. Barry, 71 F.3d 1269, 1274 (7th Cir. 1995), as does the grand jury's voting record, United States v. Deffenbaugh Industries, Inc., 957 F.2d 749, 755-56 (10th Cir. 1992).
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).
In short, "[t]he prerequisites for disclosure of grand jury materials are demanding." In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997) (citations omitted). A particularized need is more than mere relevance, for "secrecy will not be broken absent a compelling necessity for materials." Id. (citations omitted). A general claim that grand jury material could possibly be helpful does not constitute a particularized need. United States v. Rising, 867 F.2d 1255, 1260 (10th Cir. 1989). In other words, a request to go fishing for useful material will not suffice. In re Grand Jury 95-1, 118 F.3d at 1437; 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).
The defendant does not demonstrate a particularized need for any of the requested grand jury matters. The defendant's request is nothing more than a desire to set out on a fishing expedition in the hope of finding something useful in attacking the indictment. Having failed to meet the demanding standards for disclosure, the defendant's motions are denied.
IT IS THEREFORE ORDERED that the defendant's Motion for Disclosure of Rule 404(b) Evidence (Dk. 17) is denied in part as moot based on the government's agreement to furnish an adequate 404(b) notice no later than two weeks prior to trial and the defendant's request for a more particularized disclosure than required by Rule 404(b) is denied;
IT IS FURTHER ORDERED that the defendant's Motion for Early Production of Giglio Material (Dk. 19) is denied as moot in light of the government's representation;
IT IS FURTHER ORDERED that the defendant's Motion for Disclosure of Grand Jury Voir Dire Questions (Dk. 23) and Motion for Disclosure of Grand Jury Minutes and Records (Dk. 24) are denied; and
IT IS FURTHER ORDERED that the defendant's Motion for Discovery of Procedures Following by Investigating and Indicting Grand Jury (Dk. 15); Motion for Disclosure of Informants, Agents and Cooperating Individuals (Dk. 16); Motion to Require Government's Disclosure of Agreements with Prosecution Witnesses (Dk. 18); Motion for Early Disclosure of Jencks Act Material (Dk. 20); Motion to Compel Examination or Production of Personnel Files of Agents and Employees (Dk. 21); and Motion for Disclosure of Expert Summaries (Dk. 22) are denied as moot based on the defense counsel's letter of July 3, 2003, to the court advising the same.