United States v. Kelley

120 F.R.D. 103, 1988 U.S. Dist. LEXIS 5561, 1988 WL 35612
CourtDistrict Court, E.D. Wisconsin
DecidedFebruary 18, 1988
DocketNo. 87-Cr-146
StatusPublished
Cited by7 cases

This text of 120 F.R.D. 103 (United States v. Kelley) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kelley, 120 F.R.D. 103, 1988 U.S. Dist. LEXIS 5561, 1988 WL 35612 (E.D. Wis. 1988).

Opinion

DECISION AND ORDER

AARON E. GOODSTEIN, United States Magistrate.

On December 1, 1987, a sixteen count indictment was returned against the defendants charging them with a conspiracy to possess and distribute cocaine, possession and distribution of cocaine and the use of a communication facility to cause delivery of cocaine; all in violation of 21 U.S.C. §§ 846, 841(a)(1), 843(b) and 18 U.S.C. § 2. Magistrate Robert L. Bittner conducted separate arraignments at which each defendant entered a plea of not guilty. Defendant Dillard E. Kelley, Sr. is the only defendant presently in custody.

Defendant Kelley is also the only defendant who has filed various pretrial motions. In an attempt to facilitate the resolution of these and additional motions, on January 26, 1988 and February 11, 1988, this court conducted telephone status conferences with counsel for the government and defendant Kelley. Although counsel for defendant Kelley has been granted an extension of time until February 18, 1988 to file certain suppression motions, the pending motions are now fully briefed and ready for resolution. Pursuant to Judge Evans January 22, 1988 order, a scheduling conference to reset the trial date will be held on February 23, 1988.

I. Motion for Discovery

The defendant has filed a motion for discovery containing 18 separate requests. The government opposes this motion on the grounds that defendant Kelley has failed to comply with Local Rule 6.02, and that the open-file policy obviates the need for the requested discovery.

The pretrial order, a copy of which was distributed to the defendant at the arraignment, provides in part:

1(b) Any discovery motion must be accompanied by the statement required by Local Rule 6.02.

Rule 6.02 requires that motions for discovery,

... must be accompanied by a statement in writing by the movant, that, after personal consultation with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach an accord. The statement shall also recite the date, time, and place of such conference and the names of all parties participating therein.

The defendant’s discovery motion is not in compliance with this court’s standing pretrial order. The defendant argues in his reply memorandum that pretrial discovery is a matter of constitutional right. No one has deprived the defendant of any of his discovery rights. The government has followed its open-file policy and, as such, the defendant has had the opportunity to discover substantiality more material than is usually obtainable by strict adherence to the Federal Rules of Criminal Procedure. However, to effectuate the open-file policy, there is a concomitant obligation upon defense counsel to look at the government files. After so doing, if he believes that he has not been provided with all of the discovery to which he is entitled, this district’s local rules require him to confer with opposing counsel to see if the matter can be resolved short of court intervention. If not, he may bring a motion to compel discovery.

The government’s pursuance of its open-file policy, combined with the defendant’s failure to confer with counsel for the government require that defendant’s motion be denied. See, United States v. Krenzlok and Freeman, case no. 87-Cr-74, slip op. at 2 (E.D. Wis. September 17, 1987); United States v. Delgado, et al., case no. 87-Cr-80, slip op. at 3 (E.D. Wis. October 2, 1987); United States v. Dougherty and Conner, case no. 85-Cr-176, slip op. at 7 (E.D. Wis. October 5, 1987).

Accordingly, the defendant’s motion is denied.

II. Motion for Notice of Intent to Use-Evidence Arguably Subject to Suppression

Defendant Kelley seeks “an order directing the government to make inquiry [107]*107and to serve and file specific written notice” of any evidence that the government “intends, contemplates or considers” using in its case in chief, or in rebuttal or otherwise, that might arguably be subject to a motion to suppress “at the instance of any. persons.” In support of his position, the defendant relies on Fed.R.Crim.P. 12(d) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The government opposes this motion on two grounds. First, that it has no duty to search for and reveal all information that might be subject to suppression. Second, that it has been following its open-file policy, thereby exceeding the requirements of Fed.R.Crim.P. 16 and obviating the need for additional relief under Fed.R.Crim.P. 12.

Fed.R.Crim.P. 12(d) provides in part:
At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government’s intention to use (in its evidence in chief at trial) any evidence which the defendant may been entitled to discover under Rule 16 ...

In this case, the government’s response does not fulfill the requirements of Rule 12(d) since the defendant is still “left in the dark” as to exactly what evidence, discoverable under Rule 16, the government intends to rely upon in its case in chief at trial. The open-file policy does not particularize this evidence. While the defendant’s motion exceeds the parameters of Rule 16 (e.g. “arguably be subject to a motion to suppress at the instance of any persons”) he is still entitled to relief under Rule 12(d). Accordingly, the defendant’s motion shall be granted, but limited to the scope of Rules 12(d) and 16.

III. Amended Motion for Bill of Particulars

In this motion the defendant seeks particulars with respect to the manner in which he allegedly possessed with the intent to deliver and distribute cocaine. The government opposes this motion.

The purpose of a bill of particulars is three-fold: to provide the defendant with additional facts necessary to prepare a proper defense, to avoid prejudicial surprise at trial, and to protect a defendant from possible double jeopardy. United States v. Climatemp, 482 F.Supp. 376, 389 (N.D.Ill.1979) aff'd, 705 F.2d 461 (7th Cir.), cert. denied 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983). A bill of particulars is not to be used as substitute for discovery.

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Cite This Page — Counsel Stack

Bluebook (online)
120 F.R.D. 103, 1988 U.S. Dist. LEXIS 5561, 1988 WL 35612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelley-wied-1988.