United States District Court, E.D. Wisconsin
ORDER ON DEFENDANTS' MOTIONS FOR EARLY DISCLOSURE
OF CERTAIN EVIDENCE, EARLY DISCLOSURE OF SUMMARY EVIDENCE,
AND FOR A SANTIAGO PROFFER
JOSEPH, UNITED STATES MAGISTRATE JUDGE
April 10, 2018, a grand jury sitting in the Eastern District
of Wisconsin returned a seven count superseding indictment
against Stephen Lewis, Theresa Lewis, and Demetra Hinkle.
(Docket # 37.) Lewis and Hinkle have been charged with
various drug trafficking and firearm offenses, including
conspiracy to distribute five kilograms or more of cocaine
and 280 grams or more of cocaine base in the form of
“crack” cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846; possession of
firearms during and in relation to the cocaine trafficking
conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
and being felons in possession of firearms, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Lewis and
Hinkle were arraigned on the charges and entered pleas of not
guilty. This case has been designated as complex and jury
trial before the Honorable Pamela Pepper will be scheduled
after resolution of pretrial motions.
before me are six pretrial motions. Lewis has filed a motion
for early disclosure of certain evidence (Docket # 49), a
motion for early disclosure of summary evidence (Docket #
50), and a motion for a Santiago proffer (Docket #
51). Hinkle has similarly filed a motion for early disclosure
of certain evidence (Docket # 46), a motion for early
disclosure of summary evidence (Docket # 47), and a motion
for a Santiago proffer (Docket # 48).
government opposes the motions for early disclosure of
summary evidence and for early disclosure of certain evidence
in part, and opposes the motions for a Santiago
proffer. (Docket # 55.) Neither defendant filed a reply to
the government's response. Thus, the motions are now
fully briefed and are ready for resolution. For the reasons
explained below, it is ordered that the defendants'
motions for early disclosure of summary evidence and for
early disclosure of certain evidence are granted in part and
denied in part. It is further ordered that I will defer
ruling on the defendants' motions for a Santiago
for Early Disclosure of Certain Evidence (Docket # 46 and
Docket # 49)
Lewis and Hinkle move for an order requiring the government
to disclose, at least 60 days before trial: (1) a written
summary of the nature of any expert witnesses' opinions,
the bases for these opinions, and the witnesses'
qualifications, as required by Fed. R. Crim. P. 16(a)(1)(G);
and (2) any uncharged misconduct evidence that the government
intends to use at trial, as required by Fed.R.Evid. 404(b).
government opposes the defendants' motions in part. The
government proffers that it anticipates calling three expert
witnesses at trial. (Docket # 55 at 2.) The government states
that it has already provided the Rule 16(a)(1)(G) summaries
as to two of the experts and will produce the report of the
third expert the week of July 23, 2018. (Id.) The
government states that it will disclose the curriculum vitae
of the three expert witnesses and the Rule 16(a)(1)(G) expert
disclosures of any additional expert witnesses 30 days prior
to trial. (Id. at 3.) The government also requests
that the defendants be obligated to make their expert
disclosures 15 days prior to trial, as opposed to the usual 5
days provided for in Crim. L.R. 16(a)(4) (E.D. Wis.), due to
the complexity of this case.
government further states that it does not anticipate
presenting any Rule 404(b) evidence during its case-in-chief;
however, the government agrees to file its notice of intent
to introduce evidence pursuant to Rule 404(b) 30 days prior
to trial. The government argues that the defendants have
failed to explain how or why they need the Rule 404(b) notice
at least 60 days before trial.
the assertion that the case has been designated as complex,
the defendants fail to explain why 60 days as opposed to 30
days is necessary. Further, the government has provided the
defendants the Rule 16(a)(1)(G) information of the expert
witnesses it plans on calling at trial and does not intend to
present any Rule 404(b) evidence during its case-in-chief.
For this reason, the defendants' motions are granted in
part and denied in part. The government will disclose the
curriculum vitae of the three expert witnesses and any
additional expert witnesses 30 days prior to trial and will
file its notice of intent to introduce evidence pursuant to
Rule 404(b) 30 days prior to trial. The defendants have not
objected to the government's request to make their expert
disclosures 15 days prior to trial; thus, the defendants are
ordered to make their expert disclosures 15 days prior to
for Early Disclosure of Summary Evidence (Docket # 47 and
Docket # 50)
Lewis and Hinkle move for an order requiring the government
to produce, at least 60 days prior to trial, the contents of
any summary documents or exhibits pursuant to Fed.R.Evid.
1006. The government objects, in part, to the defendants'
motions. The government states that it is not aware of any
summaries that it will present in its case-in-chief against
Lewis or Hinkle; however, to the extent the government
decides to prepare summaries, it states that it will disclose
those summary exhibits 14 days prior to trial. The defendants
have not objected to the government's proposal. Rule 1006
requires that a party seeking to introduce a summary of
voluminous records provide copies of those records to the
opposing party at a reasonable time and place. Fed.R.Evid.
1006. A reasonable time and place is understood to be
“such that the opposing party has adequate time to
examine the records to check the accuracy of the
summary.” United States v. Isaacs, 593 F.3d
517, 527 (7th Cir. 2010) (internal quotation and citation
omitted). Beyond asserting that the case is complex, the
defendants have not shown that it is necessary to produce any
summary exhibits 60 days prior to trial. See Id.
(finding government complied with Rule 1006 by producing
underlying documents 3 days before trial; especially
considering the fact the defendants had already received the
underlying documents in discovery 15 months prior). For these
reasons, the defendants' motions are granted in part and
denied in part. The government is ordered to produce any
summary exhibits 14 days prior to trial.
for Santiago Proffer (Docket # 48 and Docket # 51)
and Hinkle also request an order requiring the government to
file a Santiago proffer. See United States v.
Santiago, 582 F.2d 1128 (7th Cir. 1978). The government
objects to the motion and states, at this time, it does not
anticipate introducing any co-conspirator statements at
trial. Statements of co-conspirators are admissible if the
government convinces the court, as a preliminary matter and
by a preponderance of the evidence, that (1) a conspiracy
existed; (2) that the defendant and declarant were members
thereof; and (3) that the proffered statements were made
during the course of and in furtherance of the conspiracy.
Id. at 1134-35; see also United States v.
Cox, 923 F.2d 519, 526 (7th Cir. 1994). In Cox,
the court set forth several procedures a court could employ
in making the admissibility determinations, such as requiring
the government to file a proffer before trial; conducting ...