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United States v. Alexander

United States District Court, E.D. Wisconsin

February 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEWAYNE ALEXANDER, SR., Defendant.

          ORDER ON DEFENDANT'S PRETRIAL MOTIONS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         On December 19, 2017, a grand jury sitting in the Eastern District of Wisconsin returned a thirty-one count indictment against seventeen defendants. (Docket # 1.) Dewayne Alexander, Sr. is charged in Count One with conspiring to possess with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B). Alexander Sr. is charged in Count Twenty-Four with knowingly and intentionally possessing heroin with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) and 18 U.S.C. § 2. Alexander Sr. was arraigned on the charges and entered a plea of not guilty. This case has been designated as complex, and jury trial before the Honorable Lynn Adelman will be scheduled after resolution of pretrial motions.

         Currently before me are four pretrial motions. First, Alexander Sr. moves for disclosure of Fed.R.Evid. 404(b) evidence. (Docket # 256.) Second, Alexander Sr. seeks immediate disclosure of the identity of any unindicted co-conspirators. (Docket # 257.) Third, Alexander Sr. moves to sever his trial from the trial of his co-defendant Dewayne Alexander, Jr. (Docket # 264.) Finally, Alexander Sr. has requested immediate disclosure of the identity of unnamed informants and related discovery. (Docket # 266.) The government either opposes or opposes in part all four motions. (Docket # 280.) Alexander Sr. has not filed a reply; thus, the motions are now fully briefed and are ready for resolution. For the reasons explained below, Alexander Sr.'s motion for early disclosure of Fed.R.Evid. 404(b) evidence (Docket # 256) is granted in part and denied in part. Alexander Sr.'s motion for immediate disclosure of the identity of any unindicted co-conspirators (Docket # 257) is granted in part and denied in part. The motion to sever Alexander Sr.'s trial from the trial of his co-defendant Alexander Jr. (Docket # 264) is denied. The motion for immediate disclosure of the identity of unnamed informants and related discovery (Docket # 266) is granted in part and denied in part.

         ANALYSIS

         Motion for Early Disclosure of Certain Evidence (Docket # 256)

         Alexander Sr. moves for an order requiring the government to immediately disclose any evidence of other crimes, wrongs, or acts that the government intends to use at trial or sentencing, as required by Fed.R.Evid. 404(b). The government opposes the motion in part. The government states that other than evidence of prior drug convictions (of which the defendant is already aware), there is little, if any, such evidence that would be offered against the defendant. (Docket # 280 at 2.) However, the government proffers it will disclose its intent to introduce Rule 404(b) evidence no later than fifteen days before trial. (Id.)

         Rule 404(b) requires the government to provide the defendant with reasonable notice of the general nature of other acts evidence it intends to use at trial. Alexander Sr. does not oppose the government's suggestion of filing its notice of intent to introduce Rule 404(b) evidence fifteen days prior to trial. Thus, Alexander Sr.'s motion is granted in part and denied in part. The government will file its notice of intent to introduce evidence pursuant to Rule 404(b) fifteen days prior to trial.

         Motion to Compel Disclosure of Unindicted Co-Conspirators (Docket # 257)

         Alexander Sr. moves for an order requiring the government to disclose the identity of unindicted co-conspirators. Alexander Sr. argues that other than his co-defendants, he has no way of discerning whether any of the informants are deemed by the government to be unindicted co-conspirators. Thus, he argues he cannot determine which individual's statement may fall within the Fed.R.Evid. 801 exception to the hearsay rule. Further, he argues he cannot discern the parameters of the charged conspiracy. Alexander Sr. argues that the complexity of the case, the volume of discovery, the number of witnesses, and the length of the conspiracy necessitates immediate disclosure. The government argues Alexander Sr.'s motion should be construed as a motion for a bill of particulars and states that it will file a bill of particulars listing any unindicted co-conspirators not less than thirty days before trial. (Docket # 280 at 2-3.)

         The practice in this District is to require the government to identify unindicted co-conspirators so that the defendant can determinate if statements in discovery might be admissible as co-conspirator statements under Fed.R.Evid. 801(d)(2)(E). See United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *16 (E.D. Wis. Dec. 4, 1990) (“[T]he defendant is entitled to the names of the unindicted co-conspirators as well, for purposes of the admission of co-conspirator hearsay.”); see also United States v. Buske, No. 09-CR-0065, 2010 WL 3023366, at *8 (E.D. Wis. Apr. 30, 2010), report and recommendation adopted, No. 09-CR-65, 2010 WL 3023364 (E.D. Wis. July 29, 2010) (the government agreed to provide defendant with the names of unindicted co-conspirators not less than thirty days prior to trial); United States v. Laux, No. 14-CR-229, 2015 WL 1885953, at *7 (E.D. Wis. Apr. 24, 2015), report and recommendation adopted, No. 14-CR-229, 2015 WL 4477007 (E.D. Wis. July 22, 2015) (ordering the government to promptly disclose to defendant any co-conspirator it identifies any time between the date of the order and the time of trial). Thus, the disclosure of unindicted co-conspirators is not dependent on the number of defendants or the complexity of the case. Rather, the disclosure is required to assure the defendant can determine pretrial whether statements in discovery might be admissible under Fed.R.Evid. 801(d)(2)(E).

         Alexander Sr. does not object to the government's proposal to file a bill of particulars listing any unindicted co-conspirators no less than thirty days prior to trial. Thus, Alexander Sr.'s motion is granted in part and denied in part. The government is ordered to provide the names of any unindicted co-conspirators no later than thirty days prior to trial.

         Motion to Sever Defendants (Docket # 264)

         Alexander Sr. moves to sever his trial from that of his co-defendant, Alexander Jr. Alexander Sr. argues that his son, Alexander Jr., gave a custodial statement after his arrest which implicates his father in narcotics transactions related to this case. Alexander Sr. argues that when the government introduces Alexander Jr.'s statements at trial, he will be unable to cross-examine him, violating his rights pursuant to the Sixth Amendment and Bruton v. United States, 391 U.S. 123 (1968). The government counters that Alexander Sr. has failed to overcome the presumption in favor of a joint trial and any claim of prejudice can be cured through redacting the specific, minimal references to Alexander Sr. in Alexander Jr.'s statement. (Docket # 280 at 7-8.)

         Under Fed. R. Crim. P. 8(b), two or more defendants may be charged in a single indictment if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. There is a presumption that co-conspirators who are indicted together are appropriately tried together. United States v. Smith, ...


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