United States District Court, E.D. Wisconsin
ORDER ON DEFENDANT'S PRETRIAL MOTIONS
JOSEPH UNITED STATES MAGISTRATE JUDGE.
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.
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.
for Early Disclosure of Certain Evidence (Docket # 256)
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.)
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.
to Compel Disclosure of Unindicted Co-Conspirators (Docket #
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.)
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).
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.
to Sever Defendants (Docket # 264)
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.)
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.
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