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United States v. Gould

March 10, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EJAY JOSEPH GOULD, DEFENDANT.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER ON MOTIONS

A motions hearing was held on Tuesday, March 3, 2009. Defendant Ejay Joseph Gould was present in person and by his counsel, Clint Sargent. The government appeared by its Assistant United States Attorney, Jeff Clapper.

Defendant's Request Pursuant to 404(b) (Doc. 38)

Defendant's Motion for Disclosure of Other Acts Evidence (Doc. 61)

Defendant has moved the court for an order compelling the United States to disclose other bad acts testimony which it intends to offer under Federal Rule of Evidence 404(b). The United States has agreed to comply, as it must, with Rule 404(b).

Defendant's Motions for Disclosure of Other Acts are granted, in part, and the United States shall provide reasonable notice of its 404(b) evidence no later than two weeks prior to trial. The balance of Defendant's motions are DENIED as to items 1-5 identified in the motion. United States v. Rusin, 889 F.Supp. 1035, 1036 (N.D.Ill. 1995). (Government's notice of its intent to use other crimes evidence was not required to include dates, places and persons involved in specific acts, documents pertaining to acts, and statements of issues to which government believed such evidence was relevant.); United States v. Jackson, 850 F.Supp 1481, 1493 (D.Kan. 1994). (Notice of intent to use prior bad acts evidence need not provide precise details regarding date, time, and place of prior bad acts, but it must characterize prior conduct to degree that fairly apprises defendant of its general nature.)

Defendant's Motion to Exclude Spousal Communications (Doc. 62)

Defendant's Motion to Suppress re: Gray Cell Phone (Doc. 63)

Counsel agreed at the hearing these motions are no longer in dispute. Accordingly, they are DENIED as moot.

Defendant's Motion for Discovery (Doc. 47)

Counsel offered no specific argument regarding the motion for discovery. Accordingly, it will be DENIED as moot with leave to reopen if discovery becomes disputed.

Defendant's Motion for Production of Expert Summaries (Doc. 59)

Defendant requests the disclosure of written summaries of expert testimony it intends to use at trial and requests production at least 30 days in advance of trial. Federal Rules of Evidence 702, 703 and 705 do not provide for advance notice of the information requested in the motion. Federal Rule of Criminal Procedure 16(a)(1)(G) requires that "at the defendant's request" a summary of any expert testimony the government intends to use during its case-in-chief at trial must be provided. The summary must include the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

The Government asserts the summary need not be provided until the time of trial. The advisory committee notes, however, do not support such an interpretation. Specifically, the note to the 1993 amendment*fn1 states that the expert summary requirement "requires the government to disclose information regarding its expert witnesses if the defendant first requests the information. Once the requested information is provided, the government is entitled . . .to reciprocal discovery of the same information from the defendant. The disclosure is in the form of a written summary and only applies to expert witnesses that each side intends to call. Although no specific timing requirements are included, it is expected that the parties will make their requests and disclosures in a timely fashion." (Emphasis added). In this case the defendant requests the information 30 days prior to trial. The government has agreed it will provide the requested information at least two weeks prior to trial. The language in Rule 16(G) which requires expert witness information disclosure indicates it shall be provided "upon defendant's request." Similar language is found in Rule 16(A) -(D), and Judge Piersol's Scheduling Order ...


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