The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant Linda Burning's ("Burning") motion for discovery and for service of a bill of particulars (Docket No. 22*fn1 , motion of Sept. 6, 2006). This matter was referred to the undersigned for pretrial disposition (Docket No. 36, Order of Aug. 9, 2006, nunc pro tunc to that date)
Defendants were indicted on August 9, 2006, for importing 50 kilograms or more of marijuana from Canada, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), (b)(3), and 18 U.S.C. § 2; conspiracy to import the same, in violation of 21 U.S.C. § 963; and importing merchandise (the marijuana) contrary to 19 U.S.C. § 1461, in violation of 18 U.S.C. §§ 545 and 2 (Docket No. 16, Indictment). These charges arise from defendants allegedly importing 130 pounds of marijuana from Canada into the United States over the Lewiston-Queenston Bridge on December 10, 2005 (see Docket No. 27, Gov't Response at 1; Docket No. 16, Indictment).
Burning moves seeking pretrial discovery, including Rule 12(c) notice from the Government (Docket No. 22, Def. Atty. Aff. ¶¶ 5-7). She also wants disclosure of whether intercepted communication were obtained with or without Court authorization and disclosure of any "fruit" of warrantless searches or seizures (id. ¶¶ 8-9, 10-14). She wants her own statements the Government intends to use at trial (id. ¶¶ 15-17). She also seeks a bill of particulars or particularization of the Indictment, to specify the nature of the conspiracy alleged and Burning's conduct as to the substantive offenses (id. ¶¶ 18-19, 20, 21). Next, she seeks disclosure of Rule 404(b) materials (id. ¶¶ 22-34), Rule 608 and 609 materials (id. ¶¶ 35-36), Brady materials (id. ¶¶ 37-55). She also wants to search the agents' personnel files (id. ¶¶ 56-59). Burning next moves for the Government to preserve evidence (id. ¶¶ 60-63). Finally, she joins in the motions of her co-defendant Mt. Pleasant (who, to date, has not moved) and sought leave to make additional motions (id. ¶¶ 64, 65).
The Government responds that it believed that it complied with its pretrial discovery obligations under Fed. R. Crim. P. 16 (Docket No. 27, Gov't Response at 3, Ex. A). The Government was not aware of any wiretap evidence or consensually monitored conversations (id. at 4). The Government invokes the border search exception to the otherwise warrantless search of Burning and the statements obtained from her without Miranda warnings (id. at 4-5, 6-7).
As for the bill of particulars, the Government contends that Burning has not met the burden of showing that she would be prejudicially surprised at trial or plead double jeopardy to warrant the bill of particulars. The Government believes that it furnished extensive discovery and the Indictment only alleged a two-member conspiracy (that is, between the co-defendants), thus a bill of particulars is not warranted. (Id. at 7-8). The Government states the amount of marijuana at issue (130 pounds) and argues that it need not prove overt acts in furtherance of the conspiracy (id. at 9).
The Government intends to provide defense counsel with reasonable notice of Rule 404(b) evidence pursuant to this Court's practice (id.). The Government also intends to furnish impeachment materials consistent with this Court's practice and not sooner (id. at 10). As for Brady material, the Government believes that it has complied with its obligations to provide exculpatory material (id.). As for Burning's motion for leave to file additional motions, the Government notes Judge Skrenty's practice of encouraging pretrial motions on evidentiary issues and that an open-ended request for leave to make motions is unnecessary (id. at 12).
The original Scheduling Order for this motion had the Government's response due on September 25, 2006 (Docket No. 23), extended with the response due on October 13, 2006, and argument scheduled for October 24, 2006 (Docket No. 26). Burning was allowed to file a reply by November 8, 2006, and oral argument then was rescheduled for November 9, 2006 (Docket Nos. 28, 29, 30). At oral argument on November 9, 2006, Burning indicated that a Huntley hearing was necessary and that hearing was scheduled for December 12, 2006 (Docket No. 30), then rescheduled for January 19, 2007 (Docket No. 32), and finally on March 22, 2007 (Docket No. 41)*fn2 . The Court conducted an evidentiary Huntley hearing on March 22, 2007, regarding the voluntariness of Burning's statements at the border control, and deemed the motion submitted as of that date (see Text Minute Entry, Mar. 22, 2007; Docket No. 30).