UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 14-cr-20628 

v Honorable Thomas L. Ludington 

RONRICO SIMMONS, JR., 

 

 Defendant. 

__________________________________________/ 

ORDER DENYING MOTION TO EXCLUDE STATEMENTS, MOTION TO EXCLUDE 

TESTIMONY, MOTION FOR BRADY MATERIALS, MOTION FOR BILL OF 

PARTICULARS, AND MOTION FOR OTHER CRIMES OR BAD ACTS EVIDENCE 

AND RESETTING CERTAIN CASE MANAGEMENT DATES 

 On October 8, 2014, Defendant Ronrico “Rico” Simmons Jr. was indicted for distribution 

of a controlled substance and conspiracy to distribute a controlled substance. ECF No. 1. The 

Government contends that from approximately 2011 to on or about August 1, 2012, Simmons 

conspired to obtain heroin from others and distribute it to Edwin “Rock” Simpson and others in 

the Eastern District of Michigan. Mr. Simpson allegedly “re-rocked” the heroin to conceal that it 

had been adulterated with “cut” and then distributed it to others. Id. As part of the conspiracy, the 

Government contends, Simmons caused participants to transport Mr. Simpson, heroin, and drug 

money between Detroit, Michigan, and the Roscommon-Houghton lake area, and that Simmons 

caused participants to house Mr. Simpson in the Roscommon-Houghton lake area. Id. The 

Government further contends that Defendant Simmons, Mr. Simpson, and others used telephones 

to facilitate heroin distribution and used wire transfers to facilitate heroin distribution. Id. 

Simmons was arraigned on July 21, 2015, where he consented to detention and pleaded 

not guilty. After obtaining new counsel on October 27, 2015, Simmons filed the following five 

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motions on January 1, 2016: (1) Motion in limine to exclude any and all statements made by 

Edwin Simpson; (2) Motion in limine to exclude any speculative testimony from Ellen Morgan 

regarding Defendant Simmons; (3) Motion for disclosure of Brady materials; (4) Motion for bill 

of particulars; and (5) Motion requesting notice of the Government’s intent to offer other crimes, 

wrongs, and bad acts evidence. ECF Nos. 19-23. For the reasons stateD below all five motions 

will be denied. 

I.

 Simmons first moves to exclude any and all statements made by Edwin Simpson. In his 

motion Simmons explains that during the Grand Jury proceedings, four witnesses testified 

regarding statements that Mr. Simpson had made to them. Specifically, Ellen Morgan testified, 

“[Simpson] said that they took, the police took $3,000 and that he was going to have to come up 

with that amount plus what they took in heroin to give back to Rico.” Ms. Morgan also testified 

that Mr. Simpson told her “Rico is reliable and that if he wanted it that he could get it anytime he 

wanted it from Rico.” 

 Under Federal Rule of Evidence 801(d)(2), statements offered against an opposing party 

that were made “by the party’s coconspirator during and in furtherance of the conspiracy” are not 

hearsay statements. Defendant Simmons argues that these statements must be excluded because 

they are hearsay statements that are not in furtherance of a conspiracy. ECF No. 19. To the 

contrary, this statements are precisely the kinds of statements that Rule 801(d)(2) is intended to 

address, as they were made during and in furtherance of the heroin distribution conspiracy with 

which Simmons is charged. As explained by the Sixth Circuit, “[a] statement is made in 

furtherance of a conspiracy if it was intended to promote conspiratorial objectives; it need not 

actually further the conspiracy. This requirement is satisfied when the statements are made to 

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apprise a coconspirator of the progress of the conspiracy, to induce his continued participation, 

or to allay his fears. United States v. Martinez, 430 F.3d 317, 327 (6th Cir. 2005) (internal 

citations and quotations omitted). Here, in the first statement Mr. Simpon apprised another 

member of the conspiracy that he owed payment to Defendant Simmons for conduct in 

furtherance of the heroin conspiracy. In the second statement Mr. Simpson informed another 

member of the conspiracy that Defendant Simmons was a reliable source for heroin. Because the 

statements made by Mr. Simpson identify Defendant Simmons as the source for the heroin, they 

satisfy the “in furtherance” requirement. United States v. Rios, 842 F.2d 868, 874 (6th Cir. 

1988). Simmons’s motion will therefore be denied. 

II. 

 Defendant Simmons next moves to exclude any “speculative” testimony from Ellen 

Morgan regarding Defendant Simmons. ECF No. 20. Specifically, Simmons moves to exclude 

Ms. Morgan’s statement that “Rico had fronted [Simpson] the dope. He didn’t pay, Edwin 

Simpson had not paid cash for the dope he was given the dope from Rico. Rico gave him the 

dope on the basis that he would pay him after he sold it.” Simmons argues that this testimony is 

speculative since Ms. Morgan later testified that she never had any direct contact with Defendant 

Simmons. Simmons also moves to exclude Ms. Morgan’s testimony that each time Mr. Simpson 

went to Detroit he purchased at least an ounce of heroin from Defendant Simmons. Simmons 

argues that because Ms. Morgan only went to Detroit four or five times, she must be speculating 

in her allegation that Simmons gave Mr. Simpson an ounce of heroin every time he went. 

Simmons argues that Ms. Morgan’s statements lack personal knowledge, are inadmissible 

hearsay, and are unduly prejudicial under Federal Rule of Evidence 403. 

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 Simmons’s motion will be denied. As explained by the Government in its response, the 

Government will have the opportunity at trial to establish a sufficient foundation for Ms. 

Morgan’s testimony at trial, and thus the admission of the testimony under Rule 801(d)(2)(E). If 

the Government cannot establish a foundation for the testimony at that time, or if Defendant 

Simmons believes the statements are unduly prejudicial at that time, he will have the opportunity 

to object. 

III.

Defendant Simmons next moves for disclosure of Brady materials. ECF No. 21. This 

motion will be denied for two reasons. First, the Court’s scheduling order issued on July 30, 

2015 requires the government to “[p]ermit defense counsel to inspect, copy or photograph any 

exculpatory/impeachment evidence within the meaning of Brady v. Maryland, 373 U.S. 83 

(l963), United States v. Agurs, 427 U.S. 97 (l976), and Giglio v. United States, 405 U.S. 105 

(l972). ECF No. 11 at (2)(B). The order further provides that the duty to disclose is “continuing, 

even throughout trial.” Id. at (4). Because the government is already required to turn over any 

Brady materials, Simmons’ motion is meritless without any allegation suggesting that the 

Government has not complied. 

Furthermore, as explained by the Government, Brady is not a discovery tool. In contrast 

to the broad scope of discovery in civil cases, the discovery available to a criminal defendant is 

relatively constricted, and is generally circumscribed by three rules: (1) Federal Rule of Criminal 

Procedure 16 (controlling discovery of materials regarding the defendant); (2) The Jencks Act, 

18 U.S.C. § 3500; and (3) the doctrine set forth in Brady. See United States v. Presser, 844 F.2d 

1275, 1285, fn. 12 (6th Cir.1988) (stating that in most criminal prosecutions, these three rules 

“exhaust the universe of discovery to which the defendant is entitled”). 

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Under the Jenck’s Act, upon motion of the Defendant the government must produce 

“statements in its possession of witnesses who testify at trial.” United States v. Short, 671 F.2d 

178, 185 (6th Cir.1982). Under the rule, the Government need not provide statements or reports 

of witnesses until the witness “has testified on direct examination in the trial of the case.” 18 

U.S.C. § 3500(a). The Sixth Circuit has held that the Jencks Act controls the timing of Brady 

disclosures. See United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir. 1994). 

Under Brady, the government violates due process when it fails to disclose evidence 

related to guilt or sentencing in a criminal case that is favorable to the defendant. Brady, 373 

U.S. at 87. The Brady rule extends to material that could be used to impeach the credibility of a 

government witness. Giglio v. United States, 405 U.S. 150, 154–55, (1972) (impeachment 

evidence falls within Brady “[w]hen the reliability of a given witness may well be determinative 

of guilt or innocence”). However, as explained by the Supreme Court, “[t]here is no general 

constitutional right to discovery in a criminal case, and Brady did not create one....” 

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Instead, Brady only applies to “the discovery, 

after trial of information which had been known to the prosecution but unknown to the defense.” 

United States v. Agurs, 427 U.S. 97, 103 (1976). 

Defendant now requests exculpatory and/or impeaching evidence relating to all 

Government witnesses. Defendant Simmons’ general request for pretrial disclosure material as 

to all potential government witnesses is an insufficiently particularized request to justify 

departing from the Jencks Act. As explained by the Sixth Circuit: 

[P]roviding the defense with such a broad right of pre-trial discovery would 

vitiate an important function of the Jencks Act, the protection of potential 

government witnesses from threats of harm or other intimidation before the 

witnesses testify at trial. See, e.g., Roberts, 811 F.2d at 259. Clearly, the need to 

protect witnesses exists whether the witnesses are part of the government’s casein-chief or part of its potential evidence to rebut a possible defense. Accordingly, 

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we conclude that the government cannot be compelled to disclose impeachment 

material which would be covered by the Jencks Act relating to any potential 

government witness, whether it be a witness in the case-in-chief or a rebuttal 

witness. Further, the government need not disclose impeaching material in its 

possession relating to any potential defense witness where that impeaching 

material does not meet the Brady test of being material and exculpatory. 

United States v. Presser, 844 F.2d 1275 (6th Cir. 1988). The Government has already provided 

Defendant Simmons with broad discovery in this case far before it was required to do so. 

Simmons attempt to use Brady to effect broad pre-trial discovery will be denied. 

IV.

 In his fourth motion, Simmons moves for a bill of particulars. ECF No. 22. He argues that 

the indictment does not provide any specifics, and that he requires more particular information to 

understand the precise nature of the charge against him, prepare his defense, avoid surprise 

during trial, and to protect against a second prosecution. Simmons specifically seeks (a) the 

precise circumstances under which the acts occurred, including time, place, and manner; (b) 

names and addresses of any persons the government claims were present, or have knowledge of, 

the time any of the acts allegedly occurred; and (c) the precise nature, character and 

circumstances of any words uttered or acts engaged in by Defendant Simmons. 

 Federal Rule of Criminal Procedure 7(f) allows a defendant to move for a bill of 

particulars. “A bill of particulars is meant to be used as a tool to minimize surprise and assist 

defendant in obtaining the information needed to prepare a defense and to preclude a second 

prosecution for the same crimes.” United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 

1993). A bill of particulars is not meant “as a tool for the defense to obtain detailed disclosure of 

all evidence held by the government before trial.” Id. The pertinent question is not whether the 

information would be helpful to Defendant, but whether such information is necessary to the 

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preparation of the defense and the avoidance of prejudicial surprise. See United States v. Musick, 

291 F. App’x 706, 724 (6th Cir. 2008). 

Here the indictment sufficiently informs Simmons of the charges against him. 

Furthermore the Government has already provided him with substantial discovery, including 

telephone records and grand jury testimony. Simmons is not entitled to a bill of particulars for 

the purposes of obtaining a list of Government witnesses, discovering all overt acts that might be 

proven at trial, or obtaining the names of all co-conspirators. Id. His motion for a Bill of 

Particulars is merely another attempt to obtain broad discovery from the Government that is not 

required under the Jenck’s Act, and will be denied. 

V.

 In his final motion, Simmons requests notice of the Government’s intention to offer other 

crimes, wrongs, and bad acts evidence. ECF No. 23. Under Federal Rule of Evidence 404(b)(2) 

the Government is already required to provide reasonable notice of its intent to use such 

evidence to Defendant Simmons. Whether such reasonable notice is provided is a question for a 

later time. If at trial the government presents such evidence without having provided Defendant 

Simmons reasonable notice, then Simmons may move to exclude the evidence. For now, his 

motion for notice will be denied. 

VI.

 Accordingly, it is ORDERED that Defendant Simmons’ motion in limine to exclude any 

and all statements made by Edwin Simpson, ECF No. 19, motion in limine to exclude any 

speculative testimony from Ellen Morgan regarding Defendant Simmons, ECF No. 20, motion 

for disclosure of Brady materials, ECF No. 21, motion for bill of particulars, ECF No. 22, and 

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motion requesting notice of the Government’s intent to offer other crimes, wrongs, and bad acts 

evidence, ECF No. 23, are DENIED. 

 It is further ORDERED that the scheduling order is ADJOURNED as follows: 

 Plea due: February 29, 2016

 Final Pretrial Conference: February 29, 2016 at 3:00 PM

 Jury Trial: March 8, 2016 at 8:30 AM

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: February 25, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on February 25, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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