It is well established that defendants are not entitled to access to any Rule 608(b) material
which is not discoverable under Federal Rule of Criminal Procedure 16. See United States v.

Hartmann, 958 F.2d 774, 789 n. 5 (7th Cir.1992); United States v. Cerro, 775 F.2d 908, 914-15

(7th Cir.1985). Rule 16 explicitly limits compelled discovery to information the government
intends to introduce during its case-in-chief. Fed. R. Crim. P. 16(b)(1)(A). By definition, Rule
608(b) evidence may not be used during the government's case-in-chief, and therefore, it is not
discoverable under Rules 12 or 16. See United States v. Sims, 808 F. Supp. 607, 611 (N.D.
111.1992).

Accordingly, Patel’s motion for notice of the government's intention to use Rule 404(b)
material is granted, while the motion for the production of Rule 608(b) material is denied.
Vv. Motion for Discovery

Patel also seeks discovery of the following information: (A) any statements made by
Patel; (B) the names and statements of the Government’s prospective witnesses; (C) grand jury
transcripts; (D) expert reports; and (E) any tangible evidence the Government intends to use at
trial.’ Pursuant to its obligations under Rule 404(b), section 3500, Brady, and Rule 16, the
Government has agreed to produce and has produced the above discovery, except for a list of its
prospective witnesses.

Neither the Constitution nor Federal Rule of Criminal Procedure 16 requires that a
defendant in a noncapital case be provided with a list of all prospective government witnesses.

United States v. Braxton, 877 F.2d 556, 560 (7th Cir.1989); United States v. Napue, 834 F.2d

2 This motion also seeks discovery of evidence discussed above, such as Rule 608

material and Brady, Giglio, and section 3500 material.

4.


Smith, 103 F.3d 600, 602 (7th Cir.1996). This evidence may be admissible, however, for any
other relevant purpose including "proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. . . ." Id.

Federal Rule of Evidence 404(b) requires that the government in a criminal case, upon
request of an accused, provide reasonable advance notice of its intention to use such evidence
and the general nature thereof. The purpose of this notice requirement is to "reduce surprise and
promote early resolution on the issues of admissibility." Fed. R. Evid. 404(b), Notes of
Committee on the Judiciary, Sen Rep. No. 93-1277. This Rule does not, however, provide for
unbridled discovery and, to that end, the government need only "appraise the defense of the
general nature of the evidence of extrinsic acts." Id.

The Government acknowledges its obligations under Rule 404(b) and at this point has
filed a motion in limine listing the Rule 404(b) material it intends to use at trial, The Court
believes that, under the present circumstances, this is sufficient for Patel to analyze and
assimilate Rule 404(b) material in preparation for trial. By providing this information a week
before trial, the Government has met Rule 404(b)’s provision requiring "reasonable notice" in
advance of trial. Fed. R. Evid. 404(b).

Patel also seeks pretrial notice of the Government's intention to use "specific instances of
conduct" or Rule 608(b) material. Rule 608(b) restricts the use of specific instances of conduct
of a witness for the cross examination of that witness. Fed. R. Evid. 608(b). Unlike Rule
404(b), however, Rule 608(b) does not require pretrial disclosure of any evidence which might be

used for impeachment purposes.

-3-


1311, 1317 (7th Cir.1987). The district court, however, has the authority to order such
production. United States v. Jackson, 508 F.2d 1001, 1005-08 (7th Cir.1975). Such an order,
however, requires a particularized need for the list of prospective witnesses. United States v.

Shields, 1991 WL 113164, *3 (N.D. Ill. June 5, 1991). The defendant must articulate a

compelling reason other than generalized reasons. United States v. Sclamo, 578 F.2d 888, 890
(Ast Cir.1978).

Here, this Court sees no need to require the Government to disclose a list of its
prospective witnesses, Patel has expressed no more than generalized, abstract claims of necessity.
The Court believes that such unlimited disclosure is particularly inappropriate when, as here, the
government intends to disclose all Jencks Act material three weeks prior to trial which will
necessarily reveal the identity of the witnesses expected to be called by the government during its
case-in-chief. See, e.g., United States v. Messino, 855 F. Supp. 955, 967 (N.D. Il1.1994).

Patel’s motion for the pretrial production of the Government's witness list is accordingly
denied. This ruling, however, does not affect the government's obligations under Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, to the extent that any request for witness lists seeks
the identities of persons who can provide information favorable to the accused which is material
to guilt or innocence, the Government must furnish Patel with the identities of those persons

under Brady. See United States v. Villarael, 752 F. Supp. 851, 852 (N.D. 111.1991).



Minute Onder Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Ju i Sitting Judge if Other
ae Magistrate sea Blanche M. Manning than Assigned Judge
CASE NUMBER 01 CR 716 DATE July 18, 2002
CASE United States of America v. Nirali Patel
TITLE

nature of the motion being presented.}

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION:

DOCKET ENTRY:

(1) i) Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

@) a Answer brief to motion due___. Reply to answer brief due_____

(4) a Ruling/Hearing on setfor at

(5) o Status hearing{held/continued to] [set for/re-set for]on__—setfor_—_ at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for] on setfor at.
(7) o Trial{set for/re-set for]on__at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

O FRCP4(m) General Rule 21 O FRCP41(a)(1) O FRCP4i(a)(2).

(10) @ [Other docket entry]

(11)

oO [For further detail see order on the reverse side of the original minute order.]

For the reasons set forth in the attached Memorandum and Order, the Motion
Regarding Coconspirator Statements is GRANTED to the extent set forth herein; the Motion For the
Disclosure of Exculpatory and Impeaching Evidence is GRANTED to the extent set forth herein; The
Motion To Preserve Law Enforcement Notes is GRANTED; the Motion For notice of use of Rule
404(b) evidence is GRANTED, while motion for production of Rule 608(b) material is DENIED; and
the Motion For Other Discovery is GRANTED in part and DENIED in part as set forth herein.

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

RTS

sn

[eile Seq é0

ay a aatta
Gi Ga-Ga us

Date/time received in
central Clerk’s Office

ralling deputy initials



CONCLUSION

For the foregoing reasons, Patel’s Motion

Regarding Coconspirator Statements is GRANTED to the extent set forth herein;

For the Disclosure of Exculpatory and Impeaching Evidence is GRANTED to the
extent set forth herein;

To Preserve Law Enforcement Notes is GRANTED;

For notice of use of Rule 404(b) evidence is GRANTED, while motion for
production of Rule 608(b) material is DENIED;

For Other Discovery is GRANTED in part and DENIED in part as set forth
herein;

It is so ordered.

BLANCHE M. MANNING
U.S. DISTRICT COURT once

DATE:_ 4-02.

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )
)
Plaintiff, )

) Hon. Blanche M. Manning
v. )

) 01 CR 716
NIRALI PATEL, )
)
Defendant. y
MEMORANDUM AND ORDER

Defendant Nirali Patel has been indicted on charges of bank robbery by force, violence
and intimidation (Count 1), in violation of 18 U.S.C. §§ 2113(a) and 2; and bank fraud (Count 2),
in violation of 18 U.S.C. §§ 1344 and 2. The present matter comes before this Court on Patel’s
pretrial motions.
lL Motion Regarding Coconspirator Statements

Patel moves for an order requiring the Government to produce statements made by her
alleged coconspirators. The Government has agreed to provide section 3500 material and
a written Santiago proffer no later than one week before trial. The court believes that, given the
straightforward nature of the case, one week is a sufficient time for Patel to analyze and
assimilate the Santiago proffer and section 3500 material in preparation for trial. To this extent,

Patel’s motion is Granted.

1 Because the Court discussed the background facts in its prior Memorandum and

Order denying Patel’s motion to sever, the facts will not be reiterated here.


I. Motion For The Disclosure of Exculpatory and Impeaching Evidence

Patel has further moved for disclosure of all favorable evidence including any exculpatory
and impeaching information, and the existence and substance of any promises of immunity,
leniency, or preferential treatment. The Government acknowledges its continuing obligations
under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972),
and proposes to produce all known evidence that is both favorable to the defendants and material
to the issues of guilt, innocence or sentencing or which bears upon the credibility of government
witnesses prior to the trial. The motions for the disclosure of all exculpatory and impeaching
evidence pursuant to Brady and Giglio are accordingly granted.

II. Motion To Preserve Law Enforcement Interview Reports and Notes

Patel further moves for an order requiring the Government to preserve law enforcement
interview reports and notes. The Government has agreed to preserve this material pursuant to its
duty to disclose material under section 3500, Giglio, Brady, and Federal Rule of Criminal
Procedure 16.

IV. Motions For Notice of Intention to Use Other Crimes, Wrongs, and Acts Evidence

Patel additionally seeks notice of the Government's intention to use other crimes, wrongs,
or acts evidence.

Federal Rule of Evidence 404(b) prohibits the admission of evidence of other crimes,
wrongs, or acts to prove the character of a person in order to show that he likely acted in
conformity therewith on a particular occasion. Fed. R. Evid. 404(b). The purported rationale for
the exclusion of evidence of other crimes, wrongs, or acts is that such evidence is of slight

probative value and tends to distract the trier of fact from the facts at issue. United States v.

-2-