In addition, the Government may withhold material subject to the work product privilege
and the deliberative process privilege. The work product privilege may apply to discussions
between prosecutors and investigating agents, and the deliberative process privilege covers
memoranda and discussions within the Executive Branch leading up to the formulation of an
official position. United States v. Zingsheim, 384 F.3d 867, 872 (7th Cir. 2004). However,
“[t]he deliberative process privilege may be overcome where there is a sufficient showing ofa
particularized need to outweigh the reasons for confidentiality.” United States v. Farley, 11 F.3d
1385, 1389 (7th Cir. 1993). Likewise, “[t]he work-product privilege may be overcome only upon
a showing that the party seeking discovery has substantial need of the materials in the preparation
of the party’s case and that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” Hobdley v. Burge, 433 F.3d 946, 949-50 (7th Cir.
2006) (citations and quotations omitted).

The Government may also withhold information subject to the “law enforcement
investigatory privilege,” which provides protection for ongoing criminal investigations.
Dellwood Farms, Inc. y. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997). However, “[t]he law
enforcement investigatory privilege is not absolute. It can be overridden in appropriate cases by
the need for the privileged materials.” /d. at 1125. The balancing of the need of the litigant who
is seeking privileged investigative materials against the harm to the Government if the privilege
is lifted is committed to the discretion of the district judge. /d. Finally, the informant’s privilege
allows the Government to conceal the identity of its informants, unless the defendants show that
the identity of the informant is essential to a balanced measure of the issues and the fair

administration of justice. United States v. Herrero, 893 F.2d 1512, 1525 (7th Cir. 1990): Dole v.

14


prepare for trial. /d. An indictment which includes each of the elements of the offense charged,
the time and place of the accused’s conduct which constituted a violation, and a citation to the
statute or statutes violated sufficiently apprises the defendant of the charges. /d.

“{AJny fact (other than prior conviction) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 475-76 (2000) (citing Jones v. United States, 526 U.S.
227 (1999)); see also Ring v. Arizona, 536 U.S. 584, 602 (2002) (extending rule to cases where
penalty may be increased to that of death). In a case where the Government may seek the death
penalty, the indictment thus must charge at least one statutory aggravating factor—in essence, an
element of the offense—necessary to elevate the maximum sentence from life imprisonment to
death. See United States y. Brown, 441 F.3d 1330, 1367 (1 lth Cir. 2006); United States v. Allen,
406 F.3d 940, 942-43 (8th Cir. 2005); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.
2003). Some circuits indicate that the indictment must allege all statutory aggravating factors the
Government intends to prove to render a defendant eligible for the death penalty. United States
v, Frye, 372 F.3d 729, 733-34 (Sth Cir. 2004); United States v. Quinones, 313 F.3d 49, 53 (2d
Cir. 2002).

The Government lists the following statutes allegedly violated by the defendants: 18
U.S.C. §§ 1959, 1962(d) (RICO); 21 U.S.C. §§ 841, 846 (drug offenses and penalties), and 18
U.S.C. §§ 922(g)(1). (k) (illegal transport of firearms). The Government brings all of its charges
of violent crimes and conspiracy under RICO, which provides for the possibility of a death
sentence where a member of an enterprise engaged in racketeering activity commits murder as

consideration for something of value or to gain entrance to or maintain or increase his position in


310, 315-16 (8th Cir. 1999); United States v. Myers, 123 F.3d 350, 356 (6th Cir. 1997), United
States y. Piervinanzi, 23 F.3d 670, 682 (2d Cir.1994); United States v. Craveiro, 907 F.2d 260,
264 (Ist Cir. 1990).

Even though the USAM does not create substantive rights, however, the defendants still
have a right to discovery in this case. District courts have broad discretion with regard to
discovery motions in criminal cases. United States v. Washington, 318 F.3d 845, 857 (8th Cir.
2003); Perez, 222 F. Supp. 2d at 168-69 (noting that a district court has inherent authority to
manage its docket and supervise the orderly disposition of criminal matters). Several district
courts have allowed discovery before the Government has made a final decision regarding
whether to seek the death penalty: i.¢., pre-authorization discovery. See United States v. Perez.
222 F. Supp. 2d 164, 168-69 (D. Conn. 2002); United States v. Karake, 281 F. Supp. 2d 302, 306
(D.D.C. 2003); United States v. Diaz, No. 05 CR 0167, 2005 WL 1575191, at *10-11 (N.D. Cal.
June 30, 2005); United States v. Jackson, No. 02 CR 756, 2003 WL 22023972, at *3 (SDNY.
Aug. 27. 2003).’ These courts have ordered discovery produced subject to immediate disclosure

to be used in defense counsels’ arguments against pursuit of the death penalty to both the United

7Some courts, however, have denied pre-authorization discovery as premature because the
Government has not yet determined whether or not it will seek the death penalty in the event ofa
conviction. United States v. Bodkins, No. 04 CR 70083, 2004 WL 2491615, at *3 (W.D. Va.
Nov. 5, 2004) (denying the defendants’ motions for pre-authorization discovery because the
USAM describes only the internal administrative process concerning whether to seek capital
punishment in this case and creates no discovery rights for a defendant or his attorneys). United
States y. Martinez-Martinez, No. 01 CR 307, 2001 WL 1287040, at *7 (S.D.N.Y. Oct. 24, 2001)
(denying the defendant’s motion for pre-authorization notice of aggravating factors because the
Government had not yet determined whether or not it would seek the death penalty in the event
of a conviction); United States v. Shakir, 113 F. Supp. 2d 1182, 1187-88 (M.D. Tenn. 2000)
(denying the defendants’ motions for pre-authorization discovery because the Court lacks
jurisdiction to order pre-authorization discovery).

10


death penalty against at least seven defendants.’ In any criminal indictment, especially those that
may result in the most severe penalty of death, such summary allegations do not suffice. Unlike
Fassnacht, the Indictment here does not set forth the times and places of each of the accused’s
conduct that constitutes a violation. In addition, the Indictment fails to set out a minimum of one
statutory aggravating factor which is necessary to elevate the maximum sentence from life
imprisonment to death. See Brown, 441 F.3d at 1367; Allen, 406 F.3d at 942-43; Higgs, 353
F.3d at 297-98; see also Frye, 372 F.3d at 733-34 (holding that indictment must allege all
statutory aggravating factors the Government intends to prove to render the defendant eligible for
the death penalty); Quinones, 313 F.3d at 53 (same). The Indictment’s conclusory allegations
that the murders were “accompanied by exceptionally brutal and heinous behavior indicative of
wanton cruelty” under the section entitled “Notice of Special Findings & Enhanced Sentencing
as to the Racketeering Conspiracy,” do not satisfy the requirement to include at least one
statutory aggravating factor in the indictment. Although a “heinous, cruel, or depraved manner”

of committing an offense is a statutory aggravating factor (18 U.S.C. § 3592(c)(6)),* the

“The Government has represented that the seven defendants against which it may seek the
death penalty are: Delatorre, Benabe, Salazar, Crowder, Guzman, Horton, and Susinka.

SOther statutory aggravating factors for homicide include: (1) death during commission or
attempted commission of another crime; (2) previous conviction of a violent felony involving
firearm; (3) previous conviction of an offense for which a sentence of death or life imprisonment
was authorized; (4) previous conviction of other serious offenses; (5) grave tisk of death to
additional persons; (6) heinous, cruel, or depraved manner of committing an offense; (7)
procurement of offense by payment; (8) pecuniary gain from the offense; (9) substantial planning
and premeditation; (10) conviction for two felony drug offenses; (11) vulnerability of victim:
(12) conviction for serious federal drug offenses; (13) continuing criminal enterprise involving
drug sales to minors; (14) the offense was committed against high public officials; (15) prior
conviction of sexual assault or child molestation; (16) multiple killings or attempted killings. 18
US.C.A. § 3592 (c).


the enterprise. 18 U.S.C.A. § 1959 (a)(1). The possession of firearms charges against Delatorre
and Benabe may be punishable by death if death results from the use of such munitions by a
person in furtherance of any crime of violence or drug trafficking crime. 18 US.C.A. § 924
(c)(1)(A). The Controlled Substances Act, 21 U.S.C. § 848, provides for the death penalty if any
person working in furtherance of a continuing criminal enterprise, or engaged in manufacturing,
distributing, or dispensing, or possessing with intent to manufacture, distribute, or dispense.
“intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of
an individual and such killing results.” 21 U.S.C. §§ 841(b), 848(e).

In the Government’s RICO counts—Counts One through Eight—the Government only
charges three defendants—Delatorre, Guzman, and Horton—of murder, the only RICO crime
punishable by death. However, in the RICO conspiracy count—Count One—the Government
summarily alleges that ten of the remaining defendants—Benabe, Martinez, Crowder,
Hernandez, Susinka, Salazar, Juarez, Morales, Barbosa, and Perez-——“committed or caused to be
committed” certain murders or attempted murders. Defendants Rodriguez and Lechuga are only
implicated in drug trafficking counts, but the Government does not allege that any of the alleged
drug trafficking crimes resulted in killings. The Government also does not tie Delatorre’s and
Benabe’s possession of firearms charge to specific killings. Morcover, the Government does not
link any specific criminal acts to the remaining defendant, Romel Handley, who is summarily
described as: “a Shorty member of the Insane Deuces” who directed other members of the
enterprise in carrying out unlawful activities in furtherance of the conduct of the affairs of the
Insane Deuces and as part of the racketeering conspiracy.

Based on these summary allegations, the Government has indicated that it may seek the


seeking the death penalty—does not create enforceable rights. This Court disagrees.

In deciding whether to seek the death penalty, the Government is guided by the internal
policies and procedures in the USAM. See USAM § 9-10.000 ef seg. (1997). Under these
guidelines, when a U.S. Attorney charges a defendant with an offense subject to the death
penalty, the attorney must submit a death penalty evaluation form and a prosecution
memorandum to the Attorney General’s Death Penalty Committee, which assists the Attorney
General in deciding whether to seek the death penalty in a certain case. /d. §§ 9-10.040,
9-10,050, 9-10.070. The guidelines require the U.S. Attorney to submit these documents no later
than thirty days before the Government must file its “Notice of Intention to Seek the Death
Penalty.” /d. § 9-10.040.

Next. a meeting is held at which the defendant is given an opportunity——orally or in
writing—to persuade the Death Penalty Committee not to seek the death penalty. /d. § 9-10.050.
Finally, the Committee makes a recommendation to the Attorney General, who makes the
decision whether to seek the death penalty in a particular case. /d. Once the Attorney General
decides to seek the death penalty, the Federal Death Penalty Act (“FDPA”), 18 US.C. § 3591 er
yeg., applies. Under the FDPA, the Government must notify the defendant in “a reasonable time
before trial” of its intent to seek the death penalty and all aggravating factors that it “proposes to
prove as justifying a sentence of death” if the defendant is convicted of the underlying offense.
18 U.S.C. §§ 3593(a)(1-2). The FDPA creates enforceable, substantive, or procedural rights for
criminal defendants; the USAM, on the other hand, does not. See United States v. Wilson, 413
F.3d 382, 389 (3d Cir. 2005); United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000),

United States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999); In re United States, 197 F.3d


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
v. No. 03 CR 90
FERNANDO DELATORRE, also known as
“Fern,” Fern-dog,” and “Fernwood,”
BOLIVAR BENABE, also known as “Jap,”
JUAN JUAREZ, also known as “Ghost,”
JULIAN SALAZAR, also known as “Mando,”
“Comrade,” “Conrad,” Cuz,” and “Cuzzo,”
MIGUEL MARTINEZ, also known as “Big
Mike” and “Mizzy,” MARIANO MORALES,
also known as “Mar,” ARTURO BARBOSA,
also known as “Chipmunk,” HAROLD
CROWDER, also known as “H-Man,”
MIGUEL RODRIGUEZ, also known as
“Mental” and “Mento,” STEVEN PEREZ, also
known as “Frantic” and “Big Frantic,” BRIAN
HERNANDEZ, LIONEL LECHUGA, ROMEL
HANDLEY, also known as “Romellie,”
CHRISTIAN GUZMAN, also known as
“Mousey,” AKEEM HORTON, and STEVEN
SUSINKA,

Judge Ruben Castillo

were errr SS YH SY YS YH Ye YY eee ee

Defendants.
MEMORANDUM OPINION AND ORDER
This is the first opinion that this Court has issued in this challenging criminal case which
is representative of the Department of Justice’s efforts to move serious street crimes into federal
court. Ina Second Superseding Indictment (“Indictment”), the Government charged sixteen
defendants—all allegedly members of the Insane Deuce Nation Street Gang (“Insane
Deuces”)—with a number of crimes. Count One alleges that each defendant conducted and

participated in the conduct of the affairs of the Insane Deuces through a racketeering conspiracy,


the defendant: is punishable as a principle in an offense committed by another; could not
reasonably have foreseen that his conduct in the course of commission of murder would cause or
create a grave risk of causing death; lacked a significant prior criminal record; committed the
offense under severe mental or emotional disturbance; and was as equally culpable as another
defendant or defendants who will not be punished by death. 18 U.S.C. § 3592; 18 U.S.C. §
848(m). Evidence of the victims’ participation in the activities ofa rival gang will also be
considered, Jd. Other Brady material may include information regarding the involvement of
others, uncharged conduct, conduct of the victims, others’ motives, others” death-eligible
conduct, others’ uncharged bad acts, impeaching information such as criminal histories and
benefits accorded to cooperating persons, and mental state information that is relevant to the
penalty phase. Diaz, 2005 WL 1575191, at *10-11.

B. Rule 16 Discovery

The Government also must meet its discovery obligations under Federal Rule of Criminal
Procedure 16. Rule 16 establishes “the minimum amount of discovery to which the parties are
entitled. It is not intended to limit the judge’s discretion to order broader discovery in
appropriate cases.” Advisory Committee Note to Fed. R. Crim. P. 16. Under Rule 16, [uJpona
defendant's request, the Government must disclose and/or furnish to the defendant: (A) the
substance of any relevant oral statement made by the defendant, before or after arrest, in response
to interrogation by a person the defendant knew was a Government agent if the Government
intends to use the statement at trial; (B) any relevant written or recorded statement by the
defendant within the Government's possession, custody. or control, including the defendant's

recorded testimony before a grand jury relating to the charged offense, and written records of oral

12


States Attorney and the Department of Justice. This Court agrees that “[t]he exigencies of capital
litigation compel, as a practical matter, in order to ensure the fair and orderly disposition of the
case, prompt disclosure of all information which will affect the choice of penalty.” Diaz, 2005
WL 1575191, at *10-11. As several defendants here are presently subject to a possible sentence
of death, this warrants especially careful treatment as capital punishment is qualitatively different
than any other form of punishment. Woodson v. North Carolina, 428 U.S. 280, 305 (1976);
Gregg v. Georgia, 428 U.S. 153, 187 (1976): Caldwell v, Mississippi, 472 U.S. 320, 323 (1985)
(noting heightened need for reliability in death penalty case). Therefore. this Court finds that
defendants are entitled to discovery as set out below.
IV. Scope of Discovery

A. Brady Discovery

The defendants seek discovery under Brady v. Maryland, 373 U.S. 83 (1963). The
district courts that have allowed pre-authorization discovery have held that this discovery
includes the Government’s obligations under Brady. Perez, 222 F. Supp. 2d at 168-69; Jackson,
2003 WL 22023972, at *3; Diaz, 2005 WL 1575191, at *10-11; Karake, 281 F. Supp. 2d at 306
(“The Government wisely does not contest the application of Brady at this stage of the
proceedings to the statutory mitigating factors.”). This Court agrees. Under Brady, the
Government has a duty to disclose evidence favorable to the defense (either exculpatory or that
which could be used for impeachment) where such evidence is material either to guilt or
punishment. United States v. Knight, 342 F.3d 697, 705 (7th Cir. 2003). Evidence of
aggravating and mitigating factors need not be admissible under the tules of evidence. United

States y. Johnson, 223 F.3d 665. 674 (7th Cir. 2000). Statutory mitigating factors include where

11


indictment does not specify the role played by ten of the thirteen defendants alleged to have
“committed or caused to be committed” certain murders or attempted murders—Benabe,
Martinez, Crowder, Hernandez. Susinka, Salazar, Juarez, Morales, Barbosa, and Perez.

The Government’s argument in open court that the aggravating factors were “clearly work
product and internal deliberative process,” to which the defendants are not entitled, is unavailing.
(5/24/06 Tr. at 5.) In accordance with the statute and case law set out above, the
Government—without producing work product—shall produce a bill of particulars setting forth
the times and places of each of the accused’s conduct that constitutes a violation of the alleged
statutes and stating at least one statutory aggravating factor that would elevate the maximum
sentence for each defendant from life imprisonment to death.

I. Defendants’ Discovery Requests

In addition to requesting a bill of particulars, the defendants have made several discovery
requests. Each of these discovery motions, except for those by defendant Perez.” seek “pre-
authorization” discovery; that is, discovery that will assist the defendants in convincing the
United States Attorney (“U.S. Attorney”) and the Attorney General (“AG”) not to authorize the
Government to seek the death penalty against them. The Government argues that the defendants”
discovery requests are premature because the Government has not yet determined whether to
seek the death penalty. In addition, the Government claims that it need not provide discovery to
assist the defendants in persuading the Death Penalty Committee not to seek the death penalty

because the United States Attorneys’ Manual (*USAMTM)—which sets out the guidelines for

*While Perez seeks discovery before any death penalty authorization is made, he did not
tie his motions to the need to prepare for arguing against a death penalty decision.

8


accuse Benabe of possession of firearms in and affecting interstate commerce.

The following discovery motions and motions for a bill of particulars are pending:
Salazar’s motion for a bill of particulars, Fifth and Sixth Amendment Notice, and Disclosure of
Brady Material, (R. 213); Benabe’s motions for discovery and for a bill of particulars, (R. 202,
204); Delatorre’s motions for disclosure of favorable evidence and for discovery regarding expert
witnesses, (R. 154, 155); Crowder’s motion for a bill of particulars and application for
pre-authorization discovery of information relevant to the decision by the Department of Justice
whether or not to authorize the U.S. Attorney to seek death, (R. 193, 194); and Perez’s motions
for disclosure of favorable evidence, to produce a witness list, for disclosure of promises of
immunity, and to produce Santiago memorandum discovery, (R. 162-166). The Government
filed a consolidated response to these motions, (R. 215),’ and Benabe filed a reply, (R. 225). On
November 30, 2005, this Court ordered that any motion filed shall apply to all defendants. (R.
125.) As the decision to seek the death penalty remains within the discretion of the Government,
this Court’s rulings on the pending discovery motions will apply to all of the defendants.

I. Bill of Particulars

The trial court has the discretion to grant or deny a motion for a bill of particulars under
Federal Rule of Criminal Procedure 7(f). United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir.
2003). The trial court can deny a bill of particulars where the indictment sets forth the elements

of the offense charged and sufficiently apprises the defendant of the charges to enable him to

>The Government earlier filed a separate response to Delatorre’s motion for discovery
regarding expert witnesses and motion for disclosure of favorable evidence. (R. 189-90.) The
Government’s earlier arguments are completely incorporated into their consolidated response,
and thus these earlier briefs need not be considered separately.

4


Local 1942, Int'l Bhd. Of Elec. Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989).

The Government may not, however, withhold or delay producing material simply because
it is “impractical.” In its response brief, the Government states that it has delayed producing
taped statements of civilian witnesses to law enforcement and certain law enforcement witness
material because they are “impractical” to redact. (R. 215, Gov. Resp. at 7, 8.) The Court orders
the Government to produce this information subject to the appropriate redactions for privilege as
described in this opinion.

Vv. Conclusion

This Court always uses its best efforts to insure that each criminal defendant receives fair
treatment in the criminal justice system. This Court's efforts, if anything, will be even more
vigilant in view of the contemplated decision of the Department of Justice to invoke the intricate
and complex federal death penalty process. While this Court is pleased that the Government has
already begun producing certain documents—even going back to reduce some of the
redactions—the Government has not gone far enough under the USAM, the rules of evidence,
Seventh Circuit law, and this Court’s rulings herein. Accordingly, the Government must
promptly file a bill of particulars as to each defendant and produce mitigating and aggravating
factors and other Brady material on or before June 30, 2006, so that it may be used in defense
counsels’ arguments against pursuit of the death penalty to both the United States Attorney and
the Department of Justice. The Court again advises the Government to redact only information
necessary to maintain the privileges laid out here. While the Court prefers the Government and
the defendants resolve outstanding discovery matters amongst themselves, this Court will not

rule out an in cumera review of any withheld documents if necessary. Defendants’ motions for a

15


Rodriguez, Susinka, Brian Hernandez, Lionel Lechuga, Horton, and others.

Counts Two through Eight of the Indictment allege that various defendants committed the
following violent crimes in aid of the racketeering activity under 18 U.S.C. § 1959(a)? (1)
Count Two accuses Delatorre and Guzman of the murder of David Lazcano; (2) Count Three
accuses Salazar of conspiracy to murder Victim F; (3) Count Four accuses Juarez, Salazar,
Morales, and Barbosa of conspiracy to murder Victim G; (4) Count Five accuses Delatorre,
Guzman and Horton of assault with a dangerous weapon upon Victim C; (5) Count Six accuses
Delatorre and Horton of the murder of David Morales; (6) Count Seven accuses Delatorre of the
murder of Urbel Valdez; and (7) Count Eight accuses Perez with assault with a dangerous
weapon upon Victim E.

The indictment further charges the defendants with drug trafficking as follows: (1) Count
Nine accuses Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Rodriguez.
Hernandez, Lechuga, Horton, and Susinka of conspiracy to distribute and possess with intent to
distribute certain controlled substances, including crack cocaine, cocaine, and marijuana; (2)
Counts Ten and Eleven accuse Martinez of knowingly and intentionally distributing cocaine; (3)
Count Twelve accuses Delatorre of knowingly and intentionally distributing crack cocaine; (4)

Count Thirteen accuses Delatorre of possession of a firearm; and (5) Counts Fourteen and Fifteen

Section 1959(a) states that whoever, as consideration for the receipt of, or a promise or
agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or maintaining or increasing position in such an
enterprise, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault
resulting in serious bodily injury upon, or threatens to commit a crime of violence against any
individual in violation of the laws of any State or the United States, or attempts or conspires so to
do, shall be punished according to subsections (1) through (6), depending on the nature of the
violent crime.


in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §
1962(d).' In the Government’s “notice of special findings & enhanced sentencing as to the
racketeering conspiracy” in Count One, the Government alleges that the following defendants
“committed and caused to be committed” the following violent crimes: (1) the attempted murder
of Victim A by Juan Juarez, Julian Salazar, Miguel Martinez, Steven Perez, Brian Hernandez,
and others; (2) the attempted murder of Victim B by Juarez, Salazar, Martinez, Perez, Hernandez,
and others; (3) the murder of Robert Perez by Fernando Delatorre, Juarez, Salazar, Martinez,
Harold Crowder, Steve Susinka, and others; (4) the murder of David Lazcano by Delatorre,
Bolivar Benabe, Juarez, Salazar, Martinez, Mariano Morales, Arturo Barbosa, Christian Guzman,
and others; (5) the attempted murder of Victim C by Delatorre, Benabe, Juarez, Salazar,
Martinez, Morales, Barbosa, Guzman, Akeem Horton, and others; (6) the attempted murder of
Victim D by Delatorre, Benabe, Juarez, Martinez, Morales, Barbosa, and others; (7) the murder
of David Morales by Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Horton,
Co-conspirator B, and others; (8) the murder of Urbel Valdez by Delatorre, Benabe, Juarez,
Salazar, Martinez, Morales, Barbosa, Co-conspirator B, and others; (9) the attempted murder of
Victim E by Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Perez, and others; and (10)

drug trafficking by Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Miguel

'Section 1962(d) states that it shall be unlawful for any person to conspire to violate
subsections (a) through (c) of section 1962, which prohibit any person associated with any
enterprise engaged in activities that affect interstate or foreign commerce, to participate in the
conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of
unlawful debt. It further prohibits any person from using any income derived from a pattern of
racketeering activity in furtherance of such an enterprise. “Racketeering activity” means any act
or threat involving murder, kidnapping, gambling, arson, robbery, or dealing in a controlled
substance or listed chemical, as well as several other indictable offenses. 18 U.S.C. § 1961.


statements to a known Government agent; (D) a copy of the defendant’s prior criminal record
that is within the Government’s possession, custody, or control; (E) any material document or
tangible object within the Government's possession, custody, or control that is material to
preparing the defense or that was obtained from or belongs to the defendant; (F) any material
results or reports of a physical or mental examination and of any scientific test or experiment if
within the Government’s possession, custody, or control; and (G) a written summary of any
expert testimony that the Government intends to use under Rules 702, 703, or 705 of the Federal
Rules of Evidence during its case-in-chief at trial.

Cc Exceptions to Disclosures

Even courts allowing pre-authorization discovery, however, exclude certain material from
discovery. First and foremost, courts make exceptions to discovery when there is a specific
showing of risk to potential witnesses. See, e.g., Diaz, 2005 WL 1575191, at *10-11; Perez, 222
F. Supp. 2d at 171-72. This exception accords with this Circuit’s practice of allowing the
Government to withhold the name of a Rule 404(b) witness (as to other crimes, wrongs, or acts
of the defendant) if there are rational fears that the witness will be harmed or intimidated until
the eve of testimony or trial. United States v. Edwards, 47 F.3d 841, 842-43 (7th Cir. 1995).
Furthermore, neither the Constitution nor Rule 16 requires pretrial disclosure of prosecution
witnesses. Edwards, 47 F.3d at 843. As in Edwards, this Court will not yet require the
Government to identify its witnesses because a trial date has yet to be set, and no final decision
has been made regarding whether the Government intends to seek the death penalty, /d. This
Court, however, retains the power to order the witness list produced “to assure the proper and

orderly administration of criminal justice.” Jd.


bill of particulars and pre-authorization discovery are granted in part and denied in part consistent

with this opinion. (R. 154, 155, 162-166, 193, 194, 202, 204, 213, 215, 225.)

ENTERED: ee bY

Judge Ruben Castillo
United States District Court

Dated: June 7, 2006