United States of America, Plaintiff, v. Feliciano Lopez-Castillo (2), and Adalberto Hurquides-Salazar (3), Defendants Case No. 15-cr-279 (JNE/TNL) United States District Court, D. Minnesota Filed March 01, 2016 Counsel Thomas M. Hollenhorst, Assistant United States Attorney, United States Attorney’s Office, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415 (for the Government); Lee R. Johnson, Johnson & Greenberg PLLP, 600 South Highway 169, Suite 815, St. Louis Park, MN 55426 (for Defendant Feliciano Lopez-Castillo); and Robert M. Christensen, Robert M. Christensen, PLC, 247 Third Avenue South, Minneapolis, MN 55415 (for Defendant Adalberto Hurquides-Salazar). Leung, Tony N., United States Magistrate Judge ORDER *1 This matter is before the Court, United States Magistrate Judge Tony N. Leung, on the following Motions: 1. Defendant Lopez-Castillo’s Motion for Discovery and Inspection of Products and Records of Electronic Surveillance (ECF No. 33); 2. Defendant Lopez-Castillo’s Motion for Discovery and Inspection (ECF No. 34); 3. Defendant Lopez-Castillo’s Motion for Disclosure of Exculpatory Evidence and Impeaching Information (ECF No. 35); 4. Defendant Lopez-Castillo’s Motion for Disclosure of Names, Addresses, Phone Numbers, and Prior Criminal Records of All Witnesses the Prosecution Intends to Call at Trial (ECF No. 36); 5. Defendant Lopez-Castillo’s Motion to Require Notice of Intention to Use Other Crimes, Wrongs or Acts Evidence (ECF No. 37); 6. Defendant Lopez-Castillo’s Motion for Early Disclosure of Jencks Act Materials (ECF No. 38); 7. Defendant Lopez-Castillo’s Motion to Disclose and Make Informant Available for Interview (ECF No. 39); 8. Defendant Lopez-Castillo’s Motion for Disclosure of Post-Conspiracy Statements of Co-Defendants (ECF No. 41); 9. Defendant Lopez-Castillo’s Motion for Production of Video and Audio Recordings (ECF No. 44); 10. Defendant Hurquides-Salazar’s Motion for Discovery (ECF No. 49); 11. Defendant Hurquides-Salazar’s Motion for Release of Brady Materials (ECF No. 50); 12. Defendant Hurquides-Salazar’s Motion for Bill of Particulars (ECF No. 51); 13. Defendant Hurquides-Salazar’s Motion to Retain Rough Notes (ECF No. 52); 14. Defendant Hurquides-Salazar’s Motion for Disclosure of Rule 404(b) Evidence (ECF No. 53); and 15. Defendant Hurquides-Salazar’s Motion for Early Disclosure of Jencks Act Material (ECF No. 54). A hearing was held on December 10, 2015. Assistant United States Attorney Thomas M. Hollenhorst appeared on behalf of the United States of America (the “Government”). Attorney Lee R. Johnson appeared on behalf of Defendant Lopez Castillo. Attorney Robert M. Christensen appeared on behalf of Defendant Hurquides-Salazar. Following the hearing, Defendant Lopez-Castillo filed the following additional motions: 16. Defendant Lopez-Castillo’s Motion for Leave to file Pretrial Motions Out of Time (ECF No. 67); 17. Defendant Lopez-Castillo’s Motion for Bill of Particulars (ECF No. 68); and 18. Defendant Lopez-Castillo’s Motion to Dismiss the Indictment (ECF No. 69). Based upon the record, memoranda, and oral arguments of counsel, IT IS HEREBY ORDERED as follows: 1. Defendant Lopez-Castillo’s Motion for Discovery and Inspection of Products and Records of Electronic Surveillance (ECF No. 33) is GRANTED IN PART and DENIED IN PART AS MOOT and his Motion for Production of Video and Audio Recordings (ECF No. 44) is GRANTED as follows: Defendant Lopez-Castillo seeks certain items related to the use of electronic surveillance in this matter as well as all video and audio tape recordings made in connection with the investigation of the alleged transactions at issue in the Indictment. The Government responds that it did not employ electronic surveillance, such as wiretaps, in the investigation of this matter and will provide “all the telephone recordings, videos, and audio recordings pertaining to the investigation.” (Gov’t’s Consolidated Resp. I at 2, ECF No. 58; see Gov’t’s Consolidated Resp. I at 5.) Therefore, to the extent that such telephonic, video, and audio recordings exist and have not yet been produced by the Government, Defendant Lopez-Castillo’s motion is granted. *2 2. Defendant Lopez-Castillo’s Motion for Discovery and Inspection (ECF No. 34) and Defendant Hurquides-Salazar’s Motion for Discovery (ECF No. 49) are GRANTED IN PART and DENIED IN PART as follows: Defendants seek discovery available under Fed. R. Civ. P. 16(a). The Government responds that it “has and will continue to comply with all of its discovery obligations under the Federal Rules of Criminal Procedure and applicable case law.” (Gov’t’s Consolidated Resp. I at 2.) At the hearing, the parties agreed to expert disclosures 14 days prior to trial. (Tr. 5-6,) To the extent that Defendants’ motions seek information that the Government has already produced, Defendants’ motion are denied as moot. To the extent that any other responsive information to Defendants’ motions remains in the Government’s control and has not yet been produced, Defendants’ motions are granted. No later than 14 days prior to trial, the parties shall make their respective expert disclosures. See Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C). Defendant Lopez-Castillo also requests that the Government notify defense counsel if the Government “discovers additional evidence or material previously requested or ordered” prior to trial. The Government has continuing disclosure obligations under Fed. R. Crim. P. 16(c). Defendant Lopez-Castillo’s request is granted, and any such information or material that comes into the Government’s possession, knowledge, or control shall be produced in a timely fashion. 3. Defendant Lopez-Castillo’s Motion for Disclosure of Exculpatory Evidence and Impeaching Information (ECF No. 35) and Defendant Hurquides-Salazar’s Motion for Release of Brady Materials (ECF No. 50) are GRANTED IN PART and DENIED IN PART as follows: Defendants seek discovery and disclosure of information under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Among other things, Defendant Hurquides-Salazar seeks “[a] copy of all videotapes and audiotapes of events relating to the offenses charged in the indictment.” The Government responds that it “will fully comply with its discovery obligations under Brady and Giglio and will disclose any evidence the [G]overnment may obtain that is favorable to the [D]efendants, including so-called ‘impeaching[’] information.” (Gov’t Consolidated Resp. I at 2.) To the extent Defendant Hurquides-Salazar seeks video and audio recordings relating to the offenses charged in the Indictment, this request is governed by the Court’s ruling above on Defendant Lopez-Castillo’s similar request. See supra ¶ 1. The Government shall comply fully with its obligations under Brady, Giglio, and their progeny and disclose all exculpatory and impeachment evidence. To the extent that Defendants’ motions seek discovery and disclosures outside the Government’s obligations under these authorities or seek materials that have already been produced, they are denied. See United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (“Criminal defendants do not have a general constitutional right to discovery.”). 4. Defendant Lopez-Castillo’s Motion for Disclosure of Names, Addresses, Phone Numbers, and Prior Criminal Records of All Witnesses the Prosecution Intends to Call at Trial (ECF No. 36) is GRANTED IN PART and DENIED IN PART as follows: Defendant Lopez-Castillo requests that the Government “provide him with the names, addresses, phone numbers, and prior criminal records of all witnesses the [Government] intends to call at trial.” The Government responds that it will disclose its witness list prior to trial and will provide the criminal history of any witness it intends to call at trial. (Gov’t’s Consolidated Resp. I at 2.) The Government objects, however, “to the release of addresses and telephone numbers concerning its witnesses, but will cooperate with the defense in putting the defense in contact with these witnesses.” (Gov’t’s Consolidated Resp. I at 2.) *3 “A federal criminal defendant generally has no right to know about government witnesses prior to trial.” United States v. Polk, 715 F.3d 238, 249 (8th Cir. 2013) (quotation omitted); accord United States v. Hamilton, 452 F.2d 472, 479 (8th Cir. 1971) (“[T]he identity of witnesses is information the government is not normally required to supply to the criminal defendant.”); see also United States v. Miller, 698 F.3d 699, 704 (8th Cir. 2012) (“In 1975, Congress amended Rule 16 to eliminate a requirement that the government disclose its witnesses prior to trial.”). In accordance with the Government’s agreement, the Government shall both disclose its witness list and put defense counsel in contact with these witnesses prior to trial. 5. Defendant Lopez-Castillo’s Motion to Require Notice of Intention to Use Other Crimes, Wrongs, or Acts Evidence (ECF No. 37) and Defendant Hurquides-Salazar’s Motion for Disclosure of Rule 404(b) Evidence (ECF No. 53) are GRANTED IN PART and DENIED IN PART as follows: Defendants request that the Government give notice of evidence the Government intends to offer at trial under Fed. R. Evid. 404(b) and 608(b). The Government states that it “will fully comply with Rule 404(b) of the Federal Rules of Evidence” and, “[a]t this time, ... is not planning to offer any so-called Rule 404(b) evidence.” (Gov’t’s Consolidated Resp. I at 3.) The Government has not responded to Defendants’ request for notice of Rule 608(b) evidence. Rule 404(b) requires the Government to provide reasonable notice before trial when evidence of a crime, wrong, or other act will be used to “prov[e] motive opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Rule 404(b) ... applies to the admission of wrongful-act evidence that is extrinsic to the charged offense.” United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th Cir. 2010). It does not apply to intrinsic evidence. Id.; see also United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir. 2004) (“Evidence that is relevant to the crime charged is not other crimes evidence.”). “Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred.” Ruiz-Chavez, 612 F.3d at 988 (quotation omitted). If the Government later determines that it intends to use such extrinsic evidence, the Government shall provide “reasonable notice” of all “extrinsic” evidence then known to the Government that the Government intends to offer within the purview of Fed. R. Evid. 404(b). Defendants’ requests with respect to Rule 608(b) evidence are denied. See United States v. Simpson, No. 3:14-CR-2, 2014 WL 3362947, at *4 (E.D. Tenn. July 8, 2014) (denying request for pretrial notice of Rule 608 evidence); United States v. Simmons, No. 1:07-CR-0240, 2007 WL 2683802, at *1 (M.D. Penn. Sept. 7, 2007) (denying request for pretrial notice of Rule 608(b) evidence); United States v. Bryant, 420 F. Supp. 2d 873, 876 (N.D. Ill. 2006) (same); United States v. Osinski, No. 04 CR 778, 2004 WL 2646702, at *8 (N.D. Ill. Nov. 18, 2004) (same). Unlike Rule 404(b), Rule 608(b) does not contain a notice provision. Compare Fed. R. Evid. 404(b)(2) with Fed. R. Evid. 608(b); see Osinski, 2004 WL 2646702, at *8 (“Inasmuch as Fed. R. Evid. 608(b) does not contain language requiring prior notice, we find that the Government is not required to give prior notice to any defendants with respect to its intent to use any Rule 608(b) evidence at trial.”). Nor do the provisions of Fed. R. Crim. P. 12(b)(4) or Fed. R. Crim. P. 16 require such notice. Simpson, 2014 WL 3362947, at *3. *4 6. Defendant Lopez-Castillo’s Motion for Early Disclosure of Jencks Act Materials (ECF No. 38) and Defendant Hurquides-Salazar’s Motion for Early Disclosure of Jencks Act Material (ECF No. 54) are GRANTED IN PART: Defendants request that the Government disclose all Jencks Act material at least two weeks before trial. The Government states that it “cannot be compelled to produce Jencks Act material until after a witness has testified at trial on direct examination” and objects to the Court ordering the disclosure of Jencks Act materials prior to such testimony. (Gov’t’s Consolidated Resp. I at 3.) See United States v. Wilson, 102 F.3d 968, 971-72 (8th Cir. 1996) (noting that, while the Government often discloses Jencks Act material prior to trial, “the [G]overnment may not be required to do so” (quotation omitted)). Notwithstanding its objection, the Government agrees to provide Defendants “with Jencks Act materials no later than three business days prior to trial.” (Gov’t’s Consolidated Resp. I at 3.) Therefore, in accordance with the Government’s proposal, the Government shall disclose Jencks Act materials no later than three business days before trial. 7. Defendant Lopez-Castillo’s Motion to Disclose and Make Informant Available for Interview (ECF No. 39) is GRANTED IN PART as follows: Defendant Lopez-Castillo seeks the disclosure of “the identity of any informant or informants utilized by the Government in the investigation of ... [this] matter, and to make such informant(s) available for interview by [his] attorneys in preparation for trial, and to disclose the prior criminal history of such informants.” At the hearing, the Government explained that there are two informants, an informant who participated in the buy alleged in Count 2 of the Indictment and a tipster who supplied information. (Tr. 4.) The Government has stated that, if this matter goes to trial, it will disclose the informant who participated in the alleged buy and cooperate with counsel in making the informant available for an interview. (Tr. 4; Gov’t’s Consolidated Resp. I at 3.) The Government requests that “disclosure be postponed until three weeks prior to trial.” (Gov’t’s Consolidated Resp. I at 3.) At the hearing, Defendant Lopez-Castillo was agreeable to the Government’s proposal. (Tr. 8.) Therefore, no later than three weeks prior to trial, the Government shall disclose the identity of the informant participating in the buy alleged in Count 2 of the Indictment and cooperate with counsel in making the informant available to be interviewed. See United States v. Lapsley, 263 F.3d 839, 841 (8th Cir. 2001) (an informant “must be more than a ‘mere tipster’ to justify disclosure”); Carpenter v. Lock, 257 F.3d 775, 779 (8th Cir. 2001) (“Where the witness is an active participant or witness to the offense charged, disclosure will almost always be material to the accused’s defense. However, if the informant acts as a mere ‘tipster,’ i.e., a person who merely conveys information but does not witness or participate in the offense, disclosure is not required.”) (quotations, citations, and footnote omitted). 8. Defendant Lopez-Castillo’s Motion for Disclosure of Post-Conspiracy Statements of Co-Defendants (ECF No. 41) is GRANTED as follows: Defendant Lopez-Castillo requests “the disclosure of post[-]conspiracy statements of his co-defendants.” The Government responds that it has provided “the defense with all discovery materials concerning the post-arrest statements of the defendants” and “will provide the reports detailing any statements made by cooperating defendants three days prior to trial if the [G]overnment plans on calling such witnesses.” (Gov’t’s Consolidated Resp. I at 4.) Therefore, the Government shall disclose any post-conspiracy statements made by any of the co-defendants that it intends to use at trial no later than three days before trial. 9. Defendant Hurquides-Salazar’s Motion for Bill of Particulars (ECF No. 51) is DENIED: Defendant Hurquides-Salazar has moved for an order requiring the Government to produce a bill of particulars. “If a defendant believes that an indictment does not provide enough information to prepare a defense, then he or she may move for a bill of particulars.” United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009) (citing Fed. R. Crim. P. 7(f)). “The purpose of a bill of particulars is to inform the defendant of the nature of a charge with ‘sufficient precision to enable him to prepare for trial’ and ‘to avoid or minimize the danger of surprise at trial.’ ” Id. (quoting United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002), cert. denied, 537 U.S. 1134 (2003)). “[A] bill of particulars is not a discovery device to be used to require the Government to provide a detailed disclosure of the evidence that it will present at trial.” Id.; accord United States v. Finn, No. 5-95-12(1), 919 F. Supp. 1305, 1325 (D. Minn.) (Erickson, M.J.) (“[A] Bill of Particulars is not intended to be a substitute for discovery, nor is it designed to provide information which the Defendant might regard as generally helpful, but which is not essential to his defense.”), adopting report and recommendation, 911 F. Supp. 372 (D. Minn. 1995) (Davis, J.). *5 Defendant Hurquides-Salazar seeks the specific dates on which, and places where, the alleged conspiracy occurred and the names and addresses of persons present; the particular words allegedly used in furtherance of the conspiracy; a detailed description of the acts allegedly attributable to each defendant; and the names and addresses of individuals having certain evidentiary material (such as recordings, transcripts, and items seized). The Indictment specifies the dates of the conspiracy (on or about August 27 through September 16, 2015) and the individuals allegedly involved in the conspiracy. Defendant Hurquides-Salazar has filed several pretrial motions and the Government has responded by providing “voluminous discovery materials.” (Gov’t’s Consolidated Resp. I at 5.) This includes the information subject to disclosure under Fed. R. Crim. P. 16. The Government has also agreed to produce any telephonic, video, and audio recordings of the acts alleged. These disclosures, combined with the information set forth in the Indictment, are “more than sufficient to enable [Defendant Hurquides-Salazar] to understand the nature of the charges, prepare a defense, and avoid unfair surprise.” United States v. Huggans, 650 F.3d 1210, 1220 (8th Cir. 2011) (citing Livingstone, 576 F.3d at 883). Moreover, the Court agrees with the Government that Defendant Hurquides-Salazar’s motion is being used as a vehicle for discovery. 10. Defendant Hurquides-Salazar’s Motion to Retain Rough Notes (ECF No. 52) is GRANTED as follows: Defendant Hurquides-Salazar requests that the Court order “all law enforcement personnel who have worked on this case to preserve and to continue to preserve all notes and memoranda originally prepared by them, regardless of whether those notes have been incorporated into other reports or memoranda that the [G]overnment intends to turn over.” The Government has no objection to the retention of rough notes and has instructed its agents to do so. (See Gov’t’s Consolidated Resp. I at 5.) To the extent it has not already done so, the Government shall direct its agents to preserve any rough notes pertaining to this matter. 11. Defendant Lopez-Castillo’s Motion for Leave to File Pretrial Motions Out of Time (ECF No. 67) is DENIED, and his Motion for Bill of Particulars (ECF No. 68) and Motion to Dismiss the Indictment (ECF No. 69) are DENIED AS MOOT: Defendant Lopez-Castillo seeks leave to file two pretrial motions after the time for filing such motions has passed. The Government objects to these late filings and asserts that “the motions are frivolous.” (Gov’t’s Consolidated Resp. II at 1, ECF No. 70.) Defendant Lopez-Castillo’s motion for leave to file additional pretrial motions came more than one month after the deadline for the filing of such motions. (See Arraignment Order at 2, ECF No. 32.) See D. Minn. LR 12.1(c)(1) (“A motion under Fed. R. Crim. P. 12(b) must be filed within 21 days after the arraignment.”). Defendant Lopez-Castillo has not provided the Court with any reason for the delay other than that he “believes that these motions are legitimate and well founded” and “has instructed counsel to file these motions on his behalf.” See United States v. Hunter, No. 12-cr-185(3) (ADM/FLN), 2013 WL 593768, at *5 (D. Minn. Jan. 16, 2013) (motions filed “almost a month” after motion deadline set by Court were untimely and should be denied), adopting report and recommendation, 2013 WL 593413 (D. Minn. Feb. 14, 2013). Moreover, the motions for which Defendant Lopez-Castillo seeks leave to file are without merit. Defendant Lopez-Castillo’s motion for a bill of particulars mirrors the motion for a bill of particulars filed by Defendant Hurquides-Salazar, which this Court has denied. See supra ¶ 9. The reasons for the denial of Defendant Hurquides-Salazar’s motion for a bill of particulars are equally applicable to the motion for a bill of particulars that Defendant Lopez-Castillo seeks leave to file. As for the motion to dismiss the indictment, Defendant Lopez-Castillo alleges procedural errors with respect to the selection, qualifications, and voting record of the grand jury; there was insufficient evidence of a conspiracy before the grand jury; and he was not brought before the grand jury in violation of his Fifth and Sixth Amendment rights. Under Fed. R. Crim. P. 6(b)(2), a defendant may “move to dismiss the indictment based on an objection to the grand jury or on an individual juror’s lack of qualification.” As the Government points out, (Gov’t Consolidated Resp. II at 3), “[t]he exclusive means by which a defendant may move to dismiss the indictment on the ground of substantial failure to comply with the laws governing grand jury selection are set forth in 28 U.S.C. § 1867.” United States v. Spencer, No. 14-cr-322(1) (SRN/TNL), 2015 WL 5008968, at *8 (D. Minn. July 18, 2015); see Fed. R. Crim. P. 6(b)(2). “Any motion under § 1867 must contain ‘a sworn statement of facts which, if true, would constitute a substantial failure to comply’ with the laws governing grand jury selection.” Id. (quoting 28 U.S.C. § 18767(d)). “This requirement is mandatory.” Id. (citing cases). Defendant Lopez-Castillo has not submitted a sworn statement attesting to any facts which, if true, would constitute a substantial failure to comply with the laws governing grand jury selection. In fact, it does not appear that Defendant Lopez-Castillo has undergone any sort of investigative efforts into the grand-jury proceedings. (Gov’t Consolidated Resp. II at 3.) Defendant Lopez-Castillo has provided no factual basis on which the Court could find that members of the grand jury were not legally qualified or that some other error occurred during the grand-jury process. *6 As for the sufficiency of the evidence before the grand jury, “[t]his argument is without merit. It has long been settled that an indictment is not open to challenge on the ground that there was inadequate or insufficient evidence before the grand jury.” United States v. Nelson, 165 F.3d 1180, 1182 (8th Cir. 1999). Lastly, with respect to Defendant Lopez-Castillo’s argument that he was not brought before the grand jury, “[t]he Fifth Amendment confers in citizens a right to a grand jury. The Fifth Amendment does not confer in a defendant the right to be present at a grand jury that chooses to indict him.” Spencer, 2015 WL 5008968, at *9. “The need to preserve the secrecy of grand jury proceedings is well acknowledged and is in fact proscribed by the Federal Rules of Criminal Procedure.” In re Grand Jury Subpoenas Dated Feb. 28, 2002, March 26, 2003, Oct. 4, 2004, 472 F.3d 990, 994 (8th Cir.2007) (citations omitted); see Fed. R. Crim. P. 6(d), (e). “In furtherance of this secrecy, Rule 6(d) sets forth who can be present while the grand jury is in session, deliberating, and voting; objects of a grand jury investigation are not included.” Spencer, 2015 WL 5008968, at *9. Based on the foregoing, Defendant Lopez-Castillo’s Motion for Leave to File Pretrial Motions Out of Time (ECF No. 67) is denied and his Motion for Bill of Particulars (ECF No. 68) and Motion to Dismiss the Indictment (ECF No. 69) are denied as moot. 12. All prior consistent orders remain in full force and effect. 13. Failure to comply with any provision of this Order or any other prior consistent Order shall subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like.