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UNITED STATES v. SUAREZ ESQUIVEL

September 5, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE DIONISIO SUAREZ ESQUIVEL, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 Before the Court are several pretrial motions. Both defendant and the government move for discovery. Defendant also moves for a bill of particulars, for additional peremptory challenges, to bar in limine the admission of evidence by the government under Federal Rule of Evidence 404(b), and to take the depositions of certain individuals in Chile. The government moves in limine to bar evidence or questioning of witnesses regarding the earlier acquittals of others indicted with defendant, and to bar evidence regarding a recorded telephone conversation in which one of its witnesses discussed the earlier trial. The government also moves that the Court allow the prior testimony of an additional witness, now deceased, into evidence. The Court heard oral argument on July 31, 1990 and the parties have briefed the issues extensively. The Court rules as follows:

 I. Defendant's Motion for Discovery and for a Bill of Particulars

 Defendant requests a bill of particulars specifying the overt acts the Government alleges carried out the conspiracy charged in the indictment, all co-conspirators' names and precise participation, conversations, meetings, and goals, etc. The purpose of a bill of particulars is to "ensure that the charges brought against a defendant are stated with enough precision" to permit the defendant to comprehend the offense, prepare his defense, and, if necessary, raise the claim of double jeopardy should the government attempt a retrial on the same charges. See United States v. Butler, 262 U.S. App. D.C. 129, 822 F.2d 1191, 1193 (1987). If, however, the indictment adequately details the charges, or the information requested is otherwise available, then no bill of particulars is required. Id.

 As the Court understood the parties at oral argument, both defendant and the government appear to have largely resolved their discovery requests by agreement. Where it has not provided information or material, the government has declared that items requested by defendant do not exist. Three issues remain for the Court to resolve. The government denies that it must submit a list of its witnesses' names and addresses, a list of all property seized in this matter (whether or not it will be introduced at trial), and lastly, any statements by government witness Michael Townley regarding his alleged participation in the assassination of Carlos Prats in the Republic of Argentina. *fn1"

 As for the witness list, whether the government must provide one is a matter falling within the Court's sound discretion. See United States v. Madeoy, 652 F. Supp. 371, 375 (D.D.C. 1987). Some of the factors for consideration are the needs of the defense in preparation for trial, possible intimidation of witnesses and the intrinsic reasonableness of the request. See id. (citing cases).

 The first and last of these do not apply squarely in defendant's favor. The government's case in this matter has been aired extensively in two previous trials. The government's evidence does not appear to be particularly complex. Defendant's fear of possible new witnesses testifying to out-of-court identification, according to the government at oral argument, is unfounded. Lastly, the prospect of witness intimidation is not so remote as to tip the scales in defendant's favor. The government has proffered that its new witnesses maintain a genuine fear of retaliation. The Court will deny defendant's request for the list; it nonetheless reminds the government of its promise to invite its witnesses in good faith to speak with defendant's counsel prior to trial.

 Next, pursuant to Federal Rule of Criminal Procedure 16, defendant asks that the government "provide a list of all property seized in this matter whether or not it is to be introduced at trial." Rule 16(a)(1)(C) provides for defense inspection and copying of "books papers, documents, photographs, tangible objects, buildings or places" in the government's possession or control, and which are material to the preparation of the defendant's defense, will be used in the government's case-in-chief, or were obtained from or belonged to defendant.

 The government is well aware of its obligations under Rule 16 and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and the Court assumes that it has complied fully with the mandates imposed on it. Beyond this, defendant has made no showing of materiality as to any specific item or items of property and there is no basis for granting his blanket request. As it is framed, the motion for a list of property seized by the government will be denied.

 This new material adds little to the analysis, and the Court of Appeals decision in Sampol supports a finding once again that the evidence of Townley's involvement in the Prats incident is tenuous. It also does not appear that the events are relevant. In addition to the evidence found to be lacking by the trial court and the Court of Appeals earlier, defendant adds thirdhand hearsay, portions of a book containing accounts by the authors about assertions Townley and others allegedly made about Townley's participation. The Court has no basis to assess the credibility of the primary or secondary declarants' statements. This material does not persuade the Court that an adequate foundation for Townley's involvement exists.

 Moreover, this evidence is not admissible under Rule 608(b) to undermine Townley's credibility. "Aside from the tenuous link between the alleged crimes and Townley's capacity for truthfulness, see United States v. Young, 567 F.2d 799, 803 (8th Cir. 1977), cert. denied, 434 U.S. 1079, 55 L. Ed. 2d 786, 98 S. Ct. 1273, this evidence would [be] plainly cumulative" given that Townley will confess his role in the Letelier slaying. Sampol, 204 U.S. App. D.C. 349, 636 F.2d at 657 n. 21. The evidence also fails to assist the defense in exploiting the government's plea agreement with Townley. "It is somewhat misleading to characterize the provision [of the agreement] on Townley's foreign activities as a benefit conferred by the government. Because the government generally would have no jurisdiction to investigate Townley's alleged criminal activity around the world, it gave up nothing by declining to seek information about such activities." Id. at 660.

 Defendant has not argued that any other circumstance has changed since the Court of Appeals' ruling and has not otherwise justified a departure from it by this Court. Consequently, defendant's request for discovery into, and for permission to cross-examine about, the Prats slaying will be denied.

 II. Defendant's Motion for Additional Peremptory Challenges

 In support of his motion for an additional number of peremptory challenges, defendant cites Federal Rule of Criminal Procedure 24(b). The Rule clearly does not apply, there being a single defendant in this case. Defendant is correct that the granting of additional challenges lies in the discretion of the Court, discretion which the Court exercises to deny the request. Defendant's claims of unusual publicity and the potential unfavorable portrayal of the CIA are unpersuasive. A great deal of time has passed since the events charged took place. To the extent the problems identified by defendant remain, they can easily be addressed by an adequately sized pool of potential jurors. This motion will be denied.

 III. Defendant's Motion In Limine Regarding Rule 404(b) Evidence

 In order that he might testify without threat of unfairly prejudicial cross-examination about his prior bad acts, defendant moves for a pretrial hearing and ruling on the admissibility of such evidence. Federal Rule of Evidence 404 provides that:

 
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

 The government's response includes a proffer of facts about defendant's relationship with alleged co-conspirator Michael Townley, Townley's dealings with DINA (Chilean Intelligence) and the Cuban Nationalist Movement ("CNM"), as well as the previous use of materials and equipment by that group in attempting to carry out an assassination plan in Mexico similar to the homicide charged in this case. This proffer satisfies the Court that the evidence should be admitted, at least with respect to the government's case-in-chief. It simply cannot be said that the prejudice of this evidence outweighs its probative value, let alone in a "substantial" way.

 The evidence in the government's proffer is highly probative of intent, plan, preparation, and motive. The Court of Appeals agreed with this analysis with respect to defendant's alleged co-conspirators. See United States v. Sampol, 204 U.S. App. D.C. 349, 636 F.2d 621, 659 (1980) (evidence of Mexico mission admissible under Rule 404(b) since it "illustrated why DINA solicited the help of the Cuban Group, and showed how the relationship between Michael Townley and the CNM began and matured."); see also United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985) (evidence of other acts necessary to explain context, motive or planning of crime is admissible if "linked in time ...


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