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February 29, 2000


The opinion of the court was delivered by: Joyce Hens Green, District Judge.


The 48-count indictment charging defendant, Carl Cooper ("Cooper"), with various racketeering acts of robbery, murder, conspiracy and firearms offenses was filed on August 4, 1999, and a jury trial is scheduled to commence May 2, 2000. The government is seeking the death penalty on three eligible offenses. Numerous motions have been filed in this case. By Memorandum Opinion and Order dated February 1, 2000, this Court denied Cooper's motions to suppress statements, wiretap interceptions, physical evidence, and photographic identification. See United States v. Cooper, 85 F. Supp.2d 1 (D.D.C. 2000). By Memorandum Opinion and Order filed simultaneously with this Opinion, Cooper's motions challenging certain aspects of the RICO indictment have been denied.

On January 19 and February 3, 2000, the Court heard argument from counsel on several pending discovery motions. This Opinion and Order addresses those motions, as well as several others considered by the Court on the pleadings.

Motion for Notice of Government's Intention to Use Residual Hearsay Exception

Cooper has filed two motions for notice of the government's intention to use residual hearsay under Fed.R.Evid. 804(b)(5) and 803(24), which have been "combined and transferred to" Fed. R.Evid. 807 with "no change in meaning." Rule 807 Advisory Committee Note (1997). A statement may not be admitted under Fed.R.Evid. 807 unless "the proponent of it makes known [its intention to introduce the statement] to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it." Fed. R.Evid. 807. The defendant asks the Court to order the government to provide such notice in the event it intends to use residual hearsay evidence under Rule 807. The government states it will comply with the rule in the event it decides to use such evidence. Neither party has proposed a time frame for the providing of such notice. The Eleventh Circuit has held three days to be ample notice, see United States v. Rouco, 765 F.2d 983 (11th Cir. 1985), and the Eighth Circuit has held that notice on the day of trial is sufficient, see United States v. Calkins, 906 F.2d 1240, 1245 (8th Cir. 1990). In this case, if residual hearsay under Fed.R.Evid. 807 is to be used, notice conforming to the rule shall be given no later than April 28, 2000.

Motion For An Order Directing the Government to Give Notice of Its Intent to Use Other Crimes Evidence Under Rule 404(b)

Cooper seeks an order requiring the government to provide immediate notice under Rule 404(b) of "other crimes and/or prior bad acts that it intends to introduce at trial regardless of whether those instances of conduct are also uncharged overt acts in furtherance of the conspiracy." Mot. at 2.*fn1 The government has agreed to provide notice of its intention to use Rule 404(b) evidence within thirty days prior to trial. However, the government notes that the bulk of its evidence will not be offered as Rule 404(b) evidence, but instead as direct proof of the charged RICO and RICO conspiracy offenses.

Evidence that is offered as being "directly relevant to the charged offenses" is not "other crimes" evidence within the meaning of Rule 404(b). See United States v. Badru, 97 F.3d 1471, 1474-75 (D.C.Cir. 1996). As such, "[w]hen the indictment contains a [RICO] conspiracy charge, uncharged acts may be admissible as direct evidence of the conspiracy itself," and are thus not Rule 404(b) evidence. United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). The government is not required under Rule 404(b) to provide advance notice of its intent to use direct evidence of the RICO and RICO conspiracy charge. However, the government is required to provide to defendant notice of its intent to use Rule 404(b) evidence no later than April 3, 2000.

Motion for Pre-Trial Hearing to Determine Admissibility of Testimony of Expert Witnesses

Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), Cooper has filed a motion seeking pre-trial evidentiary hearings to determine the admissibility of expert testimony. Cooper does not state which expert testimony he deems unreliable and why; he argues that Daubert and Kumho Tire require pre-trial hearings as to all expert testimony.*fn2 The government argues a pre-trial hearing is unnecessary because the expert testimony it seeks to offer concerns scientific principles that are well-established and accepted in the community. The experts in question include, but are not limited to, ballistics and fingerprint experts, and medical examiners.

Although the Court must ensure that expert testimony is reliable and admissible, there is nothing in Kumho Tire or Daubert that requires the Court to conduct a pre-trial evidentiary hearing if the expert testimony is based on well-established principles. See United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir. 1999) (pre-trial hearing not required because "the challenged evidence does not involve any new scientific theory and the testing methodologies are neither new nor novel"). When a principle is well-established,

the questions are simply whether the expert properly applied the established scientific principle to the facts and whether the expert's credibility is compromised for reasons such as bias. These are matters that a jury usually is competent to evaluate after cross-examination and presentation of competing expert testimony. Accordingly, where expert testimony is based on well-established science, the courts generally have concluded that reliability problems go to weight, not admissibility.

29 Charles A. Wright and Victor James Gold, Federal Practice & Procedure § 6266, at 265.

Fed.R.Evid. 104(c) requires this Court to conduct evidentiary hearings on admissibility of evidence when "the interests of justice [so] require." Unless necessary, it would be extremely time-consuming for this Court to conduct evidentiary hearings to determine the admissibility of the testimony of each government and defense expert in the case, as well as equally time consuming for the defendant and all counsel two months pre-trial. Certainly the interests of justice do not require the Court to conduct lengthy hearings when the admissibility of well-established principles can be readily determined at trial.

Therefore, Cooper's motion is denied without prejudice to renew. Any renewed motion must state specifically which expert testimony is challenged as unreliable and why the matter cannot be properly addressed at trial.*fn3 In addition, if the government has not already done so, it shall provide the defendant with the curriculum vitae and resumes of all expert witnesses whose reports have been provided to the defense within ten days of the date of this order.*fn4

Motion to Identify Witnesses With Juvenile Adjudications and Pending Juvenile Proceedings and to Inspect Juvenile Files

Cooper has filed a motion seeking (1) an order compelling the government to identify all witnesses, including adult witnesses, with either pending juvenile proceedings or juvenile convictions, and (2) in camera inspection by the Court of juvenile records. The parties agree that under Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the defendant may cross-examine a juvenile witness with a pending adjudication to demonstrate bias. With respect to the use of juvenile convictions as impeachment evidence, Fed. R.Evid. 609(d) states that juvenile convictions, while generally not admissible under the rule, may be used if "conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." The Court will withhold decision on whether juvenile convictions may be used to impeach witnesses in this case until such time as an in camera inspection has been conducted. The government shall provide the Court, no later than April 3, 2000, with the juvenile records of all witnesses with such records. The Court will then conduct an in camera inspection and disclose information as appropriate under either Davis v. Alaska, or Fed.R.Evid. 609(d).

Cooper also seeks an order requiring the government to disclose the identity of all witnesses with pending juvenile matters, or with juvenile convictions. At oral argument, defense counsel advised they needed this information for investigative purposes. Cooper is essentially asking for early disclosure of a portion of the government's witness list.

Because this is a capital case, Cooper is statutorily entitled to the government's witness list "at least three entire days before commencement of trial" unless the Court finds by a preponderance of the evidence that disclosure of the list will jeopardize the safety of witnesses. See 18 U.S.C. § 3432. Although some courts have held three days notice to be sufficient, other courts have required more notice. See, e.g., United States v. Tipton, 90 F.3d 861, 888 (4th Cir. 1996) (ten days in advance of trial date); United States v. Chandler, 996 F.2d 1073, 1098 (11th Cir. 1993) (witness list provided fourteen days before and supplemented four days before commencement of trial); United States v. Frank, 11 F. Supp.2d 322, 325-26 (E.D.N.Y. 1998) (two weeks before presentation of evidence at trial).

Although the government has indicated concern for witness safety in this case, it has not made specific arguments relating to any particular witness. The Court also recognizes the defendant's need for sufficient time to investigate and interview witnesses. The Court will order the government to provide its witness list to defendant no later than April 24, 2000. If the government has safety concerns about disclosing the names of particular witnesses, it shall so advise the Court with illuminating detail, and ex parte, at least twenty-one days before the witness list is due.

Defendant's Motion for an Order Directing the United States to Specify All Evidence Which May ...

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