The opinion of the court was delivered by: Paul L. Friedman United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant's motion under Rules 12(b)(4)(B) and 16(b)(1)(A) of the Federal Rules of Criminal Procedure to compel the government to provide a notice of intent to use specified evidence in its case-in-chief at trial. Argument was heard on the motion on February 21, 2006. Upon consideration of the arguments of the parties as expressed in their briefs and in open court, the Court grants defendant's motion in part.
Rule 16 of the Federal Rules of Criminal Procedure authorizes a criminal defendant's discovery of, inter alia, books, papers, documents, data, photographs and tangible objects that are "within the government's possession, custody or control" and are "material to preparing the defense," or "[that] the government intends to use . . . in its case-in-chief at trial [or that were] obtained from or belong to the defendant." FED. R. CRIM. P. 16(a)(1)(E). Rule 12(b)(4)(B) imposes on the government an additional discovery obligation, providing that:
At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
FED. R. CRIM. P. 12(b)(4)(B).
The government already has produced for or made available to the defendant hundreds of thousands of pages of documents of potential relevance to this case. Defendant's motion seeks to compel the government to identify with specificity which of those items it intends to use as evidence at trial. According to defendant, the materials at issue here fall into two large groups: (1) those obtained through grand jury subpoenas, demands made to banks and other financial institutions, and those obtained from foreign sources (the "grand jury materials"); and (2) materials seized from Mr. Anderson's home and office pursuant to search warrants issued by a magistrate judge and executed on March 19, 2002 and November 7, 2003 (the "seized materials"). The government has directly produced approximately 100 boxes of grand jury materials to defendant; the seized materials, which constitute an additional hundred or so boxes, currently are housed at the offices of the Internal Revenue Service in Washington, D.C., and have been made available for defendant's inspection and copying there.
Defendant argues first that the Court should exercise its discretion under Rule 16 of the Federal Rules of Criminal Procedure and require the government to identify which of the grand jury materials it intends to use in its case-in-chief at trial. Defendant also argues that Rule 12(b)(4)(B) requires the government to identify which of the seized materials it intends to use in its case-in-chief. The Court first addresses defendant's argument under Rule 12.
A. Rule 12(b)(4)(B) of the Federal Rules of Criminal Procedure
Rule 12(b)(4)(B) allows a defendant to "request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16." FED. R. CRIM. P. 12(b)(4)(B). The purpose of this provision of Rule 12 is to "insur[e] that a defendant knows of the government's intention to use evidence to which the defendant may want to object." FED. R. CRIM. P. 12 Advisory Committee Note to 1974 Amendment. Requiring the government to specify which of the material already discoverable under Rule 16 that it intends to use in its case-in-chief allows the defendant "to avoid the necessity of moving to suppress evidence which the government does not intend to use." Id. The amendments proposed by the Supreme Court and permitted by Congress to take effect in 1975 show that compliance with such a defense request is mandatory: "the government, either on its own or in response to a request by the defendant, must notify the defendant of its intent to use certain evidence in order to give the defendant an opportunity before trial to move to suppress that evidence." FED. R. CRIM. P. 12, Notes of the Committee on the Judiciary to 1975 Enactment, Amendments Proposed by the Supreme Court, H.R. Rep. No. 94-247 (emphasis added); see also Advisory Committee Note to 2002 Amendment (in explaining renumbering and reorganization of subparts of the Rule, stating that "[t]he Committee believed that [old Rule 12(d)], which addresses the government's requirement to disclose discoverable information for the purpose of facilitating timely defense objections and motions, was more appropriately associated with the pretrial motions specified in Rule 12(b)(3).") (emphasis added); United States v. Norman, 2005 WL 2739082, at *2 (S.D. Ill. 2005) ("the government is obligated to comply with both Rule 16 and Rule 12(b)(4)(B).").
Defendant's entitlement under Rule 12(b)(4)(B), then, is clear: of the material seized from Mr. Anderson's home and office, the government must notify defendant of the evidence that it intends to use in its case-in-chief -- that is, the evidence that will appear on the government's exhibit list for trial. This does not include evidence that its witnesses may have reviewed or relied on, but that the government does not plan to offer in evidence at trial.*fn1 The Court's Order will not prevent the government from using evidence not disclosed under Rule 12 for such purposes as refreshing its witnesses' recollection, impeaching defendant's witnesses, or presenting its rebuttal case, "so long as the use of [those documents] was not planned in advance" of trial. United States v. Poindexter, 727 F. Supp. 1470, 1484 (D.D.C. 1989).
B. Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure
Defendant further seeks under Rule 16 to compel the government to disclose which items, of the grand jury materials, the government intends to use in its case-in-chief at trial. Rule 16 provides that:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item ...