Citations
- 530 F. Supp. 2d 1224
Full opinion text
MEMORANDUM OPINION AND ORDER
ROBERT C. BRACK, District Judge.
On July 10, 2007, the grand jury returned the Third Superseding Indictment (Doc. 144) in this case, charging Defendants Larry Lujan, Kacey Lamunyon and Eugenio Medina with (1) “Kidnapping Resulting in Death,” in violation of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 2, and (2) “Tampering with a Witness Resulting in Death,” in violation of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C. § 2. The Third Superseding Indictment also includes a Notice of Special Findings against Mr. Lujan. The United States filed a Notice of Intent to Seek a Sentence of Death (Doc. 146) against Mr. Lujan on July 12, 2007.
This matter comes before the Court on the following motions:
1. United States’ Motion and Incorporated Memorandum Regarding Mental Health Evidence (Doc. 168, filed Sept. 7, 2007);
2. Defendant Lujan’s Motion for Bill of Particulars (Doc. 173, filed September 10, 2007);
3. Defendant Lujan’s Motion for Notice by the Government Pursuant to Rule 12(b)(4)(B) and Incorporated Memorandum (Doc. 174, filed September 10, 2007);
4. Defendant Lujan’s Motion for Disclosures Specific to Death Penalty Issues (Doc. 175, filed Sept. 9, 2007);
5. Defendant Lujan’s Motion for Disclosure of Information Concerning the Decision to Seek the Death Penalty and Incorporated Memorandum (Doc. 176, filed Sept. 10, 2007);
6. Defendant Lujan’s Motion for Disclosure of Information Relating to DNA Evidence and Testing and Incorporated Memorandum (Doc. 177, filed September 10, 2007);
7. Defendant Lujan’s Motion for Early Disclosure of Material Covered by the Jencks Act or Rule 26.2 of the Federal Rules of Criminal Procedure and Incorporated Memorandum (Doc. 178, filed September 10, 2007);
8. Defendant Lujan’s Motion for Disclosure of Exculpatory Information and Incorporated Memorandum (Doc. 179, filed September 10, 2007);
9. Defendant Lujan’s Motion for Discovery and Inspection Concerning Government’s Use of Informants, Operatives, and Cooperating Individuals and for Disclosure of Exculpatory Evidence Concerning Government’s Use of Informants, Operatives, and Cooperating Individuals (Doc. 180, filed September 10, 2007);
10. Defendant Lujan’s Motion for Disclosure of Information Concerning the Reliability and Integrity of the Government’s Investigation and Incorporated Memorandum (Doc. 181, filed September 10, 2007);
11. Defendant Lujan’s Motion for Discovery and Inspection of Matters Pursuant to Rule 16 (Doc. 183, filed September 10, 2007);
12. Defendant Lujan’s Motion for Disclosure of Rough Interview Notes and Incorporated Memorandum (Doc. 184, filed September 10, 2007);
13. Defendant Lujan’s Motion for Discovery of Information and Materials Concerning Aggravating Sentencing Factors and Incorporated Memorandum (Doc. 185, filed Sept. 10, 2007); and
14. Defendant Lujan’s Corrected Motion for Disclosure of Information Concerning “Jailhouse Informants” and Incorporated Memorandum (Doc. 186, filed September 10, 2007).
Defendant Lamunyon moved to join in all discovery motions filed by his co-defendants (Doc. 170), a request I granted. See Order (Doc. 188). On September 27, 2007, the United States filed a Response to Defendant Lujan’s Motion for Disclosure of Information Relating to DNA Evidence and Testing and Incorporated Memorandum (Doc. 195). The United States subsequently filed an Omnibus Response (Doc. 198) to address the remaining discovery motions. Mr. Lujan filed replies in support of some of the motions. On December 5, 2007, I heard argument on the motions. At the hearing, Defendant Medina joined in his co-defendants’ arguments regarding the motions. The hearing as to the discovery motions pertaining to the capital phase of the trial was continued until December 19, 2007, at which time I heard argument on the capital discovery motions. On January 4, 2008, the United States filed a Supplemental Response to Defendant Lujan’s Motion for Disclosure of Information Concerning Aggravated Sentencing Factors and Incorporated Memorandum (Doc. 226). Having considered the motions, briefs, arguments, and relevant authority, I find that the various discovery requests should be granted and denied as discussed herein.
I. OVERVIEW OF GENERAL LAW ON DISCOVERY
Many of the requests in the various motions overlap and rely on more than one legal principle. Therefore, before addressing each of the motions individually, I will provide an overview of the various legal foundations that inform my decisions on each discovery motion.
A. Brady
The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” To establish a Brady violation, the accused must show that (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense. See Trammell v. McKune, 485 F.3d 546, 551 (10th Cir.2007). There is no Brady violation where the defendant knew or should have known of the material, exculpatory information or where the information was available to him from another source. United States v. Graham, 484 F.3d 413, 417 (6th Cir.2007). Nevertheless, even where the defendant never requested exculpatory evidence, the government has a duty to volunteer exculpatory evidence. See Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Constitution, however, does not demand an open file policy. See id. at 437, 115 S.Ct. 1555. See also Smith v. Secretary Dep’t of Corrections, 50 F.3d 801, 823 (10th Cir.1995) (noting that Brady does not require prosecution to divulge every possible shred of evidence that could conceivably benefit defendant). “[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure” and it acts at its own peril by failing to comply adequately with an order requiring disclosure of Brady material. United States v. Presser, 844 F.2d 1275, 1281 (6th Cir.1988).
The “touchstone of materiality is a ‘reasonable probability’ of a different result,” which exists “when the government’s evi-dentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Thus, to be “material,” a defendant does not need to show that the evidence, if disclosed, would have resulted in his acquittal; rather, he must show only that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 434-35, 115 S.Ct. 1555. In evaluating a Brady claim, a court must consider the cumulative effect of all material withheld by the government. See id. at 436-37, 115 S.Ct. 1555. The prosecution thus has the responsibility “to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. at 437, 115 S.Ct. 1555.
The Constitution, however, “does not grant criminal defendants the right to embark on a ‘broad or blind fishing expedition among documents possessed by the Government.’ ” United States v. Mayes, 917 F.2d 457, 461 (10th Cir.1990) (quoting Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)). A defendant’s mere allegation that the requested information might be material does not entitle him to an unsupervised search of the government’s files. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Brady rule is not an evidentiary rule that grants broad discovery powers to a defendant, because there “is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). See also United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“[TJhere is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”) (internal quotations and citations omitted), reversed on other grounds by Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481; Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir.2000) {“Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigations where no exonerating or impeaching evidence has turned up.”).
Brady only requires disclosure of information in the government’s possession or knowledge, whether actual or constructive. United States v. Beers, 189 F.3d 1297, 1304 (10th Cir.1999); Smith, 50 F.3d at 825 n. 36 (noting that, because district attorney’s office had actual knowledge that there was separate investigation by authorities in separate county, it was reasonable to impute knowledge possessed by separate county to prosecution). While a prosecutor cannot avoid his Brady obligations by keeping himself in ignorance or compartmentalizing information, see Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir.1984), neither does the government have an affirmative duty under Brady to seek out information that is not in its or its agents’ possession. See Graham, 484 F.3d at 415-18 (stating there is no affirmative duty to discover information in possession of independent, cooperating witness and not in government’s possession); United States v. Moore, 25 F.3d 563, 569 (7th Cir.1994) (concluding Brady was not violated where both parties learned after trial that government witness had previous conviction for obstruction of justice and government did not possess knowledge of this information until after trial); United States v. Baker, 1 F.3d 596, 598 (7th Cir.1993) (“Certainly, Brady does not require the government to conduct discovery on behalf of the defendant.”); Flores, 540 F.2d at 437 (noting that government has no duty to fish through public records equally accessible to defense to collate information).
Brady is nonetheless interpreted broadly in order to encourage prosecutors to carry out their “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” United States v. Combs, 267 F.3d 1167, 1174-75 (10th Cir.2001) (quoting Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555) (emphasis added by Tenth Circuit). “Information possessed by other branches of the federal government, including investigating officers, is typically imputed to the prosecutors of the case.” Beers, 189 F.3d at 1304. The Tenth Circuit in Beers held, however, that the state’s knowledge and possession of potential impeachment evidence cannot be imputed to a federal prosecutor for purposes of Brady where there is no joint investigation by federal and state officials. See id. See also United States v. Romo, 914 F.2d 889, 899 (7th Cir.1990) (holding that court did not err in denying request to compel prosecutors to make various inquires of local police in absence of showing by defendant that specific material, exculpatory information existed of which government knew). The Beers court, however, left open the question of whether knowledge possessed by state officials would be imputed to the federal prosecutor where the federal government participated in a joint investigation with state officials. See Beers, 189 F.3d at 1304 n. 2.
At least one court has held that a duty to search files maintained by governmental agencies closely aligned with the prosecution may be triggered when there is a reasonable prospect or notice of finding exculpatory evidence. See United States v. Brooks, 966 F.2d 1500, 1502-04 (D.C.Cir.1992). The Tenth Circuit quoted this holding from Brooks and indicated its approval, but ultimately declined to definitively resolve the issue. See Combs, 267 F.3d at 1175. It is therefore an open question in this circuit as to the extent of the government’s duty to investigate files of state agencies participating in a joint investigation with federal officials.
B. Giglio
Impeachment evidence falls under Brady when the reliability of a given witness may be determinative of a defendant’s guilt or innocence. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Brady obligates the prosecution to disclose “evidence affecting credibility.” Id.
C. The Jencks Act
The Jencks Act requires the government to disclose to criminal defendants any statement made by a government witness that is “in the possession of the United States” once that witness has testified. 18 U.S.C. § 3500(a) & (b). The Act “manifests the general statutory aim to restrict the use of such statements to impeachment.” Palermo v. United States, 360 U.S. 343, 349, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The purpose of the Act is to protect the government’s files from unwarranted disclosure and to allow defendants access to materials usable for impeachment purposes. See United States v. Smaldone, 544 F.2d 456, 460 (10th Cir.1976).
In pertinent part, the Act provides as follows:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
The Jencks Act further defines a witness “statement” as (1) a written statement made by the witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording or transcription thereof, that is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement or transcription made by the witness to a grand jury. Id. § 3500(e). The defendant has the burden to show that particular materials qualify as “statements” and that the purported statements relate to the subject matter of the witness’s testimony. Smaldone, 544 F.2d at 460.
The Jencks Act narrowly defines “statements.” Id. at 461. The government is not required under the Act to produce an agent’s informal description of witness testimony. See Palermo, 360 U.S. at 355 & n. 12, 79 S.Ct. 1217 (holding that agent’s brief summary of witness’s statements prepared after interview did not constitute “statements” under Jencks Act); Smaldone, 544 F.2d at 461. Statements made by a witness and summarized by a third person, however, can be Jencks material, but only if the witness has signed or otherwise adopted or approved them. See Campbell v. United States, 365 U.S. 85, 93-94, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); United States v. Jordan, 316 F.3d 1215, 1252 (11th Cir.2003) (explaining that interviewer’s raw notes, and anything prepared from notes (such as FBI 302) are not Jencks Act statements of witness unless they are substantially verbatim and contemporaneously recorded, or were signed or otherwise ratified by witness); United States v. Gates, 557 F.2d 1086, 1089 (5th Cir.1977) (stating that notes are not Jencks Act statements until shown to and affirmed by witness). A witness adopts a statement if it is read back to and verified, approved, or acknowledged as true by the witness. See United States v. Jackson, 850 F.Supp. 1481, 1508 (D.Kan.1994). On the other hand, substantially verbatim transcriptions made contemporaneously with a witness’s oral statement require no adoption or approval to be Jencks material. See 18 U.S.C. § 3500(e)(2).
Rule 26.2 contains the substance of the Jencks Act. See Fed.R.Crim.P. 26.2, advisory committee notes. Rule 26.2 also provides for production of statements of defense witnesses at trial in essentially the same manner as required for statements of government witnesses. See id.
D. Rule 16
Rule 16(a)(1)(E) sets out the types of information that the government must disclose to the defendant, upon his request:
books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
A defendant must make a prima facie showing of materiality before he is entitled to obtain requested discovery. See United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990). “Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense.” Id. The term “defense” means an argument in response to the prosecution’s casein-chief, ie., an argument that refutes the government’s claims that the defendant committed the crime charged. See United States v. Armstrong, 517 U.S. 456, 462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). To show materiality, the evidence must bear some abstract logical relationship to the issues in the case such that pretrial disclosure would enable the defendant significantly to alter the quantum of proof in his favor. United States v. Lloyd, 992 F.2d 348, 350-51 (D.C.Cir.1993). This materiality requirement is not a heavy burden; rather, evidence is material as long as there is a strong indication that the evidence “will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. at 351 (internal quotations omitted). Nevertheless, ordering the production by the government of discovery without any preliminary showing of materiality is inconsistent with Rule 16. Mandel, 914 F.2d at 1219; Jordan, 316 F.3d at 1250 (noting that defendant must make specific request for item together with explanation for how it will be helpful to defense).
Rule 16(a)(1)(E) only applies where the documents are within the federal government’s actual possession, custody, or control. See United States v. Dominguez-Villa, 954 F.2d 562, 566 (9th Cir.1992). A document is within the possession of the government, if the prosecutor has knowledge of it and access to it, and a “prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.” United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.1989). State-gathered evidence only becomes subject to Rule 16(a)(l)(E)’s disclosure obligation “when it passes into federal possession.” United States v. Fort, 472 F.3d 1106, 1118 (9th Cir.2007).
Rule 16(a)(2) limits the scope of discoverable materials: “this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R.Crim.P. 16(a)(2). Rule 16(a)(2) also clarifies that Rule 16 does not authorize the disclosure of statements made by prospective witnesses, except as provided in 18 U.S.C. § 3500. The term “government agent” has been construed as including non-federal personnel whose work contributes to a federal criminal case, such as local law enforcement officers. See Fort, 472 F.3d at 1113, 1119-20. Local police reports thus qualify for the Rule 16(a)(2) discovery exemption when they are turned over to the federal prosecutor for use in a federal investigation. See id. at 1109, 1119-20. Rule 16(a)(2) also exempts FBI reports (Form 302s) from disclosure. See id. at 1119 (citing Jordan, 316 F.3d at 1227 n. 17).
E. Rule 57(b)
Federal Rule of Criminal Procedure 57(b) is often cited for the court’s inherent authority to regulate procedures beyond the scope of the rules themselves, so long as they are consistent with those rules. See, e.g., United States v. Edelin, 134 F.Supp.2d 45, 48 (D.D.C.2001). Rule 57(b) provides: “A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district.” Fed.R.Crim.P. 57(b).
18 U.S.C. § 3432 provides that a capital defendant must “at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness, except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.”
II. ANALYSIS
A. United States’ Motion and Incorporated Memorandum Regarding Mental Health Evidence (Doc. 168)
The United States requests the Court to require Defendant Lujan to give notice of his intent to introduce mental health evidence bearing on either guilt or punishment under Federal Rule of Criminal Procedure 12.2(b) by January 4, 2008. The United States generally requests the following in its proposed order: (1) Mr. Lu-jan must file the notice if he intends to introduce mental health evidence, including lay testimony or expert testimony based on a review of records rather than a personal examination, and the notice should include (a) the names and qualifications of his mental health experts and (b) a brief general summary of topics to be addressed so that the Government can determine the appropriate type of rebuttal expert; (2) if he intends to introduce such evidence at the penalty phase, he must submit to an examination by an expert of the Government’s choosing under Rule 12(c)(1)(B) not later than February 22, 2008, the report must be placed under seal with the Court, and the expert cannot discuss his examination unless and until the results are released; (3) within 10 days after the Government’s expert has completed his examination, the defense expert must disclose to the Government’s expert all of the medical records upon which the defense expert relied; and (4) if the jury finds Mr. Lujan guilty, he must file a notice confirming or disavowing his intent to offer mental health evidence at the penalty phase not later than one business day after the return of the guilty verdict, and if he intends to introduce such evidence, the Government’s expert’s report will be immediately released to both parties upon the filing of the pleading. The proposed order also provides procedures for the parties to agree to the tests the Government’s expert is to perform. The United States relies, in part, on United States v. Beckford, 962 F.Supp. 748 (E.D.Va.1997), and United States v. Edelin, 134 F.Supp.2d 45 (D.D.C.2001), for its proposed procedures.
Mr. Lujan objects to many of the proposed procedures and asserts that the Beckford and Edelin cases predate the amendments to Rule 12.2, and thus, should not be followed here. He also argues that the requirements of Rule 12.2 and the Court’s Scheduling Order are sufficient to accommodate the government’s discovery rights, that the steps set forth in Rule 12.2 should be followed in the order presented, that his notice should be due on May 15, 2008, and that the examination by the government should not be conducted until after the guilt phase of trial, assuming it is necessary.
1. Law
a. Rule 12.2
Federal Rule of Criminal Procedure 12.2 governs notice of an insanity defense and of expert evidence of a mental condition. The purpose of the rule is to give the government time to prepare to meet the issues and to avoid delays during trial. See Fed.R.Crim.P. 12.2, advisory committee notes. Rule 12.2(a) states that, if a defendant intends to assert an insanity defense, the defendant must notify the government in writing within the time provided for filing a pretrial motion or at any later time the court sets and file the notice with the clerk. Once the defendant provides notice of an insanity defense, “the court must, upon the government’s motion, order the defendant to be examined under 18 U.S.C. § 4242.” Fed.R.Crim.P. 12.2(c)(1)(B).
Rule 12.2(b), which governs notice of expert evidence of a defendant’s mental condition, states the following:
If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must — within the time provided for filing a pretrial motion or at any later time the court sets — notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders.
Fed.R.Crim.P. 12.2(b). If the defendant provides such notice, “the court may, upon the government’s motion, order the defendant to be examined under procedures ordered by the court.” Fed.R.Crim.P. 12.2(c)(1)(B). Where the evidence is solely to be used in the penalty phase, the results and reports of the government’s expert’s examination “must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition.” Fed.R.Crim.P. 12.2(c)(2). After disclosure of the government’s expert report, the defendant must disclose to the government “the results and reports of any examination on mental condition conducted by the defendant’s expert about which the defendant intends to introduce expert evidence.” Fed.R.Crim.P. 12.2(c)(3). Failure to give notice, to submit to an examination as ordered, or to disclose reports may result in exclusion of the defendant’s expert evidence. See Fed. R.Crim.P. 12.2(d).
b. Constitutional Considerations
Compelling a mental examination of the defendant by the government may implicate rights under the Fifth and Sixth Amendments. See Beckford, 962 F.Supp. at 760. The Supreme Court recognized that use of a defendant’s statements from a court-ordered pretrial psychiatric examination during a capital penalty trial may compromise a defendant’s Fifth Amendment right against compelled self-incrimination. See Estelle v. Smith, 451 U.S. 454, 458-59, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that defendant’s privilege against self-incrimination was violated when he was not advised of Miranda rights during court-ordered examination). In so holding, the Estelle Court stated, “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id. at 468, 101 S.Ct. 1866. The Supreme Court also held that the defendant’s Sixth Amendment right to counsel was violated when defense counsel was not notified in advance that the psychiatric examination would encompass the issue of future dangerousness and the defendant was denied the opportunity to consult with his attorneys about his participation in the psychiatric examination. See id. at 470-71, 101 S.Ct. 1866. The Supreme Court expressly acknowledged that “a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase.” Id. at 472, 101 S.Ct. 1866.
The Supreme Court has “never extended Estelle’s Fifth Amendment holding beyond its particular facts.” Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Indeed, subsequent cases have indicated that a defendant waives the privilege if the defendant introduces expert testimony on his or her mental condition. See, e.g., Powell v. Texas, 492 U.S. 680, 684, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989) (noting that language in Estelle and progeny provides support for argument that defendant’s use of psychiatric testimony constitutes waiver of Fifth Amendment privilege). In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court distinguished Estelle because, unlike in Estelle, the capital defendant had placed his mental state at issue in defense of the capital charges. See id. at 422-24, 107 S.Ct. 2906. The Supreme Court in Buchanan held that if a defendant requests a psychiatric examination to prove a mental-status defense, then at the very least, he waives the right to raise a Fifth Amendment challenge to the prosecution’s use of evidence obtained through that examination to rebut the defense. Id. at 422-23, 107 S.Ct. 2906. The Tenth Circuit has similarly held that, where a defendant raises an insanity defense, the Fifth Amendment is not violated by ordering a psychiatric examination or admitting testimony regarding the examination. See United States v. Madrid, 673 F.2d 1114, 1121 (10th Cir.1982).
In sum, a defendant must be given Miranda warnings before a court-issued mental examination. When a defendant raises a mental-status defense, however, he waives his Fifth Amendment privilege, he may be subject to a pretrial examination, and his statements can be used in rebuttal. See Edelin, 134 F.Supp.2d at 50-51. Likewise, a defendant has a Sixth Amendment right to have his counsel notified of the scope and nature of the examination before it takes place. See Powell, 492 U.S. at 685, 109 S.Ct. 3146; Buchanan, 483 U.S. at 424-25, 107 S.Ct. 2906. Where, however, the decision to introduce mental health information at the penalty phase is made upon the advice of counsel, the Sixth Amendment is not violated when the defendant is thereupon subject to a government evaluation. See Edelin, 134 F.Supp.2d at 50.
2. Proposed procedures
a. Notice deadline
Mr. Lujan contends that notice under Rule 12.2 is not required until at least May 15, 2008, the last deadline set for pretrial motions (the motion in limine deadline). The United States argues that an earlier deadline is best to insure the examination can be completed without interfering with the trial.
Rule 12.2(b) governs the timing of a defendant’s notice: “the defendant must— within the time provided for filing a pretrial motion or at any later time the court sets — notify” the United States. Fed. R.Crim.P. 12.2(b). I am not persuaded by Mr. Lujan’s argument that the Court is precluded from setting a deadline before the motion in limine deadline. The rule does not specify what “a pretrial motion” means and there is nothing in the rule to support the argument that the term means only the last pretrial motion deadline. The Court has considerable discretion in scheduling its pretrial and trial matters, and I am unconvinced that, by setting the motion in limine deadline in May 2008, I am now precluded from ordering an earlier deadline for the Rule 12.2(b) notice. After all, it is within the Court’s discretion to set an earlier motion in limine deadline, if it so desired.
Nevertheless, although the Court retains discretion to set an earlier notice deadline, I agree with Mr. Lujan that a deadline of May 15, 2008, is appropriate. The purpose of pretrial notice is to avoid unnecessarily delaying the capital sentencing proceedings. Three months before trial seems like sufficient time to conduct any mental health examination by the Government, while at the same time providing the defense enough time to explore and determine whether it intends to present a mental health defense. Cf. United States v. Wilson, 493 F.Supp.2d 348, 353, 357 (E.D.N.Y.2006) (notice required within three months of trial); United States v. Minerd, 197 F.Supp.2d 272, 277 (W.D.Pa. 2002) (notice ordered less than three weeks before commencement of jury selection); Edelin, 134 F.Supp.2d at 58 (only one month between notice and beginning of jury selection).
b. Contents of Rule 12.2(b) Notice
The United States requests that the Rule 12.2(b) notice contain the names and qualifications of Mr. Lujan’s mental health experts and a brief general summary of topics to be addressed so that it can determine the appropriate type of rebuttal expert it will need. Mr. Lujan objects to the notice containing this information and to including experts whose testimony would be based on a review of records rather than a personal examination of him. He contends that the information could indicate the nature of his mental condition, which is not subject to disclosure until the time contemplated by Rule 12.2(c)(3) for disclosure of defense expert’s results and reports.
Rule 12.2(b) requires “meaningful notice.” United States v. Johnson, 362 F.Supp.2d 1043, 1079 (N.D.Iowa 2005); United States v. Sampson, 335 F.Supp.2d 166, 243 (D.Mass.2004). The need for meaningful notice, however, must be balanced with the defendant’s Sixth Amendment right not to have his effective assistance of counsel compromised, which could potentially occur if defense counsel were required to reveal strategy or disclose materials he provided to experts. See Sampson, 335 F.Supp.2d at 243. The courts that have considered the scope of the requisite notice since the adoption of the 2002 amendments have generally limited what the notice must include to simply the kinds of mental health professionals who have evaluated the defendant and the specific nature of any testing that the defense experts would perform or have performed. See Wilson, 493 F.Supp.2d at 351-53 (rejecting further disclosure in notice such as names, areas of expertise, and curricula vitae of experts); Johnson, 362 F.Supp.2d at 1080 (indicating that meaningful notice requires identification of kinds of experts and nature of tests that experts will perform). These courts reasoned that this information is sufficient “meaningful notice” to enable the government to choose the type of expert it needs without forcing the defendant to disclose the specific nature of his proffered mental condition before the time contemplated by Rule 12.2. See Wilson, 493 F.Supp.2d at 352-53; Sampson, 335 F.Supp.2d at 243.
The reasoning of the Wilson, Johnson, and Sampson courts is both sound and fair. I therefore conclude that the notice must include the kinds of mental health experts Mr. Lujan anticipates calling at the penalty phase and the nature of the tests those experts have performed or may be expected to perform, but that the notice need not include the names or qualifications of the experts or a summary of the information the experts will provide. See Wilson, 493 F.Supp.2d at 353. Notice as described herein should be sufficient to allow the government to find mental health experts from the same field without requiring early disclosure of defense experts “results and reports.”
As to the type of evidence, Rule 12.2(b) applies to expert evidence, not lay evidence of a mental condition. See Fed. R.Crim.P. 12.2(b) (“Notice of Expert Evidence of a Mental Condition”). Rule 12.2(b) notice thus does not encompass notice of lay evidence of mental condition. See Wilson, 493 F.Supp.2d at 352-53 (refusing to require defendant to identify lay witnesses). Nevertheless, given that Rule 12.2(b) does not limit the notice to experts who have personally examined a defendant, the notice should include experts who are basing their opinion on a review of records, rather than a personal examination, so long as the expert will be providing evidence of a mental condition bearing on guilt or punishment. See Edelin, 134 F.Supp.2d at 51-52.
c. Timing of examination
The United States asks that its examination of Mr. Lujan occur no later than February 22, 2008. Mr. Lujan argues that a court-ordered examination prior to completion of the guilt phase is premature. He argues that to avoid any leaks of information and to protect his rights, the Court should wait until after he is found guilty before ordering any examination. He relies on the decision in United States v. Taveras, 233 F.R.D. 318 (E.D.N.Y.2006).
In Taveras, the court ruled that, where the capital defendant only intended to present expert mental condition evidence in the punishment phase, the government could not have its expert examine the defendant until after he was found guilty. See id. at 321-22. The court delayed the examination to avoid the potential for leaks, to avoid the hassle of determining taint team procedures, and to focus on the adjudication of guilt. See id. at 322. The court did not believe this procedure would create significant delay. Id.
Rule 12.2(c)(1)(B) plainly permits a court to order a pretrial examination of a capital defendant by government experts, and many courts have permitted the government to examine a capital defendant prior to trial. See, e.g., Wilson, 493 F.Supp.2d at 360; Haworth, 942 F.Supp. at 1409. The primary reason for pretrial examination is to avoid the risks associated with delay: difficulty in securing jurors in the first instance, greater likelihood that evidence from guilt phase will fade from jurors’ memories; and an increased chance that jurors will become unavailable during a break between guilt and penalty phases. See Wilson, 493 F.Supp.2d at 359-60 (quoting Beckford, 962 F.Supp. at 763). The committee notes to Rule 12.2 specifically state that “the better practice is to require pretrial notice of that intent so that any mental examinations can be conducted without unnecessarily delaying capital sentencing proceedings.” Fed. R.Crim.P. 12.2, 2002 amendments (citing with approval Beckford, 962 F.Supp. at 754-64; Haworth, 942 F.Supp. at 1409). The 2002 amendments leave to the court’s discretion the procedures to be used for a court-ordered examination of the defendant’s mental condition. See Fed. R.Crim.P. 12.2(c)(1)(B). The courts that have ordered pretrial examinations have developed taint team procedures in order to prevent leaks of information. See Wilson, 493 F.Supp.2d at 357-60; Johnson, 362 F.Supp.2d at 1083; Sampson, 335 F.Supp.2d at 243-44.
I find the reasoning of the courts that have ordered pretrial examinations of capital defendants persuasive. Delaying examination until after the guilt phase has the potential to delay the sentencing phase for an indefinite time. Because it will be unclear when a verdict will be entered, the Government may have difficulty coordinating an examination with its expert, who may not be immediately available after the verdict. Any objections or challenges by the defense as to aspects of the Government’s expert testing or reports may cause further delays. A longer time period between the guilt and capital phases will likely make it even more difficult to choose and retain jurors for this matter. Finally, delaying the examination until after the guilt phase may affect the results of the mental health examination, as the best time to perform a mental health examination on a defendant and obtain accurate results may not be immediately after the jury finds the defendant guilty and the defendant is facing a capital sentencing hearing. For these reasons, if Mr. Lujan files notice of his intent to introduce expert evidence on his mental condition, I will permit the Government’s experts to conduct a pretrial examination of him. I also find that, should Rule 12.2(b)(2) notice be filed, at least one fire-walled attorney must be assigned to handle any issues that may arise before, during, or after the Government’s expert’s examination in order to help ensure that information from any capital sentencing examination will not be leaked, even inadvertently, to the Government attorneys in this case. See Sampson, 335 F.Supp.2d at 243-44 (designating two fire-walled AUSAs to be responsible for all issues relating to Rule 12.2 mental health testing). Consequently, the Government must notify the Court and defense of who the fire-walled attorney is on May 16, 2008, the day following Mr. Lu-jan’s deadline to provide his Rule 12.2 notice, so that the requisite procedures can be formulated for the examination without delay. Finally, if Mr. Lujan files his notice, defense counsel must meet and confer with the prosecuting attorneys and the Government’s fire-walled attorney no later than May 20, 2008, to try to come to an agreement on procedures for examination by the Government on which both sides can agree. See Wilson, 493 F.Supp.2d at 360. The parties must be prepared to address any outstanding issues at the penalty phase plan hearing.
d. Coordination of testing
Additionally, the United States argues that certain mental health test results can be compromised by multiple testing and that Mr. Lujan should not conduct his own testing until the defense coordinates testing with the Government. Mr. Lujan objects to his expert being precluded from performing any mental health testing until the parties can agree on what tests will be performed. He argues that this procedure would interfere with his ability to prepare a defense and would give the Government insight into the nature of his proffered mental condition before the time contemplated by Rule 12.2(c)(3).
The United States relies on the cases of Beckford and Edelin in support of its request. In Beckford, the government asked that any test of the defendant by the defense expert be either attended by a government expert or recorded. See 962 F.Supp. at 765. In support of its request, the government submitted affidavits from a mental health expert that explained that certain tests can be administered only once in any one-year period due to the “practice effect” of the test, and thus, no valid retest by the government expert might be possible within a useful time frame. See id. at 765-66. The defendant objected to the proposal on Fifth Amendment grounds and submitted an expert’s opinion that other tests may be available to minimize the negative impact of subsequent evaluation. See id. at 766. Ultimately, the court did not need to decide the issue because the government backed away from its request after the parties stipulated that their respective expert witnesses likely would be able to agree on the designation of specific testing measures to be administered by each expert to avoid test overlap and minimize “practice effects.” See id. In Edelin, the court ordered that if the defendant intended to admit evidence based on an examination, then the defendant and the government must try to agree to the designation of specific testing measures to be administered by both expert witnesses to avoid test overlap and limit “practice effects.” Edelin, 134 F.Supp.2d at 58.
In this case, however, the Government has not submitted an affidavit or provided any other evidence to prove that practice effects from multiple testing will interfere with its own experts’ results. Nor has the Government shown that other tests are not available to minimize the negative impact of subsequent evaluation. Other remedies may be available to avoid any problems associated with multiple testing, such as sharing information between experts. In the absence of evidence regarding the likelihood and severity of practice effects from multiple testing of Mr. Lujan, I am reluctant to impede Mr. Lujan’s ability to prepare his defense in the manner requested. I will therefore deny the Government’s request to preclude the defense from conducting its own examination of Mr. Lujan until it coordinates with the Government.
e. Capital sentencing examination procedures
The United States also moves the Court to order other specific procedures for how its potential capital sentencing examination should be conducted. Mr. Lujan objects to many of the proposed procedures, such as requiring him to confirm his intent to offer the evidence within one business day following the verdict, simultaneous release of examination reports, and disclosure of his medical records to the Government’s expert within 10 days of the Government’s examination. He argues that these procedures are not required by Rule 12.2, that the issues are not ripe, and that the Court should wait to decide the issues until after the parties confer and jointly submit a plan for the penalty phase.
As to the particular procedures to follow for any capital sentencing examination by the Government’s experts, I conclude that it is premature to determine these issues at this time. Because Mr. Lujan may ultimately choose not to present such evidence, which would make these issues moot, it is more sensible and efficient to wait until after Mr. Lujan’s notice deadline to resolve the numerous details regarding the procedures and timing of any examinations as well as subsequent disclosure obligations. I will therefore deny at this time the Government’s additional requests as to the particular procedures to be followed for any capital sentencing examination. Should Mr. Lujan provide notice of his intent to present Rule 12.2 expert evidence, the parties have leave to raise these issues again and should be prepared to discuss proposed procedures at the penalty phase plan hearing scheduled for the end of May 2008.
B. Motion for Bill of Particulars (Doc. 173)
Defendants contend that they are entitled to a bill of particulars because the Third Superseding Indictment does not provide sufficient notice of the nature and scope of the charges against them to prepare a defense. They seek a bill of particulars on the underlying crimes, the Notice of Special Findings, and the Notice of Intent to Seek a Sentence of Death. The United States, however, argues that the indictment provides enough information to prepare a defense, as it quotes statutory language, states the elements of the offenses, and includes the dates and places of the offenses. The Government also asserts that the voluminous discovery provided to date will help Defendants prepare their defense and that they are inappropriately using the bill of particulars as a discovery device.
Federal Rule of Criminal Procedure 7(c) states that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c). For each count, the indictment must also give the official or customary citation of the statute that the defendant is alleged to have violated. Id. An indictment is sufficient if it (1) contains the elements of the charged offense and fairly informs a defendant of the charge against which he must defend, and (2) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Bedonie, 913 F.2d 782, 790 (10th Cir.1990). Tracking the language of the statute is generally sufficient as long as the indictment sets forth the elements of the offense and provides a statement of facts that informs the defendant of the specific offense. See Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887; United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). An indictment need not allege in detail the factual proof that the government will rely on to support the charges. Dunn, 841 F.2d at 1029.
Rule 7(f) provides that a “court may direct the government to file a bill of particulars.” Fed.R.Crim.P. 7(f). “The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.” Dunn, 841 F.2d at 1029. A bill of particulars is not a discovery device. Id. A defendant is not entitled to know all the evidence the government intends to introduce, but only the theory of the government’s case. Id. at 1030. Where an indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial, a bill of particulars is not warranted. See United States v. Levine, 983 F.2d 165, 167 (10th Cir.1992). The courts have “very broad discretion in ruling upon requests” for bills of particulars. Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).
In this case, the Third Superseding Indictment cites the particular statutes for the charged crimes and generally tracks the language of the respective statutes. The indictment also includes the dates of the illegal activity, the places where the crimes occurred, and the name of the victim. For these reasons, I find that the indictment sufficiently provides the elements of the alleged offense and apprises Defendants of the charges. See Dunn, 841 F.2d at 1029 (affirming denial of motion for bill of particulars where indictment quoted language of statute, included dates of illegal activity, place, and specific controlled substance). I therefore will deny Defendants’ request for a bill of particulars.
As for the specificity of the Notice of Special Findings and the Notice of Intent to Seek a Sentence of Death, I am not convinced that Rule 7 governs death penalty notices. By its own title, Rule 7 applies to “The Indictment and the Information.” Fed.R.Crim.P. 7. The Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq., and not Rule 7, requires notice of the government’s intent to seek the death penalty. See 18 U.S.C. § 3593(a). Many courts that have considered the issue have found that Rule 7(f) does not apply to death penalty notices. See United States v. Llera Plaza, 179 F.Supp.2d 464, 472 (E.D.Pa.2001) (“[T]he court concludes that 18 U.S.C. § 3593(a) does not require the government to produce the details of its sentencing phase evidence, and that Rule 7 is not applicable to [notices of intent to seek the death penalty] submitted to satisfy FDPA requirements.”); United States v. Kaczynski, 1997 WL 34626785, * 17 (E.D.Cal. Nov.7, 1997) (unpublished opinion) (concluding that Rule 7 does not apply to death notices); United States v. Nguyen, 928 F.Supp. 1525, 1545 (D.Kan.1996) (noting that there is no authority indicating that Rule 7 applies to death notices). I therefore will deny Mr. Lujan’s request for a bill of particulars as it relates to the aggravating factors.
Nevertheless, although Rule 7(f) is not the appropriate vehicle for the requested discovery, courts have found that the Due Process Clause guarantees criminal defendants a meaningful opportunity to present a complete defense, and thus, have ordered more detailed discovery pertaining to aggravating factors using their inherent authority. See, e.g., United States v. Wilson, 493 F.Supp.2d 364, 375-76 (E.D.N.Y.2006) (explaining that courts have inherent authority to order production of more particular information concerning notices of special findings and notices of intent to seek death penalty); United States v. Karake, 370 F.Supp.2d 275, 279-80 (D.D.C.2005) (“it has been uniformly recognized that if the death penalty [sic] provides insufficient notice to the defendant, the Court retains inherent authority to require the government to provide more specifics in order to give the defendant the opportunity to prepare for the penalty phase”); Llera Plaza, 179 F.Supp.2d at 471-72 (concluding that Constitution requires government to provide some notice of type of evidence that it intends to introduce at sentencing phase in order to provide defendant a meaningful opportunity to present his defense). Therefore, as to the factors in the death penalty notices that call for additional clarity, I will discuss those issues later in this opinion when ruling on Defendant Lujan’s Motion for Discovery of Information and Materials Concerning Aggravating Sentencing Factors and Incorporated Memorandum (Doc. 185).
C. Motion for Notice by the Government Pursuant to Rule 12(b)(4)(B) and Incorporated Memorandum (Doc. 174)
Defendants move under Rules 12(b)(4)(B) and 16 for the disclosure of all evidence that the Government contemplates using at trial in its case-in-chief and in rebuttal. They request disclosure of evidence that is arguably subject to suppression and to have the evidence specifically identified separate and apart from the other items of discovery produced under Rule 16. In response, the United States contends that Rule 12(b)(4)(B) does not require it to identify with specificity what, if any, of the Rule 16 discovery is “arguably” subject to suppression. The United States asserts that, because it has complied with its Rule 16 obligations, this motion should be denied as moot. The United States further argues that Defendants are not entitled to notice of rebuttal evidence under Rule 12(b)(4)(B) because the rule explicitly limits notice to evidence the Government intends to use in its casein-chief.
Federal Rule of Criminal Procedure 12(b)(4)(B) provides: “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). Rule 12(b)(4)(B) is a matter of procedure, rather than a rule designed to ensure fairness at trial. United States v. de la Cruz-Paulino, 61 F.3d 986, 993 (1st Cir.1995). The rule provides a mechanism to insure that the defendant knows of the government’s intention to use evidence to which the defendant may want to object. See Fed.R.Crim.P. 12, advisory committee notes, 1974 amendment. “Although the defendant is already entitled to discovery of such evidence prior to trial under rule 16, rule 12 makes it possible for him to avoid the necessity of moving to suppress evidence which the government does not intend to use. No sanction is provided for the government’s failure to comply with the court’s order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance.” Id.
New circuits have addressed the notice requirements of Rule 12(b)(4)(B). In the appellate case most on point, the First Circuit held that providing open-file discovery does not satisfy Rule 12(b)(4)(B). Cruz-Paulino, 61 F.3d at 993. In Cruz-Paulino, the government designated certain evidence for trial and stated that any other evidence would be noticed before trial. See id. at 992. The government, however, failed to notify the defendants that it intended to introduce two specific pieces of evidence. See id. In holding that the government violated Rule 12(d)(2), the First Circuit reasoned:
To the extent that the government’s open files contain information that is subject to Rule 16 discovery, Rule 12(d)(2) creates a notice requirement. The open file policy does not, in and of itself, satisfy this notice requirement because it does not specify which evidence the government intends to use at trial. Providing open-file discovery does not satisfy Rule 12(d)(2) because the defendant is still left in the dark as to exactly what evidence, discoverable under Rule 16, the government intends to rely upon in its case in chief at trial.
Id. at 993 (internal quotations and citations omitted). The First Circuit concluded that the government violated the rule. See id. The First Circuit, however, stressed that “Rule 12(d) was not designed to aid the defendant in ascertaining the government’s trial strategy, but only in effeetively bringing suppression motions before trial, as required by Rule 12(b)(3).” Id. at 994. Thus, despite the violation, the First Circuit held that reversal and remand was only appropriate upon a showing of prejudice. See id. See also United States v. Barry, 133 F.3d 580, 582-83 (8th Cir.1998) (affirming district court’s decision not to suppress evidence, despite government’s violation of Rule 12(d)(2), because district court provided sufficient remedy in holding suppression hearing).
The district courts appear to be split on what the government’s notice obligations entail under Rule 12(b)(4)(B). Some courts follow the First Circuit’s reasoning that an open-file policy is not sufficient. See, e.g., United States v. Cheatham, 500 F.Supp.2d 528, 534-35 (W.D.Pa.2007) (“[W]hen the Government has an open file policy with regard to its prosecution, this policy does not comply with Rule 12(b)(4)(B) ‘because it does not specify which evidence the government intends to use at trial.’ ”) (quoting Cruz-Paulino, 61 F.3d at 993); United States v. Anderson, 416 F.Supp.2d 110, 112 n. 1 (D.D.C.2006) (rejecting government’s argument that it satisfied Rule 12(b)(4)(B) by providing open-file discovery and giving notice that it intended to use all of materials provided to defendant pursuant to that policy). At least one court has stated that the notice must consist of “the evidence that will appear on the government’s exhibit list for trial.” Anderson, 416 F.Supp.2d at 112.
Other courts, however, have concluded that the government satisfies Rule 12(b)(4)(B) where it provides notice that it intends to offer some or all of the items made available in discovery as evidence in its case-in-chief at trial. See, e.g., United States v. Cushmeer, 2007 WL 1858269, *2 (N.D.Ohio June 26, 2007) (unpublished opinion) (denying request for notice under Rule 12(b)(4)(B) as moot because government complied with its Rule 16 discovery obligations by making all evidence available for review); United States v. Jordan, 2007 WL 1849985, *3 (E.D.Tenn. June 25, 2007) (unpublished opinion) (denying defendant’s motion to require government to file exhibit list under Rule 12(b)(4)(B) and concluding that government’s representation that any and all physical and documentary evidence had been forwarded to defendant was sufficient notice); United States v. Kimble, 2007 WL 1430303, *2 (S.D.Ga. May 10, 2007) (unpublished opinion) (“It is clear that what the government is required to disclose [under Rule 12(b)(4)(B) ] ... is evidence gathered from searches and seizures including electronic monitoring, and statements and confessions, all of which may be subject to suppression upon motion by Defendant. In essence the Rule requires the government to make early disclosure of these matters to allow the Court to determine any suppression motions prior to trial thereby avoiding needless delay during trial. The government’s ‘open file’ discovery policy in this case addresses all these concerns.”); United States v. Imadu, 2006 WL 2265437, *2 (M.D.Fla. Aug.8, 2006) (unpublished opinion) (concluding that government met Rule 12(b)(4)(B) when it stated that it intended to use all of discoverable material under Rule 16 and court’s standing order); United States v. El-Silimy, 228 F.R.D. 52, 56-57 (D.Me.2005) (stressing that Rule 12(b)(4)(B) was not intended to allow defendant to force government to decide precisely what provided documents would be used at trial be