Library of Motions – Defendant’s Reply To Government’s Response To Defendant Agee’s Motion For Notification Of Dates Of Birth For Three Co-Defendants

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

DEFENDANT’S REPLY TO GOVERNMENT’S RESPONSE TO DEFENDANT AGEE’S MOTION FOR NOTIFICATION OF DATES OF BIRTH FOR THREE CO-DEFENDANTS

On November 14, 2005, the Government filed its Response to Defendant’s Motion for Notification of Dates of Birth for Three Co-Defendants. In its Response the Government makes mention of social security numbers and driver’s license numbers. The mention of such information is misplaced, as Defendant Doe merely seeks the dates of birth of the co-defendants, not social security or driver’s license numbers. Secondly, the Government makes reference to the “privacy rights” of these co-defendants. Surely the right of an accused citizen to defend against criminal accusations, and vigorously cross-examine the accusers, trumps a co-defendant’s “right” to conceal his date of birth from defense counsel.

Finally, in its Response the Government requests notice of alibi. The Government’s request regarding alibi notice is deficient and does not trigger the notice of alibi requirements of Rule 12.1(a) F.R.Crim.P. United States v. SAA, 859 F.2d 1067 (2 nd Cir. 1988). This Rule states, in relevant part, that: “Upon written demand of the attorney for the government stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the attorney for the government a written notice of the defendant’s intention to offer a defense of alibi.” The Government’s request does not state the time, date, or place at which the alleged offense was committed. Consequently, Defendant Doe is unable to intelligently respond to the Government’s request.

To invoke the alibi notice provisions of Rule 12.1, the prosecution must file a demand that states the time, date, and place at which alleged offense was committed. United States v. Vela, 673 F.2d 86, 88 (5 th Cir. 1982). If the Government seeks notice of alibi with respect to a discrete temporal aspect of the crime alleged, it should so specify. The Rule clearly provides that a defendant need not disclose her intent to offer an alibi defense unless and until the Government submits a written request specifying the time, date and place of the alleged offense. Vela at 1072.

See also, United States v. Dupuy, 760 F.2d 1492, 1499 (9 th Cir. 1985); United States v. Bouye, 688 F.2d 471, 474-75 (7 th Cir.1982). It is also worth noting that the superseding indictment does not specify any time, date, or place at which the alleged offense was committed, and Defendant Agee’s request for a bill of particulars was denied.

Dated: April 28, 2006. Respectfully submitted,

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via regular United States mail and fax, upon all counsel of record, as identified below, on April 28, 2006:

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David Finn