vague times as to when these observations took place, the witnesses could possibly commit themselves to the exact time of the alleged occurrence after they have obtained the alibi information from defendant Bickman. This, the defendant states, would be unfair and unjust. The Government has not filed a response to the defendant's objection, but was given an opportunity to present its position during oral argument.
Rule 12.1 was promulgated to avoid the possibility of unfair surprise on the part of the Government and cause undue delay in the trial because of an unexpected presentation of an alibi defense by the defendant. See Notes of Committee on the Judiciary House Report No. 94-247. Under the Rule, the Government must trigger the alibi defense discovery procedures. If they do not, then the defendant may raise an alibi defense at trial to which the Government, though surprised, may not object. The trial courts are vested with "considerable discretion" to tailor the requirements under Rule 12.1 to fairly and justly serve the underlying goals of the Rule. See U. S. v. Hutton, 558 F.2d 1265, 1266 (6th Cir. 1977).
The Court finds that the Rule is not available as a device to be used for purposes of broad discovery or to require a defendant to respond to alibi demands for time, place and date that are unnecessarily vague. The only fair reading that can be subscribed to the Rule is that it was intended to be reciprocal in the sense that, while the defendant must respond to the Government's demand by stating "the specific place or places at which the defendant claims to have been at the time of the alleged offense . . ." (emphasis supplied), the Government must also initially state with specificity the "time, date and place at which the alleged offense was committed. . . ."
On the present record, the Court cannot see why the Government's amended demand as to time cannot be more specific. Under the indictment, it appears that the allegations against defendant Bickman as to the April 14, 1975, date referred to in the demand were that he "did order the gloves transported from the fourth floor to the first floor . . ." and that he "did order that the gloves, once on the first floor, be hosed down. . . ." These are specific acts which two Government witnesses allegedly observed, were participants in and will testify to. This is not a case where the criminal acts occurred over a long period of time, thereby justifiably necessitating a lack of specificity as to the time of the alleged offense in a demand for notice of an alibi defense. For example, the holding of stolen Government property over several days or a week-long period, where during each minute a continuing offense is being committed, is not the type of crime subject to specific time demands other than extended periods. See State v. Cox, 542 S.W.2d 40, 50 (Mo.App.1976) ("The time sequence in this record was not so specific as to indicate the exact moment when Meixner was killed . . . Neither party is required to specify the exact second a crime is committed.") See also Monserrate v. State, 265 Ind. 153, 352 N.E.2d 721, 724-725 (1976); State v. Wonser, 217 Kan. 406, 537 P.2d 197, 198-199 (1975).
In the case at bar, the offensive actions of April 14, 1975, appear on the present record to be more limited in descriptive time and should be specified with greater particularity so as to more fairly notify the defendant of the times at which the alleged offenses were to have taken place. This is especially true when the Government has admitted that two of its witnesses observed the offensive acts being committed on that day.
For all of the above reasons, the Court finds that, because the Government's demand for notice of an alibi defense is inadequate on the present record, it will be ordered that the defendant Bickman need not answer that demand. Furthermore, should defendant Bickman raise an alibi defense at trial as to the date specified in the amended demand, the Government will be precluded from successfully raising an objection of unfair surprise. However, the Court will grant the Government leave to file an amended demand for notice of an alibi defense which must set forth with greater specificity the time periods for which the demand is requested.
AND NOW, TO WIT, this 6th day of May, 1980, IT IS ORDERED as follows:
1. The Government's amended demand for notice of an alibi defense under Fed.R.Crim.P. 12.1 is found by the Court to be inadequate on the present record and defendant Bickman need not answer that demand.
2. Due to the inadequacy of the amended demand, the defendant will be permitted to raise an alibi defense at trial as to the date specified in the amended demand and the Government will be precluded from successfully asserting any objection of unfair surprise as to that defense.
3. The Government is given leave to file with the Clerk of the Court, within five (5) days of the date of this Order, an amended demand for notice of an alibi defense, provided the same furnishes greater specificity of the time periods for which the demand is requested. The defendant shall be required to respond to such demand in accordance with Fed.R.Crim.P. 12.1.
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