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UNITED STATES v. BICKMAN

May 6, 1980

UNITED STATES OF AMERICA V. BARRY BICKMAN, WALTER GRZELAK, and RICHARD JOHN CROSS


The opinion of the court was delivered by: BECHTLE

MEMORANDUM OPINION AND ORDER

 Federal Rule of Criminal Procedure 12.1 states:

 
(a) Notice by Defendant. 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 his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
 
(b) Disclosure of Information and Witness. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the attorney for the government shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
 
(c) Continuing Duty to Disclose. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (a) or (b), the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
 
(d) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.
 
(e) Exceptions. For good cause shown, the court may grant an exception to any of the requirements of subdivisions (a) through (d) of this rule.
 
(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.

 The Government's original demand for notice of an alibi defense was filed on April 9, 1980, and requested an alibi defense for defendant Bickman for:

 TABLE

 On April 14, 1980, the Government filed an amended demand for notice of an alibi defense for defendant Bickman for:

 TABLE

 Defendant Bickman objects that this amended demand for notice of an alibi defense, for time periods between ten and one-half and eleven and one-half hours, is not phrased with the specificity envisioned under Rule 12.1. Bickman also claims that he will be prejudiced by the demand, since the Government has already admitted that two witnesses will be able to testify that they observed Bickman ordering other persons to move and water down the insured goods at the warehouse. Therefore, the defendant contends that, because the Government has heretofore only specified 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. ...


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