MEMORANDUM OPINION AND ORDER ON THE AUGUST 6, 2012 ORDER OF THE MAGISTRATE JUDGE

JOHN R. TUNHEIM, District Judge.

The United States filed a superseding indictment against Anthony Francis Cree and other defendants, alleging that Cree is a member of the Native Mob gang and engaged in a conspiracy to participate in racketeering activity, among other crimes. United States Magistrate Judge Janie S. Mayeron issued an order addressing various motions filed by Cree and other defendants. (Docket No. 729.) Cree has objected to the order on four grounds. (Docket No. 787.) The Court will overrule Cree's objections, except to find that Cree is entitled to a bill of particulars regarding the identity of his coconspirators.

I. STANDARD OF REVIEW

A district court's review of a magistrate judge's order on nondispositive matters, such as those matters involved in the order at issue, is "extremely deferential." See Roble v. Celestica Corp., 627 F.Supp.2d 1008, 1014 (D. Minn. 2007); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). This Court will reverse such an order only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Crim. P. 59(a); D. Minn. LR 72.2(a).

II. MOTION FOR SEVERANCE OF DEFENDANTS1

Cree objects that it was an error to deny his motion for severance of defendants because of potential Confrontation Clause issues and because he is named in only certain counts of the indictment. Cree claims that evidence concerning his co-defendants does not relate to him and will be highly prejudicial to him. He also alleges generally that he and his co-defendants have antagonistic defenses that will be reciprocally prejudicial.

Under Federal Rule of Criminal Procedure 8(b), defendants are properly joined "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." "Generally, the `same series of acts or transactions' means acts or transactions that are pursuant to a common plan or a common scheme." United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998). "[I]t is a well settled rule in [the Eighth C]ircuit that the propriety of joinder must appear on the face of the indictment." United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982). "Rule 8(b) requires that there be some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense." Id. at 656. Courts must liberally construe Rule 8(b). Id. at 655.

The Court finds that the requirements of Rule 8(b) are met in this case. Cree is charged, along with his co-defendants, with knowing participation in an unlawful RICO conspiracy. In Count 2, the defendants are charged with a conspiracy to use and carry firearms during and in relation to a crime of violence. The remaining counts involve acts that were allegedly committed in furtherance of or in conjunction with the RICO conspiracy. Because the superseding indictment alleges that the acts taken by all defendants were acts in furtherance of a RICO conspiracy, the Court concludes that all of the accused criminal conduct stems from "the same series of acts or transactions, constituting an offense" under Rule 8(b).2

Federal Rule of Criminal Procedure 14 also applies to motions for severance. This Rule permits the Court, in its discretion, to sever otherwise properly joined defendants or offenses where a joint trial may result in prejudice to one of the defendants. Fed. R. Crim. P. 14(a). There is a preference for joint trials and less drastic measures than severance may suffice to alleviate the risk of prejudice. Zafiro v. United States, 506 U.S. 534, 537-39 (1993); see also United States v. Flores, 362 F.3d 1030, 1039 (8th Cir. 2004). To grant a motion for severance, "the necessary prejudice must be severe or compelling." United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003) (internal quotation marks omitted). Prejudice is severe where the jury is incapable of compartmentalizing the evidence or the defendants' defenses are irreconcilable. United States v. Frank, 354 F.3d 910, 920 (8th Cir. 2004). In determining the jury's ability to compartmentalize the evidence, courts consider the complexity of the case and the adequacy of admonitions and instructions of the trial judge. Pherigo, 327 F.3d at 693. Generally, "[p]ersons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be tried together, even if each defendant did not participate in or was not charged with each offense." United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002). Furthermore, "a court must weigh the inconvenience and expense of separate trials against the prejudice resulting from a joint trial of codefendants." Pherigo, 327 F.3d at 693.

Cree argues that he will be prejudiced by being associated with his co-defendants, particularly because certain counts do not specifically involve him. Cree has not identified specific evidence that the United States may introduce that will prejudice his trial, however. See United States v. Garrett, 961 F.2d 743, 746 (8th Cir. 1992) (holding that a defendant "must make a showing of real prejudice by demonstrating that the jury was unable to compartmentalize the evidence" (internal quotation marks omitted)). The Court finds Cree's general concerns about the entry of evidence regarding his codefendants to be an insufficient basis to sever the trial. This is particularly true because Cree is alleged to have committed crimes such as attempted murder in aid of racketeering. Cree's allegation that he will somehow be prejudiced by being associated with his co-defendants is not a sufficient basis to sever the trial in light of the crimes that he is personally alleged to have committed. Instead of finding undue prejudice, the Court concludes that "justice is best served by trying the members of [this] racketeering enterprise together because a joint trial gives the jury the best perspective on all of the evidence and therefore increases the likelihood of a correct outcome." See United States v. Darden, 70 F.3d 1507, 1527-28 (8th Cir. 1995) (internal quotation marks omitted).

Cree also alleges that his Confrontation Clause rights — presumably under Bruton v. United States, 391 U.S. 123 (1968)3 — may be violated if his motion for severance is not granted. However, Cree has not identified any statements that would violate Bruton or otherwise be inadmissible against him. Accordingly, the Court finds this argument to be insufficient grounds on which to grant the motion for severance. Of course, Cree may object at trial to evidence that he deems unduly prejudicial or otherwise inadmissible.

Finally, the Court has weighed the inconvenience of having separate trials. This case involves a long history of many acts allegedly committed by members of the Native Mob. Having a joint trial under these circumstances "save[s] time and money for the courts, prosecutors, and witnesses." See Darden, 70 F.3d at 1527. This factor thus weighs in favor of denying the motion for severance. Considering the factors discussed above and the evidence presented, the Court will overrule Cree's objections to the denial of his motion to sever defendants.

III. MOTION FOR SEVERANCE OF COUNTS

Cree also moves to sever counts in the indictment, severing counts 1-5 in which he is named and which concern the alleged assault of Amos Laduke from other counts in the indictment.4 He argues that Rules 8 and 14 of the Federal Rules of Criminal Procedure require severance because the counts are not properly joined with the other counts in the indictment and because the joinder is prejudicial.

The Court finds that the requirements of Rule 8 are met here, for the reasons described above. Counts 1-5 stem from the same series of acts or transactions, constituting an offense, as the other counts in the indictment. See United States v. Midkiff, 614 F.3d 431, 439 (8th Cir. 2010) ("Rule 8(a) allows a single indictment to charge a defendant with multiple offenses if the offenses `are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.'" (quoting Fed. R. Crim. P. 8(a))). Furthermore, the proof for the counts are overlapping and intertwined, as they are all allegedly connected to the racketeering enterprise of the Native Mob, making joinder appropriate. See United States v. Davis, 103 F.3d 660, 676 (8th Cir. 1996) (considering whether the proof for counts "is overlapping and intertwined").

The Court also concludes that the requirements of Rule 14 are met and that there is not undue prejudice from trying the counts together. It appears that evidence regarding many, if not all, of the counts in the indictment would be admissible at Cree's separate trials on only those counts which name Cree because they are all tied to the alleged RICO conspiracy. See United States v. Dierling, 131 F.3d 722, 734 (8th Cir. 1997); Davis, 103 F.3d at 676; Darden, 70 F.3d at 1527. Even if this were not the case, however, Cree has not made a "specific showing" that a jury could not compartmentalize the evidence between counts or that he would otherwise be prejudiced by trying the counts together. See United States v. Hively, 437 F.3d 752, 765 (8th Cir. 2006); Davis, 103 F.3d at 676. Accordingly, the Court will deny the motion to sever the counts.

IV. DISCLOSURE OF INFORMANTS AND PRETRIAL INTERVIEWS

Cree also objects to the Magistrate Judge's determination that the United States need disclose the identity of certain confidential informants only seven days before trial. Cree had moved the Court for an order requiring the United States to provide him with the identities of certain informants at least thirty days before trial.5 Cree now objects to the Magistrate Judge's conclusion that seven days' notice is sufficient to find and attempt to interview these informants because, he alleges, these informants tend to live on the fringe of criminal activity and can be hard to locate and interview.

Cree also objects to the Magistrate Judge's determination regarding whether the United States must produce confidential informants for pretrial interviews. Cree had moved for such production. Cree objects that the Magistrate Judge effectively denied the motion by leaving the matter to the discretion of the United States.

The Supreme Court has recognized a government privilege to withhold the identity of confidential informants in certain situations. See Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege recognizes the obligation of citizens to report crimes, and "by preserving their anonymity, encourages them to perform that obligation." Id. However, where disclosure "is relevant and helpful to the defense or an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61. The defendant bears the burden of showing that the informant's identity is material. Carpenter v. Lock, 257 F.3d 775, 779 (8th Cir. 2001).

In deciding whether to require disclosure, a court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, 353 U.S. at 62. If the confidential informant is "an active participant or witness to the offense charged, disclosure will almost always be material to the accused's defense" and thus required. Devose v. Norris, 53 F.3d 201, 206 (8th Cir. 1995).

"[W]here materiality is shown, the court owes a duty to make every reasonable effort to have the informant made available to the defendant to interview or use as a witness, if desired." Harris v. Taylor, 250 F.3d 613, 617 (8th Cir. 2001) (internal quotation marks omitted). Generally, a defendant is entitled to receive information regarding a material informant's whereabouts, in order to enable his counsel to interview the informant about any possible exculpatory information and to prepare for possible cross-examination. See United States v. Webster, 490 F.2d 435, 437 (8th Cir. 1974).6 If an informant has information that could have exculpated a defendant, the failure to provide access to that informant can be grounds for reversal. See United States v. Padilla, 869 F.2d 372, 377 (8th Cir. 1989).

Here, as a preliminary matter, the Magistrate Judge held that the United States was required to disclose the identities and location of at least four informants who are necessary trial witnesses for the United States regarding the crimes allegedly committed by the defendants in this case.7 There has been no objection to this determination, and the Court likewise finds that the disclosure of these witnesses is material to Cree's defense and thus the United States must disclose the witnesses' identities and other information8 about them. See Devose, 53 F.3d at 206.

The first issue raised in the objections is whether the United States must disclose this information only seven days before trial or, as Cree requests, a longer period of time before trial. The Court finds that the Magistrate Judge's decision that the United States should provide this information seven days before trial is not clearly erroneous or contrary to law. Given the allegations of violence, witness tampering, and retaliation against a witness in this case, the Court affirms the Magistrate Judge's determination that providing more than seven days' advance notice of the informants' identities is unwarranted. See, e.g., United States v. Howard, No. 5:12-CR-9-D, 2012 WL 2525625, at *4 (E.D.N.C. June 29, 2012) (ordering disclosure of the identities of confidential informants not later than five business days before trial); United States v. Davis, No. 06-C-215, 2007 WL 2220261, at *5-6 (E.D. Wis. Apr. 16, 2007) (considering safety of confidential informants). Seven days' notice will appropriately balance Cree's rights with the protection of the confidential informants. See Roviaro, 353 U.S. at 62.

The Court must next address Cree's request that the United States make the informants available for an interview. The United States's disclosure obligation with respect to material confidential informants is generally satisfied when it provides a defendant with information pertaining to an informant's identity and location so that the defendant may contact the informant to request an interview or use the informant as a witness. See Padilla, 869 F.2d at 376-77. Here, the Court finds that Cree has not made a sufficient showing that the United States is required to produce the informants for an interview or that he will be unable to find the informants with seven days' advance notice of their identifying and other information. It is possible that the informants will refuse to speak to Cree, if contacted, but this possibility does not require that the United States produce the informants for interviews or encourage them to speak to Cree. See United States v. Bittner, 728 F.2d 1038, 1041-42 (8th Cir. 1984) (holding that "the defendant's right of access is not violated when the witness chooses of her own volition not to be interviewed"). The Court will thus affirm the Magistrate Judge's order because it adequately protects Cree's rights.9

V. BILL OF PARTICULARS

Cree next objects to the Magistrate Judge's denial of his request for an order granting a bill of particulars for more definite information pertaining to the indictment.10 Cree requested, among other information, that the bill of particulars list the names of all persons whom the United States will claim at trial were his coconspirators, to the extent known to the United States. This request stems from the United States's allegation that Cree engaged in a RICO conspiracy with named defendants "together with others both known and unknown to the Grand Jury[.]" (See Superseding Indictment ¶ 20.) The Magistrate Judge denied Cree's request for a bill of particulars, stating that the indictment and discovery sufficiently enable Cree to divine the scope, duration, and extent of criminal activities of the enterprise and acts attributable to him. The Court will reverse this holding, in part, because a bill of particulars will enable Cree to prepare for trial and avoid or minimize the danger of unfair surprise at trial.

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)(1). In certain cases, courts may direct the United States to provide a bill of particulars that includes more information than is available in the indictment, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure.11

United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002). A bill of particulars is not intended to supplement discovery or to provide detailed disclosure of the United States's evidence at trial. United States v. Shepard, 462 F.3d 847, 860 (8th Cir. 2006); United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993). District courts have broad discretion in granting or denying a bill of particulars. United States v. Sileven, 985 F.2d 962, 966 (8th Cir. 1993).

As a preliminary matter, the Court finds that the indictment in this case is sufficient to provide a plain, concise, and definite written statement of the essential facts of the offenses charged. See Fed. R. Crim. P. 7(c)(1); Huggans, 650 F.3d at 1217. However, more information is needed through a bill of particulars to enable Cree to prepare for trial and avoid or minimize the danger of unfair surprise at trial. See Hernandez, 299 F.3d at 989-90. Specifically, the Court finds that Cree is entitled to the names of all persons whom the United States will claim at trial were co-conspirators, to the extent known by the United States.12 Numerous courts have found that bills of particulars are warranted to provide the names of alleged co-conspirators.13

Here, Cree is accused of engaging in a racketeering enterprise through his membership in the Native Mob. According to the indictment, "the enterprise constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise." (Superseding Indictment ¶ 14.) The purpose of the enterprise was to preserve and protect the power of the enterprise through intimidation and violence, among other activities, and the enterprise was carried out through regular meetings and other means. (Id. ¶¶ 15-16.) The Court finds that, to adequately prepare for trial, Cree must be aware of who the United States will claim at trial were his co-conspirators because this is a critical and basic aspect of the charges against him. Although many names of his alleged co-conspirators are already included in the superseding indictment, it is unclear if there are other co-conspirators to whom the United States also intends to reference at trial.

Before ordering the production of this information, however, the Court will allow the United States to demonstrate in camera that such disclosures might endanger the safety of the unnamed co-conspirators or other individuals. See United States v. Vastola, 670 F.Supp. 1244, 1270 (D.N.J. 1987) ("[T]he names of all co-conspirators or participants in the alleged offenses should be provided, except insofar as the Government can show, in camera, that such disclosures might endanger the safety of prospective witnesses." (internal quotation marks omitted)). The Court will order that, if the United States makes such an in camera submission to the Court, the submission must describe any restrictions that the Court could impose on the disclosure of the information that would be sufficient to protect the co-conspirators or other individuals.

The Court will not grant the remainder of Cree's request for a bill of particulars. Cree's request for information such as the names of unindicted co-conspirators who will not be discussed at trial and the dates, locations, and participants of any meetings that furthered the alleged conspiracy are requests for detailed disclosure of the United States's evidence that are not, in this case, the proper subject of a bill of particulars.14 Indeed, much of this information is unlikely to be introduced at trial. The indictment alleges that the Native Mob enterprise has existed since the 1990s and involves approximately 200 members. Cree's request for information about all co-conspirators, all meetings, and other such sweeping information about the enterprise is overbroad and not critical to his preparation for trial.15 Accordingly, the Court will grant Cree's request for a bill of particulars in part.

ORDER

Based on the foregoing, and all the files, records, and proceedings herein, the Court SUSTAINS in part and OVERRULES in part Defendant's objections [Docket No. 787]. The Order of the Magistrate Judge [Docket No. 729] is AFFIRMED in part and REVERSED in part. Accordingly, IT IS HEREBY ORDERED that:

2. The Order of the Magistrate Judge is otherwise AFFIRMED.