TERRY PUTNAM, Magistrate Judge
The court has before it several motions filed by the defendant on October 28, 2004, each of which will be considered separately below.
1. Defendant's Motion for Notice of Evidence Arguably Subject to Suppression (Doc. 242). — Defendant has filed a motion pursuant to F.R.Crim.P. 12(b)(4)(B), seeking notice from the Government of evidence that is arguably subject to suppression. The Government responded to the motion on November 18, 2004, indicating that it had produced to defendant all documents and evidence seized during searches at HealthSouth headquarters and that it had listed those documents and items of evidence for the defendant. Further, on November 29, 2004, the Government even gave the defendant copies of all exhibits it expects to use during its case-in-chief. Plainly, insofar as the defendant contends that some document or item of seized evidence is subject to suppression, he can determine that from the production, lists, and exhibits he has been given. The motion is due to be and hereby is DENIED.
2. Defendant's Motion to Unseal Search Warrant Affidavit and Preliminary Motion to Suppress (Doc. 243) — This motion focuses on searches that occurred at HealthSouth headquarters on March 18, 19, and 20, 2003, the first pursuant to a search warrant and subsequent searches pursuant to consent. Defendant seeks to have the affidavit that supported the search warrant unsealed. He preliminarily contends that the fruits of the searches must be suppressed because the warrant lacked probable cause, the search exceeded the scope of the warrant, and that the persons purporting to consent to some of the searches lacked the authority to do so. The Government has responded that the defendant lacks standing to challenge the searches, that the affidavit properly establishes probable cause, that the searches were properly within the scope of the warrant, and that the persons consenting to searches possessed actual or apparent authority to do so.
It is ORDERED the search warrant and affidavit in MAG-03-036, executed on March 18, 2003, are hereby UNSEALED.
Defendant may amend his motion to suppress the fruits of the searches that occurred on March 18-20, 2003, by filing an appropriate amended motion to suppress by no later than December 10, 2004, which shall replace and supplant the current preliminary motion. Defendant shall state all grounds he asserts for suppression of these fruits in the amended motion, supported by such specific factual evidence as may be required, relating to the defendant's standing, the scope of the searches, and the validity of consent to search. In the event an amended motion is filed, it is hereby SET FOR HEARING on Friday, December 17, 2004, at 9:00 A.M., in Courtroom 2A, Hugo L. Black U.S. Courthouse, Birmingham, Alabama.
3. Defendant's Motion for Disclosure of Confidential Informants (Doc. 245) — In this motion, the defendant asserts that the Government has not disclosed during discovery all persons who provided information to the Government relating to the criminal offenses charged against the defendant. The Government responded to the motion, stating that it had disclosed the identity of all persons who provided information relevant to charges against the defendant. It conceded that three other persons provided information about other, completely unrelated criminal activity at HealthSouth, but that defendant is not entitled to their identities because their information would not be relevant or helpful to the defense.
As a threshold matter, the court reiterates its direction that the Government produce to the defendant the identities of all people interviewed by the Government as part of this investigation who gave information that could be regarded as exculpatory or helpful to the defendant. The Government represents that it has done so. Even so, the court wishes to be very clear that it expects the Government to produce any potential exculpatory Brady/Giglio materials relevant to this case, and that it has a continuing duty to do so. Insofar as the Government concedes that it interviewed three people about unrelated criminal activity at HealthSouth, the Government is DIRECTED to file with the Clerk, ex parte and under seal, a summary description of each such person and the substance of the information provided by each such person, to enable the court to assess whether their information might relate to the criminal activities at issue here or whether it might be useful or helpful to the defense in this case. Such summary descriptions shall be filed, ex parte and under seal, not later than ten (10) days after entry of this Order.
In all other respects, the motion is DENIED.
4. Defendant's Motion for Disclosure of Co-Conspirator Statements (Doc. 248) — This motions seeks an order compelling the Government to produce to him all statements made by other people which the Government will attempt to attribute to defendant as made in furtherance of the alleged conspiracy. He further seeks a pretrial hearing on the factual issues whether a conspiracy existed and whether the statements were made in furtherance of the conspiracy. The law in this circuit, however, is that statements by co-conspirators are not discoverable by the defendant. See United States v. Orr, 825 F.2d 1537, 1541 (11th Cir. 1987) ("We agree with the Fourth Circuit that Rule 16(a)(1)(A) does not apply to coconspirator's statements."). The mere fact that a statement by a co-conspirator made in furtherance of the conspiracy is admissible under FRE 801(d)(2)(E) against the defendant does not make the statement discoverable under F.R.Crim.P. 16. Additionally, there is no current requirement that the court conduct a pretrial hearing to address whether the evidence supports the existence of a conspiracy and whether statements were made within the context of the conspiracy; those issues can be resolved on the basis of the evidence at trial prior to the admission of co-conspirator statements. This motion is due to be and hereby is DENIED.
5. Defendant's Motion for Expanded Discovery (Doc. 250) — This motion seeks an order requiring the Government to produce witness lists, exhibit lists, and other information related to alleged Brady/Giglio material, including requiring the Government to obtain from private civil litigants and to produce to defendant any favorable or exculpatory information in their possession pursuant to an information-sharing agreement between the Government and private litigants. Much of this motion is moot, as the court already has established deadlines for the exchange of witness and exhibit lists, some of which have already occurred. Further, the Government is not obligated to unearth Brady/Giglio materials not in its possession or under its control. To the extent the information-sharing agreement with private parties reveals to the Government any exculpatory or impeaching information, it must be produced to the defendant. On the other hand, the Government is not required to actively seek that information from private litigants. The standard by which the Government is to determine whether Brady/Giglio material exists is well established in case law, and any effort by this court to state a standard runs the risk of error. Thus, except as to any deadlines already established by the court for the exchange of witness and exhibit lists, the rest of the motion is due to be and hereby is DENIED.
6. Defendant's Motion for Bill of Particulars (Doc. 246) — The defendant's motion reiterates many of the same requests made in his earlier motion for bill of particulars (doc. 103). The court addressed many of those requests in an order entered March 3, 2004 (doc. 128), which required the Government to file a bill of particulars identifying the "co-conspirators" and "aiders and abetters" referenced in the original indictment. The motion was otherwise denied. Insofar as the instant motion simply repeats the request for the identities of "co-conspirators" and "aiders and abetters," it is GRANTED. If the Government has not done so already, it is DIRECTED to file and serve, within fifteen (15) days after this Order, a bill of particulars responding to paragraphs 1 through 49 of the motion.
In all other respects, the motion is due to be and hereby is DENIED. The information sought in the remaining requests of the motion are not necessary to identifying the charges being alleged against the defendant, but constitute mere discovery of the evidence underlying the charges. Counts 27, 28, and 29, clearly identify the documents the Government alleges the defendant falsely certified, even if each of those documents covered multiple time periods not otherwise identified. The essence of the charge in each of these counts is that the defendant knew the document he was certifying contained false information.