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United States v. Adams

United States District Court, D. Kansas

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRIE ADAMS (6) and CRAIG BROOMBAUGH (10), Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on defendants' Terrie Adams and Craig Broombaugh's Joint Motion to Exclude Untimely Disclosed Expert Testimony (Doc. 877). The government responded (Doc. 884). For reasons explained below, the court grants defendants' Motion in part and denies it in part.

         I. Background

         The court held a motion hearing in this case on January 26, 2017. One of the motions at issue was the defendants' Joint Motion to Exclude Untimely Disclosed Expert Testimony (Doc. 877). Defendants Michelle Reulet and Craig Broombaugh initially filed the Motion. Defendant Terrie Adams joined the Motion. Doc. 886. Ms. Reulet has since pleaded guilty.

         In their Motion, defendants assert that the government's Third Amended Notice of Intent to Use Expert Witnesses (“Third Amended Notice”) constitutes an untimely disclosure. Defendants contend that the government has disclosed several new witnesses after the deadline established by the Scheduling Order and unfairly expanded the scope of several other expert witnesses. Specifically, defendants oppose newly disclosed testimony from Mr. Jason Henninger, Dr. Jordan Trecki, Dr. Daniel Willenbring, Dr. Arthur Simone, Mr. Lyndell Griffin, Mr. Lee Roediger, and Mr. Gorden Kwan. The defendants contend that the government's Third Amended Notice, filed 60 days before trial, prejudices them by negating their ability to challenge the admissibility of the disclosed experts' testimony.

         The deadline for filing Pretrial Motions and Motions in Limine was November 22, 2016. The government filed its Third Amended Notice of Intent to use Expert Testimony on December 1, 2016.

         II. Legal Standard

         Fed. R. Crim. P. 16(a)(1)(G) provides that “[a]t the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” Fed.R.Evid. 702 governs admissibility of expert testimony. It provides that a witness may testify as an expert if they are “qualified as an expert by knowledge, skill, experience, training, or education” in “scientific, technical, or other specialized knowledge” that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.

         Rule 701 governs the admissibility of lay opinion testimony by persons who do not qualify as experts. It provides that “[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is” rationally based on the witness's perception, helpful to clearly understanding the witness's testimony or to determining a fact in issue, and not based on “scientific, technical, or other specialized knowledge within the scope of Rule 702.” Rule 16(a)'s disclosure requirement does not apply to non-expert witnesses. See United States v. McIntosh, No. 11-20085-01-KHV, 2016 WL 4159723 (D. Kan. Aug. 5, 2016) (finding that the government was “not required to give prior notice of” testimony of witnesses who are not called as “expert witnesses” under Rule 702).

         If a party fails to comply with its disclosure obligations under Fed. R. Crim. P. 16, the court has several sanctions at its disposal. For instance, the court may: (1) order that party to permit discovery or inspection; (2) grant a continuance; (3) prohibit the party from introducing the undisclosed evidence; or (4) enter any other order that is just under the circumstances. Fed. R. Crim. P. 16(d)(2). The Tenth Circuit has identified several factors that courts should consider when deciding whether a sanction is appropriate. United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988). They are: (1) the reason for the delay, including whether the government acted in bad faith; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance. Id.

         Defendants do not contend that the government acted in bad faith when it filed its Third Amended Notice after the operative deadline. And, because this case already has celebrated its third anniversary, “curing the prejudice with a continuance” is not an option the court will consider. So, when deciding whether to exclude the newly disclosed testimony, the court considers only “the extent of prejudice to the defendant as a result of the government's delay.” See Id.

         III. Analysis

         With these standards in mind, the court turns to the government's Third Amended Notice. In it, the government disclosed testimony for seven of its expert witnesses. Defendants contend these disclosures were untimely, and as consequence, prejudicial. Defendants assert that the lateness of these disclosures deprives them of any meaningful ability to challenge the admissibility of the newly disclosed testimony. The court addresses the testimony of each of the government's expert witnesses individually, and in the sequence that they are listed in the government's Third Amended Notice.

         A. Mr. ...


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