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United States v. Adams

United States District Court, D. Kansas

February 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRIE ADAMS (06) and CRAIG BROOMBAUGH (10), Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Mr. Broombaugh has two motions now pending before the court. First is Mr. Broombaugh's motion to preclude Dr. Jordan Trecki from testifying about the specific case studies he relied on when forming his opinions. Mr. Broombaugh raised this issue in court but outside the presence of the jury on February 24, 2017, and in his Notice of Authority (Doc. 1008) filed later that day. Ms. Adams joins this motion. Second is Mr. Broombaugh's Motion to Exclude Government's Demonstrative Exhibit No. 51D (Doc. 1009). For reasons explained below, the court grants in part and denies in part Mr. Boombaugh's Motions.

         I. Motion to Exclude Case Study Testimony

         Mr. Broombaugh asserts two arguments in favor of his motion to exclude Dr. Trecki's testimony about specific case studies. First, Mr. Broombaugh contends that the government failed to disclose that Dr. Trecki intended to rely on such case study evidence in forming his opinion. On this score, the court disagrees, as early as September 2015, both defendants argued that the court should exclude Dr. Trecki under Fed.R.Evid. 702 because he relied on unreliable information such as “user anecdotes and emergency room reports.” Doc. 484 at 15. Defendant's argument is consistent with a wide variety of references to such evidence in Dr. Trecki's “Rule 16 Summary of Expert Opinion and Bases.” See e.g., Dr. Trecki's “Rule 16 Summary of Expert Opinions and Bases, ” at 2 (referencing Brunt TM, Koeter MW, Niesink RJM, van der Brink W. 2012. Linking the pharmacological content of ecstasy tablets to the subjective experiences of drug users. Psychopharmacology, 220:651-762.) The record shows that defendants understood Dr. Trecki relied, in part, on case studies. Also, defendants have sustained no prejudice by the timing of these disclosures.

         Second, Mr. Broombaugh argues that Dr. Trecki's reliance on the case studies is irrelevant under Fed.R.Evid. 401's relevancy standard. And, Mr. Broombaugh argues that, even if relevant, the evidence should be excluded under Rule 403 because the evidence's prejudicial effect substantially outweighs its probative value.

         The government contends that the evidence is relevant and admissible because the government must prove the substances listed in the indictment have a substantially similar “stimulant, depressant, or hallucinogenic effect on the central nervous system” as a schedule I or II controlled substance. See 21 U.SC. § 802(32). The government asserts that the case studies are relevant to the effects of the substances and, without the case studies, the government has no way to explain why Dr. Trecki has not tested these substances in humans. Further, the government asserts the evidence is not so prejudicial that any prejudice outweighs the evidence's probative value and thus the court should not exclude it under Rule 403.

         The Tenth Circuit has not ruled on this issue, but its decision in United States v. Makkar, 810 F.3d 1139, 1148, (10th Cir. 2015) gives the only glimpse how it might rule. In Makkar, the defendants presented several arguments for reversal. The court reversed the defendants' convictions because of an instructional error. Makkar, 810 F.3d at 1148. But, the court identified defendants' other arguments for reversal, including that the “district court admitted unreliable and inflammatory testimony about the health effects of the incense.” Id. Apparently, at trial, one government witness testified in front of the jury that the incense had killed his friend even though his friend was alive and well and scheduled to testify later in the day. Id. Judge Gorsuch, writing for the panel, noted that this argument “rais[ed] some potentially troubling questions in [its] own right.” Id. But, the Circuit court declined to rule on this issue because “the additional putative errors” defendants complained of would not “necessarily recur.” Id.

         In his Notice, Mr. Broombaugh also directs the court to a ruling from the Northern District of Texas in 2014. See Doc. 1008 at 3. In that Texas case, Judge Boyle granted the defendant's motion to exclude Dr. Trecki's testimony “about any alleged injuries, hospitalizations or deaths resulting from the consumption of any of the chemicals” at issue in the case. Doc. 1008 at 3. The court determined that there “might be some highly inflammatory, prejudicial testimony about overdoses” that warranted exclusion under Rule 403. Doc. 534 in United States v. Bays, No. 3:13-cr-357-B, “Transcript of Proceedings [of] Pretrial Conference (N. D. Tex. Oct. 10, 2014) (submitted as Doc. 1008-1 in this case). The court granted the motion, but ruled that government's counsel could approach the bench with a proffer of evidence about specific reports during the presentation of evidence. The court decided that it would rule at that time whether evidence about specific reports might be more prejudicial than probative. Doc. 1008-1 at 6 - 7.

         The court does not doubt that case studies at issue here are relevant under the forgiving standard set by Rule 401-after all, evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” Instead, the “troubling question” identified by the Tenth Circuit is whether information about the dangerous effects of the substances, which are apparently discussed in the case reports, present a danger of unfair prejudice that outweighs the evidence's probative value.

         The court already has explained on the record on February 24, 2017, that if Dr. Trecki is permitted to testify about adverse effects of substances at issue in this case, his testimony must be tied to either the “stimulant, hallucinogenic, or depressant effect” required by § 802(32) to one of the alleged analogues at issue in this case. For unexplained reasons, defendant's Notice of Authority (Doc. 1008) tries to confine the potentially relevant effects to hallucinogenic ones. Doc. 1008 at 5. This is not consistent with the reach of the statute or the court's intention.

         Balancing the guidance provided by Makkar and Judge Boyle's ruling in Bay, the court rules as follows:

1. On proper foundation and showing of requisite liability, Dr. Trecki may explain that he relied on case studies if they reflect:
a. a stimulant, hallucinogenic, or depressant effect; and
b. it is derived from an analogue substance at issue in ...

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