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United States v. Henry

United States District Court, D. New Mexico

February 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CORDNY HENRY, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on the following motions: (1) United States' Second Motion in Limine to Compel the Identification and Disclosure of Defendants' Evidence (ECF No. 100); (2) Expedited Opposed Motion of the Defendant to Compel Production of Discovery (ECF No. 112); and (3) Defendant's “Motion to Exclude, or in the Alternative, Motion for Daubert Hearing and to Exclude Proposed Expert Testimony” (ECF No. 88). The Court held a Daubert hearing on February 6, 2018. The Court, having considered the motions, briefs, evidence, applicable law, and otherwise being fully advised, will grant the United States' Second Motion in Limine, deny Defendant's expedited motion to compel, and deny Defendant's motion to exclude the testimony of the United States' expert witnesses.

         I. Discovery Motions

         A. United States' Second Motion in Limine to Compel the Identification and Disclosure of Defendants' Evidence (ECF No. 100)

         On January 29, 2018, the United States filed a second motion to compel reciprocal discovery as mandated in Rule 16 and the Court's Discovery Order. Defendant has not filed a response, which was due five working days before trial and is now overdue. The Court finds cause to grant the Government's request for an order compelling Defendant to disclose immediately material subject to Rule 16(b)(1)(A) that the defense intends to use in its case-in-chief at trial or produce an affirmative statement saying no such material exists. See Fed. R. Crim. P. 16(b)(1)(A).

         B. Expedited Opposed Motion of the Defendant to Compel Production of Discovery (ECF No. 112)

         Defendant seeks under Rule 16(d)(2)(A) “any memorialized communications (emails, letters, etc.) between any member of the prosecution team and either (1) co-Defendant Juanita Williams or her lawyer; or (2) the alleged victim (M.T.), any member of her family, or any attorney representing her family.” Def.'s Expedited Mot. 1, ECF No. 112. The Government opposes the request, arguing that it is overbroad, Defendant did not meet his burden of showing why the requested documents are material to the defense, and it is work product.

         Rule 16(a)(1)(E) sets out the types of information that the government must disclose to the defendant, upon his request, including “papers, documents, data, photographs, … or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense….” A defendant must make a prima facie showing of materiality before he is entitled to obtain the discovery. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). “Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense.” Id. To show materiality, the evidence must bear some abstract logical relationship to the issues in the case such that pretrial disclosure would enable the defendant significantly to alter the quantum of proof in his favor. United States v. Lloyd, 992 F.2d 348, 350-51 (D.C. Cir. 1993). This materiality requirement is not a heavy burden; rather, evidence is material as long as there is a strong indication that the evidence “will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. at 351 (internal quotations omitted). Nevertheless, ordering the production by the government of discovery without any preliminary showing of materiality is inconsistent with Rule 16. Mandel, 914 F.2d at 1219; United States v. Jordan, 316 F.3d 1215, 1250 (11th Cir. 2003) (defendant must make specific request for item together with explanation for how it will be helpful to defense).

         Defendant has failed to show how the communications are material to his defense. Instead, the request is overbroad and appears to be a fishing expedition. The Government is aware of its obligations under, and has stated its intention of complying with, Brady and Giglio. Defendant has therefore not met his burden under Rule 16 to compel production of the requested communications. The Court is also not convinced that the work product privilege of Rule 16(a)(2) does not apply to the communications sought. See Fed. R. Crim. P. 16(a)(2) (“this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.”). For the foregoing reasons, the Court will deny Defendant's Expedited Opposed Motion of the Defendant to Compel Production of Discovery (ECF No. 112).

         II. Motion to Exclude Proposed Expert Testimony

         Defendant has filed a motion in limine seeking to exclude the expert testimony of Detective Kyle Woods and Dr. Shannon Wolf based on the untimeliness of the disclosure and under Daubert.

         A. Late Disclosure of Experts 1. Procedural History

         In August 2016, the Court entered a scheduling order in this complex case setting a March 24, 2017 deadline for expert witness notices and reports as well as numerous other motions deadlines leading to a July 2017 trial setting. Scheduling Order, ECF No. 49. After the expert witness deadline passed, on April 7, 2017, the parties moved to continue the trial to December 2017 because of delay in receiving a Pre-Disposition Presentence Report for Defendant Henry and to give more time for the parties to review discovery and complete plea negotiations. See Joint Unopposed Mot. to Cont., ECF No. 58. Trial was set in December 2017, but no amended scheduling order was requested or entered. Instead, the Court's generic pretrial deadlines and instructions were attached to the Order to Continue. See Order, ECF No. 59. Defendant moved to continue the December 2017 trial for reasons of needing more preparation time for trial and to complete plea negotiations. See Joint Mot. to Cont., ECF No. 70.

         On December 28, 2017, the Government filed a motion for a definite trial setting, noting that it anticipated calling two expert witnesses who may need to travel from out of state, without identifying them. Govt's Mot. 2, ECF No. 78. The Government stated in a footnote that it intended to file a notice of intent to introduce expert testimony in compliance with the Court's pretrial deadlines. Id. n.1 The Government noted that, although the prior scheduling order had a deadline for expert disclosure, the most recent trial setting order did not contain a dispositive motion deadline, so the Government intended to seek leave of Court prior to filing its notice. Id.

         On January 10, 2018, the Government filed its Notice of Intent to Introduce Expert Witness Testimony Pursuant to Rules 702, 703 and 705, listing Detective Woods and Dr. Wolf as experts and setting forth their anticipated testimony (ECF No. 84). Defendant moved to exclude the witnesses because the Government filed the Notice almost 10 months after the deadline. Defendant argues he will be prejudiced because there is insufficient time to investigate their qualifications, prepare for cross examination, and determine whether to hire rebuttal experts. Defendant states he does not waive his right to speedy trial beyond the current ...


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