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United States v. Galloway

United States District Court, D. New Mexico

May 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CORNELIUS GALLOWAY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO EXCLUDE GOVERNMENT'S EXPERT WITNESSES AND ORDER FOR PARTIES TO SUBMIT DRAFT AMENDED SCHEDULING ORDER

         THIS MATTER comes before the Court upon a Motion to Exclude Government's Expert Witnesses, filed on March 1, 2018 by Defendants Danielle and Cornelius Galloway, and Defendants Marcus Taylor and Matthew Woods. Doc. 173.[1] Defendants in this case are charged with crimes related to alleged involvement in a commercial sex trafficking ring referred to by the Government as the “Galloway Organization.” Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well taken in that the Government shall provide additional information as to certain witnesses, but that the motion is otherwise denied; and that the parties shall submit to the Court an amended scheduling order.

         BACKGROUND

         Under the Court's Scheduling Order, the deadline for the Government to provide Defendants with expert notices and reports was October 31, 2017. Doc. 65. On that date, the Government provided notice of two expert witnesses: Jay Stuart and Albuquerque Police Department (“APD”) Sergeant Matthew Vollmer (Docs. 97 and 98). Two months after the deadline, the Government filed a Third Notice of Intent to Call Expert Witnesses, see Doc. 136, naming the additional six experts falling into the following four expert categories: (1) Human Trafficking Expert, Kim Mehlman-Orozco, (2) Rape Trauma Relationship Violence, and Neurobiology of Trauma Expert, Ann Wolbert Burgess, (3) Forensic Pathology Experts Lauren Decker, M.D., Lauren Dvorscak, M.D., and/or Heather Jarrell, M.D., and (4) Sexual Assault Nurse Examination Expert, Sherrie A. Cordova.

         DISCUSSION

         In this motion, Defendants seek to exclude six witnesses identified as expert witnesses by the Government on grounds of insufficient information under 16(a)(1)(G) and timeliness. They request that the Court impose sanctions on the Governnment for failure to comply with Rule 16's requirements. Sandoval, 680 Fed.Appx. at 716 (citing U.S. v. Richter, 796 F.3d 1173, 1195 (10th Cir. 2015) (failure to comply with a Rule 16 request could subject the government to sanctions, including exclusion of the expert testimony).

         I. Rule 16 Disclosure

         Under Rule 16(a)(1)(G),

At 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.Crim.Rule 16(a)(1)(G). The written summary of any testimony must include and describe (1) the witness's opinions, (2) the bases and reason for their opinions, and (3) the witness's qualifications. Fed. R. Crim. Pro. 16(a)(1)(G), see also U.S. v. Sandoval, 680 Fed.Appx. 713, 716 (10th Cir. 2017) (Rule 16's disclosure requirements ensures that an opposing party will have time to adequately prepare for trial and for an effective cross- examination challenging the experts' qualifications and conclusions or obtaining a competing expert.” Id.

         Defendants claim that the Government's disclosure information falls short of Rule 16's requirements because it provides the topic for which the proposed expert will testify and only vague and unsupported statements regarding what the Government anticipates the expert's testimony will include. Defendant points out that the disclosure fails to include the expert's opinions, the bases and reasons for their opinions, and in some cases, the witnesses' qualifications and as a result of the inadequacy of the Government's notice, Defendants are unable to mount Daubert challenges to some of these experts.

         The Government claims that there has been no Rule 16 violation because none of the Defendants have ever formally requested a written summary of expert reports, and under Rule 16, the Government has no duty to provide Defendants with such disclosures until they so request. United States v. Garza, 566 F.3d 1194, 1200 (10th Cir. 2009) (government must disclose the experts that it intends to call at trial if the defendant requests their disclosure) (emphasis in the original). However, as Defendants point, this Court has already ordered the government to disclose written summaries of expert witnesses in this case and so the Government cannot rely on Defendants' failure to request such information to avoid providing it to Defendants. See, e.g., Docs. 26, 31, 42, 74 and 147. The Government further contends that it has nevertheless complied with the rule's requirements for disclosure of written summaries, including the witness's opinion and the bases and reasons for those opinions as well as the witness's qualifications. It seems that the Government has made additional disclosures since the filing of the motion (such as Mr. Stuart's report) -but in the Reply, Defendants contend that some of the witnesses' opinions and bases and reasons for the opinions have still not been provided, giving as examples the Notices for Kim Mehlman-Orozco and Dr. Worbert Burgess.

         The Court has reviewed the Notices provided by the Government and finds that some of the Notices may be lacking in certain information, but not close to the extent Defendants claim. To begin with, Rule 16 of the Federal Rules of Criminal Procedure requires “a written summary of any testimony” an expert witness will give, which includes only a description of the witness's opinions and the reasons for those opinions. See U.S. v. Nacchio, 519 F.3d 1140, 1151 (10th Cir. 2008), vacated in part on reh'g en banc, 555 F.3d 1234 (10th Cir. 2009).[2] Defendants are entitled to nothing more under the federal criminal rules. Thus, defense counsel's claim that deficiencies in these Notices prevent them from launching Daubert challenges are misplaced in a Rule 16 context:

Rule 16 is designed to give opposing counsel notice that expert testimony will be presented, permitting “more complete pretrial preparation” by the opposing side, Fed.R.Crim.P. 16, 1993 Advisory Comm.'s Notes, such as lining up an opposing expert, preparing for cross-examination, or challenging admissibility on Daubert or other grounds. Rule 16 disclosure is not designed to allow the district court to move immediately to a Daubert determination without briefs, a hearing, or other appropriate means of testing the proposed expert's methodology. See Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1360 (1994)(“Although the summary required by Rule 16 provides the defense with some notice, the requirement of setting forth ‘the bases and reasons for' the witnesses' opinions does not track the methodological factors set forth by the Daubert Court.”). Indeed, a Rule 16 disclosure need not be filed with the court, but only with opposing counsel, which makes clear that it is not intended to serve as the basis for a judicial determination regarding admissibility.

Nacchio, 519 F.3d at 1151 (10th Cir. 2008) (district court was incorrect in believing that Rule 16 required discussion of a witness' methodology and erred in excluding expert evidence on that ground). The Court points out here, as the Tenth Circuit did in Nacchio, that there may be some confusion between the civil and criminal rules, where the requirements of the latter are less broad. With this as background, the Court next examines the Notices which Defendants claim are deficient under Rule 16.

         A. Jay Stuart (First Notice, Docs. 97):

         Defendant claims that the Government has not provided a summary of Mr. Stuart's testimony (reports contain highly technical tests and analysis) has been given. The Notice states that Mr. Stuart “will testify as to the results of ballistics analysis on ammunition and firearms recovered during two homicide investigations.” Doc. 97. Two ballistic reports are included as exhibits. The Court agrees with Defendants that this disclosure falls short of Rule 16's expert witness disclosure requirements. While the Notice informs what subject areas will be covered by Mr. Stuart's testimony, there is no way to infer from ...


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