United States District Court, D. New Mexico
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
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. 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
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.
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
Rule 16 Disclosure
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.”
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.
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.
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). 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
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.
Jay Stuart (First Notice, Docs. 97):
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 ...