United States District Court, S.D. Alabama, Southern Division
CALLIE V. S. GRANADE, District Judge.
This matter is before the court on the United States' motion to exclude witness report and testimony of Don Mikko (Doc. 61), Defendant's response in opposition (Doc. 73), and the United States' reply (Doc. 77). For the reasons explained below, the court finds that the United States' motion should be granted.
The United States moves to exclude the report and testimony of Don Mikko on the basis that it fails to satisfy the requirements of Federal Rules of Criminal Procedure 16, Local Rule 16.13, and Federal Rules of Evidence 702 and 403. Mr. Mikko's expert report, dated April 15, 2014, lists two exhibits: "1-Godbody Men's Denim Jacket" and "2-Time Men's Design Pants Made in Russia" and then states the following:
1. Visual and microscopic examination of Exhibits 1 (jacket) and 2 (pants) disclosed no physical defects and/or characteristics of gunpowder and primer residues.
(Doc. 61-1, p. 1). The report contains no other findings or explanations.
Federal Rules of Criminal Procedure 16 states the following with regard to a defendant's disclosure of expert witnesses:
Expert witnesses.-The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if-
(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or
(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.
This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
FED. R. CIV. P. 16(b)(1)(C). Under Rule 16(b)(1)(C), "it is expected that the parties will make their requests and disclosures in a timely fashion." FED. R. CRIM. P. 16, Advisory Committee Notes, 1993 Amendments. The summary requirement "is intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." Id . The summary requirement applies to "not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opinion under Federal Rule of Evidence 703, including opinions of other experts." Id . If the defendant fails to comply with Rule 16(b)(1)(C), "the court may prohibit the [defendant] from introducing the undisclosed evidence." FED. R. CRIM. P. 16(d)(2)(C). "Relief for violations of discovery rules lies within the discretion of the trial court; a defendant must show prejudice to his substantial rights to warrant reversal of that discretion." United States v. Petrie , 302 F.3d 1280, 1289 (11th Cir. 2002) (citations omitted).
Here, Mr. Mikko's report contains little to no information on the bases and reasons for his opinion. The expert report does not state how or when Mr. Mikko received the clothing and does not explain the procedures that were used to examine the articles of clothing. The report merely states that a "[v]isual and microscopic examination" of the two listed articles of clothing were performed. The instruments and techniques used are not disclosed. The United States asserts that if the Defendant's investigator, Dan Stankoski, obtained the clothing from the Defendant, then the United States needs Mr. Stankoski's report.
The United States reports that despite repeated requests for full disclosure, the defendant did not provide such information. A letter from defense counsel, dated May 27, 2014, stated that "[w]e have no further reciprocal discovery to disclose at this time." (Doc. 61-1, p. 2). However, defense counsel maintains that, despite the United State's accusation that he was "stone-walling, " the United States did not request any additional information concerning this expert or his findings. (Doc. 73, p. 10). In fact, defense counsel reports that the previous prosecutor assigned to this case until May 13, 2014, indicated that she did not intend to contest the admission of this evidence. Id . Defendant reports that all of the requests by the United States were replied to by the deadlines requested by the United States. Id . In its reply, the United States submits that it has never conceded the admissibility of Mr. Mikko's opinions. The United States points out that, by letter dated May 28, 2014, it specifically requested any expert witness opinion from Stankoski and the bases ...