JULIE A. ROBINSON, District Judge.
This matter comes before the Court on Defendant Clifford Currie's Motion to Exclude (Doc. 52) and Motion for Adverse Inference Instruction (Doc. 53). The Government has responded to each of Defendant's motions, and the Court held a hearing on July 24, 2017, at which time the Court heard argument from the parties on the motions. At the hearing, the parties discussed two Federal Bureau of Investigation ("FBI") reports that the Court has reviewed in camera, and the parties also discussed the admissibility of certain video evidence. The Court is now prepared to rule on Defendant's motions and the evidence the parties discussed at the July 24 hearing. For the reasons explained below, Defendant's motion to exclude is granted in part and denied in part, and Defendant's motion for adverse instruction remains under advisement. The Court finds that the FBI reports are not discoverable and the admissibility of the video evidence remains under advisement.
On September 8, 2016, Defendant was charged by Criminal Complaint with knowingly assaulting with intent to commit murder within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. § 111(a) and 113(a)(1). Defendant allegedly assaulted Katie Ann Blanchard, his immediate work supervisor, using a flammable accelerant and straight edge razor blade. Defendant was later indicted on two counts, knowingly and intentionally assaulting Ms. Blanchard with intent to commit murder as described above, and knowingly and intentionally assaulting Deanne Kilian with a dangerous weapon within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. § 113(a)(3).
The Court entered Pretrial Order No. 1 ("Pretrial Order") on October 11, 2016. The Pretrial Order instructed the parties to "proceed to immediately comply with all applicable provisions of the Federal Rules of Criminal Procedure."
As to expert discovery, the Pretrial Order stated that "[t]he government must provide the defendant a written summary of testimony the government intends to use under Fed. R. Evid. 702, 703, or 705 during its case in chief at trial,
FBI Agent J.C. Bauer served a grand-jury subpoena on Saint Luke's Cushing Hospital ("Saint Luke's") for Defendant's records on September 26, 2016, and Agent Bauer obtained those records the same day. The records detail tests that were performed on Defendant immediately following his arrest on September 7, 2016. The records include results of alcohol serum testing, which indicate that Mr. Currie had a certain amount of alcohol in his system at the time of the alleged offense. Notably, the results of the alcohol serum testing do not equate to or indicate Defendant's blood alcohol content. The records also include incriminating statements Defendant made to treating physicians. The Government produced these records to Defendant on July 13, 2017. On December 13, 2016, the Government produced to Defendant his medical discharge records from Saint Luke's, which indicated that Defendant underwent a series of medical tests, including the alcohol serum screening. However, these discharge records did not indicate the results of the alcohol serum testing.
On December 1, 2016, the Government produced to Defendant a two-page report indicating that explosives testing was performed on various items obtained from the scene of the offense. The report explained the results on one item, but explained that results were not included for the other items because the items were improperly packaged. The report did not explain the methodology for the testing.
On April 14, 2016, the Government produced to Defendant a report regarding a forensic examination of Defendant's phone, work computer, and home computer. The report contained all discovery regarding Defendant's phone, including certain Internet searches Defendant made on the phone. The report, however, did not contain all discovery relevant to Defendant's work and home computers. The Government does not intend to use evidence obtained from Defendant's work and home computers at trial, but it is unclear whether evidence from these computers would be material to Defendant's case. The Government did not provide a full forensic image of the computers to Defendant, and Defendant has not had the opportunity to view a forensic image of the computers.
On July 17, 2017, the Government produced to Defendant a report regarding DNA testing performed on various items recovered from the scene of the alleged offense. The Government believed this report had been produced with other discovery on April 14, 2017, but it in fact had not been produced.
Also on July 17, 2017, the Government made its expert disclosures to Defendant. These disclosures included identification of three experts as well as summaries of their proposed testimony. The Government explained that its experts include a forensic computer specialist, a forensic chemist, and a forensic biologist. The Government intends to have these experts testify regarding the explosives, computer forensics, and DNA reports described above.
Defendant moves to exclude the three experts the Government has designated to testify regarding the explosives, computer forensics, and DNA reports. Defendant also moves to exclude incriminating statements he made to medical staff contained in the medical records the Government produced on July 13, 2017. Defendant argues that the Government's deadline to disclose any experts was July 5, 2017, and that the Government failed to meet this deadline by untimely disclosing its experts on July 17, 2017. The Government contends it did not disclose its experts on or before July 5 because it read the Court's Pretrial Order and Trial Order together. The Pretrial Order, tracking the language of Fed. R. Crim. P. 16(a)(1)(G), provides that the government must provide the defendant a written summary of any expert testimony, "
While the Pretrial Order provided that the Government's duty to disclose summaries of its expert witnesses' testimony was triggered only by Defendant requesting such summaries, the Pretrial Order was silent as to the Government's duty to provide notice of any expert testimony it may present. By contrast, the Trial Order explicitly states that "the parties shall make expert disclosures by
The Court thus turns to the proper remedy for the Government's non-compliance. The Court has broad discretion in imposing sanctions on a party who fails to comply with a discovery order.
Defendant contends a continuance would not be an appropriate remedy because Defendant does not want a continuance, and because a continuance would not cure the Government's non-compliance. Defendant argues that exclusion is the appropriate remedy because he has been prejudiced by the late disclosure. Defendant asserts that after the July 5 deadline passed without expert disclosures by the Government, his counsel proceeded to prepare for trial with the understanding that there would be no expert testimony. Based on the Government's late disclosure, Defendant and his counsel have been forced to significantly adjust their trial strategy and re-allocate trial preparation resources approximately two weeks from trial. Defendant also argues the Government acted in bad faith, in that it willfully disregarded the July 5 deadline set forth in the Trial Order simply because Defendant did not request such notice.
The Government argues Defendant has not been prejudiced by the disclosure of expert testimony, and that Defendant has adequate time to prepare for this testimony at trial. The Government also contends it acted in good faith in disclosing expert testimony on July 17 based on its interpretation of the Pretrial Order and Trial Order.
The Court finds that the Government acted in bad faith in providing untimely notice of its experts on July 17, which was more than a week after the July 5 deadline and approximately two weeks before trial. In reliance on its misguided interpretation of the Pretrial Order and Trial Order, the Government disregarded the July 5 deadline for disclosure of expert witnesses set forth in the Trial Order. Although the Government ultimately provided the disclosures out of what it says was an abundance of caution, this shows that the Government believed it had no obligation to disclose notice of expert witnesses at any time before trial. This interpretation of the Trial Order is unreasonable, especially from experienced Government counsel, and it does not align with case law within this District that has recognized the duty of the Government to timely provide notice of expert witnesses.
Having considered the parties' general arguments as to prejudice and bad faith, and having found that the Government acted in bad faith, the Court considers each of the expert disclosures in this case. Because the degree of prejudice to Defendant varies with each expert, the Court must consider each expert witness separately to properly craft a remedy for the Government's non-compliance.
As explained above, the Government on December 1, 2016 produced to Defendant a two-page lab report prepared by the person the Government later notified it would use as an expert witness.
Defendant had at least some prior notice of the contents of this expert's testimony, as the Government disclosed the lab report on December 1, 2016. Certainly, this lab report does not equate to notice that the report's author would serve as an expert witness for the Government, and Defendant will likely be prejudiced by the Government's late disclosure of this expert. But Defendant and his counsel have at least known of the general nature of this expert's testimony for several months, which will undoubtedly help in preparing for cross-examination of the expert at trial. Additionally, Defendant has not indicated he will be unable to locate and employ a rebuttal explosives expert. These factors help mitigate the prejudice Defendant will experience as a result of the Government's untimely notice.
The Court is charged with imposing "the least severe sanction that will accomplish prompt and full compliance with the court's discovery orders."
The Government produced a forensic examination report of Defendant's phone and two computers to Defendant on April 14, 2016. This report contained all discovery regarding Defendant's phone, but it did not include all discovery relevant to Defendant's work and home computers. On July 17, 2017, the Government notified Defendant that the report's author would serve as an expert witness.
At the hearing on July 24, the Government stated that while it seeks to admit the evidence and expert testimony about the forensic examination of Defendant's phone, it does not seek to admit the evidence and expert testimony about the forensic examination of the two computers.
As with the explosives report, Defendant has had at least some notice of the nature of the computer forensics expert's testimony about the phone. Although the Government produced the computer forensics report on April 14, 2017, two weeks after the deadline for production of the report, the report contained all discovery concerning Defendant's phone. Additionally, unlike with the Government's DNA expert, Defendant does not claim that he will be unable to procure rebuttal expert testimony for the Government's computer forensics expert. Accordingly, the Court finds that the prejudice to Defendant does not justify exclusion of the expert testimony about the phone. Thus, the Court denies Defendant's motion as it relates to the Government's computer forensics expert's testimony about the phone.
However, the Court grants Defendant's motion as it relates to the Government's computer forensic expert's testimony about the two computers. The Government has stated it does not intend to offer expert testimony about the two computers in its case-in-chief; and the Court finds that because the Government did not provide all discovery concerning the two computers by April 14, and indeed still had not by July 24, the prejudice to Defendant justifies exclusion of the expert testimony about the computers. Moreover, the Court is concerned that Defendant has not had the opportunity to review the forensic image of the computers that are the subject of the report disclosed on April 14, 2017. These forensic images may include evidence favorable or material to the defense. Thus, if Defendant and his counsel perform further investigation of these computers and find that material information is contained therein, the Court may consider additional remedies, including granting of a continuance, for the late disclosure of this evidence.
The Government produced a report regarding DNA testing on July 17, 2017, and on the same day notified Defendant that the report's author would serve as an expert witness. Before this date, Defendant had not received any reports regarding DNA evidence.
Defendant also moves to exclude incriminating statements he made to medical staff at the time of his treatment, which are contained in the medical records the Government produced to him on July 13, 2017. As the Court explained at the July 24 hearing, the deadline for disclosure of these medical records, pursuant to the Pretrial Order, was March 31, 2017.
In sum, the Court finds that the prejudice to Defendant caused by the Government's untimely disclosure of experts does not justify exclusion of the Government's explosives expert witness, nor its computer forensics expert testimony about the phone. However, the Court finds that the Government's late disclosure of DNA reports and notice of its DNA expert, and the resulting prejudice to Defendant, justify exclusion of the Government's DNA expert witness. Further, the Government's late disclosure of evidence concerning the home and work computers, along with late disclosure of the expert and the expert's report, justify exclusion of the computer forensic expert on the home and work computers. Accordingly, the Court denies Defendant's motion to exclude as it relates to the Government's explosives and computer forensics expert regarding the phone, and grants Defendant's motion to exclude as it relates to the Government's DNA expert and the computer forensics expert on the two computers. The Court finds that exclusion of the DNA expert and the computer forensics expert on the two computers is the least severe sanction required to ensure the Government's compliance with the Court's discovery orders. The Court also finds Defendant's motion to exclude incriminating statements moot, as the Government has agreed not to use these statements in its case in chief. To the extent the Government seeks to admit these statements as rebuttal evidence, the Court will rule on the admissibility of the statements at trial, out of the hearing of the jury.
Defendant moves for a jury instruction regarding the Government's failure to timely produce the medical records that contain information regarding Defendant's level of intoxication at the time of the offense. Defendant argues the evidence of his intoxication is material because he may wish to present voluntary intoxication as a defense based on the evidence. The Tenth Circuit recognizes voluntary intoxication as a defense to crimes requiring proof of specific intent.
Defendant equates the Government's failure to timely produce the evidence of Defendant's intoxication to spoliation of evidence. Because of the Government's late production, defense counsel have been unable to secure any experts to testify regarding the intoxication evidence. Thus, Defendant argues that like in instances of spoliation, here the Government's failure to timely produce the evidence deprives Defendant of the ability to put on the intoxication evidence.
Courts have broad discretion to impose sanctions for spoliation.
Defendant argues that any reasonable prosecutor would have understood that the medical records, which contain evidence of Defendant's intoxication, would be material to preparation of the defense, and thus the Government's conduct was either grossly negligent or intentional. Additionally, Defendant argues the Government's conduct has prejudiced him, as his counsel have been preparing for trial without considering the voluntary intoxication defense. Thus, Defendant argues for a jury instruction that informs the jury that:
The Government argues that to warrant an adverse inference spoliation instruction, a party must submit evidence of intentional destruction or bad faith, rather than mere negligence.
An adverse inference instruction is typically given in cases of spoliation, where the evidence at issue is destroyed. An adverse inference instruction "necessarily opens the door to a certain degree of speculation by the jury, which is admonished that it may infer the presence of damaging information in the unknown contents of" destroyed evidence.
Here, unlike in the context of a typical case involving spoliation, the contents of the medical records are known, but the Government's late disclosure might limit Defendant's effective use of the evidence. Despite the apparent prejudice to Defendant, the Court is not convinced that instructing the jury to draw a certain finding based on evidence that is available to Defendant is the appropriate remedy. Indeed, the Court is unaware of any case in which a court has used an adverse inference instruction outside the context of lost or destroyed evidence. The Court, however, may be willing to consider an instruction regarding the Government's untimely production of the medical records, as Defendant will likely be prejudiced to at least some degree based on his and his counsel's inability to prepare for trial in the same way as if the Government had timely produced the records. Accordingly, the Court takes this motion under advisement.
The Court also takes under advisement whether to admit the medical records and an instruction on the defense of voluntary intoxication. If the probative value of the medical records indicating alcohol serum testing results is substantially outweighed by the risk of confusion to the jury or unfair prejudice, the Court will not admit the medical records.
The parties jointly moved for in camera review of FBI report number 136. The Court granted this motion at the July 24 hearing.
Although not included in their motion for in camera review, the parties requested that the Court also review in camera FBI report number 117. The Court has reviewed report number 117, and finds that it is not discoverable.
Defendant also seeks to admit portions of a video that contains an interview of a former supervisor of Ms. Blanchard and Defendant. Defendant contends the portions he seeks to admit contain exculpatory evidence, and that much of the remaining video, which is about an hour in length, contains irrelevant information. Defendant suggests that the Government select portions of the interview it believes are relevant and that the Court play the selected portions of the video for the jury. The Government contends that the video is immaterial, but that if any of the video is played for the jury, it should be played in its entirety. This matter remains under advisement.
