United States District Court, D. Colorado
ORDER GRANTING IN PART THE GOVERNMENT'S RENEWED
MOTION IN LIMINE TO EXCLUDE MOST OF THE EXPERT TESTIMONY OF
SHERI L. BETZER AND ALL OF THE EXPERT TESTIMONY OF KEVIN H.
William J. Martínez United States District Judge.
matter is before the Court on the Government's Renewed
Motion In Limine to Exclude Most of the Expert
Testimony of Sheri L. Betzer and All of the Expert Testimony
of Kevin H. Call. (ECF No. 192 (the “Motion”).)
For the reasons stated below, Defendants' Motion is
GRANTED IN PART and DENIED IN PART.
5, 2017, Defendants filed a Summary of Expert Testimony That
the Defendants May Offer at Trial Under Rule 16(b)(1)(C) of
the Federal Rules of Criminal Procedure and Rules 702 and 703
of the Federal Rules of Evidence. (ECF No. 170
disclosed two affirmative expert witnesses, Sheri L. Betzer,
and Kevin H. Call. As set out in Defendants' Disclosure,
Ms. Betzer is a Certified Public Accountant
(“CPA”) and Certified Fraud Examiner
(“CFE”). Defendants disclosed that she would
offer expert testimony in five subject areas, described in
paragraphs 1.a.-1.e. of Defendants' Disclosure. (ECF No.
170 at 1-5.) Mr. Call is also a CPA and CFE, as well as a
Certified Valuation Analyst (“CVA”).
Defendants' Disclosure disclosed that he might offer
expert testimony in seven areas, described in paragraphs
2.a.-2.g. of Defendants' Disclosure. (ECF No. 170 at
addition, Defendants' Disclosure identified
“various professionals, ” disclosed as witnesses
for the Government, specifically several lawyers,
accountants, and similar professionals who were involved in
underlying actions related to Government's criminal
charges, including Defendants' business accounting, their
communications with the Internal Revenue Service
(“IRS”), and the preparation and filing of their
bankruptcy petition. (See ECF No. 170 at 7-9.) These
individuals were described in paragraphs 3.a.-3.g. of
Defendants' Disclosure, and Defendants' Disclosure
represented that they “may be cross examined [by
Defendants] concerning their role[s] in the process, the
process itself, and other aspects of the relevant
transactions.” (Id. at 6.)
15, 2017, the Government filed a motion to exclude the
disclosed expert testimony. (ECF No. 172 (the
Government's “First Motion”).) The Government
did not object to the first of Ms. Betzer's opinions
disclosed in paragraph 1.a., relating to loan accounts
between a company and its employees, and in particular
“a loan account maintained by Veracity Credit
Consultants and various employees, including Mr.
Yurek.” (ECF No. 170 at 2.) However, as to the
remainder of Defendants' Disclosure the Government argued
that it was insufficient under the requirement of Federal
Rule of Criminal Procedure 16(b)(1)(C) that Defendants must
“describe [each] witness's opinions, the bases and
reasons for those opinions, and the witness's
qualifications.” (See ECF No. 172 at 3-6.) The
Government also argued that Defendants' disclosure had
not provided sufficient information to show that Ms. Betzer
and Mr. Call are qualified to provide expert testimony
admissible under Federal Rule of Evidence 702. (Id.
at 6-8.) The Government's motion therefore asked the
Court “to exclude all of Mr. Call's proposed
testimony and most of Ms. Betzer's.” (Id.
at 8.) The Government also argued that Defendants'
Disclosure was insufficient as to the “various
professionals” disclosed in paragraph 3., and that the
Court “should not permit the [D]efendants to elicit
expert testimony from these witnesses.” (Id.
responded to the Government's First Motion, arguing,
first, that they were not required to provide any expert
disclosure at all, since the Government had not yet provided
its own expert disclosure under Rule 16(a)(1)(G)
(see ECF No. 182 at 1-4), second, that
Defendants' Disclosure had been sufficient under Rule
16(b)(1)(C) (id. at 4-8), third, that
supplementation, not exclusion would be the appropriate
remedy for any insufficient expert disclosure (id.
at 5), fourth, that Ms. Betzer and Ms. Call are qualified as
experts under Rule 702 (id. at 9-11), and fifth,
that their disclosure regarding the “various
professionals” they might cross-examine was sufficient
to meet the purposes of Rule 16's expert disclosure
requirements, given that they are the Government's
witnesses, and that the Government has previously interviewed
them and already knows the nature of their likely testimony
(id. at 11).
Court agreed with the Government that Defendants'
Disclosure was inadequate as to portions of Ms. Betzer's
expected testimony and all of Mr. Call's, but also agreed
with Defendants that the appropriate remedy was to direct
supplementation, rather than to exclude the testimony. On
June 23, 2017, the Court therefore ordered Defendants to
supplement their disclosures as to the anticipated testimony
disclosed in paragraphs 1.c.-1.e. of Defendants'
Disclosure for Ms. Betzer, and as to all of Mr. Call's
anticipated testimony, as follows:
[T]he Court concludes that Defendants' summary
disclosure, although filed earlier than required, still must
meet the requirement to “describe the witness[es']
opinions, the bases and reasons for those opinions, and the
witness[es'] qualifications.” Fed. R. Crim. P.
Moreover, as the proponent of the disclosed expert testimony,
it is Defendants' burden to establish its admissibility;
and, since Defendants are now on notice of the
Government's Daubert challenge, they must carry
that burden in their disclosure and/or response to
Defendant's Motion, and cannot simply wait until trial to
make at least a prima facie showing of admissibility
under Rule 702. See United States v. Nacchio, 555
F.3d 1234, 1244-49 (10th Cir. 2009).
The Court finds that Defendants' disclosure is inadequate
under Rule 16(a)(1)(G) as to paragraphs [1.]c., [1.]d., and
[1.]e. regarding Ms. Betzer's anticipated testimony, and
as to all of Mr. Call's anticipated testimony. (ECF No.
170 at 4-6.) See United States v. Jackson, 51 F.3d
646, 651 (7th Cir. 1995) (cases involving technical or
scientific expertise require greater disclosure). However,
exclusion is not the appropriate remedy. United States v.
Sarracino, 340 F.3d 1148, 1170 (10th Cir. 2003).
Therefore, Defendants are DIRECTED TO SUPPLEMENT their
disclosure under Rule 16 as to these specific portions of Ms.
Betzer's and Mr. Call's anticipated testimony . . . .
This supplementation must describe the experts' opinions
and the bases and reasons for those opinions, Fed. R. Crim P.
16(a)(1)(G), and must fairly enable the Government to prepare
for cross-examination. See Jackson, 51 F.3d at
651-52; United States v. Caputo, 382 F.Supp.2d 1045,
1049 (N.D. Ill. 2005); see also, e.g., United
States v. Yoon, 128 F.3d 515, 526 (7th Cir. 1997). * * *
The Government does not object to paragraph a. of Ms.
Betzer's disclosure, and the objection as to paragraph b.
As to the Government's request for pretrial exclusion of
any expert opinion(s) Defendants might elicit on
cross-examination of the Government's witnesses, that
request is DENIED given the lack of showing of prejudice to
the Government. Sarracino, 340 F.3d at 1170;
United States v. Charley, 189 F.3d 1251, 1262 (10th
Cir. 1999). This denial is without prejudice to the
Government renewing any objections to the admissibility of
such evidence at trial, and Defendants are free to also
supplement their ...