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United States v. Yurek

United States District Court, D. Colorado

July 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. DARYL FRANCIS YUREK 2. WENDY MARIE YUREK Defendants.

          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. CALL

          William J. Martínez United States District Judge.

         This 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.

         I. BACKGROUND

         On June 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 (“Defendants' Disclosure”.)

         Defendants 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 5-6.)

         In 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.)

         On June 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. at 9.)

         Defendants 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).

         The 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. 16(a)(1)(G).
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. is OVERRULED.
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 ...

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