United States District Court, D. Colorado
ORDER SUSTAINING IN PART AND OVERRULING IN PART
DEFENDANT'S OBJECTION TO EXPERT DISCLOSURE
CHRISTINE M. ARGU LLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendant Michael Shannon's
Objection to the Government's Expert Disclosure. (Doc. #
40.) The Court sustains in part and overrules in part
Defendant's Objection for the following reasons.
I.
BACKGROUND
The
Government's case against Defendant arises out of its
surveillance of a residence in Colorado Springs, Colorado, in
April 2018 “in response to a recent gang related
shooting.” (Doc. # 1 at 1.) On April 12, 2018, law
enforcement made contact with Defendant. (Id. at 2.)
Defendant stands charged with: (1) possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1); (2)
possession with the intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); (3) possession with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C); and (4) using, carrying, and
possessing a firearm in furtherance of a drug trafficking
crime. (Doc. # 42.) A five-day jury trial on these charges is
set to begin on February 11, 2019. See (Doc. # 59.)
Defendant
moved the Court “to set a deadline for the disclosure
of experts and materials requested under Rules 702, 703, and
704 of the Federal Rules of Evidence and Rule 16(1)(G) of the
Federal Rules of Criminal Procedure” on August 8, 2018.
(Doc. # 19.) The Court granted Defendant's request
shortly thereafter and set August 31, 2018, as the deadline
for parties to disclose their expert witnesses. (Doc. # 24.)
On
August 31, 2018, the Government informed Defendant of its
intent to call as an expert witness Detective Timothy Goss, a
narcotics detective with the Denver Police Department. (Doc.
# 40-1.) The Government wrote:
The Government will seek to introduce Denver Police
Department Narcotics Detective Timothy Goss as an expert in
narcotics distribution and trafficking. The Government will
seek to introduce Detective Goss as a blind expert because he
has no direct involvement with this case. Detective Goss will
review the case materials and evidence. It is anticipated
that Detective Goss will testify to the following: (1)
general practices of the illegal drug trade; (2) the
respective drug weights for the cocaine and methamphetamine
seized in this case are distribution quantities; (3) the
wholesale and retail values of the seized narcotics; (4) the
use of firearms in connection with the trafficking of
narcotics; (5) the amount of currency found on the
defendant's person is indicative of drug distribution;
(6) the plastic bags and digital scales found in the
defendant's vehicle are indicative of drug distribution;
(7) the presence of the AR-15 in the vehicle is indicative of
drug distribution and protection of product, i.e., drugs, and
person; and, (8) the AR-15 was possessed in furtherance of
drug trafficking. The bases for Detective Goss' testimony
are his: (1) narcotics related training; and, (2) field
experience with narcotics, including undercover operations.
(Id. at 2.) The Government attached Detective
Goss's curriculum vitae in the same communication.
See (Doc. # 40-2; Doc. # 71 at 1.)
Defendant
filed the Objection presently before the Court on September
7, 2018. (Doc. # 40.) In accordance with the Court's
direction at the Final Trial Preparation Conference on
January 31, 2019, see (Doc. # 70), the Government
responded to the Objection on February 3, 2019 (Doc. # 71).
II.
ANALYSIS
Defendant
asserts four arguments concerning Detective Goss's
anticipated expert testimony. (Id.) First, Defendant
argues that “[t]he expert disclosure regarding
Detective Goss is grossly inadequate.” (Id. at
3-5.) Second, he asserts that Detective Goss “is
planning-but should not be allowed-to testify beyond the
bounds of Rules 702 and 704.” (Id. at 5-9.)
Third, Defendant asks the Court to “not permit
Detective Goss to testify to inadmissible hearsay.”
(Id. at 9.) Fourth, Defendant states that he
“may have foundational objections at trial.”
(Id. at 9-10.) The Court addresses each point in
turn.
A.
ADEQUACY OF THE EXPERT DISCLOSURE
Federal
Rule of Criminal Procedure 16(a)(1)(G) governs expert witness
disclosure by the Government:
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.
. . . The summary provided under this subparagraph
must describe the witness's opinions, the ...