United States v. Shannon

          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 ...