United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Government’s
Motion for Order Permitting Filing of Expert Notice
Disclosure [Docket No. 33], wherein the United States asks
the Court for permission to file an expert disclosure. The
defendant opposes the motion on the grounds that the
government’s proposed disclosure is untimely and
prejudicial in that it involves an unforeseeable expert
witness. Docket No. 36 at 3. The expert witness at issue is
an FBI child/adolescent forensic interviewer who would
testify about delayed outcry by victims of child sex abuse,
grooming by perpetrators, and the nature of the adolescent
male brain. Docket No. 33 at 2 n.1.
16, 2019, the Court ordered that “expert witness
disclosures pursuant to Fed. R. Crim. P. 16 shall be made no
later than seven days before the deadline for filing pretrial
motions and any challenges to such experts shall be made by
the pretrial motion filing deadline.” The deadline for
expert witness disclosure thus depends on when the pretrial
motions deadline is. Originally, the pretrial motions
deadline was June 17, 2019, making the deadline for expert
witness disclosures one week before or June 10. The United
States did not file a disclosure regarding the expert at that
time. The pretrial motion deadline was later extended at the
request of the defendant to June 26. Docket Nos. 20 and 21.
As a result, the Court’s May 16 order made the expert
disclosure deadline “seven days before the deadline for
filing pretrial motions,” which was June 19. The
government did not file any disclosure regarding its expert
by that date.
2, 2019, the Court held a hearing on defendant’ Motion
to Exclude 90 Days From the Speedy Trial Act Computation
[Docket No. 23] and, in the course of ruling on the motion,
reset the pretrial motions deadline to September 6, 2019.
Docket No. 25. This ruling had the effect of extending the
expert disclosure deadline to August 30, 2019, seven days
before the pretrial motions deadline. On that date, counsel
for the United States emailed counsel for the defendant
regarding the production of certain discovery and also
stating “please contact me when you are available to
discuss stipulations, a schedule for expert notices, and
other trial issues.” Docket No. 38. The government did
not disclose its expert at that time. Instead, the government
disclosed its expert witness summary on September 13, 2019.
Docket No. 37 at 3.
Court finds that, while the government did not intentionally
ignore the August 30 expert witness deadline, its disclosure
on September 13 was late and failed to comply with its
disclosure obligations under the Court’s May 16, 2019
Court also finds that, due to the lateness of the
government’s disclosure, the defendant is prejudiced.
Defendant argues that late disclosure of an unforeseeable
expert witness will impact the defendant’s trial
strategy. Docket No. 36 at 3. The defendant indicates that,
if this witness is allowed to testify, he will file a Rule
702 challenge to the expert. Id. at 1 n.1. The Court
has no reason to doubt these representations.
government argues that the expert was not
“unforeseeable” since this case involves an
alleged victim who was a minor at the time, but such argument
is belied by the fact that the government did not disclose
the expert on June 10 or June 19 despite considering the
victim to be a minor, but only months later after “an
evolution based on the perceived defense theory.”
Docket No. 37 at 2. The government also argues that
“defendant never requested the government to disclose,
as required to trigger the government’s obligation
under Fed.R.Crim.P. 16(a)(1)(G).” Id. at 3.
However, the defendant made that request on May 14, 2019, as
reflected in the Discovery Conference Memorandum and Order.
Docket No. 13 at 4.
government notes, the Court should typically consider three
factors in determining the consequence of a failure of the
government to comply with its discovery obligations: (1) the
reason for the government’s delay in production; (2)
the extent of prejudice to the defendant as a result of the
delay; and (3) the feasibility of curing the prejudice with a
continuance. Docket No. 37 at 3 (citing United States v.
Brown, 592 F.3d 1088, 1090-91 (10th Cir. 2009)). In
considering an appropriate sanction, the court should
“impose the least severe sanction that will accomplish
prompt and full compliance with the . . . discovery
order.” United States v. Ivy, 83 F.3d 1266,
1280 (10th Cir. 1996). Excluding the testimony is rare.
“[E]xclusion of the witnesses' expert testimony . .
. is almost never imposed ‘in the absence of a
constitutional violation or statutory authority for such
exclusion.’” United States v. Charley,
189 F.3d 1251, 1262 (10th Cir. 1999) (quoting United
States v. Gonzales, 164 F.3d 1285,1292 (10th Cir.
alluded to earlier, the Court finds no bad faith by the
government in failing to disclose by August 30. However, the
government otherwise has no good excuse for missing the
expert disclosure deadline. Regarding the second factor, the
Court finds that the defendant is prejudiced by the late
disclosure. Not only was the expert unforeseeable, especially
given that the United States had not disclosed the witness on
June 10 or June 19, but it was not until September 13, a
month before trial, that the defendant learned of the
identity, qualifications, and the opinions of the expert,
which were necessary for him to be able to file a Rule 702
motion. Litigating those issues in the time remaining and
potentially identifying a rebuttal expert would compromise
the defendant’s ability to otherwise prepare for trial.
As to the third factor, the feasibility of curing the
prejudice with a continuance, the defendant does not provide
any reason to believe that he would be prejudiced by a
continuance. And the Court discerns none. However, the United
States indicates that the “government does not propose
a continuance because, for the sake of the victim in this
case, it does not wish to . . . further prolong this matter .
. . .” Docket No. 37 at 3. Moreover, the United States
does not propose any alternative or lesser sanction. Given
the trial date of October 15, 2019 and the absence of any
suggestions by the parties, the Court does not perceive a
reasonable alternative to exclusion of the expert’s
testimony regarding the topics noted in the
government’s motion. Wherefore, it is
that the Government’s Motion for Order Permitting
Filing of Expert Notice Disclosure [Docket 33] is denied. It
that defendant’s Motion for Leave to File a Sur-Reply
[Docket No. 40] is denied as moot.
 Defendant does not object to the
expert testifying as to jurisdictional issues. Docket No. 36
at 3. The government’s expert may testify ...