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United States v. Brock

April 2, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LAWANNA BROCK, AND RONDAL BROCK DEFENDANTS.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

(PHILLIPS/SHIRLEY)

MEMORANDUM AND ORDER

All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This cause came before the undersigned on Defendant Lawanna Brock's Motion To Exclude Testimony Of Expert Witness [Doc. 72], filed on March 28, 2007.

In her Motion To Exclude, the defendant argues that the government's expert disclosure notice is untimely per the Court's Order on Discovery and Scheduling, and that the government's expert disclosure notice is inadequate because it does not comply with the requirements of Fed. R. Crim. P. 16(a)(1)(G).

The government has not responded. However, the defendant has attached a copy of the government's letter/expert disclosure notice from which the Court can determine this issue.

Fed. R. Crim. P. 16(a)(1)(G)*fn1 provides as follows:

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 Rule 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 bases and reasons for those opinions and the witness's qualifications.

The Orders on Discovery and Scheduling [Docs. 3 and 32], Section L., provide in relevant part:

Unless otherwise ordered by the Court any disclosure of expert information required by Rule 16(a)(1)(G), Fed. R. Cr. P. shall be made by the government at least three (3) weeks before trial. . .

The record reveals that the defendant complied with the condition precedent to Rule 16(a)(1)(G) by requesting the government give to the defendant the expert information required by 16(a)(1)(G) by letter to AUSA Davidson on October 13, 2006 (See ¶ 18, page 7 of letter attached).

The government responded by faxed letter dated March 27, 2007 [Doc. 72-2]. This letter/expert disclosure notice states:

This letter is to advise you, pursuant to the provisions of Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, that the United States intends to call in its case-in-chief, Dr. Michael P. Bernard, M.D. Dr. Bernard's curriculum vitae is enclosed. We expect Dr. Bernard to testify that the results of the laboratory report attached are more consistent with the results of laboratory reports contained in the TMC patient file for Doyle Lawson than with the results of the laboratory reports contained in the TMC patient file for Jackie Williams. We expect Dr. Bernard to testify that based on his comparison of the results of the aforementioned reports, the blood sample tested to produce the results in the attached report was more likely from Doyle Lawson than Jackie Williams.

The Court agrees with the defendant that the government's notice is not timely. The Court's Orders of Discovery and Scheduling both required the government's expert disclosures to be made three (3) weeks before trial. The case is set for trial on April 10, 2007. Thus, the expert disclosure was due on or before March 20, 2007. The government's expert disclosure on March 27, 2007 was approximately one (1) week late.

The Court likewise agrees that the government's notice is inadequate in that it does not comply with the Fed. R. Crim. P. 16(a)(1)(G). That rule requires that ...


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