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United States v. Suddarth

United States District Court, M.D. Tennessee, Nashville Division

November 7, 2017

UNITED STATES
v.
ANGELA SUDDARTH

          MEMORANDUM & ORDER

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE.

         Angela Suddarth has filed a Motion in Limine No. 1 asking the court to (1) instruct the government and its witnesses not to allude or refer to allegations that Suddarth fabricated an email chain mentioned in her Indictment; (2) require the government to approach the bench before mentioning or alluding to the aforementioned alleged fabrication of the e-mail chain; and (3) exclude any expert or lay evidence regarding the alleged fabrication on the ground that the government has not timely disclosed the basis for any expert opinion regarding that fabrication. (Docket No. 64 at 1.) For the reasons expressed herein, the Motion is GRANTED in part and DENIED in part. Because the government affirmatively indicated in discovery that it did not intend to rely on any “results [or] reports of tests or exams, ” (Docket No. 66-1) and did not seek to correct this disclosure, the government will be instructed not to rely on any specific electronic forensic analysis of Suddarth's allegedly falsified e-mails. The government will not be forbidden from presenting evidence relevant to the allegations of falsification in the form of either (1) fact testimony or (2) general expert testimony that is not premised on a specific test or examination of the allegedly fabricated e-mail chain.

         NATURE OF MOTION

         Counts 14 and 15 of the Indictment allege that Suddarth created a “fabricated email chain” that was presented to the Department of Labor in support of a complaint that Suddarth had filed with the Department. (Docket No. 1, at 9-11). Suddarth argues that establishing any such fabrication would require the testimony of an expert but that the government has failed to timely disclose one. The government responds that it has complied with the necessary disclosure obligations for it to present expert testimony and that it also anticipates presenting lay testimony establishing Suddarth's fabrication of the e-mails.

         ANALYSIS

         Rule 16(a)(1)(F) of the Federal Rules of Criminal Procedure provides:

         Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the government's possession, custody, or control;
(ii) the attorney for the government knows-or through due diligence could know-that the item exists; and
(iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.

Id. Although the Rule itself imposes an obligation on the government only “[u]pon a defendant's request, ” this court's standing discovery rule, under L. Cr. R. 16.01(a)(2), automatically imposes a similar obligation on the government (on or before fourteen days from the date of the arraignment of the defendant in a criminal case), without the requirement of a defense request.

         Rule 16(a)(1)(G) provides further disclosure obligations with regard to anticipated technical and scientific evidence, providing that, “[a]t 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.” See United States v. Johnson, No. 05-CR-80337, 2008 WL 2095344, at *3 (E.D. Mich. May 16, 2008) (recognizing Rule 16(a)(1)(F) and 16(a)(1)(G) as imposing separate obligations). Unlike the disclosure obligation under Rule 16(a)(1)(F), Rule 16(a)(1)(G) is not mirrored by a mandatory obligation in the court's standing discovery rule. See L. Cr. R. 16.01(a)(2). Accordingly, the government is not obligated to provide a Rule 16(a)(1)(G) summary except upon the request of the defendant.

         The government seemingly concedes that it has not provided a Rule 16(a)(1)(G) disclosure related to testimony regarding the alleged falsification of the email chain but maintains that it did not do so because Suddarth never requested such a disclosure, and the government had no obligation to provide one in the absence of a request. The plain text of Rule 16(a)(1)(G) and L. Crim. R. 16.01(a)(2) confirms the government's reading, and Suddarth's own motion does not appear to be premised on an alleged prior request for such a disclosure. Accordingly, the court will not exclude possible expert testimony for failure to conform to Rule 16(a)(1)(G).

         Insofar as the government was in possession, custody, or control of any “results or reports” meeting the requirements of Rule 16(a)(1)(F), however, Suddarth is correct that the government was under an obligation to provide those results or reports pursuant to the court's standing discovery rule. The government has identified one expert whom it “may call upon” regarding the alleged fabrication-Dan Roffman, who also testified in a related 2013 civil case against Suddarth in the Northern District of Illinois. (Docket No. 65, at 2.) The government maintains, however, that it fulfilled any obligation it had under Rule 16(a)(1)(F) by providing a transcript of Roffman's testimony to Suddarth as part of discovery on either July 10 or 11, 2015.[1] Suddarth, however, has produced a discovery letter from the government to her counsel, dated July 10, 2015, specifically indicating that the government was not producing any materials as Rule 16(a)(1)(F) disclosures. (Docket No. 66-1.) Suddarth, therefore, was given no notice that the government intended to rely on the results of Roffman's analysis, and in fact was affirmatively led to believe that the government did not intend to rely on “the results or reports of any physical or mental ...


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