United States District Court, E.D. Michigan, Northern Division
ORDER DENYING DEFENDANTS' MOTIONS IN LIMINE,
GRANTING GOVERNMENT'S MOTION TO ADJOURN, ADJOURNING TRIAL
DATE, AND DETERMINING EXCLUDABLE DELAY
L. LUDINGTON United States District Judge.
25, 2016 the Grand Jury issued an indictment charging
Defendant Jeffrey W. Patrick, Chief Engineer of the
Uninspected Towing Vessel Victory (“UTV
Victory”), with one count of discharging oil into Lake
Huron in a quantity that caused a film or sheen upon the
water from on or about May, 2014 to June 30, 2014 in
violation of the Clean Water Act, 33 U.S.C. §§
1321(b)(3) and 1319(c)(2)(A). See ECF No. 11. On
June 22, 2016 a superseding indictment issued adding a charge
against Assistant Engineer William J. Harrigan for violating
§§ 1321(b)(3) and 1319(c)(2)(A), and charging both
Defendants with conspiracy to violate the Clean Water Act in
violation of 18 U.S.C. § 371. See ECF No. 14.
The Government alleges that Defendants took a number of overt
acts in furtherance of the conspiracy, including the
installation of a removable by-pass system in the engine room
of the UTV Victory, which members of the conspiracy then
allegedly used to discharge water contaminated with oil into
Lake Huron and other parts of the Great Lakes. Id.
The Government further alleges that members of the conspiracy
took steps in order to avoid detection, including discharging
the contaminated water at night, failing to notify the
National Response Center of the discharge, and later removing
and concealing the by-pass system.
discovery in this matter has led to numerous adjournments to
the scheduling order, including two adjournments occasioned
by motions in limine filed by Defendants. See ECF
Nos. 63, 66. After a jury trial was scheduled for April 11,
2017, a telephonic status conference was held on April 4,
2017. See ECF No. 90. At that time, the parties
informed the Court that on March 24, 2017, the government had
executed a search warrant in Sturgeon Bay, Wisconsin related
to this case. Pursuant to the warrant, the government
obtained evidence including a memory card from the oil
content meter on the UTV Victory's oily water separator.
The parties therefore sought an extension so that the
government could analyze the data on the memory card.
See ECF No. 91. An extension to the scheduling order
was therefore granted, and the jury trial was adjourned to
May 16, 2017. Id. The parties were also directed to
submit pre-trial submissions, including exhibit lists,
witness lists, proposed jury instructions, and trial briefs
by April 21, 2017. Id. The Government did not submit
any pre-trial submissions by the deadline.
April 24, 2017 Defendants filed two motions in limine.
Through one of the motions, Defendants seek to preclude the
Government from offering any evidence or testimony derived
from the memory card. See ECF No. 94. Defendants
represent that the Government had not produced any
information, analysis, or reports relating to the memory
card, and that any future reports would be untimely due to
noncompliance with the pre-trial submission deadline. Through
the second motion in limine, Defendants seek to preclude the
Government from offering expert testimony from any witness
other than Kristy Juaire. See ECF No. 98. Defendants
argue that any further expert disclosures would be untimely
under the pre-trial submission deadline. Pursuant to a Court
order directing expedited responses, the Government responded
to both motions on May 1, 2017. See ECF Nos. 96, 97.
The Government notes that the memory card analysis was
completed on May 1, 2017, and that it anticipated receiving
the relevant data files the following day. Defendants filed a
joint reply on May 5, 2017. See ECF No. 99.
response to Defendants' argument that it waived the right
to introduce the memory card evidence by missing the
pre-trial submission deadline, the Government concedes that
it inadvertently missed the Court's deadline. The
Government notes, however, that it has provided Defendants
with thousands of pages of discovery throughout this case,
some of which could have been withheld as Jenks material. In
contrast, the Government argues, Defendants have repeatedly
provided the Government with discovery on the eve of (later
delayed) trial dates. In replay Defendants dispute this
assertion, arguing that they have met their discovery
obligations in this case.
Government also argues that the data card was discovered in a
timely manner. The Government points out that the memory card
was in the possession of Defendants or their employer for the
pendency of this prosecution, and that it was technically
within the scope of a grand jury subpoena served on
Defendants' employer on July 5, 2016. The Government also
argues that upon learning of the existence of the memory card
on March 8, 2017, the Government promptly sought a search
warrant. The Government asserts that its agents obtained the
search warrant as soon as practicable, given the difficulty
of securing a warrant for a vessel with an unpredictable
schedule moving between different judicial districts. As
noted by the Government, its agents promptly executed the
search warrant on March 24, 2017. The Government has
therefore demonstrated that the delay in seeking a warrant
for the memory card was not in order to secure an unfair
strategic advantage or hamper the defense. See Barker v.
Wingo, 407 U.S. 514, 531 (1972) (holding that the
Government's valid reason for a delay should serve to
justify an appropriate delay of criminal proceedings).
previous stipulation, entered on April 7, 2017, Defendants
agreed to an adjournment of the scheduling order, in part to
allow the Government to analyze data on the memory card.
See ECF No. 91. Defendants agreed “the
analysis will make the data on the memory card accessible and
understandable to the parties, and will also reveal the
relevance of the information on the card regarding the
functioning of the oily water separator and oil content meter
on the Victory. In turn, the information on the
memory card may prove to be useful to the jury during the
trial in this case.” Id. Defendants also
agreed that an adjournment to receive and comprehend the
newly obtained evidence outweighed the best interest of the
public and Defendants in a speedy trial, and was therefore
excludable pursuant to 18 U.S.C. 3161(h)(7)(A). Id.
Having therefore agreed in writing that the Government's
pursuit of newly discovered evidence constituted excusable
delay, Defendants may not reverse their position based on a
filing technicality. Additionally, the Court finds that the
Government has acted diligently in pursuing the memory card
evidence, and that the evidence will likely be relevant and
helpful to resolving this case. Defendants' motion to
exclude the memory card data will be denied.
also move to preclude the Government from offering any expert
witnesses that have not been previously disclosed. In effect,
Defendants seek to prevent the Government from introducing
any expert testimony regarding the content of the oil content
meter memory card. In response, the Government states its
intention to call Fred Henzle as an expert to explain the
data stored on the memory card. The Government also states
that it intends to call Manuel Gutierez, a high school
graduate, to explain the operations of the oily water
separator on the Victory. The Government asserts
that Mr. Guttierez's testimony regarding the memory card
will be straightforward, and is more appropriately considered
opinion testimony under Federal Rule of Evidence 701 than as
expert testimony under Rule 702.
the late discovery of the memory card evidence, and
Defendants' prior concession that analysis of that
evidence would be helpful and potentially useful, the
Government's late disclosure of experts related to the
memory card does not constitute unfair delay or prejudice.
Moreover, expert testimony will be particularly helpful in
this case, as it involves a unique industry that is outside
the average juror's common experience, and technical
questions regarding the engineering and mechanics of an oily
water separator in the context of a large, open water vessel.
Defendants' motion to exclude the Government's late
expert disclosures will therefore be denied.
the Government, the parties did not receive the data and
analysis from the memory card until May 1, 2017. On May 5,
2017, the Government moved to adjourn the trial date, arguing
that additional time was necessary to resolve the remaining
discovery issues and secure essential witnesses for trial. In
order to allow the parties time to review and understand the
evidence, the trial will be adjourned one final time. The
parties should treat this new date as the final trial date.
Therefore, based on the nature of the newly discovered memory
card evidence, the Government's motion, and the parties