United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO EXCLUDE TESTIMONY OF
GOVERNMENT'S EXPERT AND EXPERT REPORT [ECF NO.
PAGE HOOD UNITED STATES DISTRICT JUDGE.
Jeremiah Weekes has been charged in a multi-count Fourth
Superseding Indictment with, among other things: (a) health
care fraud conspiracy, in violation of 18 U.S.C. § 1349;
and (b) conspiracy to unlawfully distribute controlled
substances, in violation of 21 U.S.C. § 846, 841(a)(1).
On October 4, 2019, Weekes filed a Motion to Exclude
Testimony of Government's Expert and Expert Report
(“Motion to Exclude”). The Government has filed a
response. At the time the Motion to Exclude was filed,
pursuant to a prior stipulation of the parties, the Court had
scheduled a jury trial in this case for December 2, 2019. For
the reasons that follow, the Motion to Exclude is denied.
January 3, 2019, the Court held a status conference, at which
a trial date of August 6, 2019, a final pretrial conference
of July 26, 2019 and other filing deadlines were set. Due to
the Government's assertions that it would not be
obtaining an expert, defense counsel asked the Court to set a
disclosure deadline date for expert reports. ECF No. 75, Ex.
A at 12. The Government agreed to disclose any expert report
by June 3, 2019 and requested that the disclosure date apply
to the defense as well. Id. An order with scheduling
dates was issued by the Court on January 9, 2019, although a
date by which expert reports were to be exchanged was not
included. ECF No. 67. On June 3, 2019, defense expert Dr.
Robert Odell's report was emailed to the Government. The
Government did not disclose any expert or expert report on or
before June 3, 2019.
19, 2019, pursuant to the stipulation of the parties, the
Court issued an order finding excludable delay as to the
Defendant and reset the final pretrial conference for
November 5, 2019, with the jury trial to begin on December 2,
2019. ECF No. 73. The July 19, 2019 order was issued pursuant
to an agreement between the parties to move the dates and was
entered without a hearing. The Court's July 19, 2019
order did not include an expert disclosure deadline. On
September 13, 2019, the Government disclosed its expert
witness (Dr. David Cooke), his curriculum vitae, and a
45-page report detailing the basis for his testimony. ECF No.
75, Ex. C.
November 5, 2019 hearing, the Court determined that the trial
date would have to be adjourned from December 2, 2019. After
discussing the need for adjournment with the parties, the
Court adjourned the trial date to April 21, 2020.
argues that the Court should exclude the testimony of Dr.
Cooke and his expert report because the Government did not
disclose any information regarding Dr. Cooke until September
13, 2019, over three months after the June 3, 2019 deadline
established at the January 3, 2019 status conference. The
Court is not persuaded that the relief requested by Defendant
the disclosure of expert witnesses is governed by Federal
Rules of Criminal Procedure 16(a)(1)(G), which states,
“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.” Rule 16 does not set forth deadlines by which
the government must comply with such disclosure(s).
in this case, as the language from the January 3, 2019 status
conference demonstrates (language cited by Defendant), the
June 3, 2019 deadline was established based on an August 6,
2019 trial date. The purpose for setting that dates was to
afford Defendant and his counsel the ability to assess the
Government's expert report (if any) in advance of trial.
The June 3, 2019 trial date was adjourned - at the request of
both parties - for approximately 120 days, until
December 2, 2019, and subsequently by the Court until April
21, 2020. With those adjournments, there was no longer a need
for Defendant to receive information regarding the
Government's expert by June 3, 2019 in order to digest
and assess it by the August 6, 2019 trial date.
the Government provided Defendant with the information
regarding its expert, Dr. Cooke, on September 13, 2019. At
that time, there were still 80 days before trial was
scheduled to commence - two weeks longer than Defendant would
have had to digest and assess such information if the expert
deadline remained June 3, 2019 and the trial date was not
adjourned from August 6, 2019. The fact that the trial will
now commence on April 21, 2020 only affords Defendant more
time to digest and assess the expert's report.
“[t]he goal of discovery in criminal trials is to
insure a fair and thorough determination of defendant's
guilt or innocence. In order to reach this goal, suppression
of evidence must be viewed as an undesirable remedy reserved
for cases of incurable prejudice or bad faith conduct
demanding punishment by the court.” United States
v. Maples, 60 F.3d 244, 247 (6th Cir.1995). The
following factors should be considered in deciding whether
suppression of evidence is an appropriate remedy to be
imposed for a discovery violation: (1) the reasons for the
government's delay in producing the materials, including
whether it acted intentionally or in bad faith; (2) the
degree of prejudice, if any, to the defendant; and (3)
whether the prejudice to the defendant can be cured with a
less severe course of action, such as granting a continuance
or a recess. Id.; see also United States v. Ganier,
468 F.3d 920, 927 (6th Cir. 2006).
Government represents that it presumed in good faith that the
expert deadline was no longer June 3, 2019 because the August
6, 2019 trial date was moved. The parties, however, did not
notify the Court that the August 6, 2019 trial date might be
a problem until well after the June 3, 2019 deadline had
passed. Accordingly, the Court finds that the Government did
not act in good faith in failing to provide the requisite
expert information by June 3, 2019. Rather, it appears to the
Court that the Government did not intend to utilize an expert
(as it indicated at the January 3, 2019 status conference),
but decided to obtain an expert after receiving
Defendant's expert report. The object of requiring the
reports to be filed simultaneously was thereby thwarted. By
virtue of the trial being adjourned for 120 days from August