Opinion
Case No. 3:15-cr-238-SI
08-11-2017
UNITED STATES OF AMERICA, v. DAN HEINE and DIANA YATES, Defendants.
Billy J. Williams, United States Attorney, and Claire M. Fay, Michelle Holman Kerin, and Quinn P. Harrington, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the United States of America. Jeffrey Alberts and Mark Weiner, PRYOR CASHMAN, LLP, 7 Times Square, New York, NY 10036; Caroline Harris Crowne and Michael C. Willes, TONKON TORP, LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, OR 97204. Of Attorneys for Defendant Dan Heine. Janet Lee Hoffman, Kelsey R. Jones, Andrew T. Weiner, Katherine Feuer, and Douglas J. Stamm, JANET HOFFMAN & ASSOCIATES, LLC, 1000 SW Broadway, Suite 1500, Portland OR 97205; Matthew J. Kalmanson, HART WAGNER, LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendant Diana Yates.
OPINION AND ORDER ON OBJECTIONS TO REBUTTAL EXPERT TESTIMONY
Billy J. Williams, United States Attorney, and Claire M. Fay, Michelle Holman Kerin, and Quinn P. Harrington, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the United States of America. Jeffrey Alberts and Mark Weiner, PRYOR CASHMAN, LLP, 7 Times Square, New York, NY 10036; Caroline Harris Crowne and Michael C. Willes, TONKON TORP, LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, OR 97204. Of Attorneys for Defendant Dan Heine. Janet Lee Hoffman, Kelsey R. Jones, Andrew T. Weiner, Katherine Feuer, and Douglas J. Stamm, JANET HOFFMAN & ASSOCIATES, LLC, 1000 SW Broadway, Suite 1500, Portland OR 97205; Matthew J. Kalmanson, HART WAGNER, LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendant Diana Yates. Michael H. Simon, District Judge.
Defendants Dan Heine ("Heine") and Diana Yates ("Yates") are charged in this criminal action with conspiring to commit bank fraud and making false bank entries, reports, or transactions during the time when they were the two most senior officers of The Bank of Oswego (the "Bank"). The parties have filed summaries of their anticipated expert witness testimony and anticipated rebuttal expert witness testimony. The Court previously addressed the parties' objections to each other's expert witness summaries. ECF 565. This Opinion and Order addresses the parties' objections to each other's rebuttal expert witness summaries.
BACKGROUND
Heine and Yates co-founded the Bank in 2004. Until August 2016, the Bank had been a financial institution engaged in the business of personal and commercial banking and lending, headquartered in Lake Oswego, Oregon. The Bank is insured by the Federal Deposit Insurance Corporation ("FDIC"). Heine previously served as the Bank's President and Chief Executive Officer. Heine also was a member of the Bank's Board of Directors ("Board"). Heine left the Bank in September 2014. Yates previously served as the Bank's Executive Vice President and Chief Financial Officer. Yates also was the Secretary of the Board. Yates resigned from the Bank on March 22, 2012.
On August 12, 2016, the Bank sold its loans and other assets to HomeStreet Bank ("HomeStreet"). The Bank of Oswego continues to exist as a corporate entity, but has relinquished its banking charter and now operates as Oswego Resolution.
On June 24, 2015, a federal grand jury indicted Heine and Yates for conduct related to their time with the Bank. On March 9, 2017, a federal grand jury returned a Superseding Indictment (the "Indictment"), which charges Heine and Yates with one count of conspiring to commit bank fraud, in violation of 18 U.S.C. § 1349, and 18 counts of making false bank entries, reports, or transactions, in violation of 18 U.S.C. §§ 2 and 1005. ECF 623. As alleged in the Indictment, between September 2009 and September 2014, Heine and Yates conspired to defraud the Bank through materially false representations and promises. The Indictment further alleges that one of the purposes of the conspiracy was to conceal the true financial condition of the Bank from the Board, the Bank's shareholders, the public, and the Bank's regulators, including the Federal Deposit Insurance Corporation, which insured the Bank's deposits. According to the Indictment, Heine and Yates reported false and misleading information about loan performance, concealed information about the status of foreclosed properties, made unauthorized transfers of Bank proceeds, and failed to disclose material facts about loans to the Board, shareholders, and regulators, all in an effort to conceal the Bank's true financial condition.
It is a crime for any person to make "any false entry in any book, report, or statement of [any insured] bank, . . . with intent to injure or defraud such bank, . . . or to deceive . . . the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank." 18 U.S.C. § 1005. --------
The Indictment against Heine and Yates alleges the following five schemes that purportedly advanced the alleged conspiracy's purpose of falsely creating a healthier appearance of the Bank's finances than actually existed:
1. Payments Made on Delinquent Loans. Heine and Yates made payments, using Bank proceeds, on behalf of Bank customers who were delinquent on their loans. The payments sometimes were made without the knowledge or consent of the Bank's customer. The payments were made so that the delinquent loans would not appear in the Bank's Call Reports. On March 31, 2011, Yates transferred funds from a Bank customer's business checking account to the customer's personal loan account, which was delinquent, without the customer's consent. Heine and Yates's alleged practice of paying delinquent loans with Bank or other proceeds hid delinquent loans that otherwise would have been included in the Call Reports and reported to the Board.
2. Wire Transfer and Loan to Bank Customer M.K. Between July 2010 and September 2010, Heine and Yates permitted to be made an unsecured draw in the amount of $675,000 for Bank customer M.K. and then approved a $1.7 million loan for the benefit of M.K. in order to conceal the unsecured draw and to pay other Bank borrowers' delinquent loans. Yates approved the unsecured draw.
3. Straw Buyer Purchase (A Avenue Property). From October 2010 through May 2011, Heine and Yates recruited a Bank employee, D.W., to facilitate a straw buyer purchase of real property located at 952 A Avenue, Lake Oswego, Oregon 97034 ("A Avenue Property") for the purpose of concealing a loss to the Bank. Heine and Yates gave D.W. two checks totaling $267,727.89 from the Bank's cash account to purchase the A Avenue Property. Yates falsely represented in transactional documents that D.W. funded the purchase personally.
4. Other Real Estate Owned ("OREO") Properties Sold to Bank Customer R.C. From March 2010 through June 2013, Heine and Yates removed two properties from the Bank's OREO account after the properties were sold to a Bank borrower, R.C., even though the sales did not meet the requirements to remove the properties from the account. Heine and Yates did not require R.C. to make any down payment and provided R.C. with full financing from the Bank for both properties. As a result of the transactions, the properties were no longer reported on the Call Reports as OREO assets. On January 24, 2011, FDIC examiners questioned the validity of the removal of the properties from the Bank's OREO account and advised Heine and Yates that the purchases did not meet the minimum equity requirements needed to remove the properties. Yates advised the FDIC examiners that R.C. was going to make down payments for the two homes, which would then permit the Bank properly to remove the properties from the OREO account. On January 31, 2011, Yates prepared two memos to each of the R.C. loan files that falsely stated R.C. was willing to make a 15 percent down payment on the properties. Heine and Yates represented that R.C. paid down payments for the properties, when in fact no payment was received by the Bank.ECF 623 at 4-11, ¶¶ 13-26. The Indictment further alleges that Heine and Yates knowingly made 18 false entries in the books, reports, and statements of the Bank with the intent to injure and defraud the Bank. Heine and Yates allegedly did so by omitting material information about the true status and condition of the Bank's loans and assets. Id. at 12-13.
5. Misrepresentations to Shareholders. From September 2009 through September 2014, Heine and Yates caused the Bank to misrepresent to the Bank's shareholders the Bank's "Texas Ratio," which is a measure of the Bank's credit troubles and potential for bank failure, thus misrepresenting the true extent of the Bank's delinquent loans.
The Indictment also names Geoffrey Walsh ("Walsh") as a person who played a role in the alleged conspiracy. Walsh was the former Senior Vice President of Lending at the Bank. Id. at ¶ 13. On May 2, 2012, the Bank, acting through Heine, terminated the employment of Walsh, in part based on Walsh's alleged misconduct concerning lending practices. On June 11, 2012, Heine called the Federal Bureau of Investigation ("FBI") to report alleged criminal activity by Walsh. In July 2013, a federal grand jury indicted Walsh in a separate case for conspiracy to commit wire fraud, wire fraud, and conspiracy to make false entries in bank records, among other charges. United States v. Walsh, Case No. 3:13-cr-00332-SI-1 (D. Or.) ("Walsh Criminal Action"). On July 22, 2015, Walsh pleaded guilty to certain charges. In his plea agreement, Walsh accepted responsibility for his role in many of the same acts alleged in the Indictment against Heine and Yates. Walsh is awaiting sentencing.
STANDARDS
A. Pretrial Disclosure of Expert Testimony in a Criminal Case
Rule 16 of the Federal Rules of Criminal Procedure governs pretrial discovery in a criminal case by both the government and a defendant. Rule 16(a)(1)(G) states:
Expert Witnesses. 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. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.Fed. R. Crim. P. 16(a)(1)(G) (emphasis added). Rule 16(b)(1)(C) provides:
Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—
(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or
(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.
Fed. R. Crim. P. 16(b)(1)(C). Rule 16(d)(1) provides, in relevant part:
This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. . . .Fed. R. Crim. P. 16(d)(1).
As explained by the Advisory Committee on Rules, these provisions are intended
to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination.Fed. R. Crim. P. 16 advisory committee's note to 1993 amendment (emphasis added).
* * *
With increased use of both scientific and nonscientific expert testimony, one of counsel's most basic discovery needs is to learn that an expert is expected to testify. . . . This is particularly important if the expert is expected to testify on matters which touch on new or controversial techniques or opinions. The amendment is intended to meet this need by first, requiring notice of the expert's qualifications which in turn will permit the requesting party to determine whether in fact the witness is an expert within the definition of Federal Rule of Evidence 702. Like Rule 702, which generally provides a broad definition of who qualifies as an "expert," the amendment is broad in that it includes both scientific and nonscientific experts. . . . The rule does not extend, however, to witnesses who may offer only lay opinion testimony under Federal Rule of Evidence 701. Nor does the amendment extend to summary witnesses who may testify under Federal Rule of Evidence 1006 unless the witness is called to offer expert opinions apart from, or in addition to, the summary evidence.
Second, the requesting party is entitled to a summary of the expected testimony. This provision is intended to permit more complete pretrial preparation by the requesting party. For example, this should inform the requesting party whether the expert will be providing only background information on a particular issue or whether the witness will actually offer an opinion. . . .
Third, and perhaps most important, the requesting party is to be provided with a summary of the bases of the expert's opinion. . . .
B. Admissibility of Expert Testimony
The United States Court of Appeals for the Ninth Circuit has discussed the standard under which a district court should consider the admissibility of expert testimony. See, e.g., City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014). As explained by the Ninth Circuit in that case:
Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case. Fed. R. Evid. 702.
Under Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)] and its progeny, including Daubert II [Daubert v. Merrell Dow Pharms, Inc., 43 F.3d 1311 (9th Cir. 1995)], a district court's inquiry into admissibility is a flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In evaluating proffered expert testimony, the trial court is "a gatekeeper, not a fact finder." Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (citation and quotation marks omitted).
"[T]he trial court must assure that the expert testimony 'both rests on a reliable foundation and is relevant to the task at hand.'" Id. at 564 (quoting Daubert, 509 U.S. at 597). "Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline." Id. at 565 (citation and internal quotation marks omitted). "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion." Id. at 564 (citation omitted). The judge is "supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable." Alaska Rent-A-Car, 738 F.3d at 969. Simply put, "[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury." Id. at 969-70.
The test of reliability is flexible. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en banc). The court must assess the expert's reasoning or methodology, using as appropriate criteria such as testability, publication in peer-reviewed literature, known or potential error rate, and general acceptance. Id.; see also Primiano, 598 F.3d at 564. But these factors are "meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case." Primiano, 598 F.3d at 564 (citations and quotation marks omitted); see also Barabin, 740 F.3d at 463. The test "is not the correctness of the expert's conclusions but the soundness of his methodology," and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.Id. at 1043-44 (alterations in original).
DISCUSSION
A. Government's Rebuttal Expert Witness
The Government discloses that it may present rebuttal expert witness testimony from Mr. Greg Gadawski, a certified public accountant and certified fraud examiner. ECF 605. The Government states that it may call Mr. Gadawski to rebut conclusions offered by Defendants' previously-disclosed expert witnesses. Defendant Heine objects to Mr. Gadawski's rebuttal testimony on several grounds. First, Defendant Heine objects to Mr. Gadawski testifying that although an accounting entry may comply with Generally Accepted Accounting Principles ("GAAP"), that conclusion does not preclude the entry from being false or misleading. Second, Defendant Heine objects to Mr. Gadawski testifying concerning "the general structure, operation, and hallmarks of a conspiracy to commit a financial fraud." In addition, Defendant Yates objects to Mr. Gadawski's rebuttal testimony on several grounds. First, Defendant Yates objects that the Government is submitting "case-in-chief testimony under the guise of rebuttal." Second, Defendant Yates objects to Mr. Gadawski testifying that although a call report may be "technically accurate," that conclusion does not preclude an entry in a call report from being false or misleading. This is similar to Defendant Heine's first objection. Third, Defendant Yates objects to Mr. Gadawski testifying concerning "the general structure, operation, and hallmarks of a conspiracy to commit a financial fraud." This is precisely the same objection raised by Defendant Heine. Fourth, Defendant Yates objects to Mr. Gadawski's testimony on the "concept of materiality."
Regarding Defendant Heine's first objection and Defendant Yates's second objection, the Government responds that this type of testimony is permitted under United States v. Darby, 289 U.S. 224 (1933). In that case, a bank employee was charged with making an entry in the bank's records with intent to defraud. Id. at 224-25. In those records, the defendant described certain promissory notes held by the bank and listed the names of the makers, co-makers, or indorsers shown on those notes. Id. at 225. Although the list was accurate in the sense that the listed names actually appeared on the notes, many signatures of the co-makers or indorsers had been forged, either by or with the knowledge of the defendant. Id. The district court dismissed the indictment, concluding "that the paper had been recorded as it occurred, and hence that the entries were not false within the meaning of the statute." Id. The Supreme Court unanimously reversed. Id. at 227. As explained by Justice Cardozo, writing for the court:
The crime of making false entries by an officer of a national bank with the intent to defraud * * * includes any entry on the books of the bank which is intentionally made to represent what is not true or does not exist, with the intent either to deceive its officers or to defraud the association . . . .Id. at 226-27 (quotation marks and citations omitted) (asterisks in original) (ellipses added).
To read the statute otherwise is to be forgetful of its aim. Its aim was to give assurance that upon an inspection of a bank, public officers and others would discover in its books of account a picture of its true condition.
Defendants have previously disclosed that they may attempt to present at trial expert accounting testimony showing that certain entries in the book and records of the Bank are presented in a manner consistent with GAAP. Thus, based on Darby, the Government may introduce rebuttal expert accounting testimony to show that a presentation consistent with GAAP does not necessarily prevent an entry from being false or misleading. In other words, expert rebuttal accounting testimony may be appropriate to explain to the jury the limits of what a presentation consistent with GAAP means and does not mean. In addition, to the extent that an expert witness for a Defendant testifies that a particular entry or practice complies with one aspect of GAAP, the Government may call a rebuttal witness to explain how that entry or practice is inconsistent with another part or aspect of GAAP.
The same analysis applies to Defendant Yates's objection regarding call reports. Defendant Yates argues that a call report is "technically" accurate in showing that a loan was not delinquent if the loan has been paid. The Government may rebut a Defendant's expert testimony that a call report is "technically accurate" by showing that it still may be false or misleading.
Regarding Defendant Heine's second objection, Defendant Heine objects to any rebuttal testimony by the Government concerning the general structure, operation, and hallmarks of a conspiracy to commit a financial fraud. Defendant Heine argues that this type of testimony is similar to improper "criminal profile" evidence. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989) ("The use of criminal profiles as evidence of guilt in criminal trials has been severely criticized."); United States v. Gillespie, 852 F.2d 475, 479-80 (9th Cir. 1988) (holding that the admission of the testimony of a clinical psychologist describing the common characteristics of child molesters is reversible error).
The Government responds that Mr. Gadawski's rebuttal testimony on this point will be offered only to respond to the testimony of Defendant Yates's expert witness David S. Porter. According to the expert witness summary provided by Defendant Yates, she intends to call Mr. Porter to testify as follows:
Based on his experience as a certified fraud examiner, the general structure, operation and hallmarks of a conspiracy to commit a financial fraud; and that Ms. Yates's alleged conduct related to the transactions at issue in the government's indictment is not indicative of such a conspiracy and does not follow the pattern expected in such a scheme, including that it is infrequent and spread out across several years, it lacks materiality as to individual financial statements, and there is a lack of financial gain or identifiable loss.ECF 515 at 11. To the extent that the Government's rebuttal expert testimony simply and strictly rebuts testimony presented by a defendant's expert witness, such rebuttal testimony is not improper. The same analysis applies with regard to Defendant Yates's objection on this point.
Regarding Defendant Yates's first and fourth objections, the Government intends to offer rebuttal expert testimony from Mr. Gadawski to rebut expert banking, accounting, and related expert testimony offered by Defendants Heine or Yates after the Government rests its case. To the extent that testimony by Mr. Gadawski does not rebut something said by one of Defendants' expert witnesses, the Court would anticipate sustaining a timely objection. To the extent, however, that testimony by Mr. Gadawski does rebut something said by one of the Defendants' experts, including testimony about the concept of materiality, the Court would anticipate overruling an objection asserting that Mr. Gadawski's testimony is not fair rebuttal.
B. Defendant Yates's Rebuttal Expert Witnesses
Defendant Yates discloses that she may present rebuttal expert witness testimony from Mr. Mark C. Riley, Mr. Raymund Wong, and Mr. Terrance J. Slominsky. ECF 607. Mr. Riley previously has been disclosed as one of Defendant Yates's expert witnesses. ECF 515. Mr. Riley is a former President, Chief Executive Officer, and Director of First Virginia Community Bank. Mr. Wong is a certified public accountant and a chartered financial analyst. Mr. Slominsky is an Oregon lawyer who practices in the field of real estate law, including foreclosures. Defendant Yates discloses that she may call Messrs. Riley, Wong, and Slominsky to rebut conclusions offered by the Government's or Defendant Heine's previously-disclosed expert witnesses.
The Government objects to Defendant Yates's summary of expert rebuttal testimony from both Mr. Wong and Mr. Slominsky. ECF 610. Regarding Mr. Wong, the Government objects that Defendant Yates has failed to show that Mr. Wong is qualified to testify about the subject matter for which he has been designated. The Government's objection to Mr. Wong's qualifications is overruled. The Government's argument goes to the weight of Mr. Wong's testimony, not its admissibility.
Regarding Mr. Slominsky, the Government objects that Defendant Yates has failed to show that Mr. Slominsky is qualified to testify about the areas for which he has been designated, such as the "mortgage environment in Oregon" during the relevant time period. The Government's objection has merit. Before calling Mr. Slominsky to testify before the jury as a rebuttal expert witness, Defendant Yates must first present Mr. Slominsky in a hearing to the Court, pursuant to Rule 104(c) of the Federal Rules of Evidence.
The Government also objects to Mr. Slominsky being allowed to testify about "the reasonableness of the belief that the Bank had a property interest in the A Avenue property during the relevant time." ECF 610 at 3 (citing ECF 607 at 4). The Government's objection is sustained. In criminal cases, an expert witness may not state an "opinion about whether a defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense." Fed. R. Evid. 704(b). Relatedly, the Ninth Circuit has explained that an expert witness may not testify in such a way that "'would necessarily compel the conclusion' that the defendant lacked the requisite mens rea.'" United States v. Cohen, 510 F.3d 1114, 1125 (9th Cir. 2007) (quoting United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997)). To the extent that Defendant Yates believes that Mr. Slominsky's testimony on this subject may be proper, Defendant Yates must first present Mr. Slominsky in a hearing to the Court, pursuant to Rule 104(c) of the Federal Rules of Evidence. Upon request by Defendant Yates (or any other party), this hearing may be held after the Government rests its case at trial.
Finally, the Government objects to Mr. Slominsky's testimony on the grounds that he is an attorney and Defendant Yates may be attempting improperly to offer expert testimony to explain the law to the jury. The Government's concern is well taken. Again, to the extent that Defendant Yates believes that Mr. Slominsky's testimony based on his expertise as a lawyer may be proper, Defendant Yates must first present Mr. Slominsky in a hearing to the Court, pursuant to Rule 104(c). In addition, upon request by Defendant Yates (or any other party), this hearing may be held after the Government rests its case at trial.
C. Defendant Heine's Rebuttal Expert Witness
Defendant Heine discloses that he may present rebuttal expert witness testimony from Mr. Brian H. Kelley. ECF 606. Defendant Heine previously disclosed Mr. Kelley as one of Defendant Heine's expert witnesses. ECF 516. Mr. Kelley is a former President, Chief Executive Officer, and Director of the Pacific Commerce Bank in Los Angeles. Defendant Heine states that he may call Mr. Kelley to rebut conclusions offered by the Government's or Defendant Yates's previously-disclosed expert witnesses. Neither the Government nor Defendant Yates objects to Defendant Heine's summary of Mr. Kelley as a rebuttal expert.
CONCLUSION
The Court resolves the parties' objections to the disclosed summaries of anticipated rebuttal expert witness testimony (ECF 610, 611, and 612) as stated in this Opinion and Order.
IT IS SO ORDERED.
DATED this 11th day of August, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge