Opinion
Case No. CR-00-S-422-S.
January 25, 2005
MEMORANDUM OPINION AND ORDER
This case is before the court on the government's "Motion for Leave to Appeal and Incorporated Objections to and Appeal from Magistrate Judge's Order Regarding Discovery Entered December 21, 2004" (doc. no. 415). At issue in this appeal is that portion of the Magistrate Judge's order requiring the government to disclose information required by Federal Rule of Criminal Procedure 16(a)(1)(G) for any experts it intends to call as rebuttal witnesses during either the guilt-innocence or penalty phases of trial. The contested portion of the Magistrate Judge's order reads as follows:
29. Rebuttal Experts — The defendant seeks disclosure of the identity and opinions of any expert the Government anticipates calling in the rebuttal phase of trial or sentencing. Although Rule 16(a)(1)(G) requires disclosure only of experts to be called during a party's case-in-chief, the "gatekeeping" obligation imposed on federal judges by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), makes it imperative for all experts to be identified in advance of trial so that appropriate Daubert challenges to their qualifications and reliability may be examined in an orderly fashion. Strict application of Rule 16(a)(1)(G) would mean that Daubert challenges to experts held back for rebuttal would have to occur in mid-trial. Because this results in delay and confusion, the better practice would be for pretrial disclosure of all expert opinions, when then may be sorted our in an orderly fashion before trial. Consequently, the motion to compel disclosure of rebuttal experts and their opinions is GRANTED, and the Government is DIRECTED to disclose to the defendant all information required by Rule 16(a)(1)(G) with respect to its rebuttal experts by not later than January 21, 2005.
Doc. no. 406 (Magistrate's Order Regarding Discovery), at 7.
The government contends the foregoing order constitutes an improper "expansion" of its pretrial discovery obligations under Federal Rule of Criminal Procedure 16, "in direct contravention to established precedent." That part of Rule 16 relied upon by the government provides that:
Doc. no. 415 (Government's Motion for Leave to Appeal and Incorporated Objections to Magistrate Judge's Order Regarding Discovery), at 3.
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.
Fed.R.Crim.P. 16(a)(1)(G) (emphasis supplied). The government also relies upon that portion of the Eleventh Circuit's opinion in United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) ( en banc), where — in addressing the defendant's objection to two rebuttal expert witnesses called by the government — the Court said:
In whole cloth, that portion of Rule 16 pertaining to the government's obligation to disclose reports concerning so-called "expert witnesses" ( i.e., witnesses from whom the government intends to elicit opinion testimony under Federal Rules of Evidence 702, 703, or 705) reads as follows:
( G) 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).
At trial, Frazier's primary objection was that, absent notice, allowing the testimony of Lanning and Onorato violated Rule 16 of the Federal Rules of Criminal Procedure. The pertinent portion of Rule 16 provides:
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.
Fed.R.Crim.P. 16(a)(1)(G) (emphasis added). Our case law establishes that, consistent with the plain language of the Rule, the government's presentation of rebuttal testimony without prior notice does not violate Rule 16, since the Rule's notice requirements apply only to the government's case-in-chief. See United States v. Windham, 489 F.2d 1389, 1392 (5th Cir. 1974) ("Rebuttal witnesses are a recognized exception to all witness disclosure requirements."); see also United States v. DiCarlantonio, 870 F.2d 1058, 1063 (6th Cir. 1989) (Rule 16 does not require disclosure of expert rebuttal testimony not offered during government's case-in-chief); United States v. Barrett, 766 F.2d 609, 617 (1st Cir. 1985) (same); United States v. Angelini, 607 F.2d 1305, 1308-09 (9th Cir. 1979) (same). Thus, so long as this testimony was properly characterized as rebuttal, Rule 16 did not require the government to give notice or a summary of the testimony.
Frazier, 387 F.3d at 1269 (emphasis in original) (footnote omitted).
The omitted footnote observed, with regard to the citation of United States v. Windham, that the Eleventh Circuit had adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc).
Nevertheless, that is not the end of discussion. Neither the plain language of Rule 16(a)(1)(G), nor the Eleventh Circuit's statement in Frazier, will support the weight the government places upon both, when they are considered in the context of the present case.
To begin with, the foregoing extract from the Eleventh Circuit's opinion in Frazier, and the cases cited as support for the Court's statement, stand merely for the unremarkable proposition that the government's presentation of expert rebuttal testimony without prior notice did not violate Rule 16 in the circumstances presented there. Indeed, the issue presented in Frazier was not the propriety of a district court's order compelling pretrial disclosure of rebuttal expert witnesses; instead, the issue addressed was whether the government's presentation of expert rebuttal testimony violated the text of Rule 16. Neither Frazier, nor any of the cases upon which it relied, limits a district court's inherent supervisory authority to require the government to provide a defendant with a written summary of any testimony the government intends to elicit from rebuttal expert witnesses, together with a description of the bases and reasons for the witnesses' opinions, and the witnesses' qualifications.
As former Chief Judge Tjoflat observed in his concurring opinion in Frazier, whenever the opinion of an expert witness is proffered in rebuttal,
the objecting party may not be able to articulate specific reasons for believing the opinion to be unreliable. In this case, for example, because the Government called Lanning and Onorato in rebuttal, Frazier had not obtained summaries of their testimony or the bases for any opinions they might express. Consequently, he could not have been expected to provide a specific ground for objecting to their opinions. Nonetheless, as the court's opinion points out, see ante at 1268-69 n. 21, Frazier made no objection based on Rule 702; his sole objection to Lanning and Onorato's testimony was based on his misguided argument that Rule 16 required the Government to give him prior notice of what their testimony would be. The court therefore had no obligation to hold a Daubert hearing before the Government elicited the testimony at issue.Frazier, 387 F.3d at 1274 n. 3 (Tjoflat, J., concurring) (emphasis supplied). Those observations are particularly acute in the context of a complex, death-penalty case such as this one, involving hundreds of thousands of documents and scores of forensic experts. The length of the trial has been estimated at three to four months, which means that as the process nears its conclusion, when all participants are weary, and mental faculties dulled, the court may be compelled to take lengthy recesses for the purpose of conducting Daubert hearings out of the presence of jurors. Such a procedure is fraught with the possibility of error, rather than reasoned decision-making.
See Frazier, 387 F.3d at 1256-57, where Judge Marcus stated for the majority:
After the defense rested, the government announced that it would call Lanning and Onorato as rebuttal witnesses. Frazier objected, arguing only that the government had failed to give notice of its intent to use Lanning or Onorato as expert witnesses, in violation of Rule 16 of the Federal Rules of Criminal Procedure. The defense suggested that, while the text of Rule 16 referred only to disclosure requirements for the government's case-in-chief, calling these expert rebuttal witnesses without notice violated the spirit of the Rule. Frazier suggested, further, that it would be unfair to allow the government to call these experts to opine on the significance of the absence of hair or fluid evidence, since Frazier's expert — Tressel — had been precluded from opining on the same subject. Notably, the defense never objected to the government's use of Lanning or Onorato on the grounds that either of them was not qualified as an expert, or that their opinions were based on methodologically unreliable or unsound foundations. The district court overruled the objection, reasoning that Rule 16 only requires notice when the government calls an expert during its case-in-chief, and here the witnesses plainly were called on rebuttal. [Emphasis supplied; footnote omitted.]
Moreover, such a procedure is unnecessary, especially when one considers the fact that the discovery obligations specified in Rule 16 are "intended to prescribe the minimum amount of discovery to which the parties are entitled," and leaves intact a court's "discretion" to grant or deny "broader" discovery requests of a criminal defendant. Fed.R.Crim.P. Rule 16. (Notes of Advisory Committee on 1974 Amendments); see also United States v. Jordan, 316 F.3d 1215, 1249 n. 69 (11th Cir. 2003) (same); Degen v. United States, 517 U.S. 820, 829 (1996) ("A court's inherent power is limited [only] by the necessity giving rise to its exercise.").
Further, Federal Rule of Criminal Procedure 57(b) provides that, where there is no controlling law, "[a] judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district." Fed.R.Crim.P. 57(b). "The existence of the federal rules does not preempt this power, if the rules do not exclude the exercise of the specific putative inherent power." United States v. Webster, 162 F.3d 308, 339 (5th Cir. 1998).
No rule specifically prohibits the notification of rebuttal expert testimony. Further, Rule 2 provides that the Federal Rules of Criminal Procedure "are to be interpreted to . . . secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay." Fed.R.Crim.P. 2. The rules also specifically contemplate that the court may "grant other appropriate relief" when necessary. Fed.R.Crim.P. 16(d)(1). Because the estimated length of trial in this case already is extraordinary, the court cannot countenance further delay that would necessarily occur if the government attempted to introduce rebuttal expert testimony at the last minute and without prior notice. Such delay translates into added expense, all of which can be avoided if the government will disclose its rebuttal expert witnesses in a timely manner.
In sum, this court does not find either Rule 16(a)(1)(G), or prior precedent of the Eleventh Circuit interpreting Rule 16, to be as constraining as the government suggests. Indeed, those matters not specifically addressed by the rules most certainly fall within this court's supervisory powers — powers that this court will fully exercise. This case will not be managed like the average criminal case. The Magistrate Judge was entirely correct in his assessment that it is "imperative for all experts to be identified in advance of trial so that appropriate Daubert challenges to their qualifications and reliability may be examined in an orderly fashion." This court has no intention of conducting Daubert hearings in the late stages of trial, given its likely duration and complexity.
See Jordan, 316 F.3d at 1249 n. 69.
Doc. no. 406, at 7.
Accordingly, the government's motion for leave to appeal is GRANTED. The appeal from the Magistrate Judge's December 21, 2004 Order is overruled, however, and the order is AFFIRMED. The government is ORDERED to disclose information required by Rule 16(a)(1)(G) as to any rebuttal expert witnesses on or before February 1, 2005. Any challenges defendant may make to the admissibility of expert rebuttal testimony must be made on or before February 15, 2005. The government's response, if any, will be due on March 1, 2005.
DONE and ORDERED.