Free Reply - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2149

Filed 01/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO STRIKE TESTIMONY OF LATE-ENDORSED DEFENSE EXPERTS

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, replies as follows to the defendant's Response to the Government's Motion to Strike Testimony of Late-Endorsed Defense Experts: Defendant's Expert Disclosure Deadline was August 14, 2006 1. The Court set a deadline of August 14, 2006 for William Sablan to disclose the names and opinions of his expert witnesses. See Court's Order of June 7, 2005 at 2. His endorsement of expert witnesses in December was four months late. The defendant attempts to claim that his December 2006 expert witness endorsements were timely because, on November 16, 2006, the Court set a deadline of December 18, 2006 for

Case 1:00-cr-00531-WYD

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disclosure of "witnesses" for both the penalty phase and guilt phase.1 However, those "witnesses" were fact witnesses, not expert witnesses. It is clear that the defendant understood the August 14, 2006 was the deadline for disclosure of both guilt phase and penalty phase expert witnesses because defense counsel's August 14, 2006 letter states "we may present the testimony of additional experts during the Penalty Phase." The letter then proceeded to mention Dr. Cunningham, a penalty phase witness. Thus, the defendant knew that the expert disclosure deadline was August 14, 2006, but nevertheless endorsed expert witnesses four months late. Only now is the defendant trying to reinterpret the Court's Scheduling Order. 2. Even if the August 14, 2006 expert disclosure deadline somehow only applied

to the guilt phase, the defendant's endorsement of Dr. Kathey Verdeal was late. Dr. Verdeal is a guilt phase witness. However, she was not endorsed until December 11, 2006, nearly four months after the expert disclosure deadline. The defendant provides no explanation for her late endorsement. 3. The defendant claims that he needed to know how the Court would rule on Phase III motions before endorsing its experts. Defendant's response at 2. The defendant never explains why. Obviously, the lack of a Phase III ruling did not keep the defendant from endorsing witnesses on August 14 and December 18, 2006.

The defendant apparently filed a portion of the November 16, 2006 hearing transcript with the Court under seal. To date, the government has not received any of the exhibits that the defendant provided to the Court. 2

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4. The defense expert witnesses that were endorsed late are Dr. Robert Scaer, Dr. Frank Fortunati, Dr. Rita Inos, Dr. David Lovejoy, and Dr. Kathey Verdeal. The Court should strike the testimony of these witnesses from both the guilt and penalty phases. Defendant Has Not Adequately Disclosed His Expert Witnesses' Opinions 5. Defendant responds to the government's complaint about the adequacy of his expert witness disclosures by claiming (a) summaries are an appropriate substitute for expert reports and (b) the government is at fault for not asking for more detail. See Defendant's Response at 4-6. Neither argument is persuasive. 6. Summaries ­ The government agrees that Rule 16 does not require that a defendant's expert prepare a report. Rather, the Rule requires that the defendant provide "a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705" if the defendant has provided a Rule 12.2(b) notice. Rule 16(b)(1)(C). Summaries will satisfy the rule. However, Rule 16 sets a standard for the adequacy of such summaries: "This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Rule 16(b)(1)(C). 7. Dr. Laura Post ­ The defendant has not provided a separate report or summary for Dr. Post other than to say that she "will testify regarding William's mental condition." Dr. Rose Manguso's report has a one-paragraph description of Dr. Post's meetings with William Sablan. This description, however, does not explain the "bases and reasons" for 3

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her diagnoses of the defendant.2 Moreover, Dr. Manguso obviously prepared her description with notes or reports of Dr. Post's psychiatric evaluation of the defendant. For example, Dr. Manguso refers to Dr. Post's "initial evaluation" and "Dr. Post's note." Pursuant to Rule 16(b)(1)(B), the defendant must produce "the results or reports of any physical or mental examination" if the defendant "intends to call the witness who prepared the report and the report relates to the witness's testimony." Thus, in addition to providing a summary of Dr. Post's testimony, the defense must produce Dr. Post's actual reports of her examinations of William Sablan. 8. Dr. Mark Cunningham ­ On December 13, 2006, the defendant provided a three sentence description of his testimony during the penalty phase, of which only one sentence describes his opinion. This summary does not provide the "bases and reasons for those opinions" under Rule 16. 9. Dr. Kathey Verdeal ­ The defendant's December 11, 2006 endorsement of Dr. Verdeal does not explain the "bases and reasons for [her] opinions." Instead, the letter provides two short paragraphs regarding what her opinions are without an explanation of how she arrived at them.

The defendant tries to excuse its inadequate disclosure regarding Dr. Post by noting that the FBI interviewed Dr. Post in 2000. That is true, but what the defendant does not mention is that Dr. Post refused to talk about William Sablan's mental health without a medical waiver. 4

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10. The defendant also argues that, whether or not its expert disclosures are adequate, the government should have asked for more thorough descriptions. This is a curious argument. It turns the tables on William Sablan's disclosure obligations. The defendant apparently suggests that the defendant's failure to comply with the Court's Scheduling Order and Rule 16 is not the defendant's fault, but the government's fault for not filing a motion. Of course, the government did file this motion and has not received any more detailed experts reports. Thus, why should the Court assume that meeting and conferring would have produced a different result? 11. The defendant grafts onto its response a claim that the government has not complied with Rule 16 because it did not endorse mental health experts. The government does not have an obligation to list rebuttal witnesses. That has never been the rule and was not contemplated in this case. If it had been, the Court would have set a separate date for disclosure of government rebuttal witnesses, which it never did. 12. Moreover, the government notified the defendant on December 1, 2006 that it intended to call Dr. Daniel Martell and Dr. Daryl Matthews as rebuttal witnesses to defendant's mental health experts. A copy of their resumes was provided at the time. The government has also told the defendant and the Court that it may call the Federal Medical Center experts who saw William Sablan as rebuttal witnesses in the guilt and penalty phases. The defendant has a copy of all of those reports.

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13. Finally, the defendant accuses the government of trying to "coerce the Court" into a compromise. The government is not doing any such thing. The Tenth Circuit in United States v. Nichols, 169 F.3d 1255, 1268 (10 th Cir. 1999), instructed district courts to consider the feasibility of curing the prejudice caused by discovery violations with a continuance of the trial. It is the government's belief that by the time the defendant endorsed expert witnesses in December 2006 the jury summonses had already been mailed. Thus, it was neither feasible nor likely that the Court would continue the trial. The government instead suggested alternatives to a continuance, such as allowing the government to conduct a mental exam. The fact that the defendant endorsed expert witnesses after the Court and the parties crossed the Rubicon by mailing the jury summonses should not be twisted into an accusation that the government was trying to "coerce the Court" by suggesting alternatives to a continuance.

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WHEREFORE the United States requests that the Court strike the testimony of the expert witnesses named in its motion and preclude other defense witnesses from relying on any part of their testing, statements, or opinions.

Respectfully submitted this

15th

day of January, 2007.

TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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Case 1:00-cr-00531-WYD

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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of January, 2007, I electronically filed the foregoing GOVERNMENT'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO STRIKE TESTIMONY OF LATE-ENDORSED DEFENSE EXPERTS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser Janet D. Zinser Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address [email protected]

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