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United States v. Call

United States District Court, E.D. Washington

August 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY W. CALL, Defendant.

          ORDER ON MOTIONS MOTION GRANTED IN PART (ECF NO. 49), MOTION GRANTED (ECF NO. 42)

          JOHN T. RODGERS, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Defendant's motion to Strike the Government's Rule 16 Expert Notice and Compel Disclosure of Actual Expert Opinions. ECF No. 49. In a separable aspect of this motion, Defendant specifically requests that this Court strike proposed expert Nguyen's testimony relating to the retrograde extrapolation and the general effects of alcohol.

         Also pending is the United States' motion to reconsider the Court's previous ruling excluding evidence of the horizontal gaze nystagmus test. ECF No. 42.

         I. RULE 16

         Regarding expert opinion testimony of the government's witnesses, this Court has considered Defendant's motion, ECF No. 49, the United States' response, ECF No. 50, and the argument of counsel.

         Defendant argues that the United States' notice of experts is procedurally and substantively insufficient under Fed. R. Crim. P. 16, and requests that this Court strike the expert testimony noticed therein. The United States responds that its notice, in context with the discovery provided, is sufficient under Rule 16 and that if the Court does find the notice infirm, that the United States should be given an opportunity to cure the defect.

         Rule 16(a)(1)(G) requires the government, on Defendant's request, to provide a written summary of any testimony the government intends to use under Evidence Rules 702, 703 or 705. The government has identified four such witnesses, and provided a written statement with respect to each.[1]

         The information provided by the government implies the area of each witness's expertise, and specifies the issues to which the witness will apply that expertise, but it does not indicate what opinion or conclusions will be offered regarding this defendant, in this case. In this Court's judgment, the disclosures do not comply with Rule 16.

         A. RETROGRADE EXTRAPOLATION AND GENERAL EFFECTS OF ALCOHOL TESTIMONY

         At the time of the hearing, Defendant specifically requested that this Court strike proposed expert Nguyen's testimony relating to the retrograde extrapolation and the general effects of alcohol. The United States' responds that it does not intend to offer evidence of the retrograde extrapolation in its case-in-chief, but that it still plans to introduce evidence of the general effects of alcohol through its proposed expert Nguyen, as previously referenced.

         B. REMEDY

         As Defendant is out of custody, and the United States has not established prejudice, this Court finds it is an appropriate remedy to require the United States to disclose to the defendant in writing within fourteen days of August 14, 2017 the relevant opinions of its four identified expert witnesses. This will necessitate a rescheduling of the trial as set forth below.

         II. MOTION TO RECONSIDER

         For the reasons adduced in the government's motion for reconsideration ECF No. 42, the court will permit, with proper foundation, evidence of the Horizontal Gaze Nastagmus “field sobriety test.” This trial is to the Court, and at the close of the ...


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