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United States v. Palafox

United States District Court, D. Nevada

June 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT LOPEZ, et al., Defendants.

          ORDER

          C.W. HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE

         Presently before the court is defendant Albert Lopez's motion to exclude expert testimony for failure to comply with the court's deadline (ECF No. 1532), filed on March 3, 2019. The government filed a response (ECF No. 1544) on March 16, 2019, and Lopez filed a reply (ECF No. 1549) on March 24, 2019.

         On June 14, 2017, a Superseding Criminal Indictment was filed charging defendant Albert Lopez with Conspiracy to Participate in a Racketeering Enterprise, in violation of Title 18, United States Code, Section 1962(d) (Count One); Violent Crime in Aid of Racketeering - Murder, in violation of Title 18, United States Code, Section 1959(a)(1) (Count Two); and Using and Carrying a Firearm During and in Relation to a Crime of Violence, Causing Death, in violation of Title 18, United States Code, Sections 924(j)(1) and 2 (Count Three). (Superseding Indictment (ECF No. 13).) The charges arise from allegations that Lopez and his twenty-two codefendants are members of the Vagos Outlaw Motorcycle Gang and engaged in a variety of criminal activity. (Id.)

         In response to Lopez's previous motion for early disclosure of any gang experts the government intends to call at trial, the court ordered disclosure to the extent required by Rule 16(a)(1)(G). (See Mot. for Notice of Expert Testimony (ECF No. 869); see also Order (ECF No. 1382).) Those disclosures were provided on February 15, 2019. (Notice of Intent (ECF Nos. 1499-1503).) The second amended scheduling order provides that notice of experts were due for group 1 defendants on February 15, 2019. (Seconded Amended Scheduling Order (ECF No. 1453).) Trial is to commence for group 1 defendants on July 29, 2019. (Id.)

         Lopez argues that the disclosures are deficient because they lack opinions, bases, or summaries. Instead, they vaguely list topics of testimony, requiring him to guess as to the opinions to be presented, and thus, making it impossible to challenge the testimony or prepare cross-examination. He therefore moves for exclusion or in the alternative, for the government to provide sufficient notice. Additionally, he lists a variety of additional requests regarding the expert testimony. The government responds that its disclosures are sufficient, but provides additional information to assist the defense, and to cure any perceived deficiency, for example, by identifying code words to be explained.

         Federal Rule of Criminal Procedure 16(a)(1)(G) provides that, upon a defendant's request, the government must provide the expert's qualifications, a written summary of their expected testimony, including their opinions, and the bases and reasons for those opinions. See Fed. R. Crim. P. 16(a)(1)(G). The purpose of requiring disclosure of an expert's qualifications is to provide information to the defendant in order to determine whether the expert qualifies under Federal Rule of Evidence 702. See Fed. R. Crim. P. 16(a)(1)(G) advisory committee's note to 1993 amendment. A written summary of the expert's anticipated testimony provides for more complete pretrial preparation for the requesting party. See Id. Finally, the bases and reasons for the anticipated opinions provides a requesting party the ability to gauge whether the purported bases and reasons for an opinion are admissible under Federal Rules of Evidence 703. See id.

         Here, there is no dispute that the government has satisfied the requirement of providing the expert's qualifications. At issue is whether the government has provided a written summary of their expected testimony, including their opinions, and the bases and reasons for those opinions.

         The government divides the five experts at issue into two groups. First, Special Agent Carr, Mr. Skelton, and Investigator Grimm are experts on outlaw motorcycle clubs generally and the Vagos specifically. The disclosure for each expert is identical, except as noted:

Pursuant to Rule 702 of the Federal Rules of Evidence, the Government intends to call [SA Carr/Skelton/Grimm] to provide expert testimony regarding the background, structure, and nature of outlaw motorcycle clubs generally, and the Vagos Outlaw Motorcycle Club specifically, to include the terminology, symbols, patches, bylaws, rules, memberships, purposes, practices, leadership roles and duties, associated and rival organizations, and the modus operandi of such organizations. [SA Carr's/Skelton/Grimm] testimony regarding modus operandi will include expert opinion regarding the interactions between Vagos members within the organization as well as with those outside the organization, to include citizens, other outlaw motorcycle club members, and law enforcement. [SA Carr/Skelton/Grimm] is also expected to testify as an expert regarding the interpretation and meaning of code words and cryptic conversations contained on the recordings of intercepted communications which will be introduced at trial. The scope of the expert testimony may also be dictated, in part, by the defenses raised through the defense opening statements, cross-examination of government witnesses, and possible defense witnesses. The scope of [SA Carr's/Skelton/Grimm] expert testimony will include, but is not limited to, paragraphs 1 and 2 of the Superseding Indictment, which are incorporated here by reference. See ECF No. 13, ¶¶ 1, 2.

(See Notice of Intent (ECF Nos. 1501-03).) The disclosures for Special Agent Carr and Mr. Skelton include this additional language:

Additionally, SA Carr's expert testimony in this case will include, but is not limited to, the subject matters included in his testimony in State of Nevada v. Steven Carr et al., No. 11BGJ121A-E, which has been produced at Bates USA0116472.
Additionally, Mr. Skelton's expert testimony in this case will include, but is not limited to, the subject matters included in his testimony in State of Nevada v. Ernesto Gonzalez, No. CR11-1718B, which has been produced at Bates USA0088801, USA0089587, and USA0137748.

(See Notice of Intent (ECF Nos. 1501-02).)

         Second, Special Agent Neal and Sergeant Bennett are identified as experts on code words and cryptic language used by the Vagos in ...


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