The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it the Government's Motion to Strike and/or Exclude Evidence Relating to a Mental Disease or Defect or Other Mental Condition (Dkt. 102) and Defendant's Motion in Limine (Dkt. 110.)
A jury trial in this matter was initially set for August 16, 2010. Defendant filed a motion to continue the trial and to extend the time for filing pretrial motions. (Dkts. 23 & 31.) The Court granted the motion and set trial for November 1, 2010, with all pretrial motions due October 4, 2010. (Dkt. 32.) On October 5, 2010, Defendant filed a second motion to continue. (Dkts. 53 & 59.) The Court granted that motion as well, and set trial for March 7, 2011, with all pretrial motions due February 4, 2011.
On February 7, 2011, Defendant filed a Motion for Substitution of Counsel (Dkt. 74.) At a hearing on the motion to substitute and other pending motions, Defendant's new attorney asked for another continuance of the trial date and to extend the deadline for providing notice of expert evidence of a mental condition pursuant to Rule 12.2. The Court denied the motion to continue the trial, but extended the deadline for pretrial motions and notice of expert evidence of a mental condition to February 9, 2011. The Court explained that because of this delay in filing the Rule 12.2 Notice, Defendant's Notice should include only a summary of the mental condition defense, but with as much detail as possible. The Court gave Defendant until February 16, 2011 to file any expert witness reports. In turn, the Court gave the Government until February 18, 2011 to designate additional experts if Defendant did, in fact, designate expert witnesses on February 16. The Court did not designate a specific deadline for the Government to provide its expert reports of those experts.
The Government now asks the Court to strike or exclude certain experts and evidence relating to a mental condition. Defendant asks the Court exclude testimony of two of the Government's expert witnesses.
1. Government's Motion to Exclude
Rule 12.2 states that if a defendant intends to introduce expert evidence of a mental condition, the defendant must notify the government in writing of this intention and file a copy of the notice with the Clerk of the Court. Fed. R. Crim. P. 12.2(b). Notice must be given within the time provided for filing pretrial motions. Id. The Court may extend that deadline for good cause. Id. Rule 16(b)(1)(C) states that a defendant must then provide the government with a written summary of any expert testimony that the defendant intends to use under Rules 702, 703 and 705 of the Federal Rules of Evidence. Fed. R. Crim. P. 16(b)(1)(C)(ii).
As explained above, the Court granted two continuances in this case, and set the pretrial motion deadline for February 4, 2011. Defendant did not give notice pursuant to Rule 12.2 on or before that date. However, the Court extended the deadline once again to February 9, 2011, but required Defendant to give a summary of the mental condition defense with as much detail as possible. The Court extended the deadline for providing the Government with expert reports to February 16, 2011.
On February 9, Defendant filed his notice, which included a brief description of the intended mental condition defense and a list of potential witnesses. In its motion, the Government states that on February 16, the deadline for Defendant to provide the Government with its expert reports, Defendant provide the Government with only one report -- that of Dr. Shelley Chambers Fox, PhD, CGP. Defendant has not responded to the motion or otherwise suggested that he provided the Government with any other reports from any other experts. The deadline for responding to the motion, February 25, 2011, has passed.
The Government asks the Court to exclude the expert opinion of three of the potential experts listed in Defendant's Rule 12.2 Notice -- Dr. Robert C. Farr, Jr., Dr. Robert Burnett III, and Dr. Dennis Cooke -- because Defendant failed to provide the Government with expert reports as required by Rule 16. Defendant makes no argument to the contrary. Accordingly, the Court will grant the motion because Defendant failed to provide any written summary of their testimony describing their "opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(b)(1)(C)(ii).
The Government also asks the Court to exclude testimony of Dr. Fox because Defendant failed to comply with the February 9 disclosure deadline. The Court disagrees. Defendant provided his notice pursuant Rule 12.2 on February 9 as required. The specific expert names and reports were not ...