Expert DeadlineA defendant was charged with shoplifting at the Army and Air Force Exchange Service store on Buckley Air Force Base in Aurora, Colorado (the Exchange). At a jury trial before a magistrate judge, she was convicted of theft of government property. The magistrate sentenced her to concurrent sentences on each count of 30-days’ imprisonment and one year of supervised release. The judge also imposed a $1,000 fine and ordered restitution equaling the full retail value of the stolen merchandise. Defendant appealed to the U.S. District Court for the District of Colorado, challenging inter alia, the exclusion of her expert witness. The district court upheld her conviction and sentence. Defendant then appealed. 

Defendant argued that the magistrate erred in excluding her expert witness, who was to testify to her struggle with mental illness.  

According to defense counsel, Defendant’s therapist had indicated that she suffered from dissociative disorders but was “not competent to [give] a medical opinion on that. The therapist advised her to seek a qualified psychologist to opine on her mental-health condition, and her counsel sought a continuance to do so. The magistrate judge granted the request and reset the arraignment for two months later. 

Defendant moved to continue the trial because she had an examination scheduled with a psychologist shed retained, and she wished to see if the psychologist could provide expert testimony that Defendant lacked the mens rea necessary to commit the charged crimes. Counsel said that before finding this psychologist, he had considered another expert but he was a male, and [Defendant] was not comfortable talking about her issues and her trauma issues and all of that to the male person. The government opposed a continuance, arguing that Defendant had previously requested, and received, a postponement for the same reason. The magistrate advised defense counsel that under Federal Rule of Criminal Procedure 16 he would need to submit to the government a written summary of the expert’s proposed testimony, and she asked counsel how much time that would take. Defense counsel requested 50 days. The magistrate judge agreed and set a new deadline for Defendant to make her expert disclosures and for trial. However, the magistrate warned defense counsel that another continuance on this basis is very unlikely because I think at some point we’ve got to decide. 

Defendant missed the deadline, and after the close of business 10 days after the deadline, counsel emailed to the government and the magistrate Defendant’s witness list, which included another expert witness. The list contained a two-sentence description of this expert’s proposed testimony, which stated that he was an expert in forensic psychology and psychiatry. The expert was to testify to the mental health issues of Defendant and her lack of the requisite mental state (mens rea) elements of the crimes charged against defendant. Defendant didn’t provide any further summary of the expert’s opinion at that time. The next Monday, the court entered a minute order instructing Defendant to submit the witness list through the court’s electronic filing system (PACER), not email. The same day, the government moved to exclude Defendant’s expert, filing Defendant’s emailed witness list as an attachment to its motion. 

At a pretrial conferenceDefense counsel gave an assortment of reasons for the late disclosure. But the magistrate found these excuses inadequate—noting that Defendant had been afforded ample time to find an expert—and granted the motion to exclude the forensic psychologist. 

Defendant filed a motion to reconsider at midnight before another pretrial conference. Defense counsel again offered excuses for his delay, and the government explained that it couldn’t possibly be prepared to respond to the new expert in time for trial. The magistrate denied the motion to reconsider. 

Tenth Circuit Judge Harris Hartz, wrote for a panel that include Michael R. Murphy and Joel M. Carson, holding that the magistrate’s exclusion of Defendant’s expert was within her sound discretion.  

Judge Hartz began his analysis with the governing law. In United States v. Wicker (10th Cir. 1988), where the Court set out three factors to be considered in imposing a discovery sanction against the government in a criminal case: 

  1. the reasons the government delayed producing the requested materials, including whether the government acted in bad faith when it failed to comply with the discovery order;  
  2. the extent of prejudice to the defendant from the government’s delay; and  
  3. the feasibility of curing the prejudice with a continuance. 

Judge Hartz explained that these factors didn’dictate the bounds of the court’s discretion,” but “merely guide the district court in its consideration of sanctions.” The judge went on to say that the Court adopted the same approach to determine the propriety of excluding defense witnesses a 2001 Tenth Circuit decision (Adams)In that case, the defendant disclosed his psychological expert only three days before trial and over a month after the disclosure deadline. The Tenth Circuit held that the district court properly excluded the expert “on the grounds of untimeliness alone,” because “three months had passed since the defendant’s indictment” and “concerns about the defendant’s mental state” had previously been raised. Although the district court didn’t “explicitly weigh” the second or third Wicker factors, the Court noted that the record on appeal indicated that “the final two factors weigh[ed] strongly in favor of exclusion of the evidence,” because the delayed disclosure “left the government no opportunity to conduct its own psychological examination of the defendant, or otherwise mount a rebuttal” and a “continuance adequate to accommodate the described needs of the government would significantly delay the trial. 

On appeal, Defendant challenged the exclusion of her forensic psychology expert on several grounds. First, she argued that the magistrate judge failed to apply Wicker in ruling on the matter. But Judge Hartz found that the argument was belied by the record. The magistrate may not have cited Wicker itself, but she cited Adams, which follows Wicker. Plus, the magistrate addressed each of the factors. She discussed Defendant’s excuses for not disclosing her expert on time, the impact her tardiness would have on the government’s being ready for the scheduled trial, and the problems with setting a new date. 

Next, Defendant argued that “assuming the magistrate implicitly considered the Wicker factors,” she challenged the way in which the magistrate evaluated and weighed those factors. Regarding the reasons for delay—the first Wicker factor—Defendant excused her counsel’s failure to comply with the magistrate judge’s deadline because her counsel was unfamiliar with federal court rules and procedures, including the PACER system—it was his first federal criminal trial. The magistrate was properly unimpressed,” Judge Hartz wroteAs far as PACER, the magistrate explained that its a very user-friendly system; that this was the first time during her seven years on the bench that any lawyer had complained of problems; that defense counsel had first raised the PACER issue two months earlier and had plenty of time to learn the system; and in any event, it was not until 10 days after the deadline that defense counsel tried to use PACER to give notice of his expert. 

Unfamiliarity with federal court procedures was also no excuseJudge Hartz held. The magistrate judge’s directions to counsel could not have been clearer—disclose the expert and a summary of the proposed testimony by a specific date. How much federal-court experience does one need to understand that plain directive?” Hartz asked. To that end, defense counsel never suggested that he didn’t understand what he had to do and when he had to do it. Other than complaining about PACER, he invoked his lack of federal-court experience only when he tried to explain why he failed to alert the government or the court of the need for additional time to make the disclosure. The magistrate found that explanation unconvincing, pointing out that counsel’s state-court experience certainly encompassed requests for additional time. Defense counsel then gave additional excuses, saying that giving notice had not occurred to him and that he was having personal problems at the time. But those excuses ring hollow,” Judge Hartz said because counsel had successfully requested a continuance on the same issue twice before. As such, he was aware that was an available option. As the magistrate said at hearing, The trial dates have been extended several times now all on the basis of defendant’s request to… get a mental health report…” 

Defendant cited a single case in which the Tenth Circuit held that an attorney’s inexperience was a consideration in overturning a discovery sanction, and the Court was not willing to read its prior opinion as forbidding a witness-exclusion sanction for failure by an inexperienced attorney to comply with a mandate as precise as the one in this case. 

Defendant’s briefs also speak to defense counsel’s statements to the magistrate about the difficulties in obtaining an expert witness. However, Judge Hartz said that by the time of the disclosure deadline, defense counsel had been in the case for nine monthshad said in open court that he was trying to get an expert to testify to Defendant’s mental-health issues; and had previously been granted lengthy extensions to obtain an expert for the amount of time he had requested.  

Defendant claimed that there was a special problem because she didn’t want to disclose her condition to a male psychologist; however, the Court said that counsel wouldve known of this problem when first seeking an expert, and Defendant ultimately ended up with a male expert anyway. Nonetheless, defense counsel had known of the need to obtain an expert for at least six months (two or three times as long as in Adams), which was plenty of time. 

As far as the second Wicker factor—prejudice— Judge Hartz found that the magistrate reasonably credited the government’s account of the prejudice it would suffer.  

The third factor is the feasibility of a continuance. Judge Hartz said that a continuance is almost always “doable.” However, here the magistrate explained that a long delay wouldve been necessary. The reason to deny an additional continuance was particularly sound,” the Court found. Defendant had already been granted two continuances—for the amount of time she requested—to obtain an expert witness. Courts don’t have obligation to grant continuances ad infinitum to avoid prejudice to parties who have demonstrated repeated failures of diligence. 

Finally, Defendant claimed that the magistrate judge improperly excluded her expert on the ground that his testimony would be inadmissible. The Tenth Circuit rejected that contention. While the magistrate expressed serious doubts as to the admissibility of much of Defendant’s proposed expert testimonyshe made no rulings on the matter. On the contrary, she said there would need to be hearings if admissibility was challenged. And it was the added delay from the hearings that was her primary concern. 

The magistrate’s decision was informed and supported by the considerations outlined in Wicker, the panel held; she didn’t abuse her discretion. 

The Tenth Circuit affirmed the district court’s order affirming Defendant’s conviction and sentence of imprisonment.