United States District Court, E.D. Virginia, Newport News Division
MARK S. DAVIS, District Judge.
This matter is before the Court on defendant Larue Martin, Jr.'s ("Defendant") motion in limine to exclude expert testimony offered by the Government. Defendant's motion seeks to prevent the Government from introducing certain expert testimony at trial because (1) the Government's expert notice was untimely, (2) the Government's expert notice was inadequate, and (3) some of the expected testimony would violate Federal Rule of Evidence 704. See Def.'s Mot. in Limine, ECF No. 18. As set forth below, Defendant's motion in limine is DENIED.
A. Timeliness of Government's Expert Notice
Defendant asserts that the Court should "bar the [G]overnment from introducing the proposed expert testimony of DEA Agent Timothy Jenkins" because "the [G]overnment waited until seven days before trial to notify the defense of a proposed expert." Id. at 3, ECF No. 18. Conceding that its notice regarding Agent Jenkins "was untimely under the [Court's] Discovery Order, " the Government contends that the late filing was "due to excusable neglect" and, in any event, "exclusion of the proffered testimony is an inappropriate remedy in this case." Gov't's Br. in Resp. at 1, 4, 6, ECF No. 19.
The Court's April 30, 2014 Discovery Order provided that, "[t]he [G]overnment shall disclose to the defendant no later than ten business days before trial, a written summary of testimony the [G]overnment intends to use under Rules 702, 703, or 705, Federal Rules of Evidence." Ct.'s Disc. Order at 2, ECF No. 12. The Government notified defense counsel "after business hours on June 21, 2014], four business days prior to trial, " Gov't's Br. in Resp. at 4-5, ECF No. 19, of its "inten[t] to call Drug Enforcement Administration (DE) Special Agent Timothy Jenkins as a witness during the trial of [Defendant], " Gov't's Ex. A, ECF No. 19-1. The Government asserts that it had been unable to "identify an appropriate federal witness prior to that date" and that it provided the required "notice and summary on the same day that Special Agent Jenkins was identified as an appropriate witness." Gov't's Br. in Resp. at 5, ECF No. 19.
Federal Rule of Criminal Procedure 45(b) permits a court to extend the time in which "an act must or may be done... if the party failed to act because of excusable neglect." Fed. R. Crim. P. 45(b). "A determination of excusable neglect is based on several factors, including the danger of prejudice [to the opposing side], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.'" United States v. Stewart, 312 F.App'x 557, 558 (4th Cir. 2009) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. , 507 U.S. 380, 395 (1993)), 
1. Danger of Prejudice
Defendant alleges no prejudice resulting from the Government's untimely notice, such as that noted in the cases cited by Defendant where notice given five days before trial "substantially prejudiced the [G]overnment because, on such short notice, it could not reasonably be expected to search for its own expert [on the reliability of eyewitness identifications] and find one available to come to the Virgin Islands in time to be given the available facts and the opportunity to assimilate them." United States v. Dowling , 855 F.2d 114, 118 (3d Cir. 1988); see also United States v. Curry , 977 F.2d 1042, 1052 (7th Cir. 1992) (relying on Dowling to affirm trial court's exclusion of eyewitness reliability expert based on four days' notice). Here, the Government asserts that Special Agent Jenkins will be testifying to a very limited fact: That the packaging of the marijuana found in the defendant's pocket is consistent with street level distribution of a controlled substance." Gov't's Br. in Resp. at 5, ECF No. 19. Defendant makes no assertion that he intends to call an opposing expert to refute Special Agent Jenkins' testimony, or that four business days before trial is insufficient time to locate such opposing expert. Thus, this factor favors the Government.
2. Length of Delay and Impact on Judicial Proceedings
According to the Court's Discovery Order, the Government should have provided Defendant with the expert disclosure by May 26, 2014. Instead, the Government provided the disclosure "after business hours on June 2, . Id. at 4-5. Defendant does not request any additional time to adequately prepare in response to the Government's untimely disclosure. Nor does it appear to the Court that the untimely disclosure will impact the trial scheduled to begin on June 9, 2014, especially in light of the fact that Special Agent Jenkins' testimony will be "very limited." Id. at 5. Thus, this factor also favors the Government.
3. Reason for Delay and Whether Delay was in Government's Control
The Government asserts that the reason for its delay was its "inability to identify an appropriate federal witness prior to [the] date" instructed by the Court to disclose its experts to Defendant. Id. at 5. The Government does not provide the Court with any details regarding its efforts prior to the date its disclosure was due, specifically whether the reasons for the delay were within the Government's control. The Court observes that a better course of action might have been for the Government to at least notify Defendant in a timely manner that it was seeking an expert to testify to an opinion about the marijuana packaging and its consistency with street level distribution. The Government does not allege that it did, in fact, timely notify Defendant of its intent to search for an expert to testify to this "very limited fact, " even if it had not yet found such expert. Thus, this factor favors Defendant.
4. Whether the Government Acted in Good Faith
Defendant asserts that "[t]here is no good cause for the [G]overnment to have waited until seven days before trial to notify the defense of a proposed expert." Def.'s Mot. in Limine at 3, ECF No. 18. However, Defendant alleges no bad faith on the part of the Government. On the other hand, the Government does not expressly allege that it acted in good faith. However, the Government alleges that it learned on June 1, 2014 that Defendant "had finally rejected the Government's plea offer, and that this case would be proceeding to trial." Gov't's Br. in Resp. at 2, ECF No. 19. The very next day, June 2, 2014, the Government "identified [Special Agent Jenkins) as an appropriate witness" and provided Defendant with ...