United States v. Slatten , 61 F. Supp. 3d 103 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 08-360 (RCL)
)
PAUL A. SLOUGH, )
EVAN S. LIBERTY, and )
DUSTIN L. HEARD, )
) F I L E D
Defendants. )
) JUL 29 2014
C|erk, U.S. District & Bankruptcy
) Courts for the District of Columb|a
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 14-107 (RCL)
)
NlCHOLAS A. SLATTEN, )
)
Defendant. )
)
MEMORANDUM OPINION
Before the Court is the defendants’ motion [Slough 532; Slatten 9l] for reconsideration
of the Court’s June 16, 2014 Order and Memorandum Opinion [Slough 527, 528; Slatten 82, 83]
excluding the testimony of defense expert witness Don Mikko. Upon consideration of the
defendants’ motion [Slough 532; Slatten 91], the govemment’s opposition [Slough 57l; Slatten
127], the defendants’ reply [Slough 58l; Slatten 140], the applicable law, the entire record
herein, and for the reasons set forth below, the Court will GRANT the defendants’ motion for
reconsideration
I. BACKGROUND
As described in the Court’s June 16, 2014 Memorandum Opinion, the defendants
provided the government with a written disclosure summarizing the expected testimony of
proposed toolmark and munitions expert Don Mikko, among others, on April 25, 20l4, as
required by Federal Rule of Criminal Procedure l6(b)(l)(C) ("Rule 16"), and pursuant to the
Court’s Scheduling Order, United States v. Slough, 08 Cranch 360 (D.D.C. Mar. 7, 2014), ECF No.
396. Mem. Op., Slough, ECF No. 528 at 2 ("Mem. Op.”). However, this initial Mikko summary
inadequately disclosed his potential testimony. Id. at 10-ll. Because the trial was slated to
begin on June l7_just one day after the Court’s Memorandum Opinion was issued“the Court
consequently found that the defendants would not satisfy Rule l6’s pretrial disclosure
requirement as to Mikko and, therefore, Mikko’s testimony should be excluded. Id, at l l.
Unbeknownst to the Court, the parties had been coordinating Mikko’s visit to
Washington, D.C., to examine bullets and metal fragments collected from the scene of the
September 16, 2007 Nisur Square shooting incident that were housed at the FBI’s Washington
Field Office. See Defs.’s Mot. at 5-8. During this period of direct communication between the
parties, the government filed a motion in limine to preclude the testimony of a number of defense
experts, including Mikko. Slough, May 16, 2014, ECF No. 444. As the defendants note, the
govemment’s motion in limine appeared to acknowledge an understanding that Mikko was
"currently seeking to review the ballistics evidence in this case and after which, the government
presumes that defendants will supplement their Rule 16 notice with the conclusions that the
defense will seek to introduce at trial, at least as it relates to firearms and toolmark
identification." Mot. at 6-7 (citing Slough, ECF No. 444 at 16 n.l); see generally Gov’t’s Opp’n
(not refuting defendants’ attribution of this footnote to Mikko).
Following the Court’s Memorandum Opinion excluding Mikko’s testimony, the
defendants "oontacted Mr. Mikko to see if he could provide a summary of his additional opinions
and conclusions and the bases for those opinions and conclusions that would satisfy Rule l6."
Mot. at 8. Despite some delays during his inspection of the evidence, Mikko presented a
summary report of his fmdings. Id. The defendants provided the government with a
supplemental disclosure of Mikko’s conclusions on June 17, 2014-some hours before the jury
was sworn. Id. The supplement detailed Mikko’s conclusions as to the potential source of the
“recovered bullets/fragments." See Mot. Ex. A at 111 l-8. The supplement further referenced
Mikko’s opinion regarding the tests undertaken by the govemment’s explosives expert Mark
Whitworth involving the M203 grenade launcher and M433 grenade rounds. Id. at 11 9.
Mikko’s purported opinion conceming Whitworth’s tests is based on Whitworth’s 2009 report
and accompanying notes, as well as Mikko’s personal experience, rather than an examination of
the physical evidence. Ia'.; see also Opp’n at 3-4.
On June 25, 20l4, the defendants moved for reconsideration of the Court’s June 16 Order
excluding Mikko’s testimony. Slough, ECF No. 532; Slatten, ECF No. 9l.
Il. LEGAL STANDARD
A. Motions for Reconsideration in Criminal Cases
While the Federal Rules of Criminal Procedure do not provide for motions for
reconsideration in criminal cases, "[s]everal of this Court’s colleagues nevertheless have
determined that motions for reconsideration may be entertained in criminal cases . . . ." Unitea'
Staies v. Cabrera, 699 F. Supp. 2d 35, 40 (D.D.C. 20l0) (citing cases); see also United States v.
Dieter, 429 U.S. 6, 8 (l976) (per curz`am) (noting "the wisdom of giving district courts the
opportunity promptly to correct their own alleged errors"). In United States v. Libby, Judge
Walton adopted the standard of review for motions for reconsideration filed under Rule 59(e) of
the Federal Rules of Civil Procedure as the appropriate standard for motions for reconsideration
of final judgments in criminal cases. 429 F. Supp. 2d 46, 46-47 (D.D.C. 2006).1 However, in
United States v. Sunia, Judge Walton explained that the "apparent intention in Libby was to
simply transplant into the criminal context the standard of review for an analogous motion for
reconsideration filed in a civil case." 643 F. Supp. 2d 5l, 60-61 (D.D.C. 2009).
In civil cases, "[t]he standard of review for interlocutory decisions differs from the
standard[] applied to final judgments under Federal Rule[] of Civil Procedure 59(e) . . . ."
Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008). Federal Rule of Civil Procedure
54(b) ("Rule 54(b)") permits a district court to revise an order "that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties"_i.e. an interlocutory order_"at
any time before the entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities." Fed. R. Civ. P. 54(b). Yet Rule 54(b) is silent on the standard of review applicable
to motions for reconsideration of such interlocutory orders. "To fill this gap, courts in this
district have held that ‘relief upon reconsideration [of an interlocutory decision] pursuant to Rule
54(b) is available as justice requires."’ United States v. Coughlin, 821 F. Supp. 2d 8, 18 (D.D.C.
2()l1) (quoting Hojj’man v. District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C.2010)) (second
set of internal quotation marks omitted) (emphasis added). "[A]sking ‘What justice requires’
amounts to determining, within the Court’s discretion, whether reconsideration is necessary
under the relevant circumstances." Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D,D.C. 2005).
To determine whether "justice requires” reconsideration of a previously issued interlocutory
order, the Court considers whether it "patently misunderstood a party, has made a decision
outside the adversarial issues presented to the Court by the parties, has made an error not of
reasoning but of apprehension, or where a controlling or significant change in the law or facts
l Since the Lz'bby decision, judges on this Court have followed suit regarding Rule 59(e)’s application to final
judgments in criminal cases. See, e.g., United Stales v. Booker, 613 F. Supp. 2d 32, 34 (D.D.C. 2009) (J. Urbina);
United States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008) (J. Kessler).
4
[has occurred] since the submission of the issue to the Court." Singh v. George Washington
Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal quotation marks and citation omitted).
"Furtherinore, the party moving to reconsider carries the burden of proving that some harm
would accompany a denial of the motion to reconsider." In Def of Animals v. Nat'l Institutes of
Health, 543 F. Supp. 2d 70, 76 (D.D.C. 2008).
B. Federal Rule of Criminal Procedure 16
As explained in the June 16 Memorandum Opinion, under Rule 16, the defendants "must,
at the govemment’s request, give to the government a written summary of any testimony that the
defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence[, which
govem testimony by expert witnesses,] as evidence at trial . . . ." Fed. R. Crim. P. l6(b)(l)(C).
"This summary must describe the witness’s opinions, the bases and reasons for those opinions,
and the witness’s qualifieations." Id. Failure to comply with Rule 16 may, at the Court’s
discretion, result in exclusion of the proposed expert testimony. Fed. R. Crim. P. 16(d)(2)(C).
Part of Title lV of the Federal Rules of Criminal Procedure, which is aptly named
"Arraignment and Preparation for Trial," Rule 16 govems pretrial discovery and inspection. See
also Unitea' Staies v. Nobles, 422 U.S. 225, 235 (1975) ("Both the language and history of Rule
16 indicate that it addresses only pretrial discovery."). Therefore, notwithstanding a lack of
explicit Rule 16 timing requirements, the Court previously concluded that the expectation that
parties make disclosures "in a timely fashion," Fed. R. Crim. P. 16, 1993 advisory committee’s
note, logically means that such disclosures must occur prior to the start of trial, if not earlier. See
Mem. Op. at ll.
Rule 16, as related to the disclosure of planned expert testimony, "is intended to
minimize surprise that often results from unexpected expert testimony, reduce the need for
continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's
testimony through focused cross-examination." Fed. R. Crim. P. 16, 1993 advisory committee’s
note. However, the Rule is "not intended to create unreasonable procedural hurdles." Id.
III. ANALYSIS
A. Mikko ’s T estim0n y Relating to Physically Examined Munitions Evidence
1 . T he Defendants Timely Fi`led a Pretrial Supplemental Disclosure Regarding
Mikko ’s Expected Testi`mony that Satisfies Rule 16
In its June 16 Memorandum Opinion, the Court assumed that "even if defendants
supplemented their disclosures for [Mikko] to bring them in line with Rule 16’s content
requirements, the disclosures would not be timely." Mem. Op. at ll. This assumption was
based on the fact that trial was slated to commence less than one day from the issuance of the
Court’s Memorandum Opinion and that the defendants had yet to submit a supplement.
However, contrary to this assumption, the defendants provided the government with a
supplemental Rule 16 disclosure regarding Mikko’s proposed testimony on the morning of June
17, 2014. See Mot. Ex. A.
The June 17 supplement is both substantively sufficient and timely. Compared with the
deficient April 25 Rule 16 disclosure, Mot. Ex. C, which was compiled before Mikko examined
the physical evidence, the June 17 supplement presents detailed descriptions of Mikko’s
examination of bullets and fragments collected from Nisur Square that surely comply with Rule
16’s content requirement.z Mot. Ex. A at 1111 l-8; see Fed. R. Crim. P. 16(b)(1)(C) (the disclosure
"must describe the witness’s opinions, the bases and reasons for those opinions, and the
2 The Court notes that the defendants misstate the rationale of the June 16 Memorandum Opinion for excluding
Mikko’s testimony. In no way did the Court imply that the April 25 Rule 16 disclosure as to Mikko was "already []
adequate." See Mot. at 10. Indeed, the Court clearly stated the opposite: that the initial disclosure as to Mikko,
among others, was "inadequate because [it was] incomplete." Mem. Op. at 10. The defendants only satisfied Rule
16’s content requirements once they submitted the June 17 supplement.
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witness’s qualifications").
Moreover, although the June 17 supplement was provided to the government just hours
before the jury was sworn, the supplement was still delivered pretrial-eonsistent with the
timeliness expectation embedded within Rule 16, see Fed. R. Crim. P. 16, 1993 advisory
committee’s note. Cf Martinez v. Illinois, 134 S. Ct. 2070, 2075 (U.S. 2014) (noting the "bright-
line rule" that "[a] jury trial begins, and jeopardy attaches, when the jury is sworn"). The Court
does not hold that timeliness, for purposes of Rule 16 disclosures, is solely determined by
whether a submission occurs pretrial. There may, in fact, be instances where disclosure
immediately before trial begins would be untimely given a clear need for such disclosure farther
in advance of opening statements or the first witnesses called to the stand. But here, the
govemment should have expected that the defendants would provide Mikko’s supplement quite
close to the start of trial. After the defendants had notified the government of a week-long delay
in Mikko’s planned arrival in Washington, D.C., the govemment, which required Mikko to travel
and bring his own inspection equipment to the FBI’s Washington Field Office, permitted Mikko
to conduct his on-site examination of the evidence from June 2 through June 4, 2014. See Mot.
at 5-6. While the defendants likely overstate the "schedule negotiated eooperatively with the
government" regarding Mikko’s examination of the physical evidence, compare Mot. at 10, ll,
and Defs.’s Reply at 2, with Opp’n at 2, the fact that the supplement would take another thirteen
days to prepare post-inspection should not have come as such a shock to the government
Given the "significant change in the . . . facts" that resulted from the provision of the
supplemental Rule 16 disclosure to the govemment before the start of trial, Sz`ngh, 383 F. Supp.
2d at 101, the Court, upon this motion for reconsideration, will no longer exclude Mikko’s expert
testimony as to the physical evidence he examined.
2. Admitting Mikko ’s Munitions Testimony Does Not Prejudice the Government
The government argues that "[t]o now allow the defendants to introduce [l\/Iikko’s]
testimony . . . would be unfairly prejudicial to the govemment." Opp’n at 2-3. The govemment
asserts that possessing the knowledge that Mikko’s testimony would be introduced "would have
significantly affected the govemment’s opening statement in addressing" the issue of alleged
incoming fire to the Raven 23 convoy. Ia'. at 3. The Court finds this claim unconvincing for two
reasons.
First, the length of this trial is expected to surpass four months and Mikko, a defense
witness, will not be testifying sooner than two months after the government delivered its opening
statement. The notion that the govemment’s inability to reference Mikko’s proposed testimony
in its opening statement will distort the govemment’s case in any meaningful way is
exaggerated.
’CL
Second, the govemment certainly understood the defendants theory of the case" to be
that "there was incoming fire from multiple insurgents" during the September 16, 2007 shooting
incident at Nisur Square. See Mot. at 3. The govemment cannot claim to be surprised that the
defendants would put on testimony regarding the presence of incoming fire. Indeed, the
government referenced purported evidence of incoming fire on at least three instances during its
opening statement. Trial Tr. 62:13-15, 66:24-67:14, 68:10-20, June 17, 2014. That the
government did not specifically refer to Mikko’s proposed testimony does not prejudicially alter
the overall argument against potential self-defense claims that the jury received during the
govemment’s opening staternent.
Moreover, the Court does not doubt that excluding Mikko’s testimony would cause harm
to the defendants’ case. See In Def of Anirnals, 543 F. Supp. 2d at 76 (burden on moving party
to demonstrate that "some harm would accompany a denial of the motion to reconsider").
Mikko’s testimony as to the existence of bullets from foreigri-made weapons "goes to the heart
of’ the defendants’ self-defense theory. See Mot. at 3, 16 ("Mr. Mikko will provide non-
cumulative, exculpatory evidence that directly supports the defense theory of the case and
contradicts the govemment’s theory."). Thus, granting the defendants’ motion for
reconsideration with respect to Mikko’s testimony conceming bullets and metal fragments found
at the scene of the Nisur Square shooting incident is proper.
B. Mikko’s Testimony Relating to the M203 Grenade Launcher
1. T he Defenclants Timely Filed a Pretrial Supplemental Disclosure Regarding
Mikko ’s Expectecl Testimony that Satisfies Rule 16
The defendants’ disclosure of Mikko’s testimony as to the M203 grenade launcher and
M433 grenade rounds satisfied Rule 16’s requirements only once they provided the June 17
supplement to the govemment.z Despite the fact that Mikko’s grenade launcher-related
testimony does not derive from an examination of the physical evidence, this submission was
timely since, as similarly discussed above, it occurred pretrial and the govemment fairly should
have expected counter-testimony during the defendants’ case-in-chief_predicted to occur two
months after opening statements_regarding the govemment’s prosecutorial claims about the
defendants’ alleged use of grenade launchers.
2. Adrnitting Mikko ’s M203 Testimony Does Not Prejua'ice the Government
The govemment argues that disclosing Mikko’s purported opinion regarding the grenade
launcher and rounds immediately before the start of trial contravened Rule 16’s intent "to
3 The defendants argue that Mikko’s expected M203 testimony "was disclosed in [their] original Rule 16 disclosure
for Mr. Mikko." Reply at 6. But the April 25 disclosureythat Mikko’s testimony "may include information about
the safe and effective ranges, the kill casualty radius, firing characteristics and other mechanical features" of the
M203, Mot. Ex. C at l-2_is a far cry from disclosing Mikko’s specific intention to impeach portions of the
purported opinion of the govemment’s M203 expert, Mot. Ex. A at 11 9.
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minimize surprise that often results from unexpected expert testimony, reduce the need for
continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's
testimony through focused cross-examination." Opp’n at 4 (citing Fed. R. Crim. P. 16, 1993
advisory committee’s note). But given the natural expectation that the defendants would attempt
to counter the govemment’s grenade launcher claims, the govemment’s assertion of surprise is
disingenuous. Furtherrnore, the govemment’s contention that "the timing of the defendants’
disclosure" will prevent the govemment from "meaningiiilly arrang[ing] for additional testing to
be conducted in the middle of its case-in-chief" by its expert Whitworth is equally unconvincing.
See id. As the trial enters its seventh week, the govemment has yet to call Whitworth. Thus, the
govemment’s proposed expert has had sufficient time to conduct any additional testing it deemed
necessary to respond to Mikko’s proposed testimony. More than one month following the June
17 supplement, any potential insecurity regarding Whitworth’s testimony that the Mikko
disclosure has caused the govemment is a problem that lies with the govemment, not the
defendants.
As long as he is properly qualified during voir dire as an expert in the area of M203
grenade launchers, Mikko will be entitled to opine on Whitworth’s methods of testing.‘l Fed. R.
Evid. 702.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the defendants’ motion [Slough 532;
Slatten 91] for reconsideration of the Court’s June 16, 2014 Memorandum Opinion and Order
[Slough 527, 528; Slatten 82, 83] excluding the testimony of defense expert witness Don Mikko.
As such, Mikko is permitted to testify during the defendants’ case-in-chief.
4 Of course, the scope of Mikko’s testimony regarding the M203 grenade launcher must be limited to his expertise
regarding the testing methods employed by Whitworth, and cannot veer into a discussion of physical evidence he
has not examined.
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A separate Order consistent with this Memorandum Opinion shall issue this date.
7/3/2/&/_
Daie RoYc':E C. LAMBERTH
United States District Judge
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