United States v. Slough , 51 F. Supp. 3d 1 ( 2014 )

UNITED STATES DISTRICT CoURT JU
FoR THE DISTRICT oF CoLUMBIA N l 5 2914
Clerk, U.S. District and
Bankruptcy Courts
UNITED STATES oF AMERICA
v. Criminal N0. 08-360 (RCL)
PAUL A. SLOUGH,
EVAN S. LIBERTY, and
DUSTIN L. HEARD,
Defendants.
'§SSSSSSSSSS
UNITED STATES OF AMERICA
v. Criminal N0. 14-107 (RCL)
NICHOLAS A. SLATTEN,
S\/SS§SSS
Defendant.
l
MEMORANDUM OPINION
Before the Court is the government’s motion [444] to exclude the expert testimony of
various defense experts. Upon consideration of the government’s motion, the defendants’
opposition [473], the government’s reply to that opposition [497], oral argument held on May 29,
2014, the applicable laW, and the entire record herein, the Court will GRANT in part, DEFER in
part, and DENY in part the government’s motion to exclude defendants’ expert testimony.
I. BACKGROUND
Both the District Court and the Court of Appeals for the District of Columbia Circuit
have previously described the factual background of this case. United States v. Slough, 677 F.
supp. 2d 112, 116-129(13.1).<:. 2009) (“Szough 1"), vaca¢ed, 641 F.zd 544, 555 (D.c. cir. 2011)
("Slough II"); Slough II, 641 F.3d at 547-49. Thus, the Court will now only highlight the
relevant facts and procedural background.
On April 25, 2014, the defendants sent letters to the government, as required by Rule
l6(b)(l)(c) of the Federal Rules of Criminal Procedure ("Rule 16"), notifying the government of
their intent to call ten different expert witnesses in the upcoming trial in this matter,. Gov’t.’s
Mot. at l. On May l6, 2014, the government timely filed the instant motion, which asks this
Court to exclude the testimony of nine of those witnesses: Urey Patrick; Col. David Bolgiano;
William Conrad; William Tobin; Dr. Frederick Schmidt; Don Mikko; Michael Haag; Dr.
Michael Baden; and Dr. Henry Lee. See generally Gov’t.’s Mot. The govemment first states
that the testimony of Mr. Patrick and Col. Bolgiano should not be admitted under Rule 702 of the
Federal Rules of Evidence ("Rule 702") and the Supreme Court’s decision in Daubert v. Merrell
D0w Pharmaceutz``cals, Inc. 509 U.S. 579 (1993), alleging that those two witnesses lack the
requisite qualifications for the Court to accept their opinions as expert testimony and because
their opinions do not meet the relevance standard of Daubert and Rule 702. Gov’t.’s Mot. at 4-
l5. Additionally, the government states that, for each of the nine above-mentioned witnesses,
the defendants did not provide adequate summaries of the expert testimony under Rule l6, and
that this Court should exclude the testimony on those grounds. See generally Gov’t’s Mot.
II. LEGAL STANDARD
Rule 702 governs admissibility of expert testimony at trial. lt states that "[a] witness who
is qualified as an expert by knowledge, skill, experience, training, training, or education may
testify in the form of an opinion or otherwise if:"
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(emphasis added). "Any testimony" certainly includes the testimony that defendants intend to
proffer, and defendants have as much as admitted that their disclosures do not comply with Rule
16’s requirements. While Rule 16 does not contain any specific timing requirements, it does
deal with pretrial discovery. See e.g. Fed. R. Crim. P. 16, 1997 advisory committee’s note
("[a]mendments in 1993 to Rule 16 included provisions for pretrial disclosure of information,
including names and expected testimony of both defense and government expert witnesses").
"[I]t is expected that the parties will make their requests and disclosures [of expert testimony] in
a timely fashion." Fed. R. Crim. P. 16, 1993 advisory committee’s note. Trial in this matter is
set to begin this week, and to this Court’s knowledge defendants have not yet supplemented their
incomplete disclosures. Given that Rule 16 specifically contemplates pretrial disclosures, this
Court has no difficulty concluding that even if defendants supplemented their disclosures for
these expert witnesses to bring them in line with Rule 16’s content requirements, the disclosures
would not be timely. Therefore the Court will grant the govemment’s motion to exclude this
testimony.
IV. CONCLUSION
For the foregoing reasons, the government’s motion [444] to preclude defendants’
proffered expert testimony is GRANTED in part, DEFERRED in part, and DENIED in part.
Urey Patrick’s testimony on memory inconsistencies that can result from combat (see l\/Iot., Ex.
A at 2) will be excluded. The proffered expert testimony from William Tobin, Dr. Frederick
Schmidt, Don Mikko, Michael Haag, and Dr. Michael Baden is also excluded. The Court will
defer decision on whether to admit Col. David Bolgiano’s testimony on the threat level in
Baghdad (see Mot., Ex. B at 3) until it has decided the Government’s Motion to Exclude Threat
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Evidence That ls Irrelevant to Defendant’s Self-Defense Claims [202, 449]. The government’s
motion to exclude is denied as to all other aspects of the expert testimony.
A separate Order consistent with this Mem0randum Opinion shall issue this date.
éf{cl_!£,¢rc l C rml/bit
Date RO E C. LAMBERTH
United States District Judge
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
Under Rule 702, "the trial judge must ensure that any and all scientific testimony or
evidence admitted is not only re1evant, but reliable." Daubert v. Merrell D0w Pharmaceuticals,
Inc., 509 U.S. 579, 589 (1993). Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)
clarified that Daubert could cover all expert testimony, not just science-based testimony. Thus
Rule 702 imposes upon trial judges a two-pronged test: they must ensure that all expert
testimony is (1) reliable (meaning the expert is qualified to issue the opinion and the opinion
itself has an acceptable basis) and (2) relevant (meaning it will help the trier of fact understand
evidence or determine disputed facts). See generally Daubert, 509 U.S. 579.
Under Rule 16, defendants must, at the govemment’s request, provide "a written
summary of any testimony that the defendant intends to use under [Rule 702] This summary
must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s
qualifications." Fed. R. Crim. P. 16(b)(1)(C). Failure to comply with Rule 16 may result in a
court refusing to admit the testimony. Fed. R. Crim. P. 16(d)(2); see also U.S. v. Day, 524 F.3d
1361 (D.C. Cir. 2008) (holding that a district court was correct to exclude testimony that did not
meet the Rule 16 standard).
III. ANALYSIS
A. Rule 702 Challenges
a. Urey Patrz'ck
The government challenges Mr. Patrick’s testimony as to four subjects: self-defense/use
of force; the physiological realities of deadly force confrontation; memory inconsistencies; and
subjective perspective. The Court will deal with each of these in tum.
i. Self-Defense/Use of F orce
The government asks this Court to prevent Mr. Patrick from speaking on the use of
deadly force in self-defense cases. The government has three main arguments for disallowing
this speech: that it will not help the jury determine the facts of the case; that it will involve the
witness reciting legal standards of self-defense, which is prohibited; and that it will involve
evidence as to defendants’ state of mind, which is banned under Fed. R. Evid. 704(b). Mot. at 5-
10.
The government claims that Mr. Patrick’s testimony on self-defense would not aid the
jury because the govemment already plans to introduce documents laying out the standards for
use of deadly force that Blackwater provided to its employees. lt seems a stretch, however, to
say that the mere introduction of these documents will provide the proper context within which
the jury will be able to evaluate any self-defense claims. The use of deadly force in self-defense
is something that is often outside the ken of the ordinary juror. To simply point jurors to
manuals detailing appropriate procedures and expect them to understand it well enough to make
a determination of guilt or innocence strikes this Court as insufficient Mr. Patrick’s testimony
would help provide jurors with the context of the use of self-defense in the Baghdad of
September 2007.
Additionally, the government’s claim that allowing Mr. Patrick to testify on self-defense
would usurp this Court’s role does not withstand closer scrutiny. Mr. Patrick intends to give
testimony on general principles of self-defense and use of force, as well as to place them within
the context of Iraq in 2007. There is no indication that he will be telling the jurors what standard
they should be applying to this specific case. This is as it should be; as the govemment correctly
points out, providing legal standards is the Court’s role. Mot. at 9. While this Circuit has not
dealt specifically with the propriety of admitting a "use-of-force" expert, the Court agrees with
the Ninth Circuit’s decision allowing that type of testimony in U.S. v. Koon, 34 F.2d 1416, 1434
(9"‘ Cir. l994), rev ’a' on other grounds, 518 U.S. 81 (l996). Mr. Patrick will not offer a legal
standard; instead, he will offer general principles of self-defense, which is very different. The
advisory committee’s note to Rule 702 echoes this_"it might also be important in some cases
for an expert to educate the factfinder about general principles, without ever attempting to apply
these principles to the specific facts of the case." Fed. R. Evid. 702 advisory committee’s note.
Finally, the government claims that Mr. Patrick’s testimony will go to the defendants’
state of mind, and is thus prohibited under Fed. R. Evid. 704(b). The rules are explicit that "an
expert witness must not state an opinion about whether the defendant did or did not have a
mental state or condition that constitutes an element of the crime charged or of a defense." Fed.
R. Evid. 704(b). But there is no indication that Mr. Patrick intends to testify as to the
defendants’ states of mind. Elucidating general principles of self-defense and opining on
whether a given person’s use of force was reasonable are simply not the same thing.
The Court will therefore allow Mr. Patrick’s testimony on self-defense and the use of
deadly force.
ii. Physiologz``cal Realities of Deadly F0rce Corzfrorztatz``on
The government seeks to prohibit Mr. Patrick from testifying to the physiological
realities of deadly force confrontation because he does not have any expertise in a medical field.
Mot. at 10. However, the government overstates its case in claiming that Mr. Patrick has no
expertise whatsoever. lt appears clear from his curriculum vitae that Mr. Patrick has experience
dealing with the physiology of self-defense-indeed, it seems logically inconsistent for the
government to agree that Mr. Patrick is generally an expert on self-defense while at the same
time claiming that he is not qualified to discuss a key part of it. The government scoms Mr.
Patrick’s authorship of In Defense of Self & Others as just "plug[ging] a book," but the fact that
Mr. Patrick has written on self-defense before at book length suggests that he will know more
than the average juror when it comes to these physiological realities. Gov’t’s Reply at 3.
The Court will therefore allow Mr. Patrick’s testimony on the physiological realities of
deadly force confrontation.
iii. Memory Inconsistencies
The government challenges Mr. Patrick’s testimony on memory inconsistencies that
result from combat both because Mr. Patrick appears unqualified and because memory-focused
expert testimony can be unreliable. Mot. at lO-l2. Curiously, the defense chose not to respond
to this particular objection. See generally Opp’n; see also Reply at l-2 (pointing out that
defendants did not respond to this portion of the motion). As the numerous cases that the
govemment cites in its initial motion attest, courts have often cast a skeptical eye on memory
testimony. Mot. at ll. However, courts have allowed expert testimony on memory-based issues
in certain cases. See e.g. R0ck v. Arkansas, 483 U.S. 44 (1987) (holding that expert testimony on
repressed memories is not per se inadmissible).
ln any event, the Court need not reach a decision on whether expert testimony on
memory from a qualified expert would be admissible because Mr. Patrick is clearly not qualified
to offer it. Mr. Patrick has no medical or scientific training in memory; his expertise is in self-
defense and the use of deadly force. Though Mr. Patrick similarly lacked formal scientific
training in the physiological realities of self-defense, the connection between expertise in self-
defense and expertise in memory inconsistencies resulting from combat is far more tenuous than
the connection between expertise in self-defense and expertise in the physiological realities of
self-defense. Given that courts-with good reason_usually cast a jaundiced eye on memory-
focused testimony to begin with, the bar for qualification as an expert on memory issues must be
higher. Mr. Patrick’s lack of medical or scientific training in memory alone might not be enough
to disqualify his testimony, but the Court cannot permit testimony on such an unreliable subject
as memory from someone who has no other indicium of expertise.
Therefore, the Court will not allow Mr. Patrick to present any testimony on memory
inconsistencies resulting from combat.
iv. Subjectz``ve Perspective
Finally, the government seeks to exclude Mr. Patrick’s testimony on the subjective
perspective of someone who uses deadly force in self-defense. The government’s rationale for
excluding this testimony is relatively similar to one of its reasons for excluding Mr. Patrick’s
testimony on self-defense_namely, that the proffered testimony will not help the jury decide the
reasonableness of the defendant’s actions. The answer to this objection is also similar to the
answer to the objection about testimony on self-defense itself. Most jurors simply have never
been in a situation where they had to make a decision on whether to use deadly force in defense
of self. Undoubtedly, there are subjective factors that go into that calculation, and, just as
undoubtedly, jurors may be unlikely to perceive those factors on their own. Mr. Patrick’s
testimony can remedy that deficiency.
Therefore, the Court will allow Mr. Patrick to present his testimony on the subjective
perspective of an individual in a situation where self-defense may be required.
b. Col. David Bolgiano
Many of the government’s objections to Col. Bolgiano’s testimony are fundamentally
similar to their objections to Mr. Patrick’s testimony. In the interests of brevity, then, the Court
will only deal specifically with the Rule 702 challenge that is unique to Col. Bolgiano, and will
reject the government’s challenges to Col. Bolgiano’s general testimony about self-defense for
the same reasons that it rejects the government’s objections to Mr. Patrick’s testimony. The
appropriate use of self-defense, the rules of engagement, and the use of high numbers of rounds
in self-defense are not matters of common knowledge, and the jury, as the fact-finder, should be
made aware of them.
The government’s other objection under Rule 702 is to Col. Bolgiano’s testimony as to
the "‘threat level in Bag[h]dad."’ Mot. at 14. The government first claims that Col. Bolgiano
would not have knowledge of the threat level in Baghdad, but as the defense makes clear in its
opposition, Col. Bolgiano does in fact have that knowledge. Opp’n at 6-7. If the government
feels that Col. Bolgiano has insufficient knowledge to testify to the threat level they can make
that clear via cross-examination. The government also states that this Court should exclude Col.
Bolgiano’s evidence until it decides the Government’s Motion to Exclude Threat Evidence That
ls irrelevant to Defendant’s Self-Defense Claims, Slough, 08 Cranch 360, ECF No. 202 and 449. If
the Court does decide that generic threat evidence is not relevant to the defendants’ self-defense
claims, then obviously Col. Bolgiano’s testimony on that subject would not be admitted. As
such, the Court will defer decision on whether Col. Bolgiano’s testimony on the threat level in
Baghdad should be admitted until it has decided whether generic threat evidence is admissible at
all.
B. Rule 16 Challenges
a. Urey Parrz'clc, Col. David Bolgiano, Willz``am Conrad, Dr. Henry Lee
Only once has the D.C. Circuit approved the exclusion of an expert due to inadequacy of
the Rule 16 disclosure. See Day, 524 F.3d l26l. In that case, the defense was far more
recalcitrant with its disclosures; indeed, its expert only shared his diagnosis of the defendant’s
mental condition during a hearing on whether to exclude the evidence at issue. Id. at l37l. The
government’s complaints here are a far cry from the complaints made in Day, and this Court
finds that the expert disclosures for Mr. Patrick, Col. Bolgiano, and Mr. Conrad are entirely
adequate under Rule 16.
In each of these disclosures, defendants make clear that the opinions of Mr. Patrick, Col.
Bolgiano, and Mr. Conrad will be based on their expertise in the field and their examination of
discovery. See Mot., Ex. A at 2; Mot., Ex. B. at 3 ; Mot., Ex. C at 2. The First Circuit has held
that this type of disclosure is an adequate basis for an expert’s opinion. See U.S. v. Lipscomb,
539 F.3d 32, 38 (lst Cir. 2008) (holding that "inform[ing] defense counsel that [police officers]
would be testifying on the basis of their ‘training and experience"’ was adequate under Rule 16).
While it is unnecessary to go into exactly what these particular experts will testify to and what
their qualifications are, suffice it to say that their opinions and the subjects of their testimony are
clear beyond complaint and that their qualifications are manifest in their curriculum vitae.
The government also expresses its belief that the expert disclosure for Dr. Henry Lee is
inadequate under Rule 16 because it does not provide the reasons for his opinions. See Mot. at
l7. This disclosure appears to be completely acceptable. Dr. Lee will first describe the general
procedures used to preserve a crime scene. He will then testify that the crime scene preservation
procedures used in Nisur Square were inadequate to preserve the crime scene without
contamination. See Mot., Ex``. l at 2-3. These opinions will be based on Dr. Lee’s expertise and
experience in these areas, which is amply attested to by his curriculum vz``tae. Id. at 2. And the
reasons for those opinions seem clear_Dr. Lee knows the proper procedures to take to preserve
a crime scene, and thinks that this crime scene was contaminated. Thus, proper procedures here
were not followed. That the government must make an obvious inference does not render notice
inadequate under Rule l6.
"[Rule 16] 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. "[Rule 16] [is] not intended to create unreasonable
procedural hurdles." Ia'. "Given that the defense had full notice of the actual opinions to which
the [witnesses] intended to testify, [the Court is] unpersuaded by the defendant’s criticism of the
lack of detail regarding the bases for those opinions." Lipscomb, 539 F.3d at 38. Indeed, the
logic of Lipscomb covers this case as well, though Lipscomb dealt not with defense disclosure of
expert opinions, but with government disclosure. The government is fully aware of the topics on
which Mr. Patrick, Col. Bolgiano, Mr. Conrad, and Dr. Lee will opine. They know that these
opinions will be based on the witnesses’ experiences and the proffered discovery. To require the
defense to provide a detailed explanation of the full reasoning that led to every single expert
opinion would create an unreasonable procedural hurdle. The government will not be surprised
by this testimony, and should be able to test its merit through cross-examination.
b. William Tobin, Dr. Frederick Schrnz``dt, D0n Mikk0, Michael Haag, Dr. Michael Baa'en
For all of these experts the defendants have admitted that they intend to supplement the
disclosures they have already made with further inforrnation. See Opp’n at 10-12. In other
words, the defendants have admitted that their disclosures are inadequate because they are
incomplete. Rule 16 requires that the defendants give to the government "a written summary of
any testimony that the defendants intends to use under [Rule 702]." Fed. R. Crim. P. l6(b)(l)(C)
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