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United States v. Manlove

United States District Court, D. Montana, Missoula Division

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GEORGE LESLIE MANLOVE, Defendant.

          ORDER

          Dana L. Christensen, United States District Court Chief Judge

         Before the Court are the issues of the scope and admissibility of the testimony of defense witness David Cotner. The Court has conducted an in camera review of the discovery materials produced by David Cotner and Datsopoulos, MacDonald & Lind, P.C., pursuant to this Court's January 27, 2017 Order. (Doc. 269.) On January 30, 2017, the Government filed a motion to strike anticipated testimony of witness David Cotner and a supporting brief. (Docs. 270, 271.) The Court also held a hearing on January 30, 2017, outside the presence of the jury, regarding the intended expert witness testimony of Mr. Cotner. For the reasons given below, the Court will limit Mr. Cotner's testimony, regardless of whether this testimony is opinion or factual in nature. Further, should Mr. Cotner offer testimony that he expressly advised Defendant George Leslie Manlove ("Manlove") at the time the Painted Sky, LLC proof of claim was filed in the Vann's Inc. bankruptcy regarding the validity and/or enforceability of the Painted Sky, LLC lease agreement with Vann's, Inc., Datsopoulos, MacDonald & Lind, P.C. shall produce additional documents related to that testimony as explained further in this order.

         Procedural and Factual Background

         On January 17, 2017, the criminal trial against Defendant Manlove commenced. Prior to trial, on December 16, 2016, Manlove filed a notice of expert disclosure for attorney David Cotner of the law firm Datsopoulos, MacDonald & Lind, P.C. ("DML"). (Doc. 162). That bare-bones and inadequate notice generally identified the documents and information reviewed by Mr. Cotner in anticipation of his expert testimony, and indicated that Manlove's counsel was preparing a summary of Mr. Cotner's expert opinions which would be finalized soon thereafter and produced to the Government. (Doc. 162 at 2-A.) On January 12, 2017, Manlove filed a supplemental expert witness disclosure with this Court. (Doc. 218.) While Manlove did not provide the Court or opposing counsel with an expert report from Mr. Cotner, the supplemental notice references the following subjects that Mr. Cotner is expected to testify on:

1. The validity and/or enforceability of the Painted Sky, LLC lease with Vann's, Inc. (Doc. 218 at 3, paragraph 1);
2. The proof of claim filed by Painted Sky, LCC against Vann's, Inc. in the underlying bankruptcy case, 12-61281-JLP (Doc. 218 at 4, paragraph 2);
3. Information related to Mr. Cotner's former clients Rob Standley, Mark Hopwood, JPEG, LLC, GMRP, LLC, GMP, LLC, and Painted Sky, LLC (Doc. 218 at 4, paragraph 3);
4. Loan documents used by First Interstate Bank (Doc. 218 at 4-5, paragraph 4);
5. The roles of officers, directors, and trustees of Vann's, Inc. (Doc. 218 at 5, paragraph 5); and
6. The Business Judgment Rule (Doc. 218 at 5-6, paragraph 6).

         The Government did not initially provide a response to this supplemental expert witness disclosure, but has repeatedly noted its concerns regarding the expert witness testimony of Mr. Cotner during trial. Specifically, Manlove did not provide the Government with any documents relating to the expected testimony of Mr. Cotner.[1] Consequently, the Government sent a subpoena to DML and Mr. Cotner requesting production of records regarding Mr. Cotner's representation of various clients related to this criminal case. (Doc. 261.) Mr. Cotner produced some documents to the Government, but also responded that he would not produce other documents based on the attorney-client privilege and work-product doctrine, which were listed on a privilege log. (Doc. 233-3.) The Government subsequently filed a motion and brief to submit records for in camera inspection and a request for a status conference. (Doc. 233). The Court then, sua sponte, ordered additional documents to be produced by DML for an in camera review. (Doc. 269.)

         During trial on January 27, 2017, the Court, outside the presence of the jury, elicited from counsel further information regarding the opinions of Mr. Cotner that Manlove disclosed in Document 218. It is clear that Manlove intends to assert an "advice of counsel" defense, specifically that he relied on Mr. Cotner's advice in filing the Painted Sky, LLC proof of claim in the Vann's, Inc. bankruptcy. In the course of the discussion, which involved a detailed review of Document 218, it was brought to this Court's attention that Manlove intends to have Mr. Cotner offer opinions on multiple subjects beyond the advice he gave to Manlove regarding the filing of the Painted Sky, LLC proof of claim.

         The Government's position regarding all of Mr. Cotner's proposed testimony is detailed in the aforementioned motion to strike and supporting brief.

         The Court has determined that Manlove will be allowed to assert an advice of counsel defense. Thus, Mr. Cotner's testimony will be limited to that defense. All other opinions ...


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