United States District Court, D. Montana, Billings Division
P. WATTERS United States District Judge.
the Court are three motions filed by Defendant's
Woody's Trucking and Donald E. Wood, Jr.
("Woody's"). First, Woody's moves for an
order compelling the government to disclose certain
materials. (Doc. 103). Second, Woody's moves for an order
excluding the testimony of the government's expert
witness. (Doc. 105). Third, Woody's moves for judicial
notice that the United States Energy Information
Administration's website defines crude oil to include
drip gas. (Doc. 102). For the following reasons, the Court
denies the motions.
factual underpinnings of the case, see the Court's order
denying the Defendants' five motions to dismiss the
indictment. (Doc. 80).
Motion to compel
argues the government has failed to turn over certain
documents referenced in other documents provided in
discovery. The government responds it has either provided all
of the documents to Woody's or does not possess the
documents. Additionally, the government states the
Presentence Report information requested by Woody's is
not normally subject to discovery, but the government will
submit the information to the Court for in camera review to
determine if the information contains Brady
material. Woody's responds the government has indeed
provided the information requested, except for the
Investigative Activity Report and agent notes generated from
a witness interview.
stated in a prior order, the government's discovery
obligations do not include disclosing, or offering for
inspection, reports, memorandum, or other internal government
documents made by an attorney for the government or other
government agent in connection with investigating or
prosecuting the case. (Doc. 81 at 4 (citing Fed. R. Crim P.
16(a)(2)). The Court has little authority to order otherwise.
However, the government stipulates that evidence should be
limited to documents the defense has seen. (Doc. 108).
motion to compel production of the IAR and agent notes is
denied and the motion to limit evidence to documents the
defense has seen is granted. Further, the government is
ordered to provide the Court, for in camera review, a copy of
the Presentence Report information within five days of the
date of this order. See United States v. Alvarez,
358 F.3d 1194, 1207-1208 (9th Cir. 2004) (appropriate
procedure when defendant requests probation files is for
trial judge to conduct an in camera review to determine
whether they contain Brady information).
Motion to exclude
argues the government's expert from the Occupational
Safety and Health Administration (OSHA) is a "dual
role" witness whose mixed expert and lay testimony will
confuse jurors. The government responds any potential for
prejudice can be addressed through jury instructions and
trial management. The Court agrees with the government.
role witnesses are permissible. United States v.
Freeman, 498 F.3d 893, 904 (9th Cir. 2007). When the
government seeks to use an investigating agent as both an
expert and a lay witness, district courts must take
appropriate measures to avoid confusing the jury. First, the
lay and expert testimony should be clearly separated.
United States v. Torralba-Mendia, 784 F.3d 652, 658
(9th Cir. 2015). Second, the government must provide an
adequate foundation for the witness's expert testimony.
Torralba-Mendia, 784 F.3d at 658. Third, the jury
must be appropriately instructed. Torralba-Mendia,
784 F.3d at 658. Fourth, the witness cannot testify based on
speculation or hearsay. Torralba-Mendia, 784 F.3d at
Court will follow the procedure outlined in
Torralba-Mendia. The OSHA expert's testimony
will be separated into a lay witness phase and an expert
witness phase. See United States v. Anchrum, 590
F.3d 795, 803-804 (9th Cir. 2009). The parties are ordered to
include in their joint proposed jury instructions an
instruction on dual role witnesses. Woody's motion is
Motion for ...