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United States v. Woody's Trucking, LLC

United States District Court, D. Montana, Billings Division

April 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WOODY'S TRUCKING, LLC, and DONALD E. WOOD, JR., Defendants.

          ORDER

          SUSAN P. WATTERS United States District Judge.

         Before 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.

         I. Background

         For the factual underpinnings of the case, see the Court's order denying the Defendants' five motions to dismiss the indictment. (Doc. 80).

         II. Discussion

         A. Motion to compel

         Woody's 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.

         As 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).

         The 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).

         B. Motion to exclude

         Woody's 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.

         Dual 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 658.

         The 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 denied.

         C. Motion for ...


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