Opinion
No. 10 Cr. 08 (JFK).
March 18, 2010
For the Government:, E. Danya Perry, Esq. Anirudh Bansal, Esq.
For Defendant: Tai H. Park, Esq. Eyal Dror, Esq. PARK JENSEN LLP
OPINION AND ORDER
Before the Court is Mahmoud Reza Banki's ("Banki" or "Defendant") motion to preclude the Government from offering expert testimony at trial. For the reasons that follow, the motion is denied.
I. Background
In an Indictment filed January 6, 2010, Banki was generally charged with conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701- 1706, including the Iran Trade Embargo, and with operating an unlicensed money transmitting business in violation of 18 U.S.C. § 1960, 2. Specifically, the Government alleges that Banki and unnamed co-conspirators "operated an informal value transfer system known as a `hawala' [in which] funds are transferred by customers to a hawala operator, or `hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar." (Indictment ¶ 10). Banki was arrested on January 7, 2010. After hearings on January 11, 2010 and January 15, 2010, the Court entered an order dated January 21, 2010 denying bail, finding that no conditions or combination of conditions could ensure his appearance at trial. As such, Banki currently is detained pending trial. Banki requested an accelerated trial date and the Court complied, putting the case down for March 22, 2010 — 74 calendar days after his arrest. Defense counsel later requested a brief continuance until April 7, 2010, making the total amount of time to prepare for trial only 90 days.
Due to the compressed trial schedule, the Court directed the Government to "make every effort" to provide discovery to Banki by the close of business on January 22, 2010. (Decl. of Tai H. Park, Ex. A at 26:18-23). In a January 26, 2010 phone call, the Government informed defense counsel that it intended to introduce expert witness testimony at trial to explain how a hawala operates. By email dated February 2, 2010, defense counsel followed up with the Assistant U.S. Attorney about expert notice; in a reply email the same day, the Government agreed to "get you the expert notice as soon as we settle on our expert, hopefully within the next few weeks." (Id., Ex. B). From that point on, it appears that the parties were in frequent communication about the status of discovery and expert disclosure, exchanging letters dated February 19, 2010, February 24, 2010, February 26, 2010, and March 1, 2010. (Id., Exs. C-F). On March 4, 2010, the Government provided notice of three individuals who could potentially testify as an expert at trial. The letter summarized the content of the testimony the Government intended to elicit from the witness ultimately chosen and attached each potential witness' curriculum vitae. (Id., Ex. G). Although the Government did not conclusively identify its expert witness, it explained that it was making its "best efforts" to provide expert disclosure in light of scheduling conflicts and the difficulty securing a witness with the requisite knowledge of hawala who would be available to testify on such short notice. (Id., Ex. G at 8).
The Government also provided the name of a fourth potential expert it had not yet contacted.
Concurrent with trial preparations, Banki filed and argued an appeal of the Court's January 21, 2010 bail order. In support of his appeal, Banki submitted a letter dated February 24, 2010 representing to the Court of Appeals that the March 22, 2010 trial date was "in doubt" due to the volume of discovery-produced and some outstanding discovery disputes. The Court of Appeals affirmed the order of pre-trial detention by summary order dated March 8, 2010. Additionally, at some point after the appellate argument, Banki retained new counsel.
This Court did not receive a copy of Banki's letter to the Court of Appeals and was unaware that he did not consider the trial date to be firm until he formally requested an adjournment on March 10, 2010.
Banki now argues that the Government should be precluded from offering any expert witness testimony at trial because it failed to comply with disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure.
II. Discussion
Federal Rule of Criminal Procedure 1.6(a)(1)(G) provides that "[a]t the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial." However, "the government's duty to disclose a summary of expert testimony is not triggered unless the defendant requests such a summary."United States v. Cruz, 363 F.3d 187, 196 n. 2 (2d Cir. 2004). Where the Government fails to make the required disclosures, Rule 16(d) allows the court to fashion a remedy as it sees fit, including a continuance or prohibiting the Government from introducing the undisclosed evidence. The decision to apply a Rule 16(d) sanction, if any, rests within the sound discretion of the trial court. See United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997) ("When the government has failed to comply with Rule 16, the district court has broad discretion to determine what remedial action, if any, is appropriate.");United States v. Giraldo, 822 F.2d 205, 212 (2d Cir. 1987), cert. denied, 484 U.S. 969 (1987). "The district court's admission of evidence following a violation of Rule 16(a) is not an abuse of discretion requiring a new trial unless the violation caused the defendant substantial prejudice." United States v. Thai, 29 F.3d 785, 804 (2d Cir. 1994).
At the January 11, 2010 bail hearing, defense counsel stated "on the question of discovery materials, we would ask they be produced within a week of today." (Decl. of Tai H. Park, Ex. A at 26:13-15). The Court did not understand this to be a specific request for expert witness disclosure. Therefore, the Court intended its direction that the Government should "make every effort to have all the discovery materials supplied by the close of business January 22nd," (Id., Ex. A at 26:22-23), to include documentary and physical evidence, not expert notice. As the Government's March 4, 2010 expert notice is not in violation of any Court-ordered discovery deadline, none of the cases on which Defendant relies are pertinent. Cf. United States v. Davis, 244 F.3d 666, 670-71 (8th Cir. 2001) (affirming trial court's exclusion of DNA evidence in part because Government gave no explanation for its failure to comply with discovery deadline by approximately one month); United States v. Wicker, 848 F.2d 1059, 1060-61 (10th Cir. 1988) (excluding evidence where the Government submitted lab two weeks after court-ordered production date); United States v. Mahaffy, No. 05-CR-613 (S-3), 2007 WL 1213738, at *3 (E.D.N.Y. Apr. 24, 2007) (precluding expert testimony where defendant ignored pre-trial discovery order and waited until the first day of trial to make Rule 16(b) disclosure); United States v. Roy, No. 04 Cr. 477, 2006 WL 453205, at *2 (D. Minn. Feb. 22, 2006) (excluding evidence where Government's incomplete Rule 16 disclosure was made two weeks after court-ordered deadline).
Consequently, the Defendant's first request for expert disclosure from the Government occurred on February 2, 2010. Although the Government did not formally respond to the request until March 4, 2010, this delay was neither inexcusable nor prejudicial to the Defendant. As an initial matter, there is no allegation that the Government has acted in bad faith, purposefully withheld expert disclosure, or otherwise performed its Rule 16 obligations with a lack of diligence. This is not, for example, a run of the mill narcotics trial in which any number of experts could testify. The parties agree that there are a limited number of people who are qualified to offer an expert opinion about the operation of hawalas. The task of identifying and scheduling the appearance of an expert in the short amount of time allowed for trial preparation cannot be an easy task for either party. Defendant's suggestion that the prosecutors could have definitively identified an expert witness while the case was in its investigative stages is disingenuous; it is impractical to require the Government to secure an expert before filing charges or conducting plea negotiations. In effect, both parties have had roughly the same amount of time to explore the possibility of expert testimony. However, while it has always known that the case would go to trial quickly, Defendant's representations that the March 22, 2010 trial date was "in doubt" made it all the more difficult for the Government to schedule any one of the experts' appearance without knowing whether the Defendant would seek an adjournment. Thus, the timing of the Government's expert disclosure to date is reasonable under the circumstances of this case.
The fact that approximately one month passed before the Government noticed three possible experts does not amount to substantial prejudice to the Defendant. The Government maintains that all of the experts would provide substantially similar, straightforward testimony about the general operation of hawalas. Defendant has retained new, able counsel who were well aware of the time constraints when they began their representation less than one month ago. The March 4, 2010 disclosure allows Defendant one month to explore the experts' qualifications and prepare for cross-examination. Nonetheless, in order to curb any potential for surprise, the Government is directed to specify which expert will testify and provide any other necessary disclosure to the Defendant by the close of business on March 24, 2010. This gives Defendant two weeks to tailor his strategy to the chosen expert, an amount of time that is not uncommon in this District or unreasonable in the context of this case and the anticipated testimony. See, e.g., United States v. Russo, 483 F. Supp. 2d 301, 310 (S.D.N.Y. 2007) (requiring expert disclosure two weeks prior to trial in wire fraud and money laundering case); United States v. Ma, No. 03 Cr. 734, 2006 WL 708559, at *18 (S.D.N.Y. Mar. 21, 2006) (directing Government to make expert disclosure two weeks prior to trial in racketeering conspiracy case).
Even if the Government had neglected its obligations under Rule 16, which it did not, the Court believes the most appropriate remedy would be a continuance. It must be noted that the root cause of this dispute is the compressed schedule for trial preparation — a schedule that was set at Defendant's behest. To bar the Government from presenting expert testimony due to difficulties occasioned by Defendant's desire for a quick trial is simply unwarranted.
Defendant argues that a continuance is unfair in light of the fact that the Government sought and obtained an order of detention. The Court is sensitive to Defendant's wish to avoid extending the trial date — and, as a result, his time in custody — beyond April 7, 2010; however, this situation is certainly not unique to Defendant, who, overall, has been detained for markedly less time than most criminal defendants awaiting trial. Additionally, it is important to bear in mind that the prosecutors and the Court have agreed to a trial schedule above and beyond what is required under the Speedy Trial Act. As is his right, Defendant has chosen to prioritize his personal comfort over providing counsel additional time to prepare for the Government's proposed expert testimony. However, it does not follow that, Defendant having made this choice, the Court must unilaterally reject the most logical solution to the conflict at hand — that is to say, a continuance. An extension of time would be in the best interests of both parties, and would certainly enable defense counsel to more fully prepare to confront the Government's expert witness. The only possible claim of prejudice occasioned by a continuance involves Defendant's personal interests, not his ability to defend against the charges in the case.