UNITED STATES v. WARREN (2023)

ORDER

This matter comes before the court on the Opposed Motion to File Notices Out of Time [Doc. 23] of plaintiff the United States of America.

On September 5, 2023, a grand jury returned an Indictment charging defendant Jennifer Diana Warren with one count of Assault Resulting in Serious Bodily Injury in Indian Country pursuant to 18 U.S.C. §§ 1151, 1153, and 113(a)(6), one count of Witness Tampering by the Threat and Use of Physical Force pursuant to 18 U.S.C. § 1512(a)(2)(C), and one count of Assault by Striking, Beating, and Wounding pursuant to 18 U.S.C. §§ 1151, 1152, and 113(a)(4). [Doc. 2]. Counts One and Two relate to alleged victim A.S. and Count Three relates to alleged victim G.S. [Id.]. The court entered an initial Scheduling Order directing, among other things, that Notices be filed on or before September 25, 2023. [Doc. 11]. Trial of this matter is scheduled to begin on November 13, 2023. [Id.].

On November 1, 2023, the undersigned held a pretrial conference in this matter. [Doc. 20]. During the pretrial, counsel for the government informed the court that the case agent notified her the week prior to pretrial that A.S. had sought additional medical treatment and an MRI was scheduled for November 9, 2023. Given that the MRI was scheduled only four days prior to trial, the government acknowledged that the results likely would not be available as evidence.

Further, the government notified the court of a potential evidentiary dispute. Specifically, the government expressed its intent to introduce the testimony of A.S.'s medical providers. The government represented that it intended to question the medical providers only as fact witness and, for that reason, had not filed the notice of expert testimony required by Federal Rule of Criminal Procedure 16(a)(1)(G) with respect to those witnesses. Specifically, the government indicated that direct examination of the medical provider witnesses would be limited to the providers' observations, symptoms, and diagnoses based on those observations. Defense counsel believed that some of the anticipated testimony crossed the line into expert testimony. The government disagreed.

And yet, the day after the pretrial conference, the government filed the Opposed Motion to File Notices Out of Time. [Doc. 23]. Therein, the government states that it now intends to call A.S.'s medical provider, Haley Wigelsworth, APRN, as an expert at trial and requests leave to file a Rule 16 Expert Notice out of time. To explain its abrupt change in position, the government states that it was only after it received medical records from Wigelsworth on November 2, 2023, that it understood that she “will rely on her expertise as an advanced practice registered nurse to discuss her assessment of A.S.'s injuries that were inflicted 3 months prior to her appointment and to explain why she ordered an MRI scan based on that assessment.” [Id. at p. 2]. Ms. Warren objects.

Rule 16(a)(1)(G) requires the government, at the defendant's request, to disclose any expert testimony that the government intends to offer at trial. Fed. R. Crim. P. 16(a)(1)(G). Pursuant to the Rule, if the government fails to comply, the court may:

(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;

(B) grant a continuance;

(C) prohibit that party from introducing the undisclosed evidence; or

(D) enter any other order that is just under the circumstances.

Fed. R. Crim. P. 16(d)(2). To determine the appropriate sanction, the court should consider (1) the reason for the delay; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance. United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988).

As previously stated, the government asserts that it did not understand that Wigelsworth would offer expert testimony until it reviewed medical records received on November 2, 2023. However, the government knew as early as October 24, 2023 that Wigelsworth had ordered an MRI. Presumably, the government contemplated that, during trial, Wigelsworth may seek to explain her rationale for doing so. Yet, the government waited until just seven business days prior to trial to seek leave to file a Rule 16 Notice. Further, and significant to this court, defense counsel had already expressed his concerns that testimony by A.S.'s medical providers would exceed the scope of permissible fact witness testimony. Finally, the court is not persuaded that expert testimony is necessary in this matter given the nature of A.S.'s injuries and that the MRI results will not be available for trial. Under the circumstances, the government's delay was unwarranted.

Ms. Warren has not responded to the government's motion and therefore has not addressed prejudice. However, the court notes that, if the government is permitted to file a Rule 16 Notice out of time, Ms. Warren would have only a few days to prepare any objections thereto. Further, it is unrealistic to think that Ms. Warren could timely obtain a defense expert to counter the testimony.

Finally, although the government states that it would not oppose a continuance, the Tenth Circuit has recognized that “a continuance is [not] necessary just because it will cure the prejudice.” United States v. Russell, 109 F.3d 1503, 1512 (10th Cir. 1997). Rather, “[o]n occasion the district court may need to suppress evidence that did not comply with discovery orders to maintain the integrity and schedule of the court even though the defendant may not be prejudiced.” Id. (quoting Wicker, 848 F.2d at 1061). As the parties are aware, this court has experienced unprecedented caseloads since the U.S. Supreme Court's decision in McGirt v. Oklahoma, ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020). Further, although the Northern District of Oklahoma is allocated three and a half full-time district judges, this court has been operating within only one and a half judges for over a year. As a result, the court has relied on a visiting judge program, pursuant to which district judges from across the county have kindly agreed to sit by designation and try criminal cases. Visiting Senior U.S. District Judge Michael W. Mosman is scheduled to try this matter beginning on November 13, 2023. A continuance of this matter would prohibit Judge Mosman from doing so and, instead, return this case to the undersigned's docket, which is already overwhelmed in the wake of McGirt. The court further notes that Ms. Warren has not indicated a willingness to waive her Speedy Trial rights. Under the circumstances, the court must maintain the trial schedule.

WHEREFORE, the Opposed Motion to File Notices Out of Time [Doc. 23] of plaintiff the United States of America is denied.

IT IS SO ORDERED this 3rd day of November, 2023.

GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE