United States v. Wiggins, Case No. 1:19-po-00092-SAB
| Decision Date | 27 February 2020 |
| Docket Number | Case No. 1:19-po-00092-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KENNETH T. WIGGINS, Defendant. |
ORDER GRANTING THE GOVERNMENT'S MOTION TO CONTINUE TRIAL AND EXTEND THE EXPERT DISCOVERY DEADLINE
ORDER SETTING STATUS CONFERENCE FOR MARCH 5, 2020
Currently before the Court is the Plaintiff the United States of America's (the "Government") motion to continue the trial of this matter and extend the expert discovery deadline.
On April 7, 2019, Kenneth Wiggins ("Defendant") received a citation for removing an archeological resource, artifact or property, in violation of 36 C.F.R. § 9(h). (ECF No. 1.) This action was filed on July 8, 2019. (ECF No. 1.) On July 18, 2019, Defendant made an initial appearance on the citation and pled not guilty. A status conference was set for September 19, 2019. (ECF No. 6.) On September 19, 2019, Defendant appeared with counsel at the status conference and the Court set the trial for March 31, 2020, and the following schedule: (1) discovery to be completed by February 13, 2020; (2) motions to be filed by February 13, 2020; (3) responses due March 5, 2020; and (4) a motion in limine hearing for March 19, 2020.
On February 12, 2020, the Government filed a motion to extend the expert discovery deadline and continue the trial of this matter. (ECF No. 9.) On the same date, the Government also filed a notice of intent to present expert testimony at the trial. (ECF No. 10.) Defendant filed an opposition to the motion on February 13, 2020. (ECF No. 11.) The Court heard oral argument on the motion on February 20, 2020. Counsel Jeffrey Spivak appeared for the Government, and counsel Matthew Lemke appeared for Defendant. Having considered the moving and opposition papers, along with the arguments presented at the February 20, 2020 hearing, the Court issues the following order granting the Government's motion to extend the expert discovery deadline and continue the trial of this matter.
"The decision to grant or deny a requested continuance lies within the broad discretion of the district court, and will not be disturbed on appeal absent clear abuse of that discretion." United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985). "There is no abuse of discretion unless the denial was arbitrary or unreasonable." United States v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010) (internal citation and quotations omitted). The Ninth Circuit considers four factors in reviewing whether a district court abused its discretion in deciding to grant or deny a motion to continue the trial date: 1) the requesting party's diligence in preparing prior to trial; 2) whether delaying the trial would satisfy the need for the continuance; 3) the inconvenience to the court, the opposing party, and witnesses; and 4) the extent that the requesting party would suffer harm absent the continuance. See United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir. 2000); United States v. Tham, 960 F.2d 1391, 1396 (9th Cir. 1991); Flynt, 756 F.2d at 1359.1 "The fourth factor is the most critical." Zamora-Hernandez, 222 F.3d at 1049; see also Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001) (); United States v. 2.61 Acres of Land, More or Less, Situated in Mariposa Cty., State of Cal., 791 F.2d 666, 671 (9th Cir. 1985) ().
Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure 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." Fed. R. Crim. P. 16(a)(1)(G). The government's summary "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Id. The advisory committee notes provide that "[a]lthough nospecific timing requirements are included, it is expected that the parties will make their requests and disclosures in a timely fashion." Fed. R. Crim. P. 16 advisory committee's notes; see also United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995).2
If a party fails to comply with Rule 16, a 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).
The Government is requesting a continuance of the trial date and an extension of the expert discovery deadline due to a scheduling conflict with the law enforcement agents to be called as witnesses at the trial, and because the Government needs additional time to obtain an expert report. (Gov. Mot. Cont. Trial & Disc. ("Mot"), ECF No. 9.) On February 3, 2020, counsel for the Government held a trial preparation meeting with the law enforcement agents involved in this case, at which counsel requested the U.S. Forest Service ("USFS") to prepare an expert report regarding the artifact at issue in this action. (Mot. 2.) On February 11, 2020, USFS agents notified the Government that: (1) all four of the USFS officers involved in the Defendant's case have a scheduling conflict on the currently scheduled trial date; and (2) the USFS needs additional time to prepare an expert report on the artifact. (Id.)
As for the scheduling conflict, the four USFS officers informed the Government that they need to attend a week-long hazardous waste training from March 30, 2020 to April 3, 2020, that "is critical for natural resource protection." (Id.) Specifically, the "personnel attending the Hazwopper training will be responsible for conducting site hazard assessments on [marijuana] cultivation sites throughout the state," two "trained personnel are requested at every marijuana/raid eradication operation conducted by the Forest Service," and the "training hasbeen designed specifically for the Forest Service, it is a 40 hour course (5 days), and is only being offered once this year." (Id.)
As for the expert report, the Government anticipates calling USFS archeologist Jeff Irwin as an expert witness who the Government believes will testify that the arrowhead Defendant possessed in his pocket was a prehistoric, historic, or archaeological resource, structure, site, artifact, or property as defined in in 36 C.F.R. 261.2. (Id.) Mr. Irwin needs additional time to complete a written report, and the Government also states it will produce Mr. Irwin's C.V. "as soon as possible (hopefully this week)." (Mot. 2-3.)
The Government is requesting an extension of three weeks until March 4, 2020, for the limited purpose of producing Mr. Irwin's written report and C.V., and emphasizes that the Government has met the February 13, 2020 discovery cutoff for all other discovery. (Mot. 3.)
The Government argues that it exercised "reasonable, though imperfect, diligence in readying its case for trial." (Mot. 4.) The Government emphasizes it met with the agents nearly two months before trial, obtained and produced supplemental discovery, and discussed the evidence regarding the artifact in question. (Id.)
Defendant argues the charge that he improperly removed and possessed an archeological artifact is the lone allegation in this case, and therefore has been the core, central issue since the citation was issued in April of 2019. (Def.'s Opp'n Mot. ("Opp'n") 2, ECF No. 11.) Despite this, the Government did not request that the USFS prepare an expert report until February 3, 2020. (Id.) While the Government filed a notice of intention to call expert Jeff Irwin on February 12, 2020, Defendant emphasizes that the Government has failed to disclose any reports authored by Mr. Irwin, the basis for any conclusions, or Mr. Irwin's curriculum vitae, and has not provided justification for the delay in requesting an expert . (Opp'n 3.)
The Court inquired at the hearing as to why the Government waited until February 3, 2020, to address the expert report, given the nature of the charges in this case. The Government conceded that it didn't "have a good answer," estimated that "99%" of the petty offense cases do not have expert issues, and the Government should have identified the need earlier in thisinstance. The Government stated it started preparations for trial in early February, about two months before the current trial date, but conceded it does not have a good explanation as to what happened between September and February. Counsel also averred to some issue as to who the attorney of record for the case was.
The Court acknowledges that while it is true most cases do not go to trial and both sides tend to hedge their bets in this regard, there is nothing in the record showing why the Government waited this long to prepare an expert report. As conceded by counsel at the hearing, the Government does not have a good reason for the delay regarding the expert witness report, and the Court agrees. Thus, the factor of diligence weighs against the Government as to the need to continue the trial to allow for completion of the expert report. Although the Government states the report will be ready prior to the current trial date, and the need for the expert report is not the focus of the motion to continue the trial date but rather the motion to extend the discovery deadline, allowing such expert report to...
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