EFTA00024954.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA S2 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. THE GOVERNMENT'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY OF DR. RYAN HALL, BENNETT GERSHMAN, ROBERT KELSO, GERALD LAPORTE. AND JENNIFER NASO DAMIAN WILLIAMS United States Attorney for the Southern District of New York One St. Andrew's Plaza New York, New York 10007 Assistant United States Attorneys Of Counsel EFTA00024954 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 I. APPLICABLE LAW 1 11. THE COURT SHOULD PRECLUDE THE TESTIMONY OF DR. RYAN HALL 4 A. Dr. Hall's Opinions Are Irrelevant 5 B. The Bases of Dr. Hall's Opinions Are Not Independently Admissible 12 C. Any Undisclosed Significance of Dr. Hall's Opinions Is Inadmissible 14 D. Dr. Hall's Fact Testimony Is Inadmissible 15 III. THE COURT SHOULD PRECLUDE THE TESTIMONY OF BENNETT GERSHMAN 20 IV. BEFORE THE DEFENDANT'S REMAINING WITNESSES OFFER EXPERT TESTIMONY, THE DEFENDANT SHOULD BE REQUIRED TO PROVIDE SUPPLEMENTAL NOTICE 21 A. B. Robert Kelso and 22 Forensic Document Specialists 24 CONCLUSION 26 EFTA00024955 PRELIMINARY STATEMENT The defendant has notified the Government that she plans to call six additional experts. One of them, Dr. Ryan Hall, and drafted a lengthy report, containing largely a recitation of hearsay, attributing some but not all o Another, Bennett Gershman, is a purported expert on prosecutorial misconduct. Neither of these issues is relevant at trial. and both experts should be precluded. The defendant has failed to provide adequate notice as to the four remaining experts. Instead of describing those experts' opinions and the bases for them, as required by Rule 16, the notice identifies topics on which the experts might testify. The Government is therefore not able to interpose a Dauber: challenge at this time.' The Court should require the defense to provide supplemental expert notice forthwith or preclude these witnesses from testifying. I. APPLICABLE LAW Federal Rule of Criminal Procedure 16(b)(1)(C) provides that where, as here, the Government has provided expert notice and requested reciprocal notice from the defense, the defendant "must . . . give to the government a written summary of any [expert] testimony that the defendant intends to use ... as evidence at trial." Such summary must "describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. As described below, however, insofar as two of these witnesses will testify as fact witnesses related to computer forensics and financial records, the Government does not object to their testimony on Dauber: grounds. 1 EFTA00024956 Crim. P. 16(b)(1)(C). As the 1993 amendments to Rule 16 note, the Rule is meant to "minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." Id. 1993 Amend. Accordingly, the Rule requires the defense to provide (1) "notice of the expert's qualifications which in turn will permit the requesting party to determine whether in fact the witness is an expert within the definition of Federal Rule of Evidence 702;" (2) a "summary of the expected testimony," which "pennit[s] more complete pretrial preparation by the requesting party;" and (3) "a summary of the bases of the expert's opinion." Id. The content of the expert notice must actually "summarize the experts' opinions." United States v. Ulbricht, 858 F.3d 71, 115 (2d Cir. 2017), abrogated on other grounds by Carpenter v. United States, 138 S. Ct. 2206 (2018). "Merely identifying the general topics about which the expert will testify is insufficient; rather, the summary must reveal the expert's actual opinions." United States v. Valle, No. 12 Cr. 847 (PGG), 2013 WL 440687, at *5 (S.D.N.Y. Feb. 2, 2013); see Ulbricht, 858 F.3d at 115 (calling "plainly inadequate" a disclosure that "listed general and in some cases extremely broad topics on which the experts might opine"). The notice then must describe the bases and reasons for those opinions. "[A] general description of possible bases does not meet the requirements of Rule 16(b)(1)(C)." United States v. Tuzman, 2017 WL 6527261, at *10 (S.D.N.Y. Dec. 18, 2017) (internal quotation marks omitted). "Merely asserting that [an expert] will provide [an] opinion based on some unspecified method . . . based on data from unspecified sources, does not suffice." United States v. Ulbricht, No. 14 2 EFTA00024957 Cr. 68 (KBF), 2015 WL 413318, at *6 (S.D.N.Y. Feb. 1, 2015), aff'd, Ulbricht, 858 F.3d 71. A district court has "broad discretion" over the remedy for failure to comply with Rule 16, including "ordering the exclusion of evidence." Ulbricht, 858 F.3d at 115 (internal quotation marks omitted). As the Court is well aware, a properly noticed expert witness may then testify if such testimony complies with Federal Rule of Evidence 702. Accordingly, before admitting expert testimony, the Court must conclude that (1) the witness is qualified to be an expert, (2) the proposed expert testimony is reliable, and (3) the proposed testimony is relevant. See Dauber! v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993); Nimely v. City of New York, 414 F.3d 381, 396 n.11 (2d Cir. 2005). "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Daubers, 509 U.S. at 591 (internal quotation marks omitted). The party that proffers the testimony bears the burden of showing that it is admissible by a preponderance of the evidence. See id. at 592 & n.10 (citing Bout-Oily v. United States, 483 U.S. 171, 175-76 (1987)). Rules 401 and 403 of the Federal Rules of Evidence state that relevant evidence is admissible when it tends to make the existence of any fact that is of consequence more or less probable than it would be without the evidence, but it may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice, confusion of the issues, and misleading the jury. "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses." Daubers, 509 U.S. at 595 (quoting authority omitted). Among other things, the 3 EFTA00024958 Court "must consider whether an expert's proposed testimony would usurp the province of the judge to instruct on the law, or of the jury to make factual determinations." Island Intel!. Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675 (KBF), 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2012) (citations omitted). II. THE COURT SHOULD PRECLUDE THE TESTIMONY OF DR. RYAN HALL Dr. Ryan Hall is a psychiatrist who frequently testifies as an expert witness. . According to the notice provided by the defendant, Dr. Hall "will offer the opinions and diagnoses contained in hisM report, the bases for those opinions, and the significance of the diagnoses and opinions." (Ex. A, Def. Expert Notice, at 12).2 This Court should exclude Dr. Hall's testimony. As disclosed, his expert opinion= have no relevance, because none bears on the facts of this case or Minor Victim-4's credibility. Any basis for those opinions is therefore also irrelevant. Similarly, absent some as- yet-undisclosed relevance, the "significance" of Dr. Hall's opinio have no bearing here: Because none of those opinions bear on the facts of this case or a witness's credibility, their introduction would sent 0111 Dr. Hall's proffered fact testimony should also be 2 The Government has attached, and moves to file, the same redacted v