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United States v. Slough

United States District Court, D. Columbia.

July 29, 2014

UNITED STATES OF AMERICA
v.
PAUL A. SLOUGH, EVAN S. LIBERTY, and DUSTIN L. HEARD, Defendants. UNITED STATES OF AMERICA
v.
NICHOLAS A. SLATTEN, Defendant

Page 104

[Copyrighted Material Omitted]

Page 105

For Paul Alvin Slough, Appeals court case number: 10-3006 (1:08cr360), Defendant: Brian Matthew Heberlig, LEAD ATTORNEY, STEPTOE & JOHNSON LLP, Washington, DC; Thomas C. Hill, LEAD ATTORNEY, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC; Mark Joseph Hulkower, Michael Jeremy Baratz, LEAD ATTORNEYS, Bruce Charles Bishop, Linda C. Bailey, Scott P. Armstrong, STEPTOE & JOHNSON, L.L.P., Washington, DC.

For Evan Shawn Liberty, Appeals court case number: 10-3006 (1:08cr360), Defendant: Amanda Montee, Brian Matthew Heberlig, William Francis Coffield, IV, LEAD ATTORNEYS, COFFIELD LAW GROUP, Washington, DC; Brian John Rooney, LEAD ATTORNEY, Ann Arbor, MI; Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; Brandon M. Bolling, Ann Arbor, MI; Robert J. Muise, Ann Arbor, MI; Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC.

For Dustin Laurent Heard, Appeals court case number: 10-3006 (1:08cr360), Defendant: Brian Matthew Heberlig, LEAD ATTORNEY, Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; David Schertler, LEAD ATTORNEY, Danny C. Onorato, Lisa Hertzer Schertler, SCHERTLER & ONORATO LLP, Washington, DC; Janet Foster, LEAD ATTORNEY, PRO HAC VICE, SCHERTLER & ONORATO LLP, Washington, DC; Steven J. McCool, MALLON & MCCOOL, LLC, Washington, DC.

For Donald Wayne Ball, Appeals court case number: 10-3006 (1:08cr360), Defendant: Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; Danny C. Onorato, LEAD ATTORNEY, SCHERTLER & ONORATO LLP, Washington, DC; Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC.

For Jeremy P. Ridgeway, Non-Party Petitioner (1:08cr360), Defendant: Thomas C. Hill, William M. Sullivan, Jr., LEAD ATTORNEYS, Keith David Hudolin, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For William M. Sullivan, Jr. Non-Party Petitioner, Ryan R. Sparacino, Non-Party Petitioner, Pillsbury Winthrop Shaw Pittman Llp, Non-Party Petitioner (1:08cr360), Defendants: Thomas C. Hill, Keith David Hudolin, LEAD ATTORNEYS, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For Washington Post (1:08cr360), Interested Party: James Amazaki McLaughlin, THE WASHINGTON POST, Washington, DC.

For Associated Press (1:08cr360), Interested Party: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY.

For Center on Administration of Criminal Law (1:08cr360), Amicus: Daniel Joseph, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD, LLP, Washington, DC; Anthony S. Barkow, CENTER ON THE ADMINISTRATION OF CRIMINAL LAW N.Y. University School of Law, New York, NY.

For Nicholas Abram Slatten (1:14cr107), Defendant: Steven A. Fredley, Thomas Gerard Connolly, LEAD ATTORNEYS, Anne Katherine Langer, HARRIS, WILTSHIRE, & GRANNIS LLP, Washington, DC; Jared P. Marx, PRO HAC VICE, HARRIS, WILTSHIRE, & GRANNIS LLP, Washington, DC.

Page 106

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

Before the Court is the defendants' motion [ Slough 532; Slatten 91] for reconsideration of the Court's June 16, 2014 Order and Memorandum Opinion [ Slough 527, 528; Slatten 82, 83] excluding the testimony of defense expert witness Don Mikko. Upon consideration of the defendants' motion [ Slough 532; Slatten 91], the government's opposition [ Slough 571; Slatten 127], the defendants' reply [ Slough 581; Slatten 140], the applicable law, the entire record herein, and for the reasons set forth below, the Court will GRANT the defendants' motion for reconsideration.

I. BACKGROUND

As described in the Court's June 16, 2014 Memorandum Opinion, the defendants provided the government with a written disclosure summarizing the expected testimony of proposed toolmark and munitions expert Don Mikko, among others, on April 25, 2014, as required by Federal Rule of Criminal Procedure 16(b)(1)(C) (" Rule 16" ), and pursuant to the Court's Scheduling Order, United States v. Slough, 08 Cr. 360 (D.D.C. Mar. 7, 2014), ECF No. 396. Mem. Op., Slough, ECF No. 528 at 2, 51 F.Supp.3d 1, (" Mem. Op." ). However, this initial Mikko summary inadequately disclosed his potential testimony. Because the trial was slated to begin on June 17--just one day after the Court's Memorandum Opinion was issued--the Court consequently found that the defendants would not satisfy Rule 16's pretrial disclosure requirement as to Mikko and, therefore, Mikko's testimony should be excluded.

Unbeknownst to the Court, the parties had been coordinating Mikko's visit to Washington, D.C., to examine bullets and metal fragments collected from the scene of the September 16, 2007 Nisur Square shooting incident that were housed at the FBI's Washington Field Office. See Defs.'s Mot. at 5-8. During this period of direct communication between the parties, the government filed a motion in limine to preclude the testimony of a number of defense experts, including Mikko. Slough, May 16, 2014, ECF No. 444. As the defendants note, the government's motion in limine appeared to acknowledge an understanding that Mikko was " currently seeking to review the ballistics evidence in this case and after which, the government presumes that defendants will supplement their Rule 16 notice with the conclusions that the defense will seek to introduce at trial, at ...


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