United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHYL L. BROOKS UNITED STATES DISTRICT JUDGE.
before the Court are:
• Defendant Randell G. Shelton's Motion in Limine to
Exclude Potential Expert Witness Testimony and Evidence (Doc.
169), the Government's Response (Doc. 189), and Mr.
Shelton's Reply (Doc. 204);
• Mr. Shelton's Motion to Sever (Doc. 171), and the
Government's Response (Doc. 198);
• Mr. Shelton's Request for Jury Trial on Forfeiture
Count (Doc. 172), and the Government's Response (Doc.
• Mr. Shelton's Motion to Exclude Government's
Notice of 404(b) Evidence (Doc. 174), and the
Government's Response (Doc. 187).
reasons given below, the Motion in Limine to Exclude.
Potential Expert Witness Testimony and Evidence is
GRANTED IN PART AND DENIED IN PART, and the
other three Motions are all DENIED.
MOTION IN LIMINE REGARDING EXPERT TESTIMONY (Doc.
Shelton states that the Government has not provided Mr.
Shelton with any timely notice of intent to use expert
testimony, and accordingly, he asks the Court to prohibit the
Government "from introducing any testimony from any
expert witnesses at the trial of this
matter"-specifically, testimony that he expects the
Government will attempt to introduce through an individual
named Stephen Gibson-Saxty. Mr. Gibson-Saxty is an employee
of Endpoint Exchange, who the Government intends to call in
its case-in-chief "to testify that electronic
transactions that exchange check images involving
participating 'sending banks' and 'receiving
banks' are processed by Endpoint Exchange using servers
located in Milwaukee, Wisconsin." (Doc. 189, p. 1). The
Government intends to use this testimony as part of its proof
that the wire communications in this case crossed state
lines, which is an essential element of some of the charges
against Mr. Shelton. See id.
Shelton contends that Mr. Gibson-Saxty's anticipated
testimony would be expert opinion testimony within the
meaning of Fed.R.Evid. 702. The Court disagrees, at least on
the basis of what is presently before it. The Court sees no
reason why identifying the physical location of Endpoint
Exchange's servers would require "scientific,
technical, or other specialized knowledge within the scope of
Rule 702." Fed.R.Evid. 701(c). And the Court does not
presently have any reason to believe that Mr.
Gibson-Saxty's testimony about how his employer processes
electronic check transactions would not be "rationally
based on [his] perception" and "helpful... to
determining a fact in issue." Fed.R.Evid. 701(a)-(b).
Thus, Mr. Gibson-Saxty's anticipated testimony would
appear at this time simply to be either straightforward fact
testimony or permissible lay opinion. Nor does the Court
think there is any problem, as Mr. Shelton contends, with the
fact that Mr. Gibson-Saxty may not have directly observed the
particular transactions at issue in this case. If Mr.
Gibson-Saxty is directly familiar with the processes at
Endpoint Exchange about which he will be testifying, then his
testimony about what those processes are would likely be
"rationally based on [his] perception." Such
testimony might be circumstantial, rather than direct,
evidence of how the particular transactions at issue in this
case were processed, but that goes to weight rather than
not to say the Court will permit an opinionated free-for-all
from Mr. Gibson-Saxty, or from any other witness for the
Government, for that matter. The Government provided Mr.
Shelton a summary of Mr. Gibson-Saxty's anticipated
testimony well after the deadline for it to provide Mr.
Shelton with summaries of expert testimony that would be
offered under Rule 702. So the Court will not permit the
Government to attempt to elicit testimony from Mr.
Gibson-Saxty that falls within the parameters of Rule 702.
But as Mr. Gibson-Saxty's anticipated testimony has been
described to the Court thus far, the Court does not believe
it will run afoul of that restriction. Accordingly, Mr.
Shelton's Motion in Limine to Exclude Potential Expert
Witness Testimony and Evidence (Doc. 169) will be
GRANTED IN PART AND DENIED IN PART.
MOTION TO SEVER (Doc. 171)
Shelton asks the Court to sever his trial from that of his
codefendant Jonathan Woods, on the grounds that at trial the
Government might introduce prior confessions or inculpatory
statements by Mr. Woods, which would create a conflict
between Mr. Shelton's Sixth Amendment right to confront
witnesses against him and Mr. Woods's Fifth Amendment
right not to testify. See Doc. 171. But the
Government has stated that it will not introduce any
testimonial statements made by Mr. Woods during its
case-in-chief, but instead will only introduce such
statements in rebuttal if Mr. Woods voluntarily takes the
stand and provides testimony that is materially inconsistent
with those prior statements. Thus, there is no potential
conflict between these two Defendants' Sixth and Fifth
Amendment rights. See Nelson v. O'Neil, 402 U.S.
622, 629 (1971) ("We conclude that where a codefendant
takes the stand in his own defense, denies making an alleged
out-of-court statement implicating the defendant, and
proceeds to testify favorably to the defendant concerning the
underlying facts, the defendant has been denied no right
protected by the Sixth and Fourteenth Amendments.").
REQUEST FOR ...