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United States v. Woods

United States District Court, W.D. Arkansas, Fayetteville Division

November 29, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
JONATHAN E. WOODS; OREN PARIS III; and RANDELL G. SHELTON, JR. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHYL L. BROOKS UNITED STATES DISTRICT JUDGE.

         Currently 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. 183); and
• Mr. Shelton's Motion to Exclude Government's Notice of 404(b) Evidence (Doc. 174), and the Government's Response (Doc. 187).

         For the 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.

         I. MOTION IN LIMINE REGARDING EXPERT TESTIMONY (Doc. 169)

         Mr. 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.

         Mr. 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 admissibility.

         This is 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.

         II. MOTION TO SEVER (Doc. 171)

         Mr. 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.").

         III. REQUEST FOR ...


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