Free Motion for Extension of Time to File - District Court of Colorado - Colorado

Case 1:04-cr-00354-REB

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Filed 02/02/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00354-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. MICHAEL JAY SHIDLER, Defendant.

GOVERNMENT'S UNOPPOSED MOTION TO ENLARGE ITS TIME FOR FILING EXPERT PROFFER SUBMISSIONS AND FOR CORRESPONDING EXTENSIONS OF TIME TO RELATED FILING DEADLINES UNDER THE COURT'S ORDER MARSHALING EXPERT WITNESS TESTIMONY

The United State of America, by and through its undersigned counsel, hereby moves this Court, without opposition, to enlarge by fourteen (14) days its time to file its expert proffer submissions pursuant to the Court's Order Marshaling Expert Witness Testimony in this case (DE 45)1 and to extend by a corresponding amount of time the related filing deadlines imposed under such Order. As grounds for the motion, the government states as follows: 1. On July 7, 2005, this Court conducted a motions hearing to address then-pending

pre-trial motions in this case (DE 43). The Court indicated that it would address an aspect of one of these motions ­ a defense request concerning expert disclosures under Fed.R.Crim.P. 16 ­ through the entry of an order setting forth an overall process for the parties' expert submissions
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"DE __ " refers to the Docket Entries in this case. 1

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and prescribing a particular format for such submissions. In connection with formulating such an order, the Court solicited the parties' views as to the time they would need in advance of trial to prepare and submit their expert disclosures . Government counsel indicated that the government would be willing to make its expert submissions ninety (90) days in advance of trial. Defense counsel was afforded sixty (60) days in advance of trial for its expert submissions. The Court did not set a date for trial at that time. 2. On July 12, 2005, this Court entered its Order Marshaling Expert Witness

Testimony in this case (DE 45), incorporating the deadlines at the July 7th Motions Hearing. The Order prescribed that the government file not less than ninety (90) days before trial a proffer of the expert witness testimony it intended to use at trial and afforded the defense sixty (60) days before trial to submit its expert witness proffer. The Order allowed each party twenty days after the other's submission to lodge written objections. 3. On November 11, 2005, at a second trial preparation conference in this case, the

Court set this case for a sixteen (16) day trial to commence on May 8, 2006, with a final trial preparation conference to be held on April 21, 2006 (DE 51). As a consequence, under the Court's Order Marshaling Expert Witness Testimony, the government's expert witness proffer is currently due for filing by February 7, 2006, and the defendant's expert witness proffer is currently due for filing by March 9, 2006. 4. Since the November 11th trial preparation conference, the government has

identified three prospective witnesses whose anticipated testimony, in whole or part, could be deemed as subject to the Court's Order Marshaling Expert Witness Testimony and who, correspondingly, could be construed (at least in some respects) as being experts subject to the 2

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provisions of Fed.R.Evid. 702-705 and Fed.R.Crim.P. 16(a)(1)(G). These prospective witnesses, two Internal Revenue Service revenue agents and one Internal Revenue Service revenue officer, have reviewed aspects of the government's discovery materials (materials which in their totality exceed 21,000 pages of records) and have outlined or conveyed in some format their views and other information which may be the subject of their anticipated testimony. Their materials are currently being reviewed by government counsel, who is working with these prospective experts to ensure that they provide all of the information required by the Court's Order and that their information and views are organized consistent with the Order's prescribed format. Because of the breadth of the discovery materials in this case and the complexity of the subject matter, the government seeks this brief requested extension in time to file its expert witness proffer in order to ensure that the information and materials provided by these prospective witnesses satisfies the Court's requirements and is organized and presented in a manner complying with those requirements. Additionally, one of the three prospective witnesses whose testimony is potentially subject to the Court's Order, a recognized expert witness in abusive trust and taxation arrangements, resides and operates outside the District of Colorado and is currently in the midst of preparing to provide expert testimony in two other federal criminal cases in different parts of the country. This prospective witness is preparing for these trials at their locations and is difficult to contact. The government's request for a brief enlargement in its time is based and motivated, in part, by the consequent difficulties, under these circumstances, in reviewing this witness's work product with her within the currently allotted time. 5. As part of the government's motion, the government requests that the other filing

deadlines imposed bythe Court's Order be enlarged by a corresponding two weeks. Accordingly, 3

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the government requests that the Court permit the parties to make their expert submissions and lodge their respective objections (if any) in accordance with the following proposed schedule: Govt. Expert Proffer Defense Objections to Govt. Proffer Defense Expert Proffer Govt. Objections to Defense Proffer By February 21, 2006 By March 13, 2006 By March 23, 2006 By April 12, 2006

6.

The government seeks this brief enlargement in its time to file its expert proffer

and in the corresponding filing deadlines not for the purpose of delay but in order to ensure that the government provides accurate and meaningful expert disclosures and to ensure that the government otherwise complies with the requirements of the Court's expert testimony marshaling order. Nor, the government respectfully submits, should these brief filing deadline extensions engender delays in any other scheduled proceedings in this case. 7. Undersigned government counsel has discussed this motion with Gary Lozow,

Esq., counsel for defendant Shidler, who advises that the defense does not object to the motion.

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WHEREFORE, the United States respectfully requests that this Court grant its motion (i) for a two-week enlargement in time to file an expert witness proffer pursuant to the Court's Order Marshaling Expert Witness Testimony, or such other time as this Court deems appropriate, and (ii) to extend by a comparable period of time the other filing deadlines set forth in such Order. Respectfully submitted, WILLIAM J. LEONE United States Attorney

by: s/ Kenneth M. Harmon KENNETH M. HARMON Assistant United States Attorney U.S. Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Tel. No. (303) 454-0100 Fax No. (303) 454-0402 E-mail: [email protected] Attorney for the Government

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February, 2006, I electronically filed the foregoing GOVERNMENT'S STATUS REPORT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Gary Lozow, Esq. [email protected] [email protected] [email protected] Attorney for Defendant Shidler

s/ Kenneth M. Harmon KENNETH M. HARMON Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 (303) 454-0100 (303) 454-0402 (fax) [email protected]

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