Defendant Stephen Kerr, through undersigned counsel, hereby responds to

Transcription

1 Case :-cr-0-jat Document Filed 0// Page of 0 0 Michael D. Kimerer #00 Rhonda Elaine Neff #0 KIMERER & DERRICK, P.C. East Osborn, Suite 00 Phoenix, AZ 0 Telephone: (0) -00 Facsimile: (0) - Attorneys for Defendant, Stephen M. Kerr UNITED STATES OF AMERICA, vs. Plaintiff,. STEPHEN M. KERR. MICHAEL QUIEL. CHRISTOPHER M. RUSCH Defendants. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR--PHX-JAT-DKD DEFENDANT KERR S RESPONSE IN OPPOSITION TO GOVERNMENT S () NOTICE OF INTENT TO USE EXPERT TESTIMONY AND () MOTION FOR LEAVE TO LATE-FILE NOTICE (Before the Honorable James A. Teilberg) Defendant Stephen Kerr, through undersigned counsel, hereby responds to the Government s Notice of Intent to Use Expert Testimony and Motion for Leave to Late-File Notice (Doc. ). The Court issued an Order on December, 0, granting the Defendants Motion to Strike the Revenue Agent previously listed as a summary witness by the Government. In the Defendants Motion to Strike the Revenue Agent, Defendants argued that the unidentified revenue agent listed in the Government s Notice of Intent to Use Summaries of Voluminous Evidence Pursuant to Rule 00, and Summary Charts, Testimony, and Demonstratives Pursuant to Rule (a)

2 Case :-cr-0-jat Document Filed 0// Page of 0 0 ( Notice of Intent ) was testifying as an expert witness and, thus, the Government was required to have listed such agent by the expert witness deadline of September 0, 0. In particular, in the Government Notice of Intent, the Government indicated that this unnamed revenue agent would assist the Court in determining complex tax computations. As the Court correctly points out in its Order Granting Defendant s Motion to Strike the Revenue Agent, it is clear that the testimony that Internal Revenue Service ( IRS ) Agent Debra Saparata will give is based on her expertise in the area of taxes. (Doc., pg. ).The Government is now seeking to come in almost four () months after the expert witness deadline to list Agent Saparata as an expert witness. The Government alleges first that it in good faith provided notice of its intent to call a summary witness to testify regarding... tax computations. (Doc., pg., ln. -). The Government knew of the purpose and intended testimony of Agent Saparata at the time it filed its Notice of Intent with the Court. It knew that tax computations are complex in nature, that it is usually presented by an expert so as to provide assistance in preparing and understanding the complex tax calculations, and that their summary witness, had expertise in this area. Therefore, it is impossible to believe that the Government did not know that the IRS Agent to be called would be testifying not only as a summary witness, but also as an expert witness. The Government next alleges that because the Defendants subsequently filed their own summary witness notice indicating intent to call a rebuttal

3 Case :-cr-0-jat Document Filed 0// Page of 0 0 summary witness, that the Defendants acknowledged that summary testimony was appropriate. (Doc., pg., ln -). However, the Defendants filed an intent to use such summary witness as rebuttal for the Government s witness, without any indication as to what the summary witness would testify to. Unlike the Government, Defendants filed their list of expert witnesses with the Court by the deadline set out by the Court. The Government failed to name a single expert witness. The Government was aware of, and acknowledges, the complexity of the tax issues in this case and failed to list a single expert to testify to assist the jury. The fact that the Defendants filed notice to provide rebuttal summary testimony does not give the Government free rein to go back and restructure how its case will be presented through expert testimony for which it knew it needed at the time of the expert witness deadline. The Government next alleges that the Defendants will not be prejudiced by the late notice. (Doc. ). As grounds for why the Defendants will not be prejudiced, the Government claims that the defense has been on notice of the government s intent to call a witness to testify as set forth [in its notice] since October 0. (Doc., pg., Ln. -0). However, the Defendants challenged the information provided in the Notice of Intent filed by the Government. One of those challenges was that the Government never properly provided what this unnamed summary witness was going to testify too. While the Defendants were put on notice that a summary witness would be called by the Government, it only knew that such a witness was being called to assist in

4 Case :-cr-0-jat Document Filed 0// Page of 0 0 complex tax issues. This is a multiple count indictment against three separate defendants involving multiple accounts and issues the Government s summary witness could have been testifying as to any number of complex tax issues. It was not until this Notice of Intent to Use Expert Witness and Motion for Leave that the Government provided the Defendants with an actual explanation as to what this agent would testify to. The Government indicates that the Defendants still have two () months to prepare for the agent s testimony, and possibly more if the witness testifies at the end of the Government s case-in-chief. (Doc., pg., ln -0). However, the Defendants do not have adequate time to prepare for this witness s testimony. The Defendants have already named their expert witnesses and the deadline has passed to list any further expert witnesses. Therefore, the Defendants are unable to find and list an expert witness that will be able to testify in rebuttal to Agent Saparata unknown tax calculations and testimony. Not to mention that this is a very lengthy case and the Defendants are in the midst of trial preparation and preparing for other pretrial matters. The Government has now provided some information on what the expert will testify to (which it did not do before); however, the analysis it wants to present from this expert is extremely complex and involves thousands of pages of records. In order to present appropriate rebuttal, the Defendants will be required to seek out an expert witness to review thousands of pages of documents, some of which may be in Europe. To properly respond and analyze the results will take the Defendants

5 Case :-cr-0-jat Document Filed 0// Page of 0 0 the time that it has blocked out for trial preparation. The Defendant will be forced to seek a continuance in order for the Defendants expert to analyze the Government s expert s findings and for the Defendants to make up the lost time to prepare for trial as a result of the late notice. Defendant Kerr does not want to continue this trial. The Defendants will be hugely prejudiced if they must stop their trial preparation in order to focus on an expert witness s testimony that should have been disclosed in September, 0. The Government argues that it will be highly prejudiced if the court denies its ability to use Agent Saparata. It says that Ms. Saparata s testimony is crucial to establishing facts at issue... [and] such testimony is absolutely necessary to assist the court and jury in understanding the evidence given the intricacies of the tax code and the complex and voluminous nature of many financial transactions. (Doc., pg., ln. -pg., ln. ). The Government has acknowledged the complexity in understanding the intricacies of the tax code. These intricacies are not new to the Government and were known well before the expert witness deadline. In fact, the use of expert witnesses in tax cases is common as the Government points out in its Motion. United States v. Marchini, F. d (th Cir. ); United States v. Soulard, 0 F.d (th Cir. ); United States v. Clardy, F.d (th Cir. 0). In fact, expert testimony may be the only means by which a layperson can understand the tax code. Yet, the Government has not listed a single expert witness in hopes that it could rely on a last minute unnamed summary witness to provide the information necessary to

6 Case :-cr-0-jat Document Filed 0// Page of 0 0 understand the testimony and evidence provided. The Government was fully aware of its need to use expert testimony to assist the court and jury in understanding the complexity of the IRS Code. As such, if it would be highly prejudiced without such testimony, it should have listed expert witnesses prior to the deadline. Defendants have asked for and been denied the Special Agent s Report in this case. (Doc. ). One of the reasons that Defendants sought the Special Agent s Report was so that it would understand the Government s intended testimony at trial and who would be giving that testimony. The Defendants have been given little to no information on what the Government intends to present at trial. This case has over 00,000 documents that have been disclosed to-date, banking documents that are held in Switzerland, and very complex calculations. The tax calculations in this case are not ordinary tax calculations, but a complex area of tax calculation on FBAR forms. Finally, this Court has been clear in setting its deadlines. In fact, Defendant Kerr has been denied the right to file for a severance because such filing was not filed by the pre-trial motion deadline. The Defendant s possibility of severance is still unknown because the Defendants are left guessing what the Government is going to do in this case. Defendant Kerr objects to the Government s attempt to come in several months late, and only two months prior to trial, naming an expert witness that Defendant Kerr has not had time to prepare for. This Court issued its deadline for expert witnesses for a reason. Both sides should have ample time to

7 Case :-cr-0-jat Document Filed 0// Page of 0 prepare for rebuttal testimony to the other s expert witnesses and should, likewise, be able to have ample time to judge that witnesses credibility and knowledge in the area of expertise for which the witness is testifying. At this late date, Defendants do not have ample time to prepare for this expert witness s testimony. Therefore, Defendant Kerr respectfully requests that this Court deny the Government s Motion for Leave to File its Notice of Intent to Use Expert Testimony as it is highly prejudicial to the Defendants. Respectfully submitted this th day of January, 0. KIMERER & DERRICK, P.C. s/ Michael D. Kimerer Michael D. Kimerer Rhonda Elaine Neff East Osborn, Suite 00 Phoenix, Arizona 0 mdk@kimerer.com rneff@kimerer.com Attorneys for Defendant, Stephen Kerr 0

8 Case :-cr-0-jat Document Filed 0// Page of 0 CERTIFICATE OF SERVICE I hereby certify that on this th day of January, 0, I electronically transmitted the foregoing Defendant Kerr s Response in Opposition to Government s () Notice of Intent to Use Expert Testimony and () Motion for Leave for to Late-File Notice to the Clerk of the Court using the CM/ECF System for filing and understand a copy of the filing will be ed to the following CM/ECF registrants: Honorable James A. Teilberg: teilberg_chambers@azd.uscourts.gov Attorneys for the United States Monica B. Edelstein: monica.edelstein@usdoj.gov Timothy J. Stockwell: timothy.j.stockwell@usdoj.gov Attorneys for Defendant Michael Quiel Joy Malby Bertrand: joyous@mailbag.com Michael Louis Minns: mike@minnslaw.com Ashley Blair Arnett: ashley@minnslaw.com Michael Ware: ware@mikewarelaw.com Attorney for Defendant Christopher Rusch Baltazar Iniguez: zariniguez@aol.com By: s/ Rhonda Elaine Neff 0