Monday, August 11, 2014

Continuances Did Not Violate Speedy Trial Act; Exclusion of Defense Expert Testimony OK'd

U.S. v. Banks, -- F.3d --, 2014 WL 3805481 (8/4/14) (Colo.) - the Tenth affirms multiple mail fraud and wire fraud convictions in a multi-defendant case. Defendants' speedy trial rights were not violated under 18 U.S.C. ยง 3161(c)(1) or the Sixth Amendment by several continuances granted by the district court. Although the length of the delay (greater than a year) weighed in defendants' favor, the balancing of the remaining three factors did not. The district court properly weighed the applicable factors and supported its rulings with detailed factual findings.

The district court did not compel co-defendant Barnes to take the stand in violation of his Fifth Amendment privilege against self-incrimination; he took the stand voluntarily. And the district court's curative instructions to the jury in this regard did not violate defendants' Sixth Amendment right to a fair trial. Defendants rejected the court's first proposed curative instruction and failed to object to either the substance or the timing of the second curative instruction. Defendants did not demonstrate any error by the district court, much less plain error.

The district court did not abuse its discretion by excluding testimony from defendants' expert witnesses on account of defendants' failure to make proper disclosure of the witnesses under Fed. R. Crim. P. 16 and 702. Defendants offered no legitimate reasons for failing to comply with the disclosure requirements and the government would have been prejudiced in its ability to effectively cross-examine the experts about their qualifications and conclusions if defendants had been allowed to call their expert witnesses on day 9 of trial. The district court's refusal of a continuance was appropriate because the government had already rested its case.


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