Exclusion of Defense Expert for Late Disclosure, Obstruction of Justice Enhancement Both Upheld

United States v. Paup, 2019 WL 3756446 (10th Cir. August 9, 2019) (CO): This was an appeal from a jury trial for shoplifting that occurred before a magistrate judge. The mag court sentenced Defendant, inter alia, to a term of imprisonment, a fine, and ordered restitution for the value of stolen merchandise. Defendant appealed to the district court and the district court upheld her conviction and sentence of imprisonment but vacated the restitution & remanded to the magistrate judge for further proceedings. The defendant then appealed to 10th Circuit. The first issue addressed was jurisdiction, since the restitution amount was not settled at the time of the appeal to the Tenth Circuit. The panel held that it had jurisdiction because the district court's remand order was final in terms of Defendant’s conviction and sentence of imprisonment.

The second issue addressed was the propriety of excluding the defense’s expert witness. The defense sought the expert to testify that Defendant suffered from dissociative disorders and, as such, could not form the mens rea necessary to commit the charged crimes. Indeed, this was the diagnosis of Defendant’s therapist, but that therapist was “not competent” to provide a medical opinion in court. Defense counsel requested two continuances to find a suitable expert and provide the government with a written summary of proposed testimony pursuant to Fed.R.Crim.P. 16, but missed the ultimate deadline set by the court. Ten days after the deadline, defense counsel finally made an expert witness disclosure by emailing the government and court, explaining later that she was unable to navigate PACER because it was her first federal case. The Government moved to exclude the witness and the magistrate court granted the motion. Tenth upholds this decision. The argument that defense counsel was a federal court newbie was no excuse for missing deadlines.

The third issue on appeal involved the application of a two-level enhancement for obstructing justice/perjury. See USSG § 3C1.1 Defendant’s shoplifting was caught on video, and she was found in possession of wire cutters and empty bags from other stores to make the merchandise appear as though it was purchased elsewhere. Yet, when Defendant testified, she attempted to provide explanations for the suspicious behaviors that the magistrate court absolutely did not buy. The Tenth Circuit said there was sufficient evidence to uphold the mag court’s enhancement, and, per usual, for credibility determinations, it deferred to the judge’s fact-finding. Conviction and sentence of imprisonment affirmed.