United States v. Diakhoumpa

171 F. Supp. 3d 148, 2016 WL 1105486, 2016 U.S. Dist. LEXIS 36209
CourtDistrict Court, S.D. New York
DecidedMarch 15, 2016
Docket15-CR-629 (VM)
StatusPublished
Cited by1 cases

This text of 171 F. Supp. 3d 148 (United States v. Diakhoumpa) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Diakhoumpa, 171 F. Supp. 3d 148, 2016 WL 1105486, 2016 U.S. Dist. LEXIS 36209 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge

Defendant Mamadou Diakhoumpa (“Diakhoumpa”) is charged by indictment (“Indictment”) with smuggling counterfeit goods in violation of 18 U.S.C. Sections 545 and 2 and with trafficking in counterfeit goods in violation of 18 U.S.C. Sections 2320 and 2.

In connection with the scheduled trial in this matter, Diakhoumpa moved in limine to (1) preclude the Government from introducing any testimony, exhibits, or arguments at trial concerning previously destroyed evidence or, in the alternative, have the Court instruct the jury that it may draw an adverse inference from the Government’s destruction of evidence (Dkt. No. 22, “Spoliation Motion”) and (2) preclude the Government’s expert testimony for which Diakhoumpa claims the Government has provided inadequate notice pursuant tc Rule 16 of the Federal Rules of Criminal Procedure (“Rule 16”) (Dkt. No. 23, “Expert Motion”).

On March 11, 2016 the Court denied Diakhoumpa’s Spoliation Motion and Expert Motion. (See Dkt. Minute Entry for Mar. 11, 2016,.Dkt. No. 29, “March 11 Order.”)

After the Court issued its March 11 Order, Diakhoumpa moved in limine to compel the Government to produce, pursuant to a protective order, the information provided to the Government’s experts by trademark holders (Dkt. No. 28, “Motion to Compel”) and requested a pretrial hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Daubert”), to determine whether the Government’s witnesses are qualified to offer expert opinions at trial (Dkt. No. 28, “Daubert Hearing”).

[150]*150Regarding his Motion to Compel, Diakh-oumpa argues on three separate grounds that he is entitled to discovery of the information provided to the Government’s experts by trademark holders. First, Diakh-oumpa argues he is entitled to discovery pursuant to Rule 16 because the information he seeks constitutes “paper, documents, data [and] photographs” that are material to the preparation of his defense and that the Government intends to use in its case-in-chief at trial. Second, Diakh-oumpa contends that an expert is required to disclose the facts and data underlying his or her opinion on cross-examination pursuant to Rule 705 of the Federal Rules of Evidence (“Rule 705”). Diakhoumpa argues that “although Rule 705 does not itself require pretrial disclosure, the Advisory Committee Notes indicate that pretrial disclosure should be ordered where necessary to allow the opposing party an opportunity for meaningful cross-examination.” (Dkt. No. 28 at 2.) Third, Diakh-oumpa argues that he will be deprived of his Fifth Amendment right to due process and his Sixth Amendment right to confrontation if he does not receive the information.

Regarding his request for a Dauberb Hearing, Diakhoumpa objects to the Government’s purported expert testimony pursuant to Rule 702 of the Federal Rules of Evidence (“Rule 702”) for lack of sufficient facts and data and a lack of reliable principles and methods.

The Government opposed Diakhoumpa’s Motion to Compel and request for a Dau-berb Hearing. (Dkt. No. 30, “Opposition Brief.”) Regarding Diakhoumpa’s Motion to Compel, the Government argues that it intends to call import specialists with Customs and Border Protection (“CBP”) who examined the counterfeit items and made the determination that the items lack authenticity. The Government contends that the information provided by trademark holders to CBP for purposes of training its import specialists is not covered by Rule 16. Moreover, the Government does not intend to offer into evidence any document provided by a trademark holder to CBP. The Government argues that discovery of such materials would not bolster Diakh-oumpa’s defense as required by Rule 16, would not provide for meaningful cross-examination by Diakhoumpa as required by Rule 702, and is not necessary to challenge the credibility of the import specialists as witnesses. In addition, the Government argues that Diakhoumpa does not intend to call an expert at trial who will claim the items are authentic.

Regarding Diakhoumpa’s request for a Dauberb Hearing, the Government argues that the “reliability and qualifications of the Governments’ experts can easily be answered through the foundation that the Government will establish before turning to each expert’s conclusion.” (Dkt. No. 30 at 3.)

Diakhoumpa subsequently replied to the Government’s Opposition Brief. (Dkt. No. 31, “Reply.”) In addition, Diakhoumpa filed a supplemental letter with the Court in support of his application for a Dauberb Hearing. (Dkt. No. 32, “Supplemental Letter.”) Diakhoumpa argues that in addition to CBP officers and one private investigator, the Government intends to call a lay witness employee of a designer company to provide firsthand knowledge as to whether an item is counterfeit. Diakhoumpa argues that this supports his position that the Government’s purported experts do not possess any specialized knowledge separate and apart from out-of-court statements that they have received from trademark holders.

For the reasons discussed below, Diakh-oumpa’s motions in limine are GRANTED in part and DENIED in part.

[151]*151I. APPLICABLE LAW AND DISCUSSION

A. MOTION TO COMPEL

Rule 16(a)(1)(E) states: “Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.”

Diakhoumpa argues that the information he seeks is subject to discovery because it “constitutes ‘paper, documents, data, [and] photographs’ that are both material to the preparation of the defense and that government intends to use it in its case-in-chief at trial.” (Dkt. No. 28 at 1.)

The Government argues that “information provided by trademark holders to CBP for purposes of training its import specialists is not covered by Rule 16(a)(1)(E).” (Dkt. No. 30 at 3.) The Government contends that because it does not intend to offer into evidence any document provided by a trademark holder to CBP, the information Diakhoumpa seeks must be material to preparing the defense, which Diakhoumpa has failed to show.

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171 F. Supp. 3d 148, 2016 WL 1105486, 2016 U.S. Dist. LEXIS 36209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diakhoumpa-nysd-2016.