USA v. Kavalchuk, et al.

2011 DNH 175

• Court: District Court, D. New Hampshire
• Decided: October 21, 2011
• Docket: 09-CR-178-JD
• Status: Published

Opinion

USA v . Kavalchuk, et a l . 09-CR-178-JD 10/21/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 09-cr-178-JD Opinion N o . 2011 DNH 175 Paul Kavalchuk, et a l .

O R D E R

Defendants, Paul Kavalchuk and Eastwest Trading Corporation,

joined by defendant, Peter Kavalchuk, move to preclude the

testimony of a government witness, David Meyers. The defendants

contend that the government failed to comply with the

requirements of Federal Rule of Criminal Procedure 16(a)(1)(G)

and Local Criminal Rule 16.1(b)(1) for disclosing an expert

witness. The government argues that Meyers is not an expert

witness and that, alternatively, the defendants will not be

prejudiced if Meyers is allowed to testify.

Under Rule 16(a)(1)(G), in conjunction with Local Criminal

Rule 16.1(b)(1), the government must give the defendant “a

written summary of any testimony that the government intends to

use under Rules 702, 703, or 705 of the Federal Rules of Evidence

during its case-in-chief at trial.” If the government fails to

comply with the disclosure requirement, the court may order

discovery, grant a continuance, preclude the undisclosed evidence, or enter an order that “is just under the

circumstances.” Fed. R. Crim. P. 16(d)(2). In determining which

sanction might apply, the court considers the government’s reason

for delaying disclosure, the defendant’s prejudice, and whether a

continuance would cure the prejudice. United States v . Brown,

592 F.3d 1088, 1090 (10th Cir. 2009); United States v . York, 572 F.3d 415, 422 (7th Cir. 2009); United States v . Murphy, 2006 WL

3731301, at *3 (D.N.H. Dec. 1 4 , 2006) (“In delayed disclosure

cases, the First Circuit has repeatedly stated that the ‘criminal

defendant must ordinarily seek a continuance if he intends to

claim prejudice.’” quoting United States v . Beras, 183 F.3d 2 2 ,

27 (1st Cir. 1999)).

The government states that it did not disclose Meyers as an

expert witness because he will testify only as a fact witness.

In support, the government represents that Meyers will testify that “using forensic tools that have been validated and which are

accepted within the forensic community, [he] made exact forensic

copies of the hard drives of the seized computers.” O b j . at 2 .

Meyers then examined the forensic copies “for evidence of the

alleged crimes, again using accepted forensic tools.” Id. In

doing s o , Meyers found numerous emails that the government

intends to use in its case-in-chief.

Although the government analogizes Meyers’s forensic

2 examination of the computers’ hard drives to finding a paper copy

of a document in a desk, the court is not convinced. Other

courts have concluded that witnesses who testify about

information they found on computers, based on certain

investigations, searches, or analyses, are giving expert opinions

within the scope of Rule 702. See, e.g., United States v . Y u , 411 F.3d 559, 566-67 (4th Cir. 2010) (holding testimony about

data recovery from computer was an expert opinion not merely

facts about chain of custody); United States v . Wilson, 408 Fed.

Appx. 798, 808 (5th Cir. 2010) (holding that agent’s testimony

about email account was not expert opinion because “he was not a

forensic examiner, he did not use forensic software in reviewing

the e-mails, and his computer background was limited to ‘a normal

computer user of Microsoft Office products’”); United States v .

Ganier, 468 F.3d 920, 925-26 (6th Cir. 2006); McSweeney v . Kahn, 2008 WL 6875018, at *4 (N.D. Ga. Aug. 6, 2008).

Based on the government’s representations, the court

concludes that Meyers’s testimony is subject to the disclosure

required by Rule 16(a)(1)(G). The next consideration is whether

the failure to disclose or a late disclosure has prejudiced the

defendants. See United States v . Laurent, 607 F.3d 895, 901 (1st

Cir. 2010).

The defendants argue that Meyers’s testimony will prejudice

their defense because their counsel will be unable to conduct an

3 adequate cross-examination of Meyers, because they will not be

able to find their own expert to address Meyers’s expected

testimony, and because the lack of disclosure will prevent them

from challenging Meyers’s methodology used in extracting emails

and determining their recipients. The defendants further argue

that a continuance would not be appropriate because the case has been continued several times and the government has had ample

time to disclose Meyers as an expert.

In response, the government contends that even if the

disclosure requirements are deemed to be applicable to Meyers,

the defendants have not been prejudiced because the government

provided Meyers’s FTK Reports to the defendants by January 2 5 ,

2010, and returned the hard drives to the defendants. Meyers’s

FTK Reports contain a case summary that includes sections labeled

“Case Information,” “File Overview,” and “Evidence List.” The FTK Reports also identify the bookmarks created during the

forensic examination, which allows the examiner to identify

specific documents found on the hard drives and to access the

documents as a group. One of the bookmarks created for Paul

Kavalchuk’s hard drive is named “Counterfeit info” and certain

emails that Meyers thought were relevant to that topic were

identified with that bookmark.

The government further represents that it offered to provide

4 defense counsel a complete duplicate copy of the forensic copies

made by Meyers. On November 3 , 2010, the government identified

Meyers as the forensic examiner, although he had also been

identified previously through the FTK Reports.

In addition, the government represents that it invited

defense counsel to meet with Meyers to have him explain what he did and to answer questions. One of the defense counsel met with

Meyers on October 2 0 , 2011, heard explanations, and asked

questions. Meyers also showed defense counsel portions of the

FTK reports on a computer and explained how the reports were

generated and what they contained. Counsel asked questions

during that process.

Given the information provided to the defendants about

Meyers’s reports and the fact that he was identified as the

forensic examiner on November 3 , 2010, the government’s failure to disclose Meyers as an expert has caused little or no prejudice

in this case. Although the government provided access to Meyers,

himself, only recently, the defendants do not appear to have been

prejudiced by the timing, given the information they had as of

November of 2010. Further, even if the defendants were able to

show prejudice, they are not seeking a continuance as a remedy,

which is a necessary first step in seeking sanctions.

Conclusion

5 For the foregoing reasons, the defendants’ motion in limine

to preclude the testimony of David Meyers (document n o . 118) is

denied.

SO ORDERED.

V J Joseph A. _DiClerico, Jr. United States District Judge October 21, 2011

cc: Seth R. Aframe, Esquire William E. Christie, Esquire Steven M. Gordon, Esquire Arnold H. Huftalen, Esquire Richard F. Monteith, Jr., Esquire Robert J. Rabuck, Esquire