This case deals with the indictment of Derik Carothers. He is charged with three offenses. At Count One, the grand jury charged him with conspiracy to distribute and possess with intent to distribute a quantity of cocaine base, in the form commonly known as crack, a Schedule II controlled substance. At Count Two, the grand jury charged him with possession of a firearm in furtherance of a drug trafficking crime. And at Count Four, the grand jury charged him with possession of a firearm and ammunition by a convicted felon.
On October 11, 2024, by email communication, Carothers, through counsel, informed the Government that he intended to call the Chief Technical Officer of PATC Tech (a forensic investigation company), Glenn K. Bard (“Mr. Bard”), as an expert witness with experience in computer and cell phone forensics.
As of 2:36 PM on October 15, 2024, the Government had yet to receive Carothers’s expert disclosure of Bard, and thus the Government filed a Motion to Compel.
In Carothers’s response to the motion to compel, filed on October 16, 2024, he stated that “PATC informed counsel yesterday that … Bard is now unavailable to testify next week. In lieu of Bard’s testimony, Carothers expects to call Lucas… With respect to Lucas, Carothers provided the government with all of the expert disclosures required by Rule 16 today, October 16, 2024.”
The Government filed a motion to have Defendant Derik Carothers’s proposed expert, Donald Scott Lucas, excluded pursuant to Federal Rule of Criminal Procedure 16 because Carothers’s notice of expert testimony is (i) untimely and (ii) inadequate.
Law Enforcement Expert Witness
Donald Scott Lucas is a Forensic Examiner & Instructor with PATCtech and a retired Pennsylvania State Trooper. He has a background in law enforcement, specifically in regard to digital forensics and computer crimes. He has testified in federal, state and military courts regarding computer investigations and digital forensics on numerous occasions.
Discussion by the Court
Regarding disclosure’s statement of opinions that the Defendant will elicit from Lucas, which Rule 16 requires the disclosure of, Carothers only provided the following:
“Lucas will describe how he analyzed the forensic extractions of the cellular telephones seized in this case and will also describe data that can be recovered from the phones as well as data recovered from the seized phones. Specifically, he will testify about his analysis of the data contained on the phones and the methods he used to obtain any such data. He is expected to testify about the results of his review of the extraction of the phones for relevant images taken by the phones and relevant text messages sent and received by the phones (i.e., texts containing code names for controlled substances as identified by Agent Springmeyer and Josh Martin).”
Court’s Decision
The Court found that Carothers’s notice of a new expert and the disclosure of that expert, given three business days before the start of trial, was not provided “sufficiently before trial to provide a fair opportunity for the government to meet the Defendant’s evidence.”
Further, the Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.”
The Court determined that the appropriate remedy is to grant the Government’s continuance request and order Carothers to re-file a revised disclosure regarding Lucas’ proposed testimony.
The Court recognized that Bard’s unavailability was not inherently Carothers’s fault. Carothers had not acted intentionally or in bad faith. Moreover, the Court did not find that the Government will be prejudiced by the Court granting its alternative request for a continuance. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Held
The Court granted in part and denied in part the Government’s motion to exclude Defendant’s testimony or, in the alternative, for a continuance.
Key Takeaway:
The Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.” However, the Court did not find that the Government will be prejudiced by the Court granting the alternative request for a continuance because Carothers has not acted intentionally or in bad faith. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Case Details:
| Case Caption: | United States V. Carothers |
| Docket Number: | 3:20cr31 |
| Court: | United States District Court, Pennsylvania Western |
| Order Date: | October 18, 2024 |
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