Can I Get A Witness?

September 10, 2014

Court records show that Assistant United States Attorney Matthew Kirsch objected to the IRP6 expert witnesses, staffing CEO Andrew Albarelle and Account Manager Kellie Baucom of the Remy Corporation, from testifying based on an alleged Rule 16 disclosure violation.

 

After reviewing Rule 16 and 10th Circuit case law, specifically U.S. v. Nacchio 519 F.3d 1140, 1173 (10th Cir. 2008) and U.S. v. Nacchio 555 F.3d 1234 (10th Cir. 2009), the IRP6 were not required under Rule 16 to disclose information about their expert witnesses. Judge Christine M. Arguello bought into Kirsch's fallacious argument and excluded Albarelle and Baucom --- in doing so, Arguello violated the IRP6's Sixth Amendment right to present a defense by calling witnesses to testify in their favor. A Tenth Circuit panel of Baldock, Hartz and Holmes, drunk on cronyism, ignored Rule 16 and their findings in the Nacchio case to allow the IRP6's Sixth Amendment rights to be violated.

 

Rule 16(b)(1)(C), titled Expert witnesses, states:

 

The defendant, at the government's request, give to the government a written summary of any testimony that the defendant intends to use...as evidence at trial, if-- (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies..."

 

What this means is that the IRP6 was only required to provide a written summary of what their expert witnesses intended to testify about, IF they first requested for the government to disclose a written summary of their expert.

 

THE IRP6 NEVER MADE SUCH A REQUEST OF THE GOVERNMENT, SO THEY WERE NOT REQUIRED TO DISCLOSE A WRITTEN SUMMARY TO THE GOVERNMENT.

 

Why did Kirsch request such a disclosure and why would Judge Arguello exclude IRP6 witnesses when the law is very clear and concise? Furthermore, why would the 10th Circuit Court of Appeals not reverse the conviction of the IRP6 by finding that Judge Arguello not only abused her discretion in denying the witnesses, or on the basis of the IRP6's Sixth Amendment right being violated?

 

In their appellate opinion, the panel cited an inapplicable 10th Circuit case to try and justify affirming the IRP6 conviction, that being U.S. v. Russell, 109 F.3d 1503 (10th Cir. 1997). In the Russell case, the defendant failed to include some witnesses’ names as part of a mandatory pretrial disclosure exchange between the government and the defense. The Russell defendant then tried to call the witness during trial, which was definitely a surprise to the government. The court appropriately excluded the witnesses under those circumstances. According to the Federal Rules of Criminal Procedure 16 Advisory Committee Notes, the purpose of Rule 16(b)(1)(C) notice is to "minimize surprise that often results from unexpected expert testimony, reduce the need for continuances and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." The government was not remotely surprised by the IRP6 calling Albarelle to the witness stand.

 

Albarelle and Baucom were included on the pretrial witness list the IRP6 provided to the government and they both, though not required to, had sent letters to U.S. Attorney John Walsh months before trial, outlining their job title and opinions directly related to IRP6 business activities which the government was challenging as criminal and inconsistent with staffing industry practices --- opinions which contradicted the foundation of the government assertions of fraud. Furthermore, when Judge Arguello requested the letters during the trial, Kirsch immediately went to his files and provided the letters to Arguello. Kirsch knew about the witnesses and I would surmise that his request for a written summary of Albarelle and Baucom was to gain a tactical advantage by knowing what they would testify about. Certainly, Judge Arguello, or the appellate panel of Baldock, Hartz and Holmes, couldn't rationally conclude that the government was surprised that Albarelle and Baucom would testify. Other 10th Circuit case law exposes this panel as hypocrites and cronies.

 

In U.S. v. Charley, 151 F.3d 1251, 1262 (10th Cir. 1999), the 10th Circuit found that exclusion of a witness is "almost never imposed in the absence of a constitutional violation or statutory authority for such exclusion." They also found in U.S. v. Golyansky, 291 F.3d 1245, 1249 (10th Cir. 2002), that absent bad faith, it is rare where a district court should exclude evidence rather than continue proceedings.

 

The 2008 Nacchio panel mentioned above, which Judge Holmes was part, said "It bears to mention that a defendant is not required to file a Rule 16 disclosure unless the defendant has made a similar request of the government...and the government has complied." Four of the judges of the 2009 Nacchio en banc opinion, in their dissent discussed Rule 16(b)(1)(C) requirements, stating: "Rule 16 does not require experts in CRIMINAL cases to provide written reports explaining their opinions or to make a written proffer containing the information required in civil rules."

 

The Supreme Court of the United States' (SCOTUS) watershed case regarding exclusion of witnesses based on discovery or disclosure sanctions is Taylor v. Illinois 484 U.S. 400 (1988). The Taylor case was predicated on the failure of the defendant to provide all witnesses on the pretrial witness list, then trying to amend the list on the first and second days of trial. SCOTUS allowed for preclusion of the witnesses under these circumstances. I want to reiterate, Albarelle and Baucom were both on the IRP6 pretrial witness list provided to the government and therefore was not subject to a preclusion sanction or required to provide an expert summary under Rule 16.

 

There is not a shred of 10th Circuit case law, Supreme Court case law, or statutory law to justify exclusion of Albarelle and Baucom in the IRP6 case. The IRP6 rights, under the Sixth Amendment's compulsory process clause to present witnesses in their favor, was violated by AUSA Kirsch, Judge Arguello and the 10th Circuit Court of Appeals. 

 

The intentional acts by these judicial officials to wrongfully convict and imprison the IRP6 were heinous, despicable and the height of malfeasance. For my politically correct readers who may be offended by words like hypocrite and crony, these are wholly accurate and appropriate descriptions for willful misconduct that takes the freedom from innocent men and causes monumental pain, suffering and tears to mothers, fathers, sisters, brothers, daughters and sons. In fact, these actions could be considered criminal.

 

 

 

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