United States District Court, E.D. Wisconsin
RECOMMENDATION ON DEFENDANT'S SECOND MOTION TO
CONTINUE THE TRIAL DATE
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
December 1, 2017, Derrick Harris moved to continue the trial
date on the grounds that he needed additional time to obtain
an expert opinion that he argued was essential to his
defense. (Docket # 56.) I recommended the court grant the
motion, and the motion was granted on December 13, 2017. Jury
trial before the Honorable Judge Stadtmueller is scheduled
for March 19, 2018. (Docket # 66.)
now moves for a second continuance of the trial date. (Docket
# 88.) After the first continuance was granted, Harris moved
to have firearms expert John Nixon appointed in this case.
(Docket # 74.) Harris was instructed by the Court to ask
whether Harris and the government could cooperate on the
testing of the vehicle to save money, and Harris asked the
government to perform the lead and copper test of the mark on
the car. (Docket # 88 at 2.) The government agreed. Harris
was informed by the government that the test was completed
and the report should be ready by February 23, 2018.
(Id.) The government also informed Harris that the
test did not reveal traces of copper and lead, but that the
government firearms expert would still opine that the mark
was consistent with a bullet strike. (Id.)
wishes to present expert opinion from Nixon to rebut the
government's expert and Harris has reached out to Nixon;
however, Nixon informed Harris that he would be involved in
cases on the west coast until May 2018, and also in June
2018, but that his schedule would ease up in May and after
June 2018. (Id. at 3.) Harris argues that he has a
right to have an expert to counter the government's
expected expert testimony and to show that the damage was not
from a bullet and was instead fabricated by the informant.
(Id.) Harris argues that because this information is
essential to his defense and because the delay was not caused
by the defendant, trial should be adjourned until July 2018.
(Id.) Harris asserts that adjourning the trial until
July 2018 would give the defense time to renew its motion to
appoint Nixon as an expert and to litigate any
Daubert motions. (Id. at 3-4.)
government opposes Harris' motion, arguing that the
parties mutually agreed on the March 19, 2018 trial date with
the expectation that all witnesses, including potential
witnesses, would be available on that date. (Docket # 89 at
1-2.) The government further argues that it too has a right
to a speedy trial.
a hearing on Harris' motion on February 22, 2018. At the
hearing, Harris argued that he still has not received the
report from the government's expert. The government
informed me that while its expert hopes to deliver the report
by February 23, 2018, the expert has been addressing other
pressing matters and the report would be delivered to Harris
as soon as the government receives it. Harris argued that
although the parties previously agreed on the March trial
date, he had not officially retained Nixon due to his motion
to appoint him as an expert being put on hold while the
government's expert conducted the testing.
government continues to oppose the motion but suggests that
if the motion is granted, it be for a shorter period of time.
Co-defendant Jose Lazcon does not oppose the requested
is facing very serious charges and the ballistics evidence is
important to his defense. Harris has a right to present his
defense and I find his defense may be prejudiced if he is not
allowed an opportunity to rebut the evidence presented by the
government's expert. Harris has represented to the Court
that no other expert besides Nixon is available to review the
evidence in this case and that Nixon has a very busy
of these reasons, I recommend that the Court finds that
Harris has shown good cause for the continuance and that the
Court grant Harris' motion. However, because this is
Harris' second motion to continue the trial, an extension
until July is not warranted. Therefore, I further recommend
the court grant a shorter extension of time. Harris is
ordered to confer with Nixon regarding his availability for
trial and then to confer with the government and submit a
letter to the trial court with a new proposed trial date.
THEREFORE, IT IS RECOMMENDED that the Court grant
Harris' motion to continue the trial date (Docket # 88);
however, it is recommended that the trial be scheduled prior
to July 2018.
attention is directed to General L.R. 72(c), 28 U.S.C. §
636(b)(1)(B) and Federal Rules of Criminal Procedure 59(b),
or Federal Rules of Civil Procedure 72(b) if applicable,
whereby written objections to any recommendation or order
herein, or part thereof, may be filed within fourteen days of
the date of service of the recommendation or order.
Objections are to be filed in accordance with the Eastern
District of Wisconsin's electronic case filing
procedures. Courtesy paper copies of any objections shall be
sent directly to the chambers of the district judge assigned
to the case. Failure to file a timely ...