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United States v. Bailey

United States District Court, S.D. Georgia, Savannah Division

April 19, 2019

UNITED STATES OF AMERICA,
v.
ROBERT CHRISTOPHER BAILEY, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's first Motion to Appoint an Expert, doc. 23, first Motion to Inspect and Test, doc. 24, and First Motion to Suppress, doc. 25. On March 20, 2019, the Court held an evidentiary hearing on the Motion to Suppress. At that time, the Court directed defendant to file a supplemental brief on his 404(b) argument. Doc. 32. Shortly after the hearing, the Court also directed defendant to file an addendum regarding his motion to appoint an expert and motion to inspect and test. All supplemental briefing has concluded and the motions are ripe for review. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART defendant's Motion to Appoint an Expert, doc. 23, GRANTS defendant's motion to inspect and test, doc. 24, and GRANTS defendant's request to exclude the Government's 404(b) evidence. The Court RECOMMENDS the DENIAL of Defendant's Motion to Suppress. Doc. 25.

         I. Motion to Appoint an Expert and Motion to Inspect and Test

         Defendant has requested that the Court allow him to hire an expert to test small samples of black powder and one paintball. Doc. 36 at 1. He states that he has selected Chris Robinson and that defendant expects a low-end consultation cost of $400. Id. If, after consultation, Robinson determines that further testing is required, the cost could exceed $4, 000. Id. at 2. The Government has indicated that it does not object to independent inspection and testing so long as the integrity of the exhibit is not compromised, and law enforcement retains possession of items pursuant to chain of custody. Doc. 35 at 1. The Government also requests that any tests performed be done by recognized authorities or experts and be conducted in a manner reasonably likely to yield reliable results. Id. at 35. Finally, the Government requests that a detailed proposal for independent testing be submitted to the Court. Id.

         The Criminal Justice Act (CJA) authorizes courts to approve expenditures for retention of defense experts, “[u]pon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them . . . .” Id. In that respect, “[t]he key balancing on a CJA request is concerned with the cost of the requested services in light of its reasonably expected benefit to the defendant. In other words, would a retained counsel representing an adequately financed defendant reasonably expend the client's monies for these services.” United States v. Salyer, 2011 WL 1466887 at * 10 (E.D. Cal. Apr. 18, 2011) (cite omitted). The CJA also establishes that such expenditures “shall not exceed $2, 400, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court . . . and the amount of the excess payment is approved by the chief judge of the circuit, ” or his designee. 18 U.S.C. § 3006A(e)(3). The maximum amount is adjustable, see 18 U.S.C. § 3006A(e)(5), but CJA regulations indicate that the limit currently stands at $2, 500. See Criminal Justice Act Guidelines § 310.20.10, available at http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-3-ss-310-general.

         At first blush, this case does not appear to be one for which immediate certification to the Court of Appeals is necessary. In light of defendant's statement that an initial consultation alone may be sufficient, the Court will GRANT defendant's motion to appoint an expert, in part, and approve an expense of no more than $400. To that end, the Court also GRANTS defendant's preliminary motion for inspection of the stated items. Should defendant or defendant's expert determine that further testing is required, defendant may file a supplemental request for approval of funds. However, defendant should be prepared, at that time, to detail what testing he believes is required in preparation for a submission to the Court of Appeals for additional funds.[1]

         II. Rule 404(b) Evidence

         The Government has provided notice of its intent to introduce other acts evidence pursuant to Federal Rule of Evidence 404(b). Doc. 20. Specifically, the Government noticed the introduction of 12 prior acts.

1. On December 24, 1989, Bailey was arrested and cited for a misdemeanor in Los Angeles, California, for intentionally Violating a Court's Restraining Order, under California Penal Code 166.4;
2. On March 10, 1990, Bailey was arrested for Assault with a Deadly Weapon, under California Penal Code 245(A)(1);
3. On January 29, 1991, Bailey was convicted of a misdemeanor in Los Angeles, California, for Violation of Court Order to Prevent Domestic Violence, under California Penal Code 273.6(A) (A condition of probation was a firearm restriction);
4. On March 1, 1991, Bailey was convicted of a felony in Los Angeles, California, for Forgery, under California Penal Coe 470;
5. On September 24, 1991, Bailey was arrested for Battery, under California Penal Code 242;
6. On January 17, 1992, Bailey was convicted in Los Angeles, California, for Violation of a Court Order to ...

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