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United States v. Kumar

United States District Court, E.D. North Carolina, Eastern Division

March 27, 2019

SANJAY KUMAR, Defendant.



         This matter comes before the court on the government's motions in limine seeking to exclude testimony from defendant's expert witnesses. (DE 233, DE 234). The issues raised have been briefed fully, and in this posture are ripe for ruling. For reasons set forth below, the government's motions are granted.


         Indictment was returned in this case on January 12, 2017. On February 22, 2018, defendant was named in a 45 count, second-superseding indictment charging defendant with the following:

1) conspiracy to unlawfully dispense and distribute oxycodone, oxymorphone, hydromorphone, and alprazolam in violation of 21 U.S.C. § 846 (count 1);
2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count 2);
3) unlawful dispense and distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1) (counts 3 through 23);
4) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. 924(c)(1)(A)(i) (count 24);
5) unlawful dispensation and distribution of alprazolam in violation of 21 U.S.C. § 841(a)(1) (counts 25 through 30);
6) engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957 (counts 31 through 32);
7) laundering of monetary instruments in violation of 18 U.S.C.§ 1956(a)(1)(B)(i), (ii) (counts 33 through 42); and
8) attempt to evade and defeat tax in violation of 26 U.S.C. § 7201 (counts 43 through 45).

(DE 16; DE 86).

         As previously stated by the court, the government alleges that for more than ten years, defendant operated a purported pain management clinic in New Bern, North Carolina, called “New Bern Medicine and Sports Rehabilitation, ” and from approximately 2011 to 2016, defendant allegedly prescribed more than 1, 000, 000 pills containing Schedule II and Schedule IV controlled substances, receiving more than $1, 000, 000.00 in cash for those pills.[1] This case is currently set for jury trial to commence on July 8, 2019.[2]

         On September 14, 2018, defendant filed notice identifying eight individuals as potential defense experts including Dr. James Hilkey (“Hilkey”) and Dr. Wilkie Andrew Wilson, Jr. (“Wilson”). (DE 216). Of these eight, only Hilkey and Wilson were identified as retained experts, with the remaining individuals listed as both fact and expert witnesses.

         Regarding Hilkey and Wilson, defendant noticed the following:

Dr. James Hilkey - Dr. Hilkey is a Licensed Practicing Psychologist whom the defendant intends to call in his case-in-chief to provide expert testimony pursuant to Fed.R.Evid. 702, 703, 705. Dr. Hilkey is expected to testify regarding the psychological profile of the defendant and how his psychological profile and functioning drove certain behaviors of this defendant, as provided in the Report of Psychological Forensic Evaluation. This testimony is expected to provide response to anticipated characterizations by the Government witnesses. . . .
Dr. Wilkie Andrew Wilson, Jr. - Dr. Wilson is a Physiologist and Biomedical Engineer whom the defendant intends to call in his case-in-chief to provide expert opinion testimony pursuant to Fed.R.Evid. 702, 703, 705. Dr. Wilson will be qualified as an expert in the field of Neurophysiology. . . .

(Id. at 1).

         On September 16, 2018, the government filed motion in limine, seeking to exclude seven of the eight proposed expert witnesses and notifying the court of the government's intention to address notice of the remaining proposed expert, Hilkey, under separate motion. On September 19, 2018, the court granted defendant's motion to extend the deadline to supplement his expert disclosures.[3]

         On January 28, 2019, the court denied the government's September 16, 2018, motion in limine, stating that the “court anticipates that many of the issues regarding defendant's expert witnesses may have been resolved in the intervening period since the government filed its instant motion, ” and thereby denying the motion without prejudice to its renewal within 21 days, to “enable the court, if needed, to consider a more narrowly-tailored motion raising up for decision any remaining issues concerning defendant's expert witnesses.”

         As relevant here, by different order on the same day, the court also denied defendant's motions in limine to the extent defendant sought to exclude the following evidence: 1) “guns and ammunition found and located at defendant's residence”; 2) “money found and located at defendant's residence, ” including “hundreds of thousands of dollars found at defendant's residence, wrapped in plastic and stuffed into sealed PVC pipes”; and 3) “defendant's ‘counter-surveillance' videos, personal research related to his ‘countersurveillance' activities, including but not limited to facebook searches, DMV searches, investigative materials, and notations of any kind whatsoever.” (See DE 228 at 8-19).[4]

         On February 14 and 19, 2019, the government filed the instant motions in limine. The first seeks an order excluding the proposed testimony of Hilkey as prohibited by the Insanity Defense Reform Act of 1984 (“IDRA”) and Federal Rules of Evidence 401, 403, and 702. (DE 233 at 1).[5]The second renews the government's original motion in limine, filed September 16, 2018, seeking to exclude testimony of the remaining seven proposed expert witnesses. (DE 234 at 1).

         Defendant filed opposition to both motions on February 25 and 28, 2019, respectively, informing the court that five of the proposed expert witness will be called as fact witnesses and will offer no separate expert opinion and one proposed expert witness is now deceased. Thus, in addition to Hilkey, “the only witness remaining from the defendant's Notice of Expert testimony subject of the Government's motion is Dr. Wilkie Wilson.” (DE 236 at 4).


         A. Standard of Review

         Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. The “basic standard of relevance . . . is a liberal one.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). Irrelevant evidence is not admissible. Fed.R.Evid. 402.

         Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. Under Rule 702, expert testimony is appropriate when “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. A witness qualified as an expert may be permitted to testify where “(b) the testimony is based upon sufficient facts or data, (c) the testimony is the product of reliable principles and methods, and (d) the expert has reliably applied the principles and methods to the facts of the case.” Id.

         Federal Rule of Evidence 702 imposes a “basic gatekeeping obligation” upon a trial judge to “ensure that any and all scientific testimony is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. at 592-93. “The proponent of the testimony must establish its admissibility by a preponderance of proof.” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).

         “[R]elevance - or what has been called ‘fit' - is a precondition for the admissibility of expert testimony, in that the rules of evidence require expert opinions to assist the ‘the trier of fact to understand the evidence or to determine a fact in issue.'” United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018) (quoting Daubert, 509 U.S. at 597). The court must determine whether the expert's “reasoning or methodology properly can be applied to the facts in issue.” Cooper, 259 F.3d at 199 (quoting Daubert, 509 U.S. at 592-93).

         The reliability inquiry is a “flexible one focusing on the principles and methodology employed by the expert, not on the conclusions reached.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal quotations omitted). In assessing whether expert testimony is “reliable, ” the court may consider:

(1)whether a theory or technique can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques' operation; and (5) whether the technique has received general acceptance within the relevant scientific or expert community.

United State v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (internal quotations omitted). These factors are “neither definitive, nor exhaustive, ” and “particular factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of [her] testimony.” Cooper, 259 F.3d at 199-200. “[T]he court has broad latitude to consider whatever factors bearing on validity that the court finds to be useful[, ] . . . depend[ing] upon the unique circumstances of the expert testimony involved.” Westberry, 178 F.3d at 261.

         Even if the expert testimony is otherwise admissible, it may still be excluded pursuant to Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury. United States v. Dorsey, 45 F.3d 809, 813 (4th Cir. 1995) (“Expert evidence can be both powerful and quite misleading because of the difficulty of evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force ...

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