The opinion of the court was delivered by: Garaufis, District Judge.
The Government alleges that Ronell Wilson ("Wilson") murdered undercover New York Police Department Detectives Rodney Andrews and James Nemorin on March 10, 2003. Based on these and other allegations, Wilson is charged with two counts of murder in aid of racketeering, two counts of robbery conspiracy, one count of attempted robbery, one count of carjacking, two counts of use of a firearm, and two counts of causing death through use of a firearm. (See Second Superseding Indictment, Docket No. 179.) The Government is seeking the death penalty against Wilson. Trial began on November 27, 2006.
Before the court is the Government's motion "to preclude the defendant from offering expert testimony based on his failure to provide sufficient notice under Rule 16 of the Federal Rules of Criminal Procedure." (Govt. Ltr. to Judge Garaufis dated Dec. 8, 2006 at 1.) That motion is GRANTED with respect to defense expert Professor Payne and DENIED with respect to the defense's non-mental-health expert testimony offered in the penalty phase of this case, if any. The court will rule on the Government's motion with respect to defense experts Professor Miller and Dr. Wetli in a subsequent Memorandum and Order.
One week before this trial began, the Government moved the court to order Wilson to provide "a written summary of testimony [he] intends to use as evidence at trial under Rules 702, 703 and 705 of the Federal Rules of Evidence . . . describ[ing] the opinions of the witnesses, the bases and reasons for those opinions and the witnesses' qualifications[.]" (Govt. Ltr. to Judge Garaufis dated Nov. 20, 2006 at 3.) The motion was based on the Government's representation, which Wilson did not and does not dispute, that "[d]espite repeated requests, to date the government has received no such discovery from the defense." (Id.) This court granted the motion, ordered Wilson to provide the requested summary by November 24, 2006, and provided that "Wilson will be prohibited from introducing at trial any material . . . not provided by that date." (Order dated November 22, 2006 at 3 (citing Fed. R. Crim. P. 16(d)(1)&(2)).)
On November 24, 2006, Wilson orally provided the Government notice he later summarized as follows:
[I]n light of the court's decision to admit various rap lyrics over defense objection, we plan on calling an expert in the field of rap culture to testify about the common use of lyrics suggesting/depicting violence as a defining feature of gangsta rap. We are in the process of confirming the availability of our expert and will provide you with their name and qualifications in short order. (Wilson Ltr. to Govt. dated Nov. 26, 2006 (memorializing a conversation held on Nov. 24, 2006).)
After the first day of trial, the Government argued that Wilson's disclosure was insufficient:
[T]he defense has had Mr. Wilson's rap song for three years. They have received, I think it is in the neighborhood of ten requests from us over the course of the litigation of this case for disclosure of Rule 16 material. . . . They have not disclosed that information. Aside from the obvious Daubert issues regarding a witness like that, they should be precluded today because they've had time, they haven't provided us notice at all as to that witness[.] (Tr. at 207-08.)
Wilson then filed a letter supplementing his earlier notice as follows: We plan on calling an expert in the field of Rap culture to testify about the common use of lyrics suggesting/depicting violence as a defining feature of Gangsta Rap. As we stated yesterday, we are in the process of confirming the availability of our expert and will provide you with their name and qualifications. We expect that to occur by the end of the week.
The Rap expert is expected to testify that Rap music lyrics often describe violent and sexual acts, and other antisocial behavior, that are not necessarily rooted in actual events. The expert is also expected to testify that Rap music lyrics are often based on imagination and fantasy, rather than on reality. We will update the information as soon as we learn more details. (Wilson Ltr. to Govt. dated Nov. 27, 2006 at 1.)
On December 6, 2006, Wilson notified the Government that his rap expert would be Professor Yasser Arafat Payne, who teaches in the Black American Studies Program at the University of Delaware. Wilson also provided the Government with Professor Payne's curriculum vitae.
The Federal Rules of Criminal Procedure require a defendant to provide to the Government "a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial" if the defendant requests and receives reciprocal disclosure from the government or the defendant has given notice of an intent to present expert testimony about the defendant's mental condition. Fed. R. Crim. P. 16(b)(1)(C). The written summary "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Id. The purpose of this rule is "to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to ...