UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
May 11, 2010
UNITED STATES OF AMERICA,
SANDRA HATFIELD, DAVID H. BROOKS, PATRICIA LENNEX, DEFENDANTS.
The opinion of the court was delivered by: Seybert, District Judge
MEMORANDUM AND ORDER
Pending before the Court is Defendant David Brooks' motion to exclude the proposed testimony of DHB investors David Walter and Michael Adair. See Docket No. 1004. This motion is DENIED AS UNTIMELY.
On January 12, 2010, Mr. Brooks' co-defendant, Sandra Hatfield, moved in limine to exclude the DHB investor testimony. See Docket No. 737. In response, the Government expressly argued that the Court should admit the DHB investors' testimony on the grounds that it was probative of whether a "reasonable investor" would have considered DHB's alleged misstatements and omissions to be material. See Docket No. 755. Specifically, the Government proffered that these witnesses would testify that: "(1) none of them received the truth about DHB's financial condition or the nature or the extent of the compensation the company paid the defendants and (2) the truth was important to their investment decision." Id. at 2. Mr. Brooks did not respond to this argument, much less supply the Court with the legal authority he does now. And the Court ultimately accepted the Government's rationale, finding that DHB investors could testify because "what influenced their investment decisions is probative of what a 'reasonable investor' would have considered." Docket No. 781.
Mr. Brooks did not seek prompt reconsideration of this Order. Nor did Mr. Brooks raise any objections to the proposed investor testimony over the following three months, as the Government put its case before the jury. Now, on the eve of the Government resting, Mr. Brooks contends that the Government cannot adduce evidence of materiality through investor testimony, but must rely on other means -- such as an expert witness.
The Court does not reach the merits of Mr. Brooks' motion. Even if the Court now agrees with Mr. Brooks, he has simply waited too long. In substance, Mr. Brooks' motion to preclude the DHB investor testimony is a motion for reconsideration of the Court's January 25, 2010 Order admitting their testimony. Motions for reconsideration must be made within fourteen days. See, e.g., U.S. v. Kerik, 615 F. Supp. 2d 256, 276 n.27 (S.D.N.Y. 2009) (applying Local Civil Rule 6.3's time limit to a criminal case) U.S. v. Yannotti, 457 F. Supp. 2d 385, 390 (S.D.N.Y. 2006) (same). Here, Mr. Brooks waited roughly three and a half months. Thus, Mr. Brooks' motion for reconsideration is untimely. And there is no need to excuse Mr. Brooks' untimely filing in the interests of justice. On the contrary, Mr. Brooks' untimely motion, if accepted, would grossly prejudice the Government. Indeed, the Government has already put forth nearly its entire case based on the assumption that the DHB investors would testify. And the Government has no time to now track down the kind of expert testimony that Mr. Brooks feels is more appropriate. It follows then that the Court must DENY Mr. Brooks' motion without reaching its merits.
Joanna Seybert, U.S.D.J.
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