Submitted November 13, 2014
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, Plaintiff - Appellant: Philip M. Koppe, Assistant U.S. Attorney, Rudolph R. Rhodes IV, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.
For Robin M. Sims, Defendant - Appellee: Laine Cardarella, Federal Public Defender, Federal Public Defender's Office, Kansas City, MO.
Robin M. Sims, Defendant - Appellee, Pro se, Leavenworth, KS.
Before BYE, SHEPHERD, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
When a litigant bypasses a district court's discovery deadlines and belatedly attempts to introduce new evidence, the court has broad discretion to fashion an appropriate remedy. In this case, the district court concluded that the proper remedy was excluding the late evidence. Reviewing under 18 U.S.C. § 3731, we conclude that decision did not exceed the court's discretion, and we affirm the judgment.
In June 2013, Robin Sims was arrested and charged with, among other things, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On August 21, 2013, a magistrate judge ordered that the government disclose all expert testimony to Sims by April 10, 2014, seven days before the final pretrial conference. Trial was set for April 28, 2014, 18 days after the disclosure date.
Immediately after arresting Sims, police officers sent a gun seized from him to a crime lab in Kansas City, Missouri, for DNA testing. An analyst at the lab, however, mistakenly believed that the lab did not have a DNA sample from Sims on file, so she could not compare his DNA to the DNA found on the gun. The analyst e-mailed a detective and informed him that she could not make the comparison, but the detective did not respond. Nor did the analyst hear from the federal prosecutors assigned to Sims's case.
Meanwhile, Sims and the government had been discussing a potential plea, and the discovery deadline for expert testimony passed. On April 14, 2014, two weeks before the trial date, Sims's lawyer told the government that Sims had decided not to plead guilty and had, instead, opted for trial. It was only then that the government contacted the crime lab and requested information about the status of the tests on the DNA taken from the gun. The lab then located a DNA sample from Sims that it had all along, and the government requested expedited testing. The government did not tell the court or Sims that it was awaiting DNA evidence, did not update its expert-witness list, and told the court at the April 17 pretrial conference that it was " definitely ready for trial."
On April 21, one week before the trial was to begin, the lab sent the government a report, which stated that Sims was the source of " the majority of the DNA on the gun" and that the chances of someone else having the same genetic ...