MOTION in Limine Expert Witness Presence in the Courtroom by Casey David Crowther — USA v. Crowther (Dkt. 73)

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U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 73 · 2021-03-08 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES 
 
v. 
 
 
 
 
 
Criminal No. 2:S20-cr-114-FTM-66MRM 
 
CASEY DAVID CROWTHER  
 
 
 
Defendant. 
_____________________________/ 
 
DEFENDANT’S MOTION IN LIMINE TO PERMIT PRESENCE OF 
REBUTTAL EXPERT WITNESS IN THE COURTROOM 
 
Defendant, Casey David Crowther (“Crowther”), through undersigned 
counsel, and pursuant to Fed. R. Evid. 615, hereby files his Motion in Limine to 
Permit Presence of Rebuttal Expert Witness in the Courtroom.   
I. 
INTRODUCTION 
Crowther hereby requests that Jessica L. Hollobaugh, CPA/ABV, CFE, 
Crowther’s rebuttal expert witness, be permitted to be physically present in the 
courtroom during the entire trial.  As the Court is aware, experts who are responding 
to the theories of an adversary’s expert are rarely sequestered.  Here, in order to 
adequately, appropriately, and fully respond to testimony from the Government’s 
expert witnesses, it is necessary for Ms. Hollobaugh to observe testimony from the 
Government’s financial and summary witnesses.    
Additionally, Ms. Hollobaugh should be permitted to observe live trial 
testimony from lay witnesses.  Ms. Hollobaugh’s presence in the courtroom during 
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testimony from lay witnesses is appropriate because the Federal Rules of Evidence 
specifically contemplate that a permissible source of facts or data upon which the 
opinions of an expert witness may be based is firsthand observation of witness 
testimony.  For this reason, courts from around the country have allowed expert 
witnesses to be present in the courtroom during trial to observe firsthand testimony 
from lay witnesses.   
Finally, Ms. Hollobaugh’s presence in the courtroom throughout the trial is 
essential to defense counsel’s management of the case.  In particular, given the 
complex and detailed accounting and financial issues that will be the subject of the 
Government’s summary witness trial testimony, the undersigned requires Ms. 
Hollobaugh’s assistance in formulating questions and lines of inquiry for cross 
examination of the Government’s financial and summary witnesses.   
Accordingly, Crowther requests that Ms. Hollobaugh’s presence in the 
courtroom be permitted during the entire trial.   
II. 
MEMORANDUM OF LAW 
A. 
Standard 
A motion in limine is the appropriate vehicle to request that a party’s expert 
witness be permitted to be present in the courtroom.  See Yu v. Idaho State Univ., No. 
4:15-cv-00430-REB, 2019 U.S. Dist. LEXIS 9470 at *4-5 (D. Idaho Jan. 17, 2019) 
(granting motion in limine for the presence of plaintiff’s rebuttal experts during trial 
proceedings); Williams v. Schwarz, No. 15 C 1691, 2018 U.S. Dist. LEXIS 92754 at 
*32-34 (N.D. Ill. June 1, 2018) (denying a party’s motion in limine seeking to exclude 
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presence of adverse party’s expert witnesses in the courtroom).  Fed. R. Evid. 615 
states: 
At a party’s request, the court must order witnesses 
excluded so that they cannot hear other witnesses’ 
testimony. Or the court may do so on its own. But this rule 
does not authorize excluding: 
(a) a party who is a natural person; 
(b) an officer or employee of a party that is not a natural 
person, 
after 
being 
designated 
as 
the 
party’s 
representative by its attorney; 
(c) a person whose presence a party shows to be essential to 
presenting the party’s claim or defense; or 
(d) a person authorized by statute to be present. 
 
(emphasis added). 
 
 
“The exclusion of fact witnesses rests on a concern that having heard the 
testimony of others, the witnesses may inappropriately tailor their testimony to 
conform to the testimony of previous witnesses.”  Williams, 2018 U.S. Dist. LEXIS 
92754 at *33 (quoting Client Funding Solutions Corp. v. Crim, 943 F. Supp. 2d 849, 868 
(N.D. Ill. 2013)).  The Williams court stated: 
No such danger is present with expert witnesses, whose 
testimony, by nature, is based on facts and information 
provided by others.  Indeed, Federal Rule of Evidence 703 
expressly provides that “[a]n expert may base an opinion on 
facts or data personally observed,” and the Seventh Circuit 
has noted that “there is little if any difference between 
counsel disclosing prior testimony to an expert and having 
an expert listen to such testimony in the courtroom.” 
 
Williams, 2018 U.S. Dist. LEXIS 92754 at *33 (quoting United States v. Crabtree, 979 F. 
2d 1261, 1270 (7th Cir. 1992)); see also Below v. Yokohama Tire Corp., No. 15-CV-529-
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WMC, 2017 U.S. Dist. LEXIS 27280 at *7 (W.D. Wis. Feb. 27, 2017) (stating that 
“[t]he court’s general practice is to exclude all lay witnesses from the courtroom until 
they have completed their testimony, while allowing experts to remain”).   
 
“[E]xperts who are responding to the theories of an adversary’s expert are 
infrequently sequestered.”  Williams, 2018 U.S. Dist. LEXIS 92754 at *34 (citing Ty 
Inc. v. Softbelly’s Inc., No. 00 C 5230, 2006 U.S. Dist. LEXIS 100736 at *18 (N.D. Ill. 
Apr. 7, 2006); see also Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F. 2d 1201, 
1209 (5th Cir. 1993) (stating that “[e]xpert witnesses clearly fall within Rule 615([c])’s 
exception” for individuals whose presence is essential to the presentation of a party’s 
case).  The Williams court stated: 
Here there is no suggestion that Dr. Barkoff will be 
providing factual testimony that she could alter to conform 
with the statements of others.  In addition, to the extent that 
she is properly called as a rebuttal witness, her presence in 
the courtroom during Defendant’s testimony will limit the 
need to “repeat previous testimony in the form of lengthy 
hypothetical questions.”  United States v. Dimora, 843 F. 
Supp. 2d 799, 821 (N.D. Ohio 2012).  On the record 
presented, the Court finds that in light of the uncertainty 
regarding what Defendant will testify to at trial, Plaintiff has 
adequately shown that Dr. Barkoff’s presence in the 
courtroom is essential for the management of the case since 
she may well be necessary as a rebuttal witness. 
 
Williams, 2018 U.S. Dist. LEXIS 92754 at *34-35.   
 
 
As a rebuttal expert, Ms. Hollobaugh should be permitted to be present in the 
courtroom during the entire trial.  Besides the fact that she should be permitted to 
personally observe the trial testimony of the Government’s financial and summary 
witnesses, Ms. Hollobaugh should also be permitted to observe testimony from lay 
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witnesses, since such testimony is a proper foundation and basis for her own testimony 
and opinions.  Moreover, Ms. Hollobaugh’s presence in the courtroom is essential for 
the undersigned’s management of the case because Ms. Hollobaugh’s assistance is 
necessary with respect to formulating questions and lines of inquiry for the 
undersigned’s cross examination of the Government’s witnesses. 
B. 
Ms. Hollobaugh Should Be Permitted to Be Present in the Courtroom to 
Observe the Government’s Financial and Summary Testimony  
 
As a rebuttal expert, Ms. Hollobaugh should be permitted to personally observe 
live trial testimony from the Government’s financial and summary witnesses.  See, e.g., 
Williams, 2018 U.S. Dist. LEXIS 92754 at *33-35.  A copy of Ms. Hollobaugh’s 
Curriculum Vitae is attached hereto.  See Ex. “A”.  Her expert rebuttal testimony may 
include, inter alia, subject matter regarding (a) interpretation of Generally Accepted 
Accounting Principles (“GAAP”) in reference to S Corporations; (b) fungibility of co-
mingled funds; (c) the CARES Act; (d) Small Business Administration (“SBA”) 
interim rules; (e) loan forgiveness eligibility; (f) stock redemption agreements, as may 
be applicable to GAAP principles and the books and records of Target Roofing and 
Sheet Metal, Inc. (“Target”); and (g) loan documents in reference to S Corporations.  
In order to properly formulate her own opinions and respond to evidence that is 
rendered by the Government’s witnesses, it is imperative that Ms. Hollobaugh be 
permitted to personally observe live trial testimony from the Government’s witnesses, 
including the Government’s Rule 1006 witness (who is expected to testify regarding a 
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summary of funds held in various bank accounts), along with the Government’s SBA-
related witnesses.   
As noted by the Yu court: 
On balance, the Court is persuaded in this setting that 
Plaintiff should be permitted to have his rebuttal witnesses 
present during trial proceedings.  Expert testimony will be 
important to each party’s trial presentations.  To the extent 
that evidentiary disputes might arise over opposing experts’ 
competing testimony, having experts present in the 
courtroom during other witnesses’ testimony could reduce 
the number and complexity of such disputes.   
 
Yu, 2019 U.S. Dist. LEXIS 9470 at *3-4.   
 
To address the same types of considerations in the instant case, Ms. Hollobaugh 
should be permitted to personally observe live trial testimony from the Government’s 
witnesses.  Given that she is a rebuttal witness, it is typical and customary to allow her 
presence in the courtroom.  See, e.g., Williams, 2018 U.S. Dist. LEXIS 92754 at *34 
(stating that “experts who are responding to the theories of an adversary’s expert are 
infrequently sequestered” and citing Ty Inc., 2006 U.S. Dist. LEXIS 100736 at *18); 
see also Polythane Sys., Inc., 993 F. 2d at 1209 (5th Cir. 1993) (stating that “[e]xpert 
witnesses clearly fall within Rule 615([c])’s exception” for individuals whose presence 
is essential to the presentation of a party’s case). 
C. 
Ms. Hollobaugh Should Be Permitted to Be Present in the Courtroom to 
Observe Lay Witness Testimony  
 
In addition to observing testimony from the Government’s experts, Ms. 
Hollobaugh should be permitted to personally observe testimony given by lay 
witnesses.  Fed. R. Evid. 703 states: 
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An expert may base an opinion on the facts or data 
in the case that the expert had been made aware of or 
personally observed.  If experts in the particular field would 
reasonably rely on those kinds of facts or data in forming an 
opinion on the subject, they need not be admissible for the 
opinion to be admitted.  But if the facts or data would 
otherwise be inadmissible, the proponent of the opinion 
may disclose them to the jury only if their probative value 
in helping the jury evaluate the opinion substantially 
outweighs their prejudicial effect.   
 
It is widely considered appropriate for expert witnesses to be permitted to 
observe trial testimony of lay witnesses.  See, e.g., Mayo v. Tri-Bell Industries, Inc., 787 
F. 2d 1007, 1013 (5th Cir. 1986 (concluding that the trial court properly allowed 
defense’s experts to testify where they were properly exempted from the exclusion of 
witness order; further, stating that “[b]ecause the experts were not witnesses whose 
recollections might have been colored by accounts of prior witnesses, there was no 
prejudice”); Morvant v. Construction Aggregates Corp., 570 F. 2d 626, 629 (6th Cir. 1978) 
(perceiving “little, if any, reason for sequestering a witness who is to testify in an expert 
capacity only and not to the facts of the case”); United States v. Seschillie, 310 F. 3d 1208 
(9th Cir. 2002) (concluding that the district court abused its discretion in excluding 
expert witness from the courtroom where he was testifying solely as an expert witness, 
but under the circumstances finding that such error was harmless).   
 
Here, Ms. Hollobaugh will be testifying solely in her expert witness capacity.  
She will not be testifying as a fact witness; therefore, there is no risk of improperly 
influencing her testimony by permitting her to observe live trial testimony from lay 
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witnesses.  See, e.g., Mayo, 787 F. 2d at 1013.  Ms. Hollobaugh’s presence in the 
courtroom therefore should be permitted. 
D. 
Ms. Hollobaugh’s Physical Presence in the Courtroom is Essential to 
Management of the Defense’s Case 
 
Ms. Hollobaugh also should be permitted to be physically present in the 
courtroom during the trial because Ms. Hollobaugh’s presence is essential to the 
management of the defense’s case.  In United States v. Benson, No. 12-cr-480 YGR, 2015 
U.S. Dist. LEXIS 8779 at *1 (N.D. Cal. Jan. 23, 2015), the district court stated: 
The United States moves for an order permitting its 
expert, Dr. Jennifer Kirkland, to be present in the 
courtroom during testimony at the competency hearing set 
for February 6, 2015. The motion is Granted to the extent 
Dr. Kirkland intends to opine on matters within her 
competence. The United States has made a sufficient 
showing that Dr. Kirkland's advice is necessary to prepare 
their examination. The Ninth Circuit has found that "[i]n 
many instances, a potential expert witness will be an 
'essential party' within the meaning of Rule 615(c)." United 
States v. Seschillie, 310 F.3d 1208, 1213 (9th Cir. 
2002). Indeed, the Advisory Committee Notes to Rule 
615 indicate that the exception in Rule 615(c) may include 
"an expert needed to advise counsel in the management of 
the litigation." Here, the United States has made the required 
"fair showing" that Dr. Kirkland's expert advice is necessary 
for the government to craft meaningful lines of questioning of 
the other doctors expected to testify  at the hearing. Permitting 
Dr. Kirkland to be in present in the courtroom during that 
testimony, and any testimony by Benson himself, will allow the 
process to proceed efficiently. 
 
Benson, 2015 U.S. Dist. LEXIS 8779 at *6-7 (emphasis added). 
 
 
Similarly, Ms. Hollobaugh’s expert advice is necessary and critical for the 
defense to be able to craft meaningful lines of questioning for cross examination of the 
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Government’s financial and summary witnesses.  Specifically, Ms. Hollobaugh is a 
Certified Public Accountant (CPA) who is Accredited in Business Valuation (APV) 
and also is a Certified Fraud Examiner (CFA).  Her expertise regarding the types of 
accounting and financial matters specific to this case will be essential to the defense’s 
analysis of testimony from the Government’s witnesses and preparation of cross 
examination material directed towards the Government’s witnesses.   In Morvant, the 
Sixth Circuit stated: 
We therefore hold that where a party seeks to except 
an expert witness from exclusion under Rule 615 on the 
basis that he needs to hear firsthand the testimony of the 
witnesses, the decision whether to permit him to remain is 
within the discretion of the trial judge and should not 
normally be disturbed on appeal.  See generally 3 Weinstein’s 
Evidence, supra, para. 615[01] at 615-8.  On the other hand, 
where a fair showing has been made that the expert witness is in 
fact required for the management of the case, and this is made 
clear to the trial court, we believe that the trial court is bound to 
accept any reasonable, substantiated representation to this effect 
by counsel. 
 
Morvant v, 570 F. 2d at 630 (emphasis added). 
 
 
Accordingly, given that Ms. Hollobaugh’s presence in the courtroom is deemed 
essential by defense counsel for the aforementioned reasons, Ms. Hollobaugh should 
be permitted to observe the entire trial. 
III. 
CONCLUSION 
Based on the foregoing, Crowther respectfully requests that this Court (a) grant 
this Motion in all respects; (b) permit the presence of Jessica L. Hollobaugh, 
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CPA/ABV, CFE in the courtroom during the entire trial; and (c) enter such other and 
further relief this Court deems just and proper.   
 
 
 
 
 
 
Respectfully Submitted,  
/s/ Nicole H. Waid____ 
Nicole H. Waid, Esq.  
Florida Bar No. 0121720 
nicole.waid@fisherbroyles.com 
 
/s/ Brian E. Dickerson 
Brian E. Dickerson, Esq. 
Fla. Bar No. 106615 
brian.dickerson@fisherbroyles.com 
 
 
 
 
 
 
 
 
FISHERBROYLES, LLP  
                                
 
 
 
2390 Tamiami Trail North, Suite 100  
                                
 
 
 
Naples, Florida 34103  
                                
 
 
 
Phone: (202) 906-9572  
                                
 
 
 
Fax: (239) 236-1360  
 
 
                               
 
 
 
CERTIFICATE OF SERVICE 
 
I, Nicole H. Waid, attorney for Casey David Crowther, do hereby certify that I 
have, this day, filed the foregoing with the Clerk of Court via the CM/ECF system, 
which has caused a true and correct copy to be served on all counsel of record.  
/s/ Nicole H. Waid____ 
Nicole H. Waid, Esq.  
 
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