
    UNITED STATES of America, Plaintiff, v. Bruce Wayne PETERS, Defendant.
    Crim. No. 90-00086 ACK.
    United States District Court, D. Hawaii.
    Feb. 6, 1992.
    Rustam A. Barbee, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant.
    Marshall H. Silverberg, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.
   ORDER OF NEW TRIAL

SPENCER WILLIAMS, District Judge.

During the criminal trial of Defendant for assault on a federal officer, this Court refused to permit a surprise expert witness to testify on behalf of the Defendant because defense counsel (the Federal Public Defender) had failed to disclose the witness in a timely manner. In fact, defense counsel only disclosed the surprise witness when ordered by the Court to do so.

Defense counsel had full knowledge that the government would be unable to call a rebuttal witness within the time the Court and counsel had agreed was appropriate for the completion of the case. Defense counsel’s sandbagging of the Court and opposing counsel left the Court with three alternatives: (1) to extend the trial for rebuttal and reschedule trials previously set in another district; (2) to allow the surprise witness to testify without rebuttal; or (3) to refuse to allow the.surprise witness to testify. The Court chose the third, and the jury returned a verdict finding Defendant guilty of felony assault against a federal law enforcement officer.

On appeal, the Ninth Circuit reversed, holding that the Defendant had no duty to disclose the expert witness prior to the presentation of its case and remanded the case to this Court to determine whether the expert witness’ testimony would have been admissible under Fed.R.Ev. 702. United States v. Bruce Wayne Peters, 937 F.2d 1422 (9th Cir.1991). The Ninth Circuit did not discuss the District Court’s general authority to sanction counsel for his disruptive conduct.

However, because this Court would have allowed the expert testimony had it been timely presented, this matter must be set for a new trial.

IT IS SO ORDERED.  