United States v. Crow.
No. 24-1377. 5/19/2026. D.Colo. Judge Bacharach. Expert Testimony— Pretrial Notice of the Government’s Rebuttal Evidence—Fed. R. Crim. P. 16(a)(1)(G)(i).
May 19, 2026
Crow was charged with sexually abusing a minor at a military base. He admitted to having sex with a girl who was living with him but argued that he hadn’t knowingly engaged in sex because he was asleep while the sex occurred. The parties presented expert witnesses on whether Crow was asleep during the sex. Crow’s expert witness, Dr. Kushida, opined pretrial that the girl’s descriptions of the sexual encounters were consistent with sexsomnia, a disorder that may cause someone to engage in sex while sleeping. The government’s expert was Dr. Bornemann, who provided the defense with a pretrial report opining that the girl’s descriptions of the sex had too many complicated steps to suggest sexsomnia, including Crow opening and closing her bedroom door and dressing and undressing. At trial, Dr. Kushida reiterated his opinion that Crow’s actions were consistent with sexsomnia but also stated new opinions about malingering, which refers to a patient’s report of “false symptoms.” Dr. Bornemann heard the testimony about malingering and wanted to testify about his disagreement with it, so the government invited defense counsel to speak with him. In response, defense counsel requested a new written disclosure. The government gave the defense notes about Dr. Bornemann’s new opinions, but defense counsel objected to the notes’ adequacy. The district court overruled the objection, allowed testimony about the new opinions, and let defense counsel briefly interview Dr. Bornemann before cross-examining him. A jury found Crow guilty on the counts involving sexual encounters in the girl’s bedroom.
On appeal, Crow argued that his convictions must be reversed because the district court erred in allowing the government to present Dr. Bornemann’s new opinions without giving the defense sufficient time to interview him before the cross-examination. Crow maintained that Dr. Bornemann’s new opinions addressed matters in Dr. Kushida’s report and that the government opened the door to testimony about malingering. Crow’s argument assumes that the government had a duty to disclose Dr. Bornemann’s new opinions. As relevant here, Fed. R. Crim. P. 16(a)(1)(G)(i) provides that if the defendant timely discloses expert testimony, the government has to comply with a request to disclose rebuttal testimony countering the defense expert. This disclosure duty thus turns on whether the rebuttal testimony would counter an opinion that the defendant had timely disclosed. Here, before trial, Dr. Kushida disclosed only an opinion on sexsomnia; his report didn’t opine on malingering or address Crow’s truthfulness. Then at trial, Dr. Kushida added that he didn’t believe Crow had malingered in the interview so as to benefit from a sexsomnia diagnosis. Because Crow hadn’t disclosed Dr. Kushida’s new opinion about malingering, Rule 16 didn’t require the government to disclose before trial how Dr. Bornemann would counter these opinions.
Crow also suggested in his reply brief that even absent a Rule 16 violation, reversal of the convictions involving sexual encounters in the bedroom was warranted because the district court unfairly refused to allow more time for counsel to interview Dr. Bornemann. But Crow waived this suggestion by relying in his opening brief on a Rule 16 violation.
The convictions were affirmed.