USA v. Brand et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 1:23-cr-00953 KWR-2
NORA BACA,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
EXTEND DEADLINE WITHIN WHICH TO FILE EXPERT NOTICE
THIS MATTER comes before the Court upon Defendant’s Motion to Extend Deadline
Within Which to File Expert Notice (Doc. 165). On January 1, 2026, Nora Baca (“Defendant”)
moved to extend the January 2, 2026, deadline to file expert notices. Doc. 165 ¶ 16. Defense
counsel experienced funding issues beyond their control and were still unable to receive funding
the day before the original deadline. Id. ¶ 12. The Government opposes the extension in full and
contends that the factors set forth in United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988),
warrant denying the extension. Doc. 166 at 3. Additionally, Defendant contends that the Wicker
factors do not warrant excluding the expert. Doc. 167 ¶ 6. Defendant moved for an extension on
January 1, 2026, within the original prescribed deadline, and demonstrated good cause for granting
an extension. Thus, under Federal Rule of Criminal Procedure (“Rule”) 45(b), the Court finds good
cause to grant the extension. Further, the Court does not find that the Wicker factors necessarily
apply because Defendant moved for the extension before the expiration of the scheduling order.
See Doc. 165. However, because Defendant would be in violation of the scheduling order if the
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Court denied the extension and the Wicker factors provide mere guidance, the Court will consider
each standard in turn.
Having reviewed the parties’ pleadings, exhibits, and the relevant law, the Court finds that
the motion is well-taken, and therefore, is GRANTED.
BACKGROUND
On October 17, 2025, this Court continued trial until February 2, 2026. Doc. 148 at 7.
Consequently, expert notices were due January 2, 2026. Doc. 148-1 at 1. Defendant made her
present Motion on January 1, 2026—one day before the deadline to disclose expert witnesses. Doc.
165.
In the months preceding the present Motion, on July 3, 2025, the federal government ran
out of funds to compensate attorneys and experts under the Criminal Justice Act (“CJA”), 18
U.S.C. § 3006A. Doc. 165 ¶ 11. Then, the federal government shut down from October 1, 2025,
until November 12, 2025. Id. On November 4, 2025, amidst the government shutdown, the
Government brought a second superseding indictment (Doc. 151) against Defendant. Once the
government reopened in November, defense counsel diligently sought to secure an expert to testify
against a new count included in the second superseding indictment. Id. ¶¶ 4–5, 12. As of January
1, 2026, Defendant’s funding for her expert was still pending. Id. ¶ 12.
DISCUSSION
I. 	The Court finds good cause to extend the deadline for expert notices under Rule 45(b).
Defendant argues that the following three issues create good cause for extending the
deadline for expert notices: (1) CJA funding ran out on July 3, 2025; (2) the government had shut
down from October 1, 2025, until November 12, 2025; and (3) the Christmas holiday made it
difficult to coordinate meetings and examinations with the expert. Doc. 165 ¶¶ 11–12. The
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Government contends that Defendant chose not to timely file an expert notice even though the
expert was “secured.” See Doc. 166 at 2. Since Defendant does not contend that she “secured” the
expert on December 17, 2025, as the Government suggests, see Doc. 165 ¶¶ 2, 14, and the
government shutdown and lack CJA funding delayed the expert process, the Court finds good
cause to extend the deadline for expert disclosures.
Under Rule 45(b), courts have the authority to extend the time a party has to perform an
act for good cause if the party moved before the originally prescribed time expires. Fed. R. Crim.
P. 45(b)(1)(A). If the deadline expired, then the party must demonstrate excusable neglect. Fed. R.
Crim. P. 45(b)(1)(B). The good cause and excusable neglect standards are related in that good
cause appears “to require at least as much as would be required to show excusable neglect.” In re
Kirkland, 86 F.3d 172, 175 (10th Cir. 1996) (quoting Putnam v. Morris, 833 F.2d 903, 905 (10th
Cir. 1987)).
The Tenth Circuit has not defined good cause in the direct context of Rule 45(b). However,
the Tenth Circuit has interpreted Federal Rule of Civil Procedure (“Civil Rule”) 16 as imposing a
“good cause” standard to untimely motions to amend when a scheduling order governs the case.1
See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). Specifically, the Tenth
Circuit has noted that the Civil Rule 16(b) standard “requires the moving party to show that it has
been diligent in attempting to meet the deadlines, which means it must provide an adequate
explanation for any delay.” Id. In this district, courts have found that “good cause” means that
1 There is some indication that the “good cause” standards of Civil Rules 16 and 6 have the same
meaning. See Candelaria v. Molina Healthcare, Inc., No. 18-cv-725-WJ-GBW, 2019 WL
4643946, at *4 (D.N.M. Sept. 19, 2019). Additionally, according to the Advisory Committee
Notes, Rule 45 is “in substance the same as Rule 6 of the Federal Rules of Civil Procedure.” Fed.
R. Crim. P. 45 advisory committee’s note to 1944 adoption. Thus, the “good cause” standard of
Rule 45(b) should be very similar, if not the same, as Civil Rule 16.
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“scheduling deadlines cannot be met despite a party’s diligent efforts.” United States v. Jones, No.
14-cr-0769-JB, 2016 WL 335102, at *3 (D.N.M. Jan. 15, 2016) (quoting Advanced Optics Elecs.,
Inc. v. Robins, 769 F. Supp. 2d 1285, 1313 (D.N.M. 2010)).
Here, Defendant moved to extend the deadline for expert disclosures on January 1, 2026,
one day before the deadline. Doc. 165. Thus, the “good cause” standard applies because
Defendant’s motion was made “before the originally prescribed . . . time expire[d].” Fed. R. Crim.
P. 45(b)(1)(A). Therefore, Defendant must demonstrate an inability to meet the disclosure deadline
despite their diligent efforts. See Jones, 2016 WL 335102, at *3.
The government ran out of funds to compensate CJA attorneys and experts on July 3, 2025.
Doc. 165 ¶ 11. The federal government then shut down from October 1, 2025, until November 12,
2025. Id. Recently, a district court found that delays caused by the federal government shutdown
constituted finding good cause and excusable neglect that warranted an extension. See United
States v. Briones-Esparza, No. 3:25-mj-05726-ATB, 2025 WL 3470869, at *1 (W.D. Tex. Dec. 2,
2025) (finding good cause and excusable neglect when a defendant was removed, their counsel
had begun the process of gaining admission to the district, and the process was delayed due to the
government shutdown). Defense counsel contends that they diligently sought to secure an expert
once the government reopened, but they were unable to confirm the expert’s availability until
December 17, 2025. Id. ¶¶ 12, 14. The Government argues that Defendant should have then filed
an expert notice on December 18, 2025. Doc. 166 at 2. However, as of the January 1, 2026,
submission, Defendant’s funding for the expert was still pending. Doc. 165 ¶ 12. Therefore, despite
Defendant’s best efforts, it was not feasible to secure funding for the expert before the Court’s
deadline. This infeasibility, despite diligent effort, supports a finding of good cause. See United
States v. Chapman, No. 11-cr-0904-JB, 2012 WL 1132509, at *5 (D.N.M. Mar. 19, 2012) (finding
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good cause to extend a sentencing when it was not “feasible to” compile a large amount of financial
transactions and secure CJA funding for a psychological evaluation before the court’s deadline).
Accordingly, the Court finds that Defendant demonstrates good cause to extend the deadline to
disclose experts under Rule 45(b).
II. 	The Court does not find that the Wicker factors warrant denying the extension.
The Government contends that the Court’s January 2, 2026, deadline has passed and that
any notice now will be in violation of the Court’s scheduling order.2 Doc. 166 at 3. As such, the
Government turns to the three Wicker factors in asking the Court to deny Defendant’s Motion. Id.
The Court considers each of the factors in turn.
When deciding whether to exclude an untimely expert witness, the Court considers the
following three non-exclusive factors: (1) the party’s reason for delay, including whether the party
acted in bad faith; (2) the extent of prejudice to the other party; and (3) the feasibility of curing the
prejudice with a continuance. Wicker, 848 F.2d at 1061. These factors are mere guidance and do
not dictate the bounds of the Court’s discretion. United States v. Russell, 109 F.3d 1503, 1511 (10th
Cir. 1997). Although the Court should impose the least severe sanction that will promote prompt
and full compliance with the court order, see United States v. Gonzales, 164 F.3d 1285, 1292 (10th
Cir. 1999), under some circumstances the Court may “suppress evidence that did not comply with
discovery orders to maintain the integrity and schedule of the court even though the [party entitled
to the disclosure] may not be prejudiced,” Wicker, 848 F.2d at 1061. While a continuance is
2 While the Government correctly notes that any expert disclosure made now would be in violation
of the scheduling order and Wicker would apply, Defendant made her motion for extension before
the expiration of the original order on January 2, 2026. See Doc. 165. Thus, for the inquiry of
extending the deadline for expert disclosures, the good cause standard of Rule 45(b) controls. See
Fed. R. Crim. P. 45(b)(1)(A). Nonetheless, since Wicker provides mere guidance, see Russell, 109
F.3d at 1511, the Court will consider the factors.
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preferred, a continuance is not necessary “just because it will cure the prejudice.” Russell, 109 F.3d
at 1512.
1. 	Defendant’s reason for delay.
The Government argues that Defendant intentionally filed her motion after she confirmed
the Defendant’s availability on December 17, 2025. Doc. 166 at 3. Defendant contends that she
confirmed availability on December 17, 2025, but that, despite diligent efforts, funding was still
being procured as of January 1, 2026. Doc. 165 ¶¶ 12, 14. Under the first Wicker factor, “exclusion
is ordinarily only appropriate where a party acts in bad faith or lacks any legitimate reason for a
delay.” United States v. Yepa, 608 F. App’x 672, 678 (10th Cir. 2015). Here, Defendant claims that
she could not secure funding as of January 1, 2026, and that she had begun her diligent search for
an expert and funding once the federal government resolved its funding issues on November 12,
2025. Doc. 165 ¶¶ 11–12, 14. Defendant then notified the Court, within the original deadline set
by the scheduling order, that funding had not yet been secured, and thus, there was good cause for
an extension. Id. Thus, while Defendant may have been able to provide notice of the issue
concerning the pending funds earlier, the Court cannot find that Defendant requested this extension
in bad faith or without any legitimate reason. Therefore, the reason for Defendant’s delay favors
extension.
2. 	The prejudice to the Government.
The Government claims that it is prejudiced by the reduced time to prepare for
cross-examination of an expert and to locate scholarly articles. Doc. 166 at 4. Under Wicker, the
prejudice typically “requires that a delay impact the [opposing party’s] ability to prepare or present
his case.” See Yepa, 608 F. App’x at 679. Here, Defendant’s motion seeking an extension
effectively put the Government on notice of her intent to use an expert to distinguish between
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distribution and personal use amounts as it relates to Count 2. Doc. 165 ¶¶ 4–5. The Government
received this partial disclosure within the original disclosure date. Thus, even if the Court did not
find good cause to extend the deadline under Rule 45(b), any prejudice to the Government here
would be minimal.
3. 	Whether a continuance is feasible and can cure the alleged prejudice.
The Government argues that granting a continuance would defeat the purpose of publishing
scheduling orders and undermine the parties’ confidence to prepare for trials. Doc. 166 at 4.
Without seeking a continuance in the alternative, the Government contends that a continuance
would increase the alleged prejudice and scheduling disruptions. Id. The Court disagrees.
Under the third Wicker factor, a court must consider whether a continuance is a feasible
way to cure the prejudice. Unites States v. Moya, 748 F. App’x 819, 824 (10th Cir 2018).
Here, the Government contends that a continuance would create further prejudice. Doc.
166 at 4. In making this argument, the Government points to Defendant attempting to intimidate
confidential witnesses scheduled to testify against her. Id. The Court considers that a continuance
may create the opportunity for Defendant to attempt further intimidation, but such an opportunity
does not make a continuance infeasible. See Yepa, 608 F. App’x at 679 (noting that a court may
consider “whether a continuance might create other problems”). Nevertheless, the Government
does not move for a continuance, rendering this inquiry less relevant, and the Court finds that any
prejudice to the Government by briefly extending the date for expert disclosures is slight and
comes nowhere near the prejudice that would befall Defendant if the expert were excluded.
Accordingly, despite the Court’s finding that good cause warrants an extension under Rule
45(b), the Court also finds that the totality of the Wicker factors does not warrant denying the
extension of the expert disclosure deadline. Rather, the appropriate sanction is permitting a shorter
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extension than Defendant originally asked for. See United States v. Golyansky, 291 F.3d 1245,
1249 (10th Cir. 2002) (“In the absence of a finding of bad faith, the court should impose the least
severe sanction that will accomplish prompt and full compliance with the discovery order.”).
Therefore, the Court will grant Defendant’s requested extension, but expert disclosures are
required no later than January 9, 2026.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Extend Deadline Within
Which to File Expert Notice (Doc. 165) is hereby GRANTED for reasons described in this
Memorandum Opinion and Order.
IT IS ORDERED that the deadline to provide expert witness notices is extended until
January 9, 2026.
_____/S/_____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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