USA v. Belgarde

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, )
)
Plaintiff, ) ORDER
)
vs. )
)
Cody James Belgarde, ) Case No. 3:21-cr-58
)
Defendant. )
The Defendant Cody James Belgarde moves in limine to exclude dual-role testimony from
the United States’ law enforcement witnesses. Doc. 125. Belgarde argues that any dual role
testimony will be confusing and prejudicial. Id.
Generally, witnesses must testify based on their personal knowledge. See Fed. R. Evid.
602. However, expert witnesses may offer opinion testimony if “the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to understand the evidence or determine
a fact in issue” and the testimony is sufficiently reliable. Fed. R. Evid. 702.
While these two forms of testimony are generally separated, some witnesses may be
qualified to provide both: they may be able to testify to their own perceptions because they
participated in the case, and they may be able to testify to their opinions because they have
specialized training and experience. United States v. Overton, 971 F.3d 756, 762-63 (8th Cir.
2020). A witness who can provide both forms of testimony may provide “dual-role testimony.” Id.
at 763. Such testimony “may be admissible” when “presented in a concise and differentiated way.”
United States v. Overton, 971 F.3d 756, 764 (8th Cir. 2020). “[T]he less clear the segregation of
roles during testimony, the greater the mitigation required of cautionary instructions.” United
States v. Moralez, 808 F.3d 362, 366 (8th Cir. 2015).
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Here, the United States proposes to call Special Agent Derek Hill as a fact and an expert
witness. The Court believes Agent Hill’s dual role testimony is admissible because it is relevant
and will assist the jury in understanding the evidence or in determining a fact at issue. See U.S. v.
Felak, 831 F.2d 794, 797 (8th Cir. 1987). So, to the extent Belgarde seeks to prevent Agent Hill
from testifying in a dual rule, the motion (Doc. 125) is DENIED. Nevertheless, proper safeguards
must be put in place to prevent confusion. Hill’s testimony must delineate his two roles for the
jury and the United States must structure their questioning accordingly. The Court will issue a
general instruction on consideration of expert witness testimony. And, if requested by either party,
the Court will consider an instruction more specific to Agent Hill’s testimony. Nothing in this
order prevents Belgarde from objecting at trial if the testimony is not being presented in a manner
consistent with this order.
IT IS SO ORDERED.
Dated this 27th day of October, 2023.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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