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Robert L. Pottroff, Myers, Pottroff & Ball, Manhattan, KS, William K. Rork, Rork Law Office, Topeka, KS, for Mark Henry Allerheiligen, defendant.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

SAFFELS, J.
*1 This Memorandum and Order is issued to memorialize the court's rulings on the following pretrial motions at the hearing held on November 2, 1998:(1) Government's Motion in Limine Regarding Psychiatric and/or Psychological Testimony (Doc. 59); (2) Government's Motion in Limine Regarding Defendant's Medical Condition (Doc. 60); (3) Government's Motion in Limine Regarding Defendant's Videotape (Doc. 61); (4) Government's Motion in Limine Regarding Rehash of Suppression Hearing Evidence Regarding Legal Matters Before the Jury (Doc. 64); (5) Government's Motion in Limine to Exclude Proffered Testimony of Ed Rosenthal (Doc. 65); (6) Government's Motion in Limine Regarding Condition of Defendant's Property Following the Search, Survey of Defendant's Property, Condition of Defendant's Property That Was Returned to Him, Marijuana Plant Yield, Elements Which Constitute Personal Use of Marijuana, Marijuana Species and the Practices for Growth and Cultivation of Marijuana for Personal and/or Commercial Use, and the Condition of the Farm on 9/4/98 (Doc. 66); (7) Defendant's Motion for Additional Time to Conduct Voir Dire (Doc. 67); (8) Defendant's Motion in Limine Regarding Character Evidence of the Defendant (Doc. 68); (9) Defendant's Motion in Limine Regarding Any Allegations or Inferences of Drug Proceeds with Regard to Property Seized from Defendant's Residence and Bank Accounts (Doc. 69); (10) Defendant's Motion for Protective Order (Doc. 72); (11) Defendant's Motion in Limine to Exclude Testimony about Evidence Which Has Not Been Preserved and to Prohibit Any Testimony Regarding Opinions Based on Scientific, Technical, or Other Specialized Knowledge (Doc. 73); (12) Government's Motion for Decision on the Briefs (Doc. 79); (13) Government's Motion in Limine Regarding William Logan and Walt Carroll and for Decision on the Briefs (Doc. 80); and (14) Defendant's Motion for Sanctions (Doc. 90).
After reviewing the motions and responses, the evidence submitted in support of each motion, the arguments presented by the parties and being fully advised in the premises, the court makes the following findings and rulings.
I. Government's Motion in Limine Regarding Psychiatric and/or Psychological Testimony (Doc. 59)
The government asserts that the defendant's witness list indicates that defendant intends to call Stuart Twemlow, M.D., Psychiatry, 5040 S.W. 28th Street, Topeka, Kansas, in his case-in-chief to testify regarding defendant's "physical, medical and psychological condition." The defendant does not challenge this representation.
In his response, defendant provided a page of defendant's pretrial release form which includes a condition that defendant "participate in a program of substance abuse at the direction of the U.S. Probation Office." Defendant has not provided the court with any examination reports which were prepared by Dr. Twemlow. At oral argument, defense counsel stated that Dr. Twemlow would testify that defendant has an on-going condition of "hyperactivity" and "depression" for which he has imbibed marijuana. Dr. Twemlow would testify that this has created a "chronic" habit of personal marijuana use over the years.
*2 It is apparent to the court that defendant's true intent is to offer a "justification" defense through the use of this testimony. The court notes that in the Omnibus Hearing Report, defendant represented to the court and the government that his sole defense is "general denial; put the government to proof." "Justification" is an option to defense counsel in the Omnibus Hearing Report. This defense option was not selected by the defendant. Defendant has never modified this original representation to the court and government. Even now, defendant has not sought to amend the Omnibus Hearing Report. The court finds that to allow this testimony in the form proffered now by defendant would be in violation of the Omnibus Hearing Report. See United States v. Russell, 109 F.3d 1503, 1507-12 (10 th Cir.1997), cert. denied, 117 S.Ct. 2525 (1997) (excluding testimony of defendant's witnesses rather than granting continuance for failure to disclose witnesses prior to trial in violation of court order was not abuse of discretion, even if defendant did not act in bad faith).
The determination of whether expert testimony should be admitted rests within the sound discretion of the trial court. United States v. Barton, 731 F.2d 669, 672 (10 th Cir.1984). Prior to trial, the court must carefully scrutinize any psychiatric evidence the defendant intends to offer to determine its admissibility. See United States v. Cameron, 907 F.2d 1051, 1067 (11 th Cir.1990); United States v. Pohlot, 827 F.2d 889, 890 (3d Cir.1987). Excluding psychiatric testimony is well within the court's discretion, especially when the evidence is, in reality, offered to excuse the crime, and not to negate intent. See, e.g., United States v. Holsey, 995 F.2d 960, 962 (10 th Cir.1993) (court excluded expert testimony regarding defendant's stress- induced dissociative state); United States v. Esch, 832 F.2d 531, 535 (10 th Cir.1987) (court excluded expert testimony regarding defendant's dependent personality).
Defendant is charged with possession with intent to distribute marijuana. Defendant's use of marijuana to relieve his "hyperactivity" and "depression", i.e., an availability of marijuana for medical purposes, is prohibited by Schedule I. Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131, 1134 (D.C.Cir.1994). Additionally, "medical necessity" is not a defense to the crime alleged in the Indictment. Courts have rejected requests for such instructions. See United States v. Griffin, 909 F.2d 1222, 1224 (8 th Cir.1990), cert. denied, 498 U.S. 1038 (1991) (rejecting "necessity" defense to heroin possession); United States v. Burton, 894 F.2d 188, 191 (6 th Cir.1990) (rejecting "medical necessity" defense to growing, possessing, and using marijuana). Defendant offers no federal case in which such an instruction was even given, much less approved on appeal.
*3 Because defendant attempts to offer this evidence to justify his possession of the marijuana, and because this is barred by Schedule I, the proffered testimony is irrelevant. It does not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. "Evidence which is not relevant is not admissible." Fed.R.Evid. 402. Finally, because the proffered testimony is not relevant, the substance of the proffered testimony is collateral to the issues of this trial and would only serve to confuse and distract the jury. Rule 403 of the Federal Rules of Evidence commands the exclusion of "such detours and excursions." United States v. Buljabasic, 808 F.2d 1260, 1268 (7 th Cir.1987). Therefore, Government's Motion in Limine Regarding Psychiatric and/or Psychological Testimony (Doc. 59) is granted.
II. Government's Motion in Limine Regarding Defendant's Medical Condition (Doc. 60)
The government asserts that the defendant's witness list includes Matthew Schlotterback, M.D., who will allegedly testify regarding "his knowledge of defendant's medical history." Defendant does not dispute this representation of Dr. Schlotterback's proffered testimony. At the hearing on this motion, defense counsel represented to the court that Dr. Schlotterback would testify that defendant has suffered "chronic pain" for a period of years. Defense counsel then asserted that it was for these reasons that defendant had become a chronic personal user of marijuana.
Again, as with Dr. Twemlow's proffered testimony, it is clear to the court that defendant's true purpose is to attempt to justify his possession and use of the marijuana seized from his residence on September 3, 1997. For the same reasons articulated above in granting Government's Motion in Limine Regarding Psychiatric and/or Psychological Testimony, Government's Motion in Limine Regarding Defendant's Medical Condition (Doc. 60) is also granted.
III. Government's Motion in Limine Regarding Defendant's Videotape (Doc. 61)
The government asserts that the defendant's witness list includes witnesses who will allegedly testify regarding "the 9/19/98 video showing the eradication of wild marijuana on defendant's farm." The government submits that this evidence is inadmissible pursuant to Federal Rule of Evidence 403. At the hearing on this motion, defense counsel did not challenge the government's allegations regarding the substance of these witnesses' testimonies. In fact, defense counsel represented that there were actually two videotapes which show wild marijuana plants growing in the area of defendant's property where the marijuana at issue in this case was seized. Both videotapes were made approximately one year after the search warrant in this case was executed. The defendant alleges that all of the marijuana plants shown in these videotapes are wild marijuana plants.
*4 Defendant is charged with possession with intent to distribute marijuana. Defendant admits to personal use of marijuana. Defendant informed agents at the time the search warrant was executed that at least some of the marijuana plants seized had peat pots on them and that he raised and transplanted them. At that time, defendant also informed agents that he had planted some seeds expecting corn and sunflowers, but that the seeds grew marijuana.
The court finds that evidence that there was wild marijuana growing on some portion of defendant's property on September 9, 1998, over a year after the search warrant was executed, is irrelevant to the allegations contained in this Indictment. Therefore, Government's Motion in Limine Regarding Defendant's Videotape (Doc. 61) is granted in regard to both videotapes.
IV. Government's Motion in Limine Regarding Rehash of Suppression Hearing Evidence Regarding Legal Matters Before the Jury (Doc. 64)
In this motion, the government alleges that defendant's witness list demonstrates his intent to seek testimony from six proposed witnesses regarding "other issues previously testified to in the suppression hearing." At the hearing on this motion, defense counsel did not dispute the substance of the proffered testimonies of these witnesses. The court notes that several of these witnesses did not actually testify at the suppression hearing in this matter. The government argues that this evidence is merely offered to "rehash" legal issues previously decided by the court in its order denying defendant's motion to suppress. Thus, the government argues that this proffered evidence is irrelevant and inadmissible pursuant to Federal Rules of Evidence 401, 402, and 403.
Issues of law are the province of the court. Issues of fact are the province of the jury. See Markman v. Westview Instruments, Inc ., 517 U.S. 370, 387- 88 (1996). Legal issues contained in motions to suppress are to be decided by the courts. See, e.g., United States v. McCloud, 127 F.3d 1284, 1286 (10 th Cir.1997).
This court has previously heard all of defendant's challenges to the search and seizure issues related to this matter. The court has decided those issues against the defendant. The court finds that it would serve no legitimate purpose to rehash those issues and evidence solely related to those legal issues previously decided by the court in its order. Therefore, based upon the substance of these witnesses' proffered testimonies and the additional proffers and arguments of counsel at the hearing on this motion, the court finds that allowing this evidence would violate the spirit of Rule 403. This evidence would merely distract the attention of the jury from the true issues within its province and would confuse the jury by directing its attention to legal matters already decided by the court. Thus, to the extent that these witnesses' respective testimonies are offered to address legal issues already decided by the court, they shall not be allowed. As a result, Government's Motion in Limine Regarding Rehash of Suppression Hearing Evidence Regarding Legal Matters Before the Jury (Doc. 64) is granted.
V. Government's Motion in Limine to Exclude Proffered Testimony of Ed Rosenthal (Doc. 65)
*5 In this motion, the government seeks an order excluding the proffered testimony of Ed Rosenthal, citing United States v. Kelley, 6 F.Supp.2d 1168, 1179-85 (D.Kan.1998) (barring proffered trial testimony of Ed Rosenthal regarding marijuana plant, cultivation and growing of it, general practices of outdoor marijuana growers, processing and use of marijuana and yield of marijuana plants). Defendant opposes this motion and, in reliance upon an updated resume from Rosenthal, an affidavit of Rosenthal, and reviews of Rosenthal's works by various newspapers, submits that he is qualified as an expert or, in the alternative, is qualified based upon his personal experiences with marijuana.
After carefully reading and considering the transcript involving Rosenthal's testimony in United States v. Wyman and Hadley, D. Kan. No. 94-40038-01/02-RDR; the motions, responses and evidence submitted on the government's motion in limine regarding Rosenthal in United States v. Kelley and McCormick, D. Kan. No. 97-40024-01/02-SAC; the evidence submitted with the government's motion in limine in this case; the evidence submitted by the defendant in his response to the government's motion in this case; the evidence, oral and documentary proffers submitted by defendant, and arguments submitted by the parties at the hearing on this motion on November 2, 1998, the court believes it is in a position where it can perform the gatekeeping function required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702.
As previously stated, a district court has wide latitude in admitting or excluding expert testimony. See Barton, 731 F.2d at 672. The testimony of an expert must be relevant under Federal Rule of Evidence 401. Its probative value must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403. Furthermore, the party offering the expert testimony has the burden of laying a foundation for its admission. United States v. Williams, 95 F.3d 723, 729 (8 th Cir.1996), cert. denied, 117 S.Ct. 750 (1997).
In any case where expert testimony is proffered, the trial judge has the gatekeeping function of determining whether the testimony is not only relevant, but reliable. Kelley, 6 F.Supp.2d at 1182. In a case where the expert testimony is based solely upon experience or training, the individual Daubert factors are unnecessary, but the trial judge still must make a preliminary finding that proffered expert testimony is both relevant and reliable. Id. The court realizes that one can be an expert by reason of experience and knowledge acquired on the job.
The information before the court shows that Rosenthal has no college degrees or formal education in chemistry, botany, biology, or any other field related to the cultivation of marijuana. The defendant does not dispute this. Furthermore, as did the court in Kelley, this court observes several areas where Rosenthal's purported testimony extends beyond his demonstrated areas of specialized knowledge.
*6 Even given the additional substantial information regarding Rosenthal provided to this court by the parties, the fact that Rosenthal writes books on marijuana growing and regularly writes a popular advice column for High Times magazine does not tell the court anything about the scientific reliability of his opinions expressed therein. There is no evidence that any of Rosenthal's writings on marijuana have been recognized as a valid research effort or reference book in the field of botany. Nor is there anything of record that would lead this court to believe that it should rely on readers of High Times magazine or others having an interest in growing marijuana as a valid indicator of reliability.
Based upon the court's opinion in Kelley, the transcript from Wyman and Hadley and the affidavit of Dr. Mahmoud A. ElSohly, the Director of the Marijuana Project at the University of Mississippi since 1980, the court finds that Rosenthal's qualifications are largely a matter provable only through his own opinion. He lacks any academic background, formal education or training, and experience that would qualify him as an expert on the subject of growing, harvesting, and processing of marijuana. His unique exposure to these topics is limited to his self-directed efforts at reading reference works, talking with some researchers and growers, and then summarizing the work of others into popular "how-to" guides.
Before the court can conclude that Rosenthal's testimony is reliable as a result of these self-directed efforts, there must be a foundation from which the court can find that Rosenthal has the training or background for such research and that Rosenthal's methods for conducting this research were reliable. The court is not persuaded, from reading the transcript in Wyman and Hadley and the additional materials now supplied regarding Rosenthal's training, background and methods for conducting his research, that this foundation has been laid.
Even assuming that such a foundation is laid and Rosenthal is able to demonstrate a specialized knowledge concerning the marijuana plant and the cultivation and growing of it, the court would not allow Rosenthal to testify on the issues of yield and intent based on the foundation before this court. Rosenthal's testimony does not appear to be based on any information of a type reasonably relied upon by experts in that field. While Rosenthal offers what he believes are "conservative estimates," without a factual basis for them, they are nothing short of arbitrary opinions. " 'An expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate [his] opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness's expertise) rather than simply an opinion broached by a purported expert." ' United States v. Hall, 93 F.3d 1337, 1343 (7 th Cir.1996) (quoting United States v. Benson, 941 F .2d 598, 604 (7 th Cir.1991)).
*7 As for the general practices of outdoor marijuana growers, the court also finds an inadequate foundation for Rosenthal's testimony on this subject. Rosenthal's assertions that he has talked with "many" outdoor growers and that the practices of growing marijuana are uniform from state to state does not make one an expert on the general practices of outdoor growers in Kansas.
This court, as did the court in Kelley, recognizes that Rosenthal's obvious bias towards those charged with marijuana offenses does not disqualify him from becoming an expert. However, this court concurs with the Kelley court's finding that Rosenthal's self-created advocacy role can be just cause for taking more care in determining his qualifications, the relevance and reliability of his opinions, and the factual foundation for his opinions. The court also concurs with the other findings of fact and conclusions of law, regarding Ed Rosenthal, contained in the court's decision in United States v. Kelley, 6 F.Supp.2d 1168, 1179-85 (D.Kan.1998).
Based upon the information provided to the court, it appears to the court that Rosenthal's proffered testimony lacks objectivity. Furthermore, in Wyman and Hadley, the court expressed its serious reservations with Rosenthal's qualifications, indicating that "[i]t's almost voodoo research we're talking about here." (Wyman and Hadley Tr. January 27, 1995 at 98-100). The court concurs with Judge Rogers' assessment. Therefore, Government's Motion in Limine to Exclude Proffered Testimony of Ed Rosenthal (Doc. 65) is granted.
VI. Government's Motion in Limine Regarding Condition of Defendant's Property Following the Search, Survey of Defendant's Property, Condition of Defendant's Property That Was Returned to Him, Marijuana Plant Yield, Elements Which Constitute Personal Use of Marijuana, Marijuana Species and the Practices for Growth and Cultivation of Marijuana for Personal and/or Commercial Use and the Condition of the Farm on 9/4/98 (Doc. 66)
In this motion, the government challenges the defendant's proffered evidence concerning the following matters: (A) the condition of defendant's property following the search; (B) the survey of defendant's property; (C) the condition of defendant's property that was returned to him; (D) marijuana plant yield; (E) elements which constitute personal use of marijuana; (F) marijuana species; (G) the practices for growth and the cultivation of marijuana for personal and/or commercial use; and (H) the condition of the defendant's farm on September 4, 1998. The court shall discuss each issue separately.
A. Condition of Defendant's Property Following the Search
The concerns raised by the government's motion were modified orally at the hearing on this motion to specifically address evidence proffered to show that agents "tore up defendant's property," or were over-zealous in their search and evidence that the property returned to defendant was not in substantially the same condition as when it was seized. However, defendant has not proffered evidence to support any such allegations. Defendant has offered no proper purpose or explanation for such evidence.
*8 The court recognizes that agents executing the search warrant obviously went through defendant's buildings and belongings in search of evidence authorized by the search warrant. To effectuate this, officers and agents had to disturb things from their original places in search of relevant evidence. Likewise, items seized as evidence are tested in laboratories and/or stored in evidence areas in conditions unlike their normal surroundings. It would not be unusual for items seized and subsequently tested or stored in evidence areas to be returned to their owners in a different condition than when the items were seized. If property was unnecessarily defaced or destroyed, the officers' actions may give rise to some cause of action wholly unrelated to a subsequent criminal prosecution; however, defendant offers no reason why such evidence would be relevant in the trial of this matter.
The court finds that this is not relevant evidence and shall not be allowed. This is evidence collateral to the issues of this trial, and very likely would cause the jury great sympathy for the defendant in the minds of the jury. Given its lack of relevance, Rule 403 commands the exclusion of "such detours and excursions." Buljabasic, 808 F.2d at 1268.
Defendant asserts in his response to this motion that "the condition of defendant's property after the search where there is wild marijuana is highly relevant." The court disagrees. The officers and agents that testified at the hearing on the motion to suppress testified that they seized cultivated marijuana plants, not wild marijuana plants. Government counsel reiterated this at the hearing on this motion. The presence of additional wild marijuana plants on the property after the search is certainly reasonable if officers and agents only seized what they believed were cultivated marijuana plants. However, the court will allow evidence that wild marijuana was present on defendant's property immediately after the search of defendant's residence, to the extent that defendant can show its relevance at trial. Thus, the government's motion in limine regarding the condition of defendant's property, as modified orally at the hearing and consistent with this order, is granted.
B. Condition of Defendant's Property That Was Returned to Him
Defendant asserts that evidence of the condition of the property which was returned to him is relevant "in case of a dispute regarding what was taken from the defendant's home." Defendant surmises that agents from the Kansas Bureau of Investigation ("K.B.I.") may testify untruthfully regarding gold coins seized from his residence and later returned to him. The court finds no reason to presume that K.B.I. agents will testify untruthfully. Additionally, no such dispute was evidenced by the parties at the hearing in this matter. There is no reason to believe that this evidence is now relevant.
For the reasons stated above, the government's motion in limine regarding the condition of defendant's property that was returned to him is granted, subject to reconsideration by the court during the trial of this matter. Should this evidence become relevant, it shall be allowed.
C. Survey of Defendant's Property
*9 Neither the defendant nor the government challenged that the defendant owns the property that was searched on September 3, 1997. Defendant has not proffered a proper purpose for this evidence. It is wholly collateral to the issues this jury is to decide. Thus, presentation of this evidence would be a waste of time and could confuse the issues before the jury. Evidence of the survey of defendant's property shall not be allowed absent a showing of relevance. Thus, the government's motion in limine regarding the survey of defendant's property is granted.
D. Marijuana Plant Yield
Defendant has included three witnesses on his witness list whom he represents will testify regarding yield of marijuana plants generally, and the marijuana plants seized from his residence specifically. Defendant has represented to the court that this proffered testimony is relevant to the issue of possession with intent to distribute as opposed to simple possession of marijuana.
The court notes that evidence regarding "yield," at one time, would have been appropriate at defendant's sentencing. Such is no longer the case. See United States v. Robinson, 35 F.3d 442, 447 (9 th Cir.1994), cert. denied, 513 U.S. 1197 (1995) ("the guidelines formulation is not dependent on yield"). See also United States v. Beaver, 984 F.2d 989, 991 (9 th Cir.1993) (rejecting argument that weight or potential yield of marijuana plants is relevant under 21 U.S.C. § 841(b)(1)). The sex of the plants, the yield of the plants and the variety of the plants are not elements of a violation of 21 U.S.C. § 841(a)(1). Thus, this evidence does not appear to be relevant at the trial of this matter. Furthermore, such testimony at trial will merely confuse and mislead the jury regarding collateral matters. The court does not believe that sentencing issues, such as plant yield, are proper matters for the jury's consideration. Therefore, the government's motion in limine with regard to marijuana plant yield is granted.
E. Elements Which Constitute Personal Use of Marijuana
The government next seeks an order barring defendant's proffered testimony regarding "elements which constitute personal use of marijuana." Personal use of marijuana may, in an appropriate case, justify an instruction to the jury regarding simple possession of marijuana in violation of 21 U.S.C. § 844. Simple possession of marijuana is a lesser included offense of possession with intent to distribute marijuana. See generally, United States v. Lacey, 86 F.3d 956, 970 (10 th Cir.1996).
Defendant filed a belated proposed jury instruction regarding simple possession of marijuana on November 4, 1998, the day of trial and one day after arguments on these motions. Prior to defense counsel announcing at the hearing on November 2, 1998, that some of the evidence named in the government's motions in limine were for the purpose of seeking an instruction on simple possession of marijuana, the court was unaware that defendant intended to allege personal use.
*10 The court will instruct the jury on the essential elements of the offense alleged in the violation. If appropriate, the court will instruct the jury on the elements of the offense of simple possession of marijuana, the lesser included offense.
Defendant is entitled to a lesser included offense instruction if (1) there was a proper request; (2) the lesser included offense includes some but not all of the elements of the offense charged; (3) the elements differentiating the two offenses are in dispute; and (4) a jury could rationally convict the defendant of the lesser offense and acquit him of the greater offense.
United States v. Moore, 108 F.3d 270, 272 (10 th Cir.1997) (citing Fitzgerald v. United States, 719 F.2d 1069, 1071 (10 th Cir.1983)). However, the court finds that to allow a lay witness's opinion testimony regarding the elements of the offense would be inappropriate. Thus, the court grants the government's motion in limine regarding the elements which constitute personal use of marijuana.
F. Marijuana Species
The government next seeks an order barring defendant's proffered testimony regarding marijuana species. Title 21, United States Code, Section 841(a)(1) makes it illegal to possess with intent to distribute or dispense marijuana, regardless of species. Thus, evidence of marijuana plant species does not appear relevant for the jury's consideration. The Congressional prohibition against marijuana was intended to apply to all forms of marijuana. United States v. Dinapoli, 519 F.2d 104, 106 (6 th Cir.1975). It appears clear from the legislative history of this law "that Congress meant to outlaw all plants popularly known as marijuana to the extent those plants possessed THC," regardless of species. United States v. Walton, 514 F.2d 201, 203-04 (D.C.Cir.1975). Therefore, the court grants the government's motion in limine regarding defendant's proffered testimony regarding marijuana plant species.
G. Practices for Growth and Cultivation of Marijuana for Personal Use and/or Commercial Use
The government next seeks an order barring defendant's proffered expert testimony regarding the practices for growth and cultivation of marijuana for personal and/or commercial use. The court notes that defendant has proffered only three witnesses to testify regarding this matter: Mr. Logan, Mr. Rosenthal and Mr. Carroll. For the reasons stated in part V of this order concerning Mr. Rosenthal and in part XIII concerning Mr. Logan and Mr. Carroll, the court finds that the defendant has failed to meet his burden regarding each of the three proffered expert testimonies. Thus, the court grants the government's motion in limine regarding defendant's proffered expert testimony regarding the practices for growth and cultivation of marijuana for personal and/or commercial use.
H. Condition of the Farm on 9/4/98
Finally, the government seeks an order barring defendant's proffered testimony regarding the condition of his property on September 4, 1998. The court notes that this is just over one year after the search of defendant's residence which gave rise to this Indictment. Defendant's response to the government's motion asserts that this evidence is relevant because "[t]he areas from which marijuana was seized looks the exact same this year, as it did last year" and "because law enforcement officials testified there was no wild marijuana on the [sic] property the day of the search."
*11 At the hearing on this motion, both the government and defense counsel admitted that wild marijuana grows in numerous rural areas of Marshall County, Kansas, and that it will recur each year. This is not a disputed issue. Neither does it appear to be a fact in consequence, given that the government's theory of the case is cultivated marijuana, not wild marijuana. The evidence before the court is that officers and agents chopped down the marijuana plants with machetes or uprooted them entirely. Defendant alleges that officers and agents left behind wild marijuana on defendant's property.
Based upon the defendant's proffer at the hearing in this matter, the court finds that this evidence has no relevant value. It does not have any tendency to make the existence of a fact that is of consequence to the determination of this action more or less probable. Fed.R.Evid. 401. In fact, the proffer of wild marijuana is not disputed at all. "Evidence which is not relevant is not admissible." Fed.R.Evid. 402. While the court could grant the government's motion in limine for this reason alone, the court has also carefully studied the defendant's proffer of this evidence and finds that any purported probative value is substantially outweighed by its danger of unfair prejudice and confusion of the issues. Thus, pursuant to Federal Rule of Evidence 403, the court shall not allow this evidence.
I. Conclusion
For all of the reasons stated above, Government's Motion in Limine Regarding Condition of Defendant's Property Following the Search, Survey of Defendant's Property, Condition of Defendant's Property That Was Returned to Him, Marijuana Plant Yield, Elements Which Constitute Personal Use of Marijuana, Marijuana Species and the Practices for Growth and Cultivation of Marijuana for Personal and/or Commercial Use and the Condition of the Farm on 9/4/98 (Doc. 66) is granted.
VII. Defendant's Motion for Additional Time to Conduct Voir Dire (Doc. 67)
Defendant seeks additional time to conduct voir dire, mistakenly relying on the court's rules of practice and procedure in civil cases. This court does not ordinarily limit the amount of time given to attorneys in criminal cases to conduct voir dire. For this reason, the Defendant's Motion for Additional Time to Conduct Voir Dire (Doc. 67) is denied as moot.
VIII. Defendant's Motion in Limine Regarding Character Evidence (Doc. 68)
The defendant seeks an order barring the government from introducing evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. The government has responded that it does not intend to offer evidence pursuant to Rule 404(b). Thus, defendant's Motion in Limine Regarding Character Evidence is denied as moot.
IX. Defendant's Motion in Limine Regarding Any Allegations or Inferences of Drug Proceeds with Regard to Property Seized from Defendant's Residence and Bank Accounts (Doc. 69)
Defendant seeks an order barring the government from offering any evidence that items of value seized from his home pursuant to the search warrant were "a result of proceeds from drug sales." The government's response acknowledges that to the extent that the evidence shows that a defendant's wealth is explicable, it is not generally relevant. However, the government asserts that to the extent that the evidence shows a defendant's wealth is inexplicable, it is admissible.
*12 Courts have routinely held unexplained wealth admissible. See United States v. All Right, Title and Interest, 983 F.2d 396, 405 (2d Cir.1993) (allowing use of unexplained wealth in conjunction with evidence of drug trafficking as proof of probable cause); United States v. Antzoulatos, 962 F.2d 720, 727 (7 th Cir.1992) (presence of unexplained wealth evidence admissible). Given the government's representations to the court that this evidence would only be offered to the extent that defendant's wealth is inexplicable, defendant's motion is without merit. Therefore, Defendant's Motion in Limine Regarding Any Allegations or Inferences of Drug Proceeds with Regard to Property Seized from Defendant's Residence and Bank Accounts (Doc. 69) is denied.
X. Defendant's Motion for Protective Order (Doc. 72)
Defendant seeks a protective order barring the government "from taking any action to influence the testimony of Walt Carroll through contacting his employer, and to prevent the State of Nebraska from terminating or constructively discharging Mr. Carroll because he has been subpoenaed to testify as an expert for the defense." Government's counsel has responded that he has independently confirmed that Sheriff Coggins and the Marshall County Attorney did contact Carroll and Carroll's supervisor sometime prior to the government's receipt of this motion. Both men indicated that this contact was to determine Carroll's qualifications to testify as an expert on marijuana matters. Both men indicated that Carroll's supervisor did not have knowledge of Carroll's participation in this case.
The court finds that this was an appropriate reason for government representatives to contact Mr. Carroll and his supervisor. Additionally, government counsel has represented to the court that he has directed Sheriff Coggins, SA Christy, K.B.I., and the Marshall County Attorney to have no further contact with Carroll and his supervisor. Furthermore, this court does not have jurisdiction to order the state of Nebraska not to discharge Mr. Carroll. Therefore, Defendant's Motion for Protective Order (Doc. 72) is denied.
XI. Defendant's Motion in Limine to Exclude Testimony about Evidence Which Has Not Been Preserved and to Prohibit Any Testimony Regarding Opinions Based on Scientific, Technical, or Other Specialized Knowledge (Doc. 73)
Defendant's motion alleges that the government's formal witness list did not contain addresses, dates of birth, statements, qualifications of the witnesses, or any reports generated by the witnesses listed. His motion further alleges that the government did not state that any of its witnesses would testify as experts. Additionally, his motion alleges that for these reasons any evidence regarding "plants with peat pots" should be limited to those "plants with peat pots that were properly preserved for evidentiary purposes through videotape, photographing, or physically taken into custody."
The parties acknowledge, and the Omnibus Hearing Report shows, that this is a full discovery matter. The parties further acknowledge that full discovery has been provided to defendant. The government's witnesses authored reports, or their observations and activities were recorded in agents' reports authored by others present at the time. At the suppression hearing in this matter, the government presented the bulk of its case against this defendant. The court finds that the identities of the government's witnesses, their business addresses and the substance of their respective testimonies has been revealed to defendant.
*13 The court further finds that included in the government's full discovery were the reports of Jim Schieferecke, Forensic Chemist with the K.B.I. Schieferecke performed the analysis of the substances seized in this matter. Additionally, the Omnibus Hearing Report filed in this matter and signed by counsel for the parties fully disclosed the government's intent to offer expert testimony in this matter. Mr. Schieferecke is well known to this court and counsel for defendant, through his numerous testimonies on the behalf of the K.B.I. in the United States District Court for the District of Kansas and in the Kansas state courts. The court finds that Schieferecke's qualifications and proposed trial testimony has been fully disclosed to the defendant.
The court also finds that the Omnibus Hearing Report does not compel the government to disclose the dates of birth of witnesses. However, the defendant has agreed to make such a disclosure of its witnesses to the government. The clear purpose of this requirement is to ensure that criminal history checks can be done to determine whether witnesses have previously been convicted of any crime which would form the basis of impeachment questions. Counsel for the government has disclosed that the officers, agents and employees of law enforcement have no criminal history records and that the witnesses that the government intends to call in its case-in-chief do not have any criminal histories.
The court finds that the K.B.I., like most law enforcement agencies, has limited storage space for evidence seized by its agents. For this reason, in appropriate cases, only representative samples of evidence are kept when large quantities of like evidence are seized. Defendant complains that agents did not seize and/or photograph all of the peat pots that they observed on his property. Defendant alleges that they should be barred from offering any testimony regarding their respective observations at or about defendant's residence which were not reported, videotaped, photographed, or seized.
After establishing to the court's satisfaction that a witness can offer an opinion as a lay witness under Federal Rule of Evidence 701, witnesses may testify to their relevant observations, upon proper foundation, whether contained in a report or not. If an agent offers testimony not contained in a report, this may be inquired into on cross-examination to challenge the credibility of the statement. This goes to the weight of the evidence and not to its admissibility. Therefore, the court finds that the defendant is free to make this argument to the jury, but the government shall not be barred from offering this testimony.
The court finds that the agents responsible for the count, and those who personally attended the plant gathering and counting, observed the plants and peat pots and can testify to their respective observations. The court further finds that photographs and a video tape of the marijuana patch may also be admitted into evidence. See United States v. Cody, 7 F.3d 1523, 1527 (10 th Cir.1993) (finding testimony of agent responsible for counting plants, photographs, and a videotape of the count to be sufficient evidence of quantity). For all of the above reasons, Defendant's Motion in Limine to Exclude Testimony about Evidence Which Has Not Been Preserved and to Prohibit Any Testimony Regarding Opinions Based on Scientific, Technical, or Other Specialized Knowledge (Doc. 73) is denied.
XII. Government's Motion for Decision on the Briefs (Doc. 79)
*14 The government seeks an order, regarding its motion in limine to exclude the defendant's proffered trial testimony of Ed Rosenthal, on the briefs without an evidentiary hearing. Defendant's response acknowledges that the court is not required to hold an evidentiary hearing on this issue, but argues that the government's reliance on the transcript from United States v. Wyman and Hadley, D. Kan. No. 94-40038-01/02-RDR and the opinion in United States v. Kelley, 6 F.Supp.2d 1168, 1179-85 (D.Kan.1998) is misplaced. Defendant asserts that these decisions are not binding on this court and that the additional information regarding Rosenthal merits an evidentiary hearing.
The court finds that while the courts' respective opinions in United States v. Wyman and Hadley and United States v. Kelley, are not binding on this court, these opinions, and the analysis contained therein, are instructive regarding Mr. Rosenthal's alleged qualifications and proffered testimony. The court further finds that, although a defendant may seek an evidentiary hearing on the government's motion in limine,
Daubert does not mandate one. Nevertheless, an appellate court must have before it a sufficiently developed record in order to allow a determination of whether the district court properly applied the relevant law. The analysis outlined in Daubert is extensive, requiring the district court to 'carefully and meticulously' review the proffered scientific evidence.
United States v. Call, 129 F.3d 1402, 1405 (10 th Cir.1997) (citation omitted).
The court allowed defense counsel an unlimited opportunity to proffer information regarding Rosenthal's qualifications and proposed testimony at the hearing on the government's motion in limine on November 2, 1998. Counsel for defendant, William K. Rork, has sponsored Rosenthal on at least two prior occasions in the District of Kansas: United States v. Wyman and Hadley, D. Kan. No. 94-40038-01/02-RDR and United States v. Kelley and McCormick, D. Kan. No. 97-40024-01/02-SAC. Thus, Mr. Rork is intimately familiar with Rosenthal's qualifications and proposed testimony. At the hearing on the government's motion in limine to exclude Rosenthal's proffered testimony, Mr. Rork provided the court, orally and in documentary form, every reason known to defendant to allow Rosenthal's proffered testimony in this trial.
In considering this motion, the court has fully reviewed and considered the transcripts of Rosenthal's testimony from United States v. Wyman and Hadley, D. Kan. No. 94-40038-01/02-RDR; the motions, pleadings and evidence submitted regarding the government's motion in limine, and defendant's responses thereto, regarding Rosenthal in United States v. Kelley and McCormick, D. Kan. No. 97-40024-01/02-SAC; the evidence submitted with the government's motion in limine in this case; the evidence submitted by the defendant in his responses to the government's motion in this case; and the evidence and arguments submitted by the parties at the hearing on this motion on November 2, 1998. Based on a review of all of the above material, the court finds that it has been provided with sufficient evidence to decide this motion. The alleged changes in Rosenthal's credentials have been provided to the court. Additionally, the court finds that defendant's proffered testimony from Rosenthal is essentially the same as his prior testimony in the matter of United States v. Wyman and Hadley. Therefore, the Government's Motion for Decision on the Briefs (Doc. 79) is granted.
XIII. Government's Motion in Limine Regarding William Logan and Walt Carroll and for Decision on the Briefs (Doc. 80)
*15 The government seeks an order barring the proffered trial testimonies of William Logan and Walt Carroll, based upon the information provided to the government during reciprocal discovery. At the hearing on this motion, neither Logan nor Carroll appeared to testify for the defendant. The defendant submitted a resume from Carroll with attachments that show he has attended several law enforcement related schools and an affidavit that evidences what his proffered testimony would be. The defendant has also submitted Logan's resume and an affidavit indicating his unavailability to testify at the hearing on the pretrial motions.
The defendant bears the burden of laying a foundation for the expert testimony. Williams, 95 F.3d at 729. " 'Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." ' United States v. Diallo, 40 F.3d 32, 34 (2d Cir.1994) (quoting United States v. Lewis, 954 F.2d 1386, 1390 (7 th Cir.1992)).
The court finds that Carroll's credentials evidence no training, experience or schooling in matters specifically related to marijuana identification, marijuana eradication, marijuana processing, marijuana use, and marijuana processing. In addition, the court finds that the information supplied by defendant regarding Logan fails to meet the standards discussed above regarding the admissibility of his proffered expert testimony. Based upon the information provided to the court in defendant's response and at the hearing on this motion, the court finds that defendant has failed to meet the burden of laying the foundation for this expert testimony. The court finds that the purported testimonies of Logan and Carroll extend beyond their respective demonstrated areas of specialized knowledge.
As noted with regard to Rosenthal, the information provided to the court by defendant tells the court nothing about the scientific reliability of the opinions proffered by Logan and Carroll. There is no evidence that either man's writings on marijuana have been recognized as a valid research effort or reference book in the field of botany. There is nothing of record that would lead this court to believe that it should rely on Mr. Logan's former clients, members of the California criminal defense bar, California marijuana users or the readers of his articles as a valid indicator of reliability. Nor is there anything of record that would lead this court to believe that it should rely on Mr. Carroll's perusal of defendant's property after officers and agents had seized the evidence that will be admitted in this trial and of the general area wherein wild marijuana plants grew as evidence of the yield of the plants seized. Additionally, Mr. Carroll's resume shows very limited, if any, training and experience in marijuana eradication and cultivation. This tells the court that Mr. Carroll's proffered testimony is not scientifically reliable.
*16 The court finds that an evidentiary hearing is not necessary to resolve the government's motion in limine. The court has before it a sufficiently developed record in order to allow the court to properly apply the relevant law. The court has carefully and meticulously reviewed the substantial proffer of evidence submitted by defendant in support of both Mr. Carroll and Mr. Logan. Defendant has presented the areas about which each witness would testify and all of the evidence available regarding each alleged expert. Defendant does not allege that additional relevant evidence exists regarding either man.
For all of the reasons stated above, Government's Motion in Limine Regarding William Logan and Walt Carroll and for Decision on the Briefs (Doc. 80) is granted.
XIV. Defendant's motion for sanctions (Doc. 90)
Defendant's motion alleges that, in December of 1997, defense counsel visited the Kansas Bureau of Investigation laboratory in Topeka to examine all of the evidence. He alleges that at that time, counsel "were not shown 100 marijuana plants with root systems" or evidence of "peat pots and their origin." The motion states that on October 29, 1998, government's counsel informed defense counsel that he had observed over 100 plants with root systems attached at the K.B.I. laboratory. Defendant seeks sanctions against the government for failure to disclose material evidence.
Defense counsel admits that government's counsel was unaware of this alleged mix-up, and that the government's counsel has offered to make the marijuana plants available for their perusal on Monday, November 2, 1998. The court further notes that in the government's response to defendant's pretrial motions, government's counsel has again offered to make available all of the reports and evidence in this case at any mutually convenient time prior to trial. The government's response to this motion indicates that this offer remains open. Counsel for the government reiterated this at the hearing on this motion.
The court finds that, based upon the representations of counsel, it appears to the court that what has occurred is a simple misunderstanding. The court further finds that the government's standing offer to allow defense counsel to examine all of the reports and evidence in this case at any mutually convenient time prior to trial is curative of the matters alleged by defendant. Therefore, Defendant's Motion for Sanctions (Doc. 90) is denied.
IT IS THEREFORE BY THE COURT ORDERED that Government's Motion in Limine Regarding Psychiatric and/or Psychological Testimony (Doc. 59); Government's Motion in Limine Regarding Defendant's Medical Condition (Doc. 60); Government's Motion in Limine Regarding Defendant's Videotape (Doc. 61); Government's Motion in Limine Regarding Rehash of Suppression Hearing Evidence Regarding Legal Matters Before the Jury (Doc. 64); Government's Motion in Limine to Exclude Proffered Testimony of Ed Rosenthal (Doc. 65); Government's Motion in Limine Regarding Condition of Defendant's Property Following the Search, Survey of Defendant's Property, Condition of Defendant's Property That Was Returned to Him, Marijuana Plant Yield, Elements Which Constitute Personal Use of Marijuana, Marijuana Species and the Practices for Growth and Cultivation of Marijuana for Personal and/or Commercial Use and the Condition of the Farm on 9/4/98 (Doc. 66); Government's Motion for Decision on the Briefs (Doc. 79); and Government's Motion in Limine Regarding William Logan and Walt Carroll and for Decision on the Briefs (Doc. 80) are granted.
*17 IT IS FURTHER ORDERED that Defendant's Motion in Limine Regarding Any Allegations or Inferences of Drug Proceeds with Regard to Property Seized from Defendant's Residence and Bank Accounts (Doc. 69); Defendant's Motion for Protective Order (Doc. 72); Defendant's Motion in Limine to Exclude Testimony about Evidence Which Has Not Been Preserved and to Prohibit Any Testimony Regarding Opinions Based on Scientific, Technical, or Other Specialized Knowledge (Doc. 73); and Defendant's Motion for Sanctions (Doc. 90) are denied.
IT IS FURTHER ORDERED that Defendant's Motion for Additional Time to Conduct Voir Dire (Doc. 67) and Defendant's Motion in Limine Regarding Character Evidence of the Defendant (Doc. 68) are denied as moot.
D.Kan.,1998.
END OF DOCUMENT

Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works