Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ MOTIONS IN LIMINE MARK W. BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION.1021 II. LEGAL ANALYSIS.1023 A. Rule 104.1023 B. The Government’s Motion.1023 1. The evidence at issue.1023 2. Admissibility of evidence of reimbursement and payment procedures.1023 a. Aryuments of the parties.1023 b. Analysis.1024 C. The Defendants’Motion .1027 1. The evidence at issue.1027 2. Evidence disclosed after the close of discovery.1027 a. Aryuments of the parties.1027 b. Analysis.1029 3. Hawley’s tax returns and other financial information.1032 a. Aryuments of the parties.1032 b. Analysis.1033 4. References to “experts”.1035 a. Arguments of the parties.1035 b. Analysis.1035 5. Expert opinions on legal issues and results to reach.1038 a. Arguments of the parties.1038 b. Analysis.1039 6. Evidence that Hawley signed the names of insureds.1043 a. Arguments of the parties.1043 b. Analysis.1044 i. Hawley’s forgery of signatures .... 1044 ii. Hawley’s acceptance of forged signatures 1046 7. Other “bad acts” evidence.1046 a. Arguments of the parties.1046 b. Analysis.1047 i. Other crop years and other crop land 1047 ii. Evidence of Hawley’s involvement in bankruptcy fraud.... 1047 8. Memoranda of witnesses’statements.1048 a. Arguments of the parties.1048 b. Analysis.1049 i. Admissibility pursuant to Rule 803(5) .... 1050 ii. Use pursuant to Rule 612 1050 9. Evidence of plea agreements.1052 a. Arguments of the parties.1052 b. Analysis.1053 III. CONCLUSION.1054 I. INTRODUCTION In this civil action by the United States against defendants Russell T. Hawley and Hawley Insurance, Inc., (collectively “Hawley”), the United States alleges that Hawley engaged in improper conduct that allowed ineligible farmers to obtain and make claims against multi-peril crop insurance (MPCI) policies that were sold by Hawley, issued by North Central Crop Insurance (NCCI), and reinsured by the Federal Crop Insurance Corporation (FCIC), for certain crop land in South Dakota. The factual background to this action is set forth in some detail in the court’s April 3, 2008, ruling on the parties’ cross-motions for summary judgment. See United States v. Hawley, 544 F.Supp.2d 787, 791-94 (N.D.Iowa 2008). For present purposes, suffice it to say that the government alleges that Hawley knew that Ed Marshall owned the crop land in question, that Mark Hoffman had rented the land from Ed Marshall, and that Donald Kluver was actually farming the land in 2000. Nevertheless, Hawley submitted to NCCI a crop insurance application for the 2000 crop year in the names of Sydney and Stanley Winquist for an interest in crops on the crop land. The Winquists later made claims against the MPCI policy on which the FCIC ultimately reimbursed NCCI for crop insurance indemnities and paid premium subsidies for the 2000 crop year totaling $145,540. The Winquists and Kluver were later prosecuted for conspiring to make fraudulent crop insurance claims relating to the crop land for crop year 2000. Kluver entered into a plea agreement and the Winquists entered into pretrial diversion agreements. Similarly, the government alleges that, just before the application deadline for the 2001 crop year, Hawley submitted to NCCI an application for crop insurance for the crop land in the name of, and purportedly signed by, Ed Marshall. The application had been hand-delivered to Hawley by Mark Hoffman, so Hawley had not seen Marshall sign the application. The FCIC eventually made payments for indemnity payments for crop losses claimed by Marshall and paid premium subsidies on the crop land for the 2001 crop year totaling $159,960. Ed Marshall signed a civil settlement agreement with the United States Attorney’s Office for the Northern District of Iowa in which he admitted that he had not signed a timely application for crop insurance nor had he instructed anyone to sign such an application on his behalf and pursuant to which he repaid part of the overpayment alleged. The United States originally brought claims pursuant to 31 U.S.C. § 3729(a)(1), (a)(2), and (a)(3) of the False Claims Act (FCA), and common-law claims of fraud and payment under mistake of fact. However, the court granted summary judgment in favor of the defendants on Count One, the FCA claim pursuant to 31 U.S.C. § 3729(a)(1) alleging “presentation of a false claim,” and as to Count Five, the common law claim for “payment under mistake of fact,” but otherwise denied the defendants’ motion for summary judgment. See id. Therefore, this matter is scheduled for trial to begin on June 30, 2008, on the following claims: Count Two, the “false record or statement” claim, in which the United States asserts a claim pursuant to 31 U.S.C. § 3729(a)(2) of the FCA alleging that the defendants knowingly made, used, or caused to be made or used false records or statements in order to get false or fraudulent claims paid or approved by the United States; Count Three, the “conspiracy” claim, in which the United States asserts a claim pursuant to 31 U.S.C. § 3729(a)(3) of the FCA alleging that the defendants conspired with others to get false or fraudulent claims allowed or paid by the United States in that the defendants entered into an agreement to submit and process false and fraudulent information in order for ineligible individuals to receive indemnities that would ultimately be reimbursed by the United States through the Federal Crop Insurance Corporation (FCIC); and Count Four, the “common-law fraud” claim, in which the United States alleges that the defendants engaged in common-law fraud by making or using false records and statements or by concealing the true facts surrounding the individuals actually owning the farmland on which MPCI policies were issued and claims were made, knowing that the misrepresentations or concealments were material and knowing and intending that the United States would rely upon them, thereby causing the United States damages. For purposes of the Jury Instructions in this case, the remaining claims will be renumbered as Counts One through Three. In anticipation of trial, both Hawley and the United States filed motions in limine on May 28, 2008. See Plaintiffs Motion In Limine To Bar Reference To Treble Damages, Penalties, And Reimbursement And Payment Procedures Between The Federal Crop Insurance Corporation (FCIC) And North Central Crop Insurance, Inc. (NCCI) (docket no. 33); Defendants’ Motion In Limine Or In The Alternative, For Preliminary Rulings Under Fed.R.Evid. 104(a) (docket no. 34). On June 4, 2008, Hawley filed a Resistance (docket no. 37) to the motion by the United States, and on June 6, 2008, the United States filed a Resistance (docket no. 38) to Hawley’s motion. Hawley filed a Reply (docket no. 39) in support of its Motion In Limine on June 13, 2008. The parties did not request oral arguments on their motions in the manner required by applicable local rules, and the court has not found oral arguments to be necessary. Therefore, the court will rule on the motions on the basis of the parties’ written arguments. II. LEGAL ANALYSIS A. Rule 104 As a preliminary matter, the court notes that Rule 104 of the Federal Rules of Evidence provides, generally, that “[preliminary questions concerning ... the admissibility of evidence shall be determined by the court....” Fed.R.Evid. 104. Such preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.” Fed.R.Evid. 102. The court concludes that preliminary determination of the admissibility of evidence presented or challenged in the parties’ evidentiary motions will likely serve the ends of a fair and expeditious presentation of issues to the jury. Therefore, the court turns to consideration, in turn, of the admissibility of the evidence put at issue in the parties’ pretrial evidentiary motions. B. The Government’s Motion 1. The evidence at issue In its Motion In Limine, the government seeks to exclude two categories of evidence: (1) any references to provisions of the FCA permitting the court to award treble the damages awarded by the jury, 31 U.S.C. § 3729(a), and to award a civil penalty of not less than $5,000 and not more than $10,000 (now $5,500 to $11,000) for each FCA violation found by the jury, 28 C.F.R. § 85.3(a)(9); and (2) any reference to the FCIC reimbursement and payment procedures with NCCI. Hawley does not resist exclusion of the first category of evidence, but does resist exclusion of the second category of evidence. Therefore, the court will grant the first portion of the government’s Motion In Limine, but will give further consideration to the second portion. 2. Admissibility of evidence of reimbursement and payment procedures a. Aryuments of the parties In the disputed part of its Motion In Limine, the government seeks to exclude any reference to the FCIC reimbursement and payment procedures with NCCI as irrelevant under Rules 401, 402, and 403 of the Federal Rules of Evidence. The government argues that FCIC and NCCI entered into a Standard Reinsurance Agreement (SRA), which governs their relationship pursuant to the policy provisions and approved procedures of the federally reinsured MPCI program. The government argues that the SRA is lengthy and technical, setting forth complex procedures for premium subsidies and loss reimbursements when an MPCI policy is written and a loss claim is filed with NCCI. However, the government argues that the details of this complex procedure are confusing and irrelevant to the jury’s deliberations in this case. The government notes that, in a deposition of Calvin D. Brewer, Section Chief of the Reinsurance Accounting and Eligibility Tracking Section for the Risk Management Agency, Hawley’s counsel delved into the “behind the scene” manipulation of the total financial relationship between FCIC and NCCI. However, the government contends that the relevant damages suffered by FCIC are the actual premium subsidies and the total loss payments paid to the ineligible farmers that were reimbursed to NCCI by FCIC. Thus, the government asserts that all other procedures for premium subsidy and loss reimbursement do not affect the amount of money that the farmer actually receives from the MPCI program. Hawley counters that, under the SRA, the FCIC assigned a portion of the indemnity losses, NCCI ultimately paid a portion of the indemnity losses, and the government also retained and offset from the indemnity losses the premiums paid by the insureds. Moreover, Hawley asserts that the Supreme Court has ruled in United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976), that a defendant in a FCA case is entitled to a credit for any amounts recovered by the government from another party. Hawley argues that, here, because the government retained premiums paid by each of the insureds at issue in the case, and recouped from NCCI a percentage of the indemnities paid to the insureds, the evidence of the SRA provisions providing for such credits is relevant. Hawley also points out that it appears from the government’s Exhibit List that the government intends to offer the SRA into evidence and to solicit testimony regarding the operations of the SRA. Therefore, Hawley argues that the court should not permit the government to present favorable evidence regarding the operations of the SRA, but limit Hawley’s ability to use the SRA provisions that show that the government has retained premiums paid by the insureds and recouped some of its losses from NCCI. Finally, Hawley contends that excluding evidence of the amounts recouped by the government may lead to an excessive fíne in violation of the Eighth Amendment to the United States Constitution, where the treble damages and fines provisions bring the FCA within the ambit of the Eighth Amendment, citing United States v. Mackby, 339 F.3d 1013 (9th Cir.2003). b. Analysis Rule 401 of the Federal Rules of Evidence defines “relevant evidence” as “evidence having 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. Rue 402 provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority” and that “[e]vidence which is not relevant is not admissible.” Fed.R.Evid. 402. Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows: Although relevant, evidence may be excluded if its probative value is 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. Here, the United States seeks to exclude the evidence concerning the SRA’s reimbursement and payment procedures on the grounds that it is irrelevant, pursuant to Rules 401 and 402, and confusing, pursuant to Rule 403, but not on the ground that it is otherwise unfairly prejudicial. “ ‘Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues.’ ” Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754, 758 (8th Cir.1995) (quoting United States v. Dennis, 625 F.2d 782, 796-97 (8th Cir.1980)). As to relevance, the court disagrees with Hawley’s contention that United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976), stands for the broad proposition that a defendant in a FCA case is entitled to a credit for any amounts recovered by the United States from another party. Rather, Bomstein stands for the quite different proposition that a tort-feasor, such as a subcontractor, is entitled to a credit for compensation that the United States has recovered from another tort-feasor, such as a prime contractor, but only after doubling (now trebling) the damages for the government’s “original loss.” See Bornstein, 423 U.S. at 314-17, 96 S.Ct. 523. Moreover, nothing in Bomstein suggests that the credit for amounts recovered from another tortfeasor is an adjustment for the jury to make in determining actual damages; rather, the Court determined that the adjustment should be made by the court and only after doubling (or now trebling) the actual damages found by the jury. Id.; see also 31 U.S.C. § 3729(a) (now providing for trebling of actual damages). Thus, the adjustments at issue in Bomstein were not matters for the jury at all. Here, NCCI is not a tortfeasor, even if NCCI reimbursed the government for some part of its indemnity loss pursuant to the SRA, and the retention of premiums paid by the insureds was pursuant to the SRA, not because the insureds turned out to be ineligible and, thus, turned out to be tortfeasors. Therefore, the adjustment in Bomstein is not applicable here to any determination of damages by the jury. Nevertheless, Bornstein does suggest that the baseline for determining the government’s “original loss” should be the government’s “actual damages,” although that decision is not otherwise illuminating on how “actual damages” should be determined in this case. Bornstein, 423 U.S. at 316 & n. 13, 96 S.Ct. 523. On the other hand, this court notes that the Supreme Court provided more general guidance on the determination of actual damages three decades before the decision in Bomstein, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), when the Court observed that the motivating purpose for the FCA was “restitution to the government of money taken from it by fraud.” Marcus, 317 U.S. at 551, 63 S.Ct. 379. In Marcus, the Court also observed that “the device of [then-] double damages plus a specific sum was chosen to make sure that the government would be made completely whole.” Id. at 551-52; see also United States ex rel. Roby v. Boeing Co., 302 F.3d 637, 646 (6th Cir.2002) (“FCA damages ‘typically are liberally calculated to ensure that they “afford the government complete indemnity for the injuries done.” ’ ”) (quoting United States ex rel. Compton v. Midwest Specialties, Inc., 142 F.3d 296, 304 (6th Cir.1998), in turn quoting Marcus, 317 U.S. at 549, 63 S.Ct. 379). This court believes that it is important to distinguish between the calculation of “actual damages,” that is, the government’s “original loss,” on the one hand, and the calculation of treble damages with any appropriate adjustments, on the other. The first calculation, to determine the government’s “actual damages,” Bornstein, 423 U.S. at 316 & n. 13, 96 S.Ct. 523, should be made by the jury, so that the government is first compensated for “money taken from it by fraud.” See Marcus, 317 U.S. at 551. The second calculation, involving trebling of damages and any appropriate adjustment for sums recovered from other tortfeasors and imposition of appropriate penalties, is made by the court, see Bornstein, 423 U.S. at 314-17, 96 S.Ct. 523, and serves the policy purposes of the FCA to ensure that the government is “made completely whole.” Marcus, 317 U.S. at 551-52, 63 S.Ct. 379. From this perspective, it is apparent that the reimbursement provisions of the SRA are relevant to the jury’s calculation of the government’s “actual damages.” Bornstein, 423 U.S. at 316 & n. 13, 96 S.Ct. 523. More specifically, such evidence makes it more probable that the government’s “actual damages” are not the full amount of the MPCI claims paid and the premiums subsidized. See Fed.R.Evid. 401 (defining relevant evidence); Fed.R.Evid. 402 (relevant evidence is generally admissible). Rather, the “money taken from [the government] by fraud,” Marcus, 317 U.S. at 551, 63 S.Ct. 379, is the sum that the government paid out on the fraudulent claims and the amount that it paid in premium subsidies, less the amount of any reimbursement that the government received from NCCI and less any premiums paid by the insureds that the government retained and offset from the indemnity losses, because these offsets are pursuant to the SRA, not because the insureds turned out to be ineligible and, thus, tortfeasors. To put it another way, because these offsets are pursuant to the SRA, only the indemnity losses in excess of these offsets constituted “money taken from [the government] by fraud.” Id. The purpose of the FCA is to make the government “completely whole,” Marcus, 317 U.S. at 551-52, 63 S.Ct. 379, not necessarily to make every entity injured by the fraud — which may include NCCI— “completely whole.” Thus, NCCI’s losses, in the form of its percentage of the indemnities that it paid to the government pursuant to the SRA, are not part of the government’s “actual damages.” Therefore, evidence of the reimbursement and payment provisions of the SRA are relevant to the determination of the government’s “actual damages” pursuant to Rule 401 and admissible pursuant to Rule 402 of the Federal Rules of Evidence. The government, nevertheless, takes the position that this evidence should be excluded pursuant to Rule 403 of the Federal Rules of Evidence because it is confusing. The government’s position, that the “original loss” or “actual damages” calculation for the jury should not be complicated by consideration of the reimbursement and payment provisions under the SRA would certainly simplify presentation of the government’s damages claim to the jury, but it would also produce a windfall to the government in excess of the amount of the “money taken from [the government] by fraud.” Marcus, 317 U.S. at 551, 63 S.Ct. 379. The “confusion” involved is part of what is necessary to prove the government’s actual damages, not “confusion” resulting from injection of extraneous or collateral issues; thus, this is not the sort of “confusion” that warrants exclusion of the evidence pursuant to Rule 403. See Firemen’s Fund Ins. Co., 63 F.3d at 758 (“ ‘Confusion of the issues warrants exclusion of relevant evidence [pursuant to Rule 403] if admission of the evidence would lead to litigation of collateral issues.’ ”) (quoting Dennis, 625 F.2d at 796-97). Therefore, the portion of the government’s May 28, 2008, Motion In Limine seeking to exclude evidence of reimbursement and payment procedures between the FCIC and NCCI and retention by the United States of premiums paid by the insureds pursuant to the SRA will be denied. C. The Defendants’ Motion 1. The evidence at issue The court turns, next, to Hawley’s May 28, 2008, Motion In Limine. In that motion, Hawley seeks to exclude the following eight categories of evidence: (1) any of the government’s proof and arguments disclosed to Hawley after the close of discovery; (2) Hawley’s tax returns and evidence of Hawley’s income, wealth, or financial condition; (3) any reference to “experts”; (4) evidence of experts’ opinions on matters that are legal issues, that involve mixed questions of fact and law, or that are nothing more than telling the jury what result to reach; (5) evidence that Russell Hawley has, on occasions other than those at issue in this case, signed the name of insureds to insurance documents; (6) evidence of other alleged “bad acts” by Hawley; (7) hearsay statements of various witnesses secured by one or more employees or agents of the government; and (8) evidence of the “Pretrial Diversion Agreements” and memoranda or “proposed” settlement agreements with the ineligible insureds. The government resists Hawley’s motion in its entirety. Therefore, the court will consider the admissibility of these categories of evidence in turn. 2. Evidence disclosed after the close of discovery a. Arguments of the parties Hawley first asks the court to limit the government’s proof to answers to interrogatories and requests for production provided before the close of discovery. Hawley explains that the government made timely responses to Interrogatories 2-5, 7-8, and 11-21, and Requests for Production 13-14 and 16, all included in Exhibits A and B in the Appendix to Haw-ley’s Motion In Limine. Hawley contends that allowing the government to call witnesses not disclosed in the timely responses would constitute unfair surprise. Haw-ley also contends that any expert opinions and testimony should be limited to opinions and testimony consistent with the government’s initial expert disclosures and timely responses to Interrogatory 3, despite the government’s attempt to “supplement” its discovery responses on May 23, 2008, to include additional opinions of its experts and identifying, for the first time, a PowerPoint presentation and other reports, data, and material the substance of which was not previously disclosed. Haw-ley also contends that, on or about May 14, 2008, as shown in Exhibit D, the United States obtained ex parte orders securing the grand jury testimony of Edward Marshall, Donald Kluver, Mark Hoffman, and Russell Hawley, and then served the same on Hawley’s counsel. Hawley contends that, on May 23, 2008, the government served untimely supplemental responses to Hawley’s interrogatories and requests for production and miscellaneous documents concerning grand jury testimony, but the disclosed transcripts and miscellaneous documents fell within the ambit of discovery requests and Rule 26 of the Federal Rules of Civil Procedure, and the government made no attempt to supplement its responses before the close of discovery, even though the transcripts and documents were in the control of the government. Finally, Hawley contends that the government should be limited in evidence and argument to the policies, procedures, statutes, ordinances, regulations, standards, facts, and contentions set forth in its timely answers to Interrogatories 7-8 and 11-21, because any additional evidence or argument would constitute unfair surprise, including documents only disclosed under a cover letter dated March 20, 2008. In response, the government argues that it supplemented its discovery responses in a timely manner for completeness, as it has a duty to do, and that none of the information was new to the defendants. More specifically, the government argues that Leann Koch and Lee Gutknecht were previously disclosed as “persons with knowledge” in Amended Initial Disclosures provided on December 28, 2007, and on May 23, 2008, and the government merely supplemented its earlier responses by adding Mr. Gutknecht and Ms. Koch as persons with knowledge and potential witnesses. The government asserts that Hawley has had access to these persons, as Gutknecht is Russell Hawley’s former supervisor and his friend, and Koch is a former employee now working as a licensed crop insurance agent. Thus, the government asserts that there is no “unfair surprise” in the disclosure of these persons as witnesses on May 23, 2008, where the government has only added clarification of the information that these witnesses may provide. The government also argues that there is no “unfair surprise” in the documents that were added in supplemental responses, because Hawley had already received the NCCI Standard Reinsurance Agreement, Plan of Operations, Manual 14, and FCIC Document Standards Handbook in initial disclosures and Hawley is familiar with these documents. Thus, the government asserts that there is no “unfair surprise” in a disclosure that these documents will be used at trial. The government argues, next, that Hawley never requested that grand jury transcripts be released by the court, even though Hawley was aware of the grand jury proceedings, and the government could not have provided those transcripts without first obtaining leave of court. The government explains that it did not request release of the transcripts sooner, because some of the testimony is related to ongoing investigations. The government contends that the Supreme Court has held that the secrecy of grand jury proceedings must not be broken except where there is a compelling necessity and argues that no such necessity existed until trial in this case was imminent and witnesses would need to see their previous testimony. The government points out that it had already provided Hawley with all witness statements obtained outside of the grand jury proceedings. The government also argues that the grand jury testimony will not be offered as substantive evidence, but will be used to refresh witnesses’ memories or for impeachment. In reply, Hawley admits that LeAnn Koch was previously disclosed as a fact witness and, therefore, Hawley does not object to any supplemental disclosures that concern her role as such. Moreover, Haw-ley does not object to testimony by Lee Gutknecht, to the extent that he testifies only as a fact witness, but Hawley does object to the extent that the government now seeks to introduce “opinion-like testimony” from that witness, because other expert witnesses have already been identified. As to those other experts, Hawley contends that the government is now im-permissibly seeking to expand the subject matter of their testimony. Hawley contends that it determined which experts to depose based on the government’s prior disclosures, so that the government should not be allowed to add to its experts’ opinions at this late date. Hawley explains, further, that the government did not previously disclose a PowerPoint presentation by Mark Price that exceeds the scope of the matters addressed in his report, and Hawley had decided not to depose Price based on his report. Hawley also explains that the government has not previously disclosed that Richard Schwartzbeck would testify that he was responsible for developing the certification line for agents on the crop applications and acreage reports or that he will, presumably, discuss that certification line. Hawley also contends that the government has provided no good reason why it did not secure and produce the grand jury testimony prior to the close of discovery, because the two cases involved in the government’s supposed “ongoing investigation” were finished prior to this case. Hawley also contends that the government admits that it is trying to “lock in” statements previously given by the witnesses to USDA agents, thereby acknowledging that the prior statements are hearsay, and that the grand jury testimony was obtained without benefit of cross-examination. Thus, Haw-ley contends that the government has waited to produce sworn grand jury testimony until after discovery has closed, which Hawley argues is behavior that the court should not reward. b. Analysis The court “‘start[s] with the premise that a district court may exclude from evidence at trial any matter which was not properly disclosed in compliance with the Court’s pretrial order.’ ” Life Plus Int’l v. Brown, 317 F.3d 799, 803 (8th Cir.2003) (quoting Dabney v. Montgomery Ward & Co., 692 F.2d 49, 51 (8th Cir.1982), with internal quotations omitted, cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983)). However, when a party fails to make a timely disclosure of evidence, for example, by failing to provide information or identify a witness in compliance with Rule 26(a) or (e) of the Federal Rules of Civil Procedure, “the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” Wegener v. Johnson, 527 F.3d 687, 691-92 (8th Cir.2008). As the Eighth Circuit Court of Appeals just recently explained, The district court may exclude the information or testimony as a self-executing sanction unless the party’s failure to comply is substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). When fashioning a remedy, the district court should consider, inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony. Sellers v. Mineta, 350 F.3d 706, 711-12 (8th Cir.2003); see also Marti v. City of Maplewood, 57 F.3d 680, 683 (8th Cir.1995) (setting forth a variety of possibly relevant factors). Wegener, at 691-92. The court has noted, however, “that the district court’s discretion narrows as the severity of the sanction or remedy it elects increases.” Id. at 692-93. The court concludes that Hawley has not been unfairly surprised by any of the purportedly belated supplementation of the government’s discovery responses, even if they are technically untimely, and that, where disclosure might be technically untimely, the government has offered substantial reason for noncompliance. More specifically, as to expert witnesses, Rule 26(e)(2) of the Federal Rules of Civil Procedure provides that a party has a duty to supplement both information included in an expert’s report and information given during the expert’s deposition and, of more interest here, provides that “[a]ny additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed.R.Civ.P. 26(e); see also Wegener, at 690-91 (the timeliness of supplemental expert disclosures is controlled by Rule 26(e)). Rule 26(a)(3) provides, in turn, that, “[u]nless the court orders otherwise, these [pretrial] disclosures must be made at least 30 days before trial.” Fed. R.Civ.P. 26(a)(3). Hawley does not assert, and the court does not find, that any earlier deadline is applicable pursuant to a court order. The court finds that the challenged supplemental expert disclosures were made on or before May 28, 2008, more than thirty days before trial is scheduled to begin on June 30, 2008. Therefore, the government’s supplementation of its expert disclosures more than thirty days before trial was timely. Id. The government’s May 22, 2008, supplemental response to discovery requests provides the following updated information about Lee Gutknecht’s anticipated testimony, which Hawley argues suggests that he will give “opinion-like” testimony: This individual [previously identified only as “[i]ndividuals from entity f/k/a NCCI] is Lee Gutknecht previously disclosed in Amended Disclosure. Gut-knecht has knowledge of defendants’ training; and in the area of compliance; Gutknecht is also knolwedgeably [sic] in the SRA and Guidelines and Expectations for delivery of federal crop insurance program (Manual 14), the Policies and procedures set out in the CRC policy, Crop Insurance Handbook and NCCI Agent Manual.” Defendants’ Appendix (docket no. 34-8), 70. Based on this disclosure, the court can only speculate as to what “opinion-like” testimony Hawley fears will be elicited from Mr. Gutknecht. Nevertheless, the court observes that, to the extent that Mr. Gutknecht’s testimony involves opinions based on scientific, technical, or other specialized knowledge, rather than first hand personal knowledge, it would trespass into the zone of “expert” testimony for which he has not been designated. See Fed. R.Evid. 602 (stating the personal knowledge requirement); 702 (permitting lay opinions where, inter alia, they are “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702”); 702 (permitting opinion testimony by persons qualified as experts). However, to the extent that his opinions comply with Rule 701 of the Federal Rules of Evidence, they may be permissible lay opinions. See Fed.R.Evid. 701 (opinions of witnesses not testifying as experts are permissible if they are “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702”). Hawley has not demonstrated that Mr. Gutknecht’s testimony must be excluded as improper opinion testimony. As to other witnesses and documents, the court also finds no unfair surprise in the timing of the government’s supplemental disclosures, even supposing the disclosures to be untimely. It appears that all such.witnesses and documents were either already known to Hawley from the government’s timely disclosures and discovery responses, or were disclosed sufficiently in advance of trial that Hawley has had a fair opportunity to review the documents or the witnesses’ likely testimony and to prepare to address them. Thus, Hawley is not prejudiced, nor will allowing the information or testimony disrupt the order and efficiency of the trial. Wegener, at 691-92 (in considering a sanction for untimely disclosure, the court must consider, inter alia, “the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony”). As to grand jury testimony, the court’s analysis is slightly different, but the conclusion is ultimately the same. The court finds, in the first instance, that the timing of the government’s disclosure is substantially justified. Id. (the court must also consider the reason for noncompliance). The government is correct that Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure permits a court to authorize disclosure of grand jury proceedings “preliminarily to or in conjunction with a judicial proceeding.” However, to obtain such disclosure, the party seeking disclosure must show “particularized need” for the materials and the court must consider “the extent of the need for continuing grand jury secrecy.” McAninch v. Wintermute, 491 F.3d 759, 767 (8th Cir.2007) (so summarizing the requirements more specifically identified as “the extent of the need for continuing grand jury secrecy, the need for disclosure, and the extent to which the request was limited to that material directly pertinent to the need for disclosure”). Here, the government has shown that it did not seek disclosure of grand jury testimony sooner, because there was still a need to maintain secrecy of the grand jury proceedings owing to ongoing investigations. Id. (recognizing this factor as pertinent to deciding whether grand jury testimony should be disclosed). The government is also correct that Hawley was aware of the grand jury proceedings, because Russell Hawley had been called as a witness in such proceedings, and Hawley could have petitioned the court for earlier disclosure of the grand jury testimony. Although Hawley contends that the two cases in which “ongoing investigations” were supposedly in progress ended before this case, Hawley has not shown that those cases ended substantially before the government sought permission to disclose the grand jury testimony or, indeed, that those are the only two cases in which the government had “ongoing investigations” to which the grand jury testimony pertained. Even assuming that the disclosure of the grand jury testimony is “untimely,” in relation to the conclusion of the other cases in which “ongoing investigations” were supposedly occurring, Hawley admits that the government obtained ex parte orders for disclosure of grand jury testimony on May 14, 2008, and actually served supplemental responses to Hawley’s interrogatories and requests for production and miscellaneous documents concerning grand jury testimony on May 23, 2008, more than thirty days before the trial set to begin on June 30, 2008. Thus, the disclosure of the grand jury testimony complied with Rule 26(a)(3)(B), concerning pre-trial supplementation of discovery responses, if the transcripts of that testimony are intended as substantive evidence. The court notes that the government also argues that the grand jury testimony will not be offered as substantive evidence, but will be used to refresh witnesses’ memories or for impeachment. Thus, the supplementation requirement of Rule 26(a)(3) may not apply at all, and disclosure of the grand jury testimony may actually have been more than was required. See Fed.R.Civ.P. 26(a)(3)(A) (supplementation is only required for evidence that may be presented at trial “other than solely for impeachment”). Consequently, the court finds that the timing of the government’s disclosure of grand jury testimony is substantially justified and that such evidence is not subject to exclusion on the basis of untimely disclosure. Wegener, at 691-92 (the court must consider the reasons for untimely disclosure). Therefore, this portion of Hawley’s Motion In Limine will be denied. 3. Hawley’s tax returns and other financial information a. Arguments of the parties Next, Hawley seeks to exclude evidence of his tax returns and other evidence of both the individual defendant’s and the corporate defendant’s financial condition, income, and net worth on the ground that such evidence is irrelevant under Rule 401 of the Federal Rules of Evidence, because nothing about such evidence tends to prove any elements of the government’s case or to disprove any defense Hawley may tender. Assuming, for the sake of argument, that such evidence is relevant, Hawley contends that it should nevertheless be excluded pursuant to Rule 403, because any probative value of such evidence is substantially outweighed by the danger of unfair prejudice. Hawley acknowledges that the commissions that the defendants earned may be relevant, but their overall income and wealth are not. Hawley argues that such income and wealth evidence may also cause the jury to punish Hawley for making money and accumulating wealth or consider Hawley’s ability to pay as the basis for determining damages, if any. The government argues that such evidence is relevant and not prejudicial. Specifically, the government argues that evidence of the commissions that Hawley made from sales of MPCI policies to Klu-ver, the Hoffmans, Marshall, and the Win-quists is relevant in proving Hawley’s motive to submit a false claim, as well as recklessness. The government contends that evidence of Hawley’s wealth or income is relevant to the same issues, because income is relevant to showing that Hawley was highly compensated for what Russell Hawley described in his deposition as “filling out paperwork.” The government also argues that any potential prejudice can be eliminated by an instruction limiting the use of such evidence. The government argues, in the alternative, that Hawley’s motion to exclude this evidence is premature, because such evidence may become relevant in the course of trial. In reply, Hawley argues that the government has admitted that the real reason for offering evidence of Hawley’s income and wealth is to show that Hawley was “highly compensated” for filling out paperwork. Hawley argues, however, that the fact that he was highly compensated for his work is irrelevant and prejudicial. Hawley also argues that the government has not shown how all of this evidence shows motive and recklessness. Hawley admits that evidence of his commissions might be relevant to show motive and recklessness, but evidence of his income and wealth is not, because it would prove, if anything, lack of motive, because it raises the question of why Hawley would risk such a highly compensated career and accumulating wealth for one or two ineligible insureds. Hawley also argues that the government’s argument that determination of the admissibility of this evidence is premature is unpersuasive, where this trial is scheduled for four days, not several weeks. 6. Analysis Hawley seeks exclusion of this evidence on relevance grounds, pursuant to Rule 401, and on prejudice grounds, pursuant to Rule 403. The Eighth Circuit Court of Appeals has recently explained “prejudice” within the meaning of Rule 403 as follows: Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion. United States v. Henderson, 416 F.3d 686, 693 (8th Cir.2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). Rule 403 “does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis.” Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). United States v. Myers, 503 F.3d 676, 681 (8th Cir.2007); United States v. Farrington, 499 F.3d 854, 858-59 (8th Cir.2007). The Advisory Committee Notes to Rule 403 explain that a decision on an “improper basis” is “commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir.1997) (considering whether evidence was unfairly prejudicial, because it might lead to a decision on an improper basis, where it purportedly had no connection to the charged offense and revealed grisly or violent behavior that made the defendant appear “dangerous”). Unfairly prejudicial evidence has also been described as evidence that is “ ‘so inflammatory on [its] face as to divert the jury’s attention from the material issues in the trial.’ ” United States v. Adams, 401 F.3d 886, 900 (8th Cir.2005) (quoting United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.1995)). The Advisory Committee’s Notes to Rule 403 also explain that a determination on unfair prejudice should include consideration of the possible effectiveness or lack of effectiveness of a limiting instruction. Fed.R.Evid. 403, Advisory Committee Notes; see also United States v. Hawthorne, 235 F.3d 400, 404 (8th Cir.2000) (finding that relevance of evidence was not outweighed by any potential prejudice within the meaning of either Rule 404(b) or Rule 403 where the evidence was used for a limited purpose and the district court gave a limiting instruction). More specifically, evidence of a defendant’s financial condition and income may be relevant to the defendant’s motive for a fraudulent scheme, see, e.g., United States v. Wainright, 351 F.3d 816, 821 (8th Cir.2003), but it also has some potential for unfair prejudice. For example, as the government asserts, in United States v. Quattrone, 441 F.3d 153 (2d Cir.2006), the Second Circuit Court of Appeals found that the district court had not abused its discretion in admitting evidence of the defendant’s “substantial salary” during two years to establish a motive for the defendant to obstruct IPO allocation investigations over the defendant’s contention that the evidence was irrelevant and unduly prejudicial, in that it invited the jury to engage in class-based bias against him. Quattrone, 441 F.3d at 187. In affirming the lower court, the Second Circuit Court of Appeals observed, “While evidence of compensation, wealth, or lack thereof can unduly prejudice jury deliberations, that evidence may be admitted where other safeguards are employed such as limiting instructions or restrictions confining the government’s references to that wealth.” Id. The court found no undue prejudice in that case, because the government’s references to the defendant’s compensation during its opening statement and summation specified that evidence of his compensation was to be used for the limited purpose of establishing a motive to obstruct and could not be used to convict the defendant simply because of his wealth. Id.; see also Fed.R.Evid. 403, Advisory Committee Notes (a determination on unfair prejudice should include consideration of the possible effectiveness or lack of effectiveness of a limiting instruction); accord Hawthorne, 235 F.3d at 404 (finding that relevance of evidence was not outweighed by any potential prejudice within the meaning of either Rule 404(b) or Rule 403 where the evidence was used for a limited purpose and the district court gave a limiting instruction). It would certainly be improper for the government to argue or suggest that anyone who is paid on a commission necessarily has a motive to engage in fraudulent schemes to increase his or her commissions. Nevertheless, the court has little hesitation in concluding that evidence of the amount of compensation that Hawley received for writing the allegedly fraudulent MPCI policies at issue in this case is relevant to show his motive to write fraudulent policies, and that such evidence is not unduly prejudicial. Cf. Quattrone, 441 F.3d at 187 (evidence of the defendant’s “substantial salary” in two years during which he allegedly obstructed an IPO allocation investigation was relevant to show his motive and not unduly prejudicial). Hawley concedes that evidence of his commissions is relevant. More general evidence of Hawley’s income and financial condition, on the other hand, has less probative value and greater potential for undue prejudice, as it has a greater tendency to invite the jury to find against him because of his wealth or because the jury believes that he is overpaid for “filling out paperwork.” Id. (recognizing that “evidence of compensation, wealth, or lack thereof can unduly prejudice jury deliberations”). However, Hawley’s contention that evidence of his income and wealth does not show motive or recklessness, because such evidence shows that he would not risk his income or wealth for one or two ineligible insureds, i.e., that it is less probable that he had a motive to engage in fraudulent activity, simply demonstrates the relevance of the evidence. Rule 401 defines relevant evidence as “evidence having 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 (emphasis added). Moreover, in the court’s view, any potential for undue prejudice from the financial evidence could be limited by an appropriate limiting instruction that such evidence may be considered by the jury only in its determination of Hawley’s motive to engage in fraudulent activity or recklessness as to the possibility of fraud, and not to find against him simply because of his wealth or because the jury may believe he is overcompensated for the work he does. Cf. Quattrone, 441 F.3d at 187 (finding that the government had reminded the jurors to use similar evidence for the limited purpose of determining motive); Hawthorne, 235 F.3d at 404 (finding that relevance of evidence was not outweighed by any potential prejudice within the meaning of either Rule 404(b) or Rule 403 where the evidence was used for a limited purpose and the district court gave a limiting instruction); Fed.R.Evid. 403, Advisory Committee Notes (explaining that a determination on unfair prejudice should include consideration of the possible effectiveness or lack of effectiveness of a limiting instruction). Therefore, the portion of Hawley’s Motion In Limine seeking to exclude evidence of his tax returns and other evidence of both the individual defendant’s and the corporate defendant’s financial condition, income, and net worth will be denied. 4. References to “experts” a. Arguments of the parties Relying on an article, proposed order, and proposed jury instruction by Hon. Charles Richey, United States District Judge for the District of Columbia, Haw-ley argues that the court should prohibit the use of the term “expert” by the parties and the court. Hawley argues that such a prohibition is appropriate to ensure that the court does not inadvertently put its stamp of authority on the opinion of a witness and to protect the jury from being overwhelmed by so-called “experts.” In short, Hawley argues that such a prohibition is necessary to prevent “expert” testimony from becoming unduly prejudicial before jurors. Hawley also proposes an order and limiting instruction used by Judge Richey to avoid unfair prejudice. The government argues that Eighth Circuit Model Criminal Instruction No. 4.10 plainly contemplates that the court and the parties may identify certain witnesses as “experts.” The government also argues that this instruction advises the jurors that they may accept or reject expert testimony and give it any weight that they think it deserves. Thus, the government argues that this instruction is adequate to ensure that jurors do not give undue weight to testimony that has been labeled “expert.” Avoiding use of the term “experts,” the government suggests, would be needlessly confusing and complicated. In the alternative, the government suggests that the court may refrain from referring to witnesses as “experts,” but should not prohibit the parties from doing so. The government argues that the parties are, in essence, arguing that their witnesses are qualified to give expert testimony. In reply, Hawley argues that Judge Richey’s rationale for a limiting instruction applies, even if exclusion of the term “expert” is not ordinarily done in the Eighth Circuit. Hawley also argues that, contrary to the government’s contentions, Judge Richey has identified an alternative description of such witnesses as “opinion witnesses.” b. Analysis The court has reviewed Judge Richey’s article, Proposals to Eliminate the Prejudicial Effect of the Use of the Word “Expert” under the Federal Rules of Evidence in Civil and Criminal Trials, 154 F.R.D. 537 (July 1994), cited by Hawley in support of his argument that the court should prohibit references to “experts.” The court finds that Judge Richey has also put his thoughts into practice, for example, in United States v. Thomas, 797 F.Supp. 19 (D.D.C.1992), in which he prohibited anyone from referring to a witness as an “expert,” because he “believe[d] that using the term ‘expert’ may encourage a jury to give the witness’ testimony more weight than it is fairly entitled to receive.” Thomas, 797 F.Supp. at 24. Although Judge Richey acknowledged that Rules 702 and 703 of the Federal Rules of Evidence do not preclude use of the term “expert,” “the rules make clear that the purpose of the testimony is to allow a witness with specialized knowledge to state an opinion,” so that referring to the witness as an “opinion witness” “explained the purpose of the testimony to the jury in a manner more consonant with the interests of justice.... ” Id. Moreover, Judge Richey gave an instruction as to how the jurors should consider the testimony of opinion witnesses, and explained that this limiting instruction and avoidance of the term “expert” were “designed to dispel any possible prejudice [the witness’s] testimony might have engendered.” Id. at 25; see also United States v. Mitchell, 796 F.Supp. 13, 20 (D.D.C.1992) (taking the same approach). The court has also reviewed Judge Rich-ey’s proposed order prohibiting counsel from using the word “expert” and, instead, directing counsel to refer to such persons as “opinion” witnesses, see Defendants’ Exhibit G, as well as his proposed jury instruction on “opinion witness testimony.” See Defendants’ Exhibit H. Judge Richey’s proposed jury instruction is as follows: Ladies and Gentlemen, please note that the Rules of Evidence ordinarily do not permit witnesses to testify as to them opinions and conclusions. Two exceptions to this rule exist. The first exception allows an ordinary citizen to give his or her opinion as to matters that he or she observed or of which he or she has first hand knowledge. The second exception allows witnesses who, by education, training and experience, have acquired a certain specialized knowledge of some art, science, profession or calling, to state an opinion as to relevant material matters. The purpose of opinion witness testimony is to assist you in understanding the evidence and deciding the facts in this case. You are not bound by this testimony and, in weighing it, you may consider his or her qualifications, opinions and reasons for testifying, as well as all other considerations that apply when you evaluate the credibility of any witness. In other words, you should give it such weight as you think it fairly deserves and consider it in light of all the evidence in this case. Defendants’ Exhibit H; see also Thomas, 797 F.Supp. at 21-22 (using a similar instruction). Although this court acknowledges that Judge Richey’s concerns about use of the term “expert” have some foundation, this court nevertheless does not believe that it is necessary to prohibit use of the term “expert” to avoid “encouraging] a jury to give the witness’ testimony more weight than it is fairly entitled to receive.” Contra Thomas, 797 F.Supp. at 24. Rather, such potential prejudice can be avoided by instructing jurors on the way in which they are to determine what weight to give to a purported “expert’s” opinion. See Fed.R.Evid. 403, Advisory Committee Notes (explaining that a determination on unfair prejudice should include consideration of the possible effectiveness or lack of effectiveness of a limiting instruction). Specifically, jurors should be instructed to consider the manner in which an “expert” becomes qualified to give an opinion on matters within the witness’s field; that the jurors are to decide what weight to give the witness’s testimony based on the witness’s qualifications and the reasons and methods used to reach an opinion; that jurors are to consider the testimony of such witnesses just like the testimony of any other witnesses; and that jurors may ultimately give the opinions of expert witnesses whatever weight the jurors deem appropriate. See, e.g., United States v. Cerone, 830 F.2d 938, 951 (8th Cir.1987) (finding no error where “the district court instructed the jury that expert testimony should be considered just like any other testimony and be given whatever weight the jury finds appropriate in light of the expert’s qualifications and all the other evidence”); Spears v. Hough, 458 F.2d 529, 531 (8th Cir.1972) (“The trial court properly instructed the jury that they were not bound by the opinions given by the experts, and could give those opinions the weight, if any, to which they deemed them entitled.”); see also Fed.R.Evid. 702 (expert testimony is admissible if it is “based upon sufficient facts or data,” “is the product of reliable principles and methods,” and “the witness has applied the principles and methods reliably to the facts of the case”). The court finds that Eighth Circuit Model Criminal Instruction No. 4.10 addresses the appropriate matters to advise the jurors how to treat so-called “expert” testimony, as follows: You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion. Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case. This court recognizes, however, that the “expert” status of such witnesses and the “expert” nature of their testimony may be appropriately de-emphasized by eliminating unnecessary references to “experts” and “expert testimony” and/or by identifying such persons as “expert witnesses,” rather than simply as “experts,” so that it is more apparent that the weight to be given to their testimony, just like the weight to be given to any other witnesses’ testimony, is a matter for the jurors to decide. The court also believes that it is beneficial to contrast “expert” witnesses and lay witnesses with regard to their ability, in general, to offer opinions instead of to testify only about matters in their personal knowledge. Compare Fed. R.Evid. 702 (testimony by experts may include opinions), with Fed.R.Evid. 602 (generally, a witness may only testify to a matter if the witness has personal knowledge of the matter). Furthermore, the court believes it is appropriate to point out that, just like any other witness, an “expert” may be impeached for bias. With these thoughts in mind, this court will modify this Circuit’s Model Jury Instruction on “experts” as shown below in a side-by-side presentation, with points of comparison shown in italics, and with certain other stylistic modifications that the court Eighth Circuit Model Criminal Jury Instruction No. 4.10: You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for then-opinion. Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the ease. Therefore, the court will grant the part of the defendants’ motion seeking to eliminate references to “experts,” but only to the extent that the court will use the modified instruction shown above. Neither the court nor the parties will be prohibited from using the term “expert,” however. 5. Expert opinions on legal issues and results to reach a. Arguments of the parties Next, Hawley seeks to exclud