The Denver-based federal appeals court upheld the convictions of a Fort Carson resident on Tuesday, concluding that the prosecution did not violate the rules governing the disclosure of evidence.

Mitchel Crow stood trial on seven counts of sexual abuse of a minor. A jury found him guilty on three counts, and he received a sentence of 168 months in prison.

Crow’s theory of defense was that he suffered from “sexsomnia,” a sleep disorder in which a person engages in sex acts during their sleep. He retained Clete A. Kushida, a Stanford University neurologist, as an expert. The government, in turn, relied on expert Michel Cramer Bornemann of Minneapolis. Each witness provided a report supporting or disputing the sexsomnia theory.

Prior to trial, U.S. District Court Senior Judge Raymond P. Moore permitted the experts to remain in the courtroom and listen to each other’s testimony.

During Kushida’s testimony, he spoke about the concepts of “secondary gain,” meaning Crow’s motive to claim sexsomnia, and “malingering,” meaning exhibiting false symptoms.

Before Bornemann testified, the prosecution notified Moore that the expert had “significant disagreement with the testimony he heard today,” more than could be captured by “a quick written summary.”

Moore initially brushed aside the concern.

“Once you have basically said, ‘We’re going to let this expert listen to that expert and this one listen to that one,’ it is hardly surprising to me that things start changing on the margins. So, buckle up, buttercup. Let’s go,” he said.

Public defender Timothy P. O’Hara, who later became a federal magistrate judge, cited the criminal rule requiring advance governmental disclosure of expert opinions. He asked Bornemann to put his opinion into typewritten form, and not the handwritten note he received from the prosecution.

Moore lost patience, warning that “we’re not doing this” because the jury’s “time is just being wasted, wasted, wasted.”

“You wanted a process where both experts sit in the room and listen to each other,” he said. “It is hardly a surprise to sit there and say that one expert listening to another hears something on the stand, and now disagrees with it. And that somehow that can be blocked by saying, ‘I didn’t get enough advanced notice.’ This is the bed that you both wanted to sleep in. That’s the bed you made. That’s the bed we’re all in. I’m not changing things.”

Moore ultimately gave O’Hara 20 minutes to speak with Bornemann, rather than the requested amount of 30 minutes to an hour. After O’Hara lodged another objection, Moore said he was not spending any more time on the issue.

“This witness’s entire testimony comes down to this: You don’t hunt 15-year-olds in your sleep,” he said. “There’s nothing about that that should be surprising to you. There’s nothing about that that requires all this additional time. There’s nothing about this that is in any way disadvantaging you or your client. It’s just simply lawyer recordkeeping.”

On appeal, Crow argued that Bornemann’s testimony improperly opined about malingering when his report did not address the subject at all. Therefore, Moore was incorrect to bar a more fulsome exploration of those opinions.

The government responded to argue that, under the circumstances, the disclosure rule was not implicated.

“Bornemann’s opinion was in response to Kushida’s opinion — expressed for the first time on the stand — that he did not think Crow was malingering. Under the fluid process agreed to by the parties, the government’s supplemental disclosure complied,” wrote Assistant U.S. Attorney Rajiv Mohan.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed.

“This testimony about malingering hadn’t appeared in Dr. Kushida’s report. Because Mr. Crow hadn’t disclosed Dr. Kushida’s new opinion about malingering,” wrote Judge Robert E. Bacharach in the May 19 opinion, the rules “didn’t require the government to disclose before trial how Dr. Bornemann would counter these opinions.

“After all,” he continued, “how could the government have said how it would respond to opinions by Dr. Kushida that he himself hadn’t revealed?”

The case is United States v. Crow.