Error In Providing Notice of Expert Witness Subject To Harmless Error Assessment

In drug distribution and illegal possession of a fire arm trial, failure to provide sufficient notice to defendant pursuant to Fed. R. Crim. P. 16(a)(1)(G) (summary of any testimony that the government intends to use under FRE 702, 703, or 705) is not reversible error unless the defendant demonstrates that he was prejudiced by admission of the challenged evidence, in United States v. Tenerelli, __ F.3d __ (8th Cir. August 2, 2010) (No. 09-2948)

Federal Rule of Criminal Procedure 16(a)(1)(G) directs that the government supply a requesting defendant “a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” If the prosecutor fails to to provide the notice the rule requires, the trial court may order disclosure, grant a continuance, prohibit a party from introducing the evidence, or grant relief as is “just under the circumstances.” Fed.R.Crim.P. 16(d)(2). In a recent case, the Eighth Circuit examined how to appropriately resolve a failure of notice, when a defendant asserting error fails to demonstrate prejudice from the failure to give notice.

In the case, defendant Tenerelli was charged with drug distribution of methamphetamine and illegal possession of a firearm. At trial, investigating officers testified about a controlled buy arranged with the defendant. This testimony was "corroborated by seized drug notes written by Mr. Tenerelli that referenced the cooperating witness." In addition, the prosecutor presented evidence that the defendant "was in possession of [a] firearm, ammunition, and methamphetamine. At the time the search warrant was executed at his residence, Mr. Tenerelli was found in the living room in close proximity to the firearm and methamphetamine. Seized items at the residence, includ[ed] a cable bill addressed to Mr. Tenerelli and drug notes in his handwriting." In addition, the prosecutor tied the handwriting to the defendant by presenting the testimony of a government handwriting expert. The jury convicted the defendant and he appealed. Tenerelli, __ F.3d at __.

One ground for the defendant's appeal involved his contention that the handwriting expert should have been excluded from testifying because he did not receive "adequate time to prepare cross-examination nor retain its own expert to refute the opinion because the government failed to provide adequate notice of the testimony as required by Federal Rule of Criminal Procedure 16(a)(1)(G). The government countered that the defense was aware of the handwriting samples taken from Mr. Tenerelli's residence and invited to examine them as early as October 2007. The government also argued that it made [the handwriting expert's] report available to the defense as soon as it received the report in compliance with Rule 16 and all relevant district court orders." Tenerelli, __ F.3d at __.

The circuit did not focus on the question of the notice required by the criminal rule. Rather, the circuit noted that had an error occurred in providing notice, the defendant still would need to "demonstrate prejudice resulting from the district court's decision to admit the contested testimony.” Tenerelli, __ F.3d at __ (citing United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007) ("while specific Rule 16 notice was not provided to the defendants, they were provided notice that Officer Orsi would be testifying.... Even if Cooley was unaware that Officer Orsi would be testifying in an expert capacity at trial, he was made aware of the nature of Officer Orsi's testimony. Cooley has failed to show any prejudice from this lack of notice."); United States v. Anderson, 446 F.3d 870, 875 (8th Cir. 2006) ("when there is a failure to disclose, and the court nonetheless admits the testimony, a defendant asserting error must demonstrate prejudice resulting from the district court's decision")).

The inability to show prejudice rendered discussion of whether the notice complied with the criminal rule pointless. According to the circuit:

"It appears that [government handwriting expert] Ms. Runyon was made reasonably available to defense counsel prior to trial and Mr. Tenerelli did not request a continuance of his trial in order to prepare a defense to counter Ms. Runyon's analysis. Instead, Mr. Tenerelli sought only exclusion to cure the allegedly late disclosure of the contents of Ms. Runyon's proposed testimony. Mr. Tenerelli does not demonstrate how his defense was prejudiced by the allegedly late notice of the contents of Ms. Runyon's testimony or how he would have been able to counter the testimony if it had been earlier disclosed. Mr. Tenerelli does not demonstrate prejudice and we accordingly find no error in the admission of the expert testimony."
Tenerelli, __ F.3d at __.

Most other circuits have required a similar showing of prejudice in order to provide relief from a failure of notice, among them:

  • Fifth Circuit: United States v. DeWeese, 632 F.2d 1267, 1272-73 (5th Cir. 1980) (although prosecutor informed defendant that witness would be testifying during the day before the trial, because the defendant failed to show prejudice other than an inability to properly prepare for cross examination, the defendant's conviction was affirmed)
  • Seventh Circuit: United States v. Miller, 199 F.3d 416, 420 (7th Cir. 1999) (a failure to properly disclose expert witness testimony did not warrant a new trial unless "the remedy offered by the district court was inadequate to provide [the defendant] with a fair trial")
  • Ninth Circuit: United States v. Mendoza, 244 F.3d 1037, 1047 (9th Cir. 2001) (failure to comply with Rule 16 only compelled reversal where defendant shows "prejudice to substantial rights [such that ] ... the verdict would have been different had the government complied with the discovery rules, not had the evidence [been] suppressed")

Federal Rules of Evidence