00-3977 U.S. v. Duvall

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“We believe that the government’s notice did not adequately summarize or describe Erk’s trial testimony. The Rule requires a summary of the expected testimony, not a list of topics. The government’s notice provided a list of the general subject matters to be covered, but did not identify what opinion the expert would offer on those subjects. For example, the statement that Erk would testify concerning ‘the manner in which methamphetamine is distributed’ does not in any way identify the particular opinion that Erk offered at trial – for example, that methamphetamine is typically divided into small packages for distribution. Similarly, the statement that Erk would testify ‘concerning amounts of methamphetamine an individual might have for distribution, as opposed to personal use,’ does not identify what amount, according to Erk, would point to intended sales rather than use.

“Nevertheless, exclusion of the testimony is not the only remedy available to the district court for a violation of Rule 16(a)(1)(E)… Duvall did not identify (to the district court or to this court) any prejudice that could have been avoided by a more detailed notice, and therefore we believe the court was within its discretion in denying Duvall’s motion to exclude Erk’s testimony… Furthermore, even if it was error to admit the evidence, it was harmless.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Williams, J.