United States v. Nacchio
Full Opinion (html_with_citations)
A jury convicted Joseph Nacchio, the former CEO of Qwest Communications International, Inc. (âQwestâ), of nineteen counts of insider trading. On appeal, Mr. Nacchio challenged his conviction, his sentence, and the forfeiture of his assets. Regarding his conviction, he argued that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded both expert-testimony evidence and classified information important to his defense. A divided panel of this Court affirmed on the sufficiency of the evidence, jury instruction, and classified information issues but held that the expert testimony had been improperly excluded. The panel did not reach the challenges that Mr. Nac-chio raised to the forfeiture of his assets or his sentencing enhancement. Thus, the case was reversed and remanded for a new trial. See United States v. Nacchio (âNacchio Iâ), 519 F.3d 1140 (10th Cir.2008).
We granted rehearing en banc to consider the expert testimony issue.
I. BACKGROUND
As the panel opinion provides a full recitation of the factual background, see Nacchio I, 519 F.3d at 1144-48, we discuss only the relevant events and rulings as needed to frame our analysis. The government had alleged that Mr. Nacchio, the former CEO of Qwest, made sales of shares of Qwest stock from January to May 2001 on the basis of material, nonpublic information. The jury trial commenced after more than a year of discovery and motions in limine, during which Mr. Nac-chio disclosed no expert witness.
On March 16, 2007 â three days prior to the start of trial â Mr. Nacchio first disclosed, pursuant to Fed.R.Crim.P. 16(b)(1)(C) (âRule 16â), that he planned to call to the stand Professor Daniel Fischel as an expert. Under certain circumstances, Rule 16 requires a defendant to provide to the government, upon request, a written summary of any expert testimony that the defendant intends to use as evidence at trial under Federal Rules of Evidence (âFREâ) 702, 703, or 705. âThis summary must describe the witnessâs opinions, the bases and reasons for those opinions, and the witnessâs qualifications.â Fed.R.Crim.P. 16(b)(1)(C).
Pursuant to Rule 16, Mr. Nacchio provided the government with a short summary of Professor Fischelâs anticipated testimony as well as his curriculum vitae. Aplt.App. 460. The government objected that the disclosure did not satisfy the requirements of Rule 16 and requested a complete, proper disclosure. Aplee. SuppApp. 35. The governmentâs objection additionally highlighted shortcomings of the disclosure under various rules of evidence, including FRE 702, and it included several references to the expert testimony requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Aplee. Supp.App. 35, 38-42. The district court agreed that Mr. Nacchioâs notice did not comply with Rule 16 because it âoffered] no bases or reasons whatsoever for Professor Fischelâs opinions contained in the summaryâ and stated that â[t]he matter may be settled through analysis under Rule 16.â Aplt.App. 349-52. The district court also noted, however, the governmentâs additional assertion that the disclosure did not satisfy â[FRE] 401, 403, 602, 702, and 704.â Aplt.App. 351. The district court instructed that âDefendant shall produce an expert disclosure compliant with the federal rules described herein by March 26, 2007.â Aplt.App. 352 (emphasis added).
On March 22, 2007, while the jury was dismissed, the district court granted Mr. Nacchio three extra days to provide his revised Rule 16 disclosure. In doing so, the district court judge stated that he was âflabbergasted ... that - [Mr. Nacchio] could think that was an adequate expert disclosureâ and that âI think the rule is pretty clear, and ... itâs pretty close to what is required in the civil area.â
[GOVâT ATTORNEY]: Hitâs my concern at least based on the way the disclosure is raised right now, there could be Daubert issues that arise with respect to certain parts of the testimony....
THE COURT: Probably not Daubert, but maybe Kumho Tire issues.
[GOVâT ATTORNEY]: Yes, I misspoke.
*1238 [DEFENSE COUNSEL]: In Latin, forewarned, is forearmed.
THE COURT: Thatâs not Latin. [DEFENSE COUNSEL]: No, but I donât speak Latin.
THE COURT: All right.
Aplt.App.2041^42 (emphasis added).
Mr. Nacchio provided a revised Rule 16 disclosure on March 29 which summarized Professor Fischelâs qualifications as an academic, his research and teaching in law and finance, and his previous experience both consulting and testifying. The disclosure outlined the bases for Professor Fis-chelâs opinions and highlighted specific expected areas of testimony as well as the documents and data reviewed by Professor Fischel in connection with this matter. Aplt.App. 425-34. This revised Rule 16 disclosure explained that in reaching his conclusions, Professor Fischel had conducted a âstudy of the Questioned Sales in relation to various benchmarks and other relevant criteria.â Aplt.App. 427. The revised disclosure also noted that Professor Fischel had analyzed Qwestâs guidance, its actual stock performance, and reaction from the investment community; Qwestâs guidance history compared to the guidance history of other telecommunications firms; and various facets of Qwestâs revenue from indefeasible rights of use. Aplt.App. 430-32.
On Tuesday, April 3, the government filed a 63-page motion to exclude Professor Fischelâs expert testimony. Aplt.App. 362. In this motion, the government thoroughly addressed the standards and case law of Rule 16 and FRE 401, 403, 602, 702, and 703, and discussed them in the context of Professor Fischelâs qualifications and relative to each of his opinions as set forth in the revised Rule 16 disclosure. Aplt. App. 367-418. Included throughout were references to Professor Fischelâs methodology and arguments regarding the role of Daubert
Mr. Nacchio filed a seven-page response to the governmentâs motion to exclude the following day. Aplt.App. 463. Mr. Nacchioâs response asserted that: (1) the re
The next day, Thursday, April 5, trial resumed, and Mr. Nacchio called Professor Fischel to the stand. The district court dismissed the jury, saying, âI need to make some legal rulings at this time.â ApltApp. 3913. Neither party made any statement to the court at that time, and the district court proceeded to rule upon the governmentâs motion to exclude. Observing that âthe deficiencies under Dau-bert and Kumho Tire in these disclosures are so egregious that they hardly warrant the 63 pages of ink the Government has spilled in opposing the testimony,â the court then explained why the testimony was âexcludable on a number of rationales,â including under FRE 702 and Daubert and Kumho Tire. Aplt.App. 3914-21. Specifically, the court noted its concern with the methodology, âwhich is absolutely undisclosed in this expert disclosure,â and â[m]ost convincingly, the defendant has made no attempt to comply with Rule 702 or Daubert and establish that Fischelâs testimony is the product of reliable principles and methods or that Fischel applied some principles and methods reliably in this case.â Aplt.App. 3915, 3917. The court noted that Mr. Nacchioâs âonly representation on this issueâ was one âwoefully inadequateâ sentence, and it quoted from the sentence noted above regarding the allegedly âextensive reviewâ undertaken by Professor Fischel in formulating his opinions, which was included in Mr. Nac-chioâs response to the governmentâs motion to exclude. Aplt.App. 3916. The court concluded that â[f]or all of those reasons, primarily the gross defect in failing to reveal the methodology,â the governmentâs motion was granted. Aplt.App. 3921.
After the ruling was announced, Mr. Nacchioâs attorney asked if he could be heard, and the district court refused his request, saying, âI have your motion,
On Sunday, April 8, the government filed a motion to exclude the rebuttal testimony, and Mr. Nacchio responded. On Monday, April 9, after Professor Fischel had provided some nonexpert testimony, the district court dismissed the jury and ruled from the bench. The district court denied Mr. Nacchioâs motion to permit Professor Fischelâs expert rebuttal testimony and to strike the government analystsâ testimony, granted the governmentâs motion to exclude Professor Fischelâs rebuttal testimony in part, and then dismissed Professor Fischel. In denying Mr. Nacchioâs motion, the district court stated that an expert was not necessary to rebut the analystsâ opinions, that it âcontinue[d] to have the same difficulty with this methodology and non-disclosure of the methodology as it had with respect to the original expert report,â and that âeven if it were reliable, ... the testimony is of no relevancy.â
Following the sixteen-day trial, the jury deliberated for six days and convicted Mr. Nacchio on nineteen counts of insider trading covering trades that he had made in April and May 2001. Mr. Nacchio was acquitted of twenty-three counts covering earlier trades.
A. Standard of Review
The proponent of expert testimony bears the burden of showing that its proffered expertâs testimony is admissible. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n. 4 (10th Cir.2001). We review de novo âwhether the district court employed the proper legal standard and performed its gatekeeper roleâ in determining whether to admit or exclude expert testimony. United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006). We review for abuse of discretion the manner in which the district court performs this gatekeeping role. Dodge, 328 F.3d at 1223 (âThough the district court has discretion in how it conducts the gatekeeper function, we have recognized that it has no discretion to avoid performing the gatekeeper function.â). Provided the district court performs the role, this Courtâs review is deferential: we will not disturb the ruling âunless it is arbitrary, capricious, whimsical or manifestly unreasonable,â or âwe are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.â Id. (internal quotation marks omitted).
âUnder Rule 702, the district court must satisfy itself that the proposed expert testimony is both rehable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.â Rodriguez-Felix, 450 F.3d at 1122. In determining whether expert testimony is admissible, the district court generally must first determine whether the expert is qualified âby knowledge, skill, experience, training, or educationâ to render an opinion. See Fed.R.Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expertâs opinion is reliable by assessing the underlying reasoning and methodology, as set forth in Daubert. Rodriguez-Felix, 450 F.3d at 1123; see, e.g., 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006).
Reliability questions may concern the expertâs data, method, or his application of the method to the data. See Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir.1999); see also Fed.R.Evid. 702 (noting that the testimony must be âbased upon sufficient facts or dataâ as well as âthe product of reliable principles and methodsâ and the expert must have âapplied the principles and methods reliably to the facts of the caseâ). The party offering the expert âmust show that the method employed by the expert ... is scientifically sound and that the opinion is based on facts which satisfy Rule 702âs reliability requirements.â Dodge, 328 F.3d at 1222. âUnder Daubert, any step that renders the expertâs analysis unreliable ... renders the expertâs testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.â Mitchell, 165 F.3d at 782 (alteration in original) (internal quotation marks omitted). In making a reliability determination, â[generally, the district court should focus on an expertâs methodology rather than the conclusions it generates.â Dodge, 328 F.3d at 1222.
B. Exclusion of Expert Testimony
1. The District Court Performed Its Gatekeeping Role
Although Mr. Nacchio argues that the district court abdicated its gatekeeping function, his argument really concerns the manner in which the district court fulfilled this role, e.g., allegedly failing to ensure the creation of a sufficiently developed record and declining to hold a hearing to reconsider Professor Fischelâs admissibility. As discussed below, in its ruling the district court stated and applied the Dau-bert frameworkâthe proper legal standard
Mr. Nacchio argues that the district courtâs ruling was premised upon Rule 16 and that, consequently, it was patently erroneous. We disagree. The district courtâs exclusion of Professor Fischelâs testimony rested on Daubert grounds. True, the government first framed its challenge to Professor Fischelâs expert testimony as an objection to the sufficiency of Mr. Nac-chioâs Rule 16 disclosure. But, by the time the district court ruled to exclude Professor Fischelâs testimony, it was clear that the courtâs principal concern was Daubert. As is evident from its ruling, the district court excluded Professor Fischelâs testimony because Mr. Nacchio had not met his burden of demonstrating admissibility as required by FRE 702. For example, after stating that Professor Fischelâs testimony could be excluded on a number of grounds, the district court stated: âMost convincingly, the defendant has made no attempt to comply with Rule 702 or Daubert and establish that Fischelâs testimony is the product of reliable principles and methods or that Fischel applied some principles and methods reliably in this case.â Aplt.App. 3915. Further, the district court stated that âRule 702 governs this issue.â Id. This indicates that lack of reliability under FRE 702 was the primary rationale for the courtâs decision.
Although the district court ruling does include two ambiguous references to âdisclosures,â when read in context, these references do not indicate that the exclusion was based upon allegedly incorrect Rule 16 grounds or that the district court was referring solely to Mr. Nacchioâs Rule 16 disclosures. âWhen a district courtâs language is ambiguous ... it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion.â Sprint/United Mgmt. Co., 128 S.Ct. at 1146.
First, the district courtâs enigmatic reference to âthese disclosuresâ occurred in its ruling after the court had outlined the contents of the governmentâs motion to exclude and indicated that it also had read Mr. Nacchioâs response to the governmentâs motion. It was from Mr. Nacchioâs response to the motion to exclude â rather than from Mr. Nacchioâs revised Rule 16 disclosure â that the district court quoted the sentence that it characterized as Mr. Nacchioâs âonly representationâ on the issue of methodology, which the court found to be âwoefully inadequateâ to support the
Second, although the district court stated that Professor Fischelâs methodology was undisclosed âin this expert disclosure,â the discussion immediately preceding that comment did not refer to Mr. Nacchioâs Rule 16 disclosure. Aplt.App. 3917. Rather, the district court had just quoted from Mr. Nacchioâs argument â made in his response to the motion to excludeâ that Professor Fischelâs opinions were proper under FRE 702. Compare Aplt. App. 3916 with Aplt.App. 466.
At most, then, the district courtâs ruling contains two ambiguous references to âdisclosuresâ that arise in the context of the district courtâs assessment of Mr. Nac-chioâs Daubert arguments. Although the district court did cite other bases for its ruling, including its doubt that Professor Fischelâs testimony was relevant,
We underscore, moreover, that to endorse the assertion that the district court made a ruling excluding the testimony on allegedly incorrect Rule 16 grounds alone would be particularly problematic in light of the instruction provided by the Supreme Court in Sprint. In light of the deference that is âthe hallmark of abuse-of-discretion review,â we âshould not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading.â Sprint, 128 S.Ct. at 1145, 1146 (internal quotation marks omitted). A fair, natural reading of the district courtâs decision indicates that the basis for the ruling was Daubert. And, the Supreme Courtâs guidance further demonstrates the impropriety of presuming that the district court based its ruling on purportedly erroneous Rule 16 grounds.
2. The District Courtâs Determination to Exclude the Expert Testimony
a. Notice
Mr. Nacchio was sufficiently on notice that he was required to present evidence in support of his expertâs methodology or request an evidentiary hearing in advance of presenting the expertâs testimony. It is well established that, as the proponent of Professor Fischelâs expert testimony, Mr. Nacchio bore the burden of establishing its admissibility pursuant to FRE 702. See Ralston, 275 F.3d at 970 n. 4. This evidentiary burden put Mr. Nac-chio on effective notice that, if Professor Fischelâs testimony was going to be admitted, it would only be because Mr. Nacchio took appropriate action to get the job done. Mr. Nacchio argues, however, that there is no requirement that admissibility be shown at any specific time before presenting the witness and that he did not have notice of any obligation to proffer additional evidence or request a hearing.
In particular, Mr. Nacchio contends that the presumptive time for establishing the reliability of the expertâs testimony is on the witness stand and that he had every right to assume that the court would conduct voir dire or permit the questioning of Professor Fischel before ruling on admissibility.
Mr. Nacchio was on notice that the admissibility of Professor Fischelâs testimony under FRE 702 was at issue well before the district court issued its ruling.
Even if nothing previously had alerted Mr. Nacchio to the burgeoning Daubert issue, the governmentâs motion to exclude Professor Fischelâs expert testimony invoked Daubert and FRE 702 numerous times. The motion was based on deficiencies in the Rule 16 disclosure and on Mr. Nacchioâs failure to carry his burden to demonstrate that Professor Fischelâs testimony was admissible. The governmentâs motion explicitly set forth authority and analysis regarding FRE 702âs mandate that the expert testimony be âthe product of reliable principles and methods,â and it offered detailed reasons why those specific opinions did not meet this methodology requirement. ApltApp. 374-78, 385, 388, 390, 396, 407-08, 415.
Furthermore, there can be no question, given the explicit language and tenor of Mr. Nacchioâs response to this motion, that he understood that Daubert issues had arisen. Therefore, he also should have understood that, if the time had not earlier been ripe to bear the admissibility burden, that time had arrived.
Mr. Nacchio is attempting to recast an unremarkable district court evidentiary ruling as an invidious act of judicial hubris. But it will not work. At bottom, Mr. Nacchioâs argument is no more than a run-of-the-mill lament of unfair surprise. We have rejected similar claims when, as here, the record belies them.
For example, in Ralston, we concluded that the record did not support plaintiffs claim that she was unfairly surprised by the district courtâs decision at a summary judgment hearing to exclude her expertâs testimony under FRE 702. 275 F.3d at 970 n. 4. The district court found that the expert was unqualified to render an opinion in support of plaintiffs liability theory. Id. at 968. We noted that in the defendantâs written response to plaintiffs summary judgment filing âan entire section is devoted to the argument that [plaintiffs expert] was not qualified to render an expert opinion.â Id. at 970 n. 4. And we commented further: âAs the purpose of the hearing was to discuss the issues raised in the partiesâ supplemental summary judgment papers, it is disingenuous for Plaintiff to now claim that she was unaware that [her expertâs] qualifications would be at issue at the hearing.â Id. (emphasis added). Therefore, we rejected plaintiffs claim of unfair surprise.
The reasoning of Ralston applies with even greater force on these facts. As in Ralston, before the district court acted to exclude it, the opponent of the expert testimony â the government â specifically challenged the admissibility of the expert testimony in its briefing and detailed the legal bases for its exclusion (e.g., methodology deficiencies under Daubert). In its motion to exclude Professor Fischelâs testimony, the government referred to Daubert and FRE 702 numerous times in pointing out alleged deficiencies in Professor Fischelâs testimony. By way of notice, however, Mr. Nacchio got more than the Ralston plaintiff. Among other things, he received the de facto warning of possible Daubert issues associated with Professor Fischelâs testimony arising from the March 22nd oral exchange with the government and the district court. Accordingly, under Ralstonâs logic, we find unpersuasive (if not disingenuous) Mr. Nacchioâs argument that he did not have notice, before the district court ruled against him, that the admissibility of Professor Fischelâs testimony under Daubert was at issue.
On the other hand, our decision in Procter & Gamble Co. v. Haugen illustrates well the rare set of circumstances â not found here â in which a proponent of expert testimony had so little notice of the district courtâs impending exclusion of its expert testimony that a claim of unfair surprise would have been justified. 427 F.3d 727, 736-37, 742 (10th Cir.2005). In that case, the district court dismissed with prejudice the plaintiffsâ Lanham Act claims following a hearing on a motion for discovery sanctions against the plaintiffs. Id. at 736-37. The dismissal was partly based on the courtâs finding that the plaintiffsâ expert testimony on damages was inadmissible. Id. at 737. The admissibility ruling was only a paragraph, and the entire rationale was that the expertâs damages testimony was not admissible under FRE 702 and Daubert because the testimony was based on an examination of too few products. The district court found that â[s]uch testimony clearly would not be based upon sufficient facts or data to be admissible in this Courtâ and without damages evidence the plaintiffsâ claims must fail. See id.
Observing that the district court doubtless would have had to determine the admissibility of the expert testimony âat some point,â we concluded that this basis did not justify dismissal of the case. Id. at 742. We noted that there were two major problems with the district courtâs ruling that the expertâs testimony was inadmissible. First, the plaintiffs âhad absolutely no warning prior to the district courtâs order of dismissal that the district court would be considering, let alone ruling on, the admissibility of [their expertâs] testi
Procter & Gamble Co. starkly reveals the weaknesses of Mr. Nacchioâs claim of unfair surprise. There, admissibility of the plaintiffsâ expert testimony had not been the subject of any filings or discussion, and the proponents âhad not submitted any expert reports to the district court, the district court had not heard any expert testimony, and no motion to limit or exclude [the plaintiffsâ] expert was before the court.â Id. at 741. By contrast, the expert admissibility issue here had been put before Mr. Nacchio multiple times, and the district courtâs ruling offered specific support for its determination and referenced relevant filings by both Mr. Nacchio and the government. In short, Mr. Nac-chioâs claim of unfair surprise is woefully deficient and does not provide a basis for us to conclude that the district court abused its discretion in excluding Professor Fischelâs testimony.
b. Opportunity
Mr. Nacchio had an adequate opportunity to present evidence in support of Professor Fischelâs methodology or to request an evidentiary hearing in advance of presenting the expertâs testimony. In addition to a continuous opportunity to file a written proffer of evidence, or to file a request for a hearing or a continuance, there were several specific instances, arising after the Daubert issue had come into focus, where Mr. Nacchio could have presented evidence or requested a hearing to meet his burden of admissibility:
⢠Initially, in his response to the governmentâs April 3rd motion to exclude Professor Fischelâs expert testimony-through which Mr. Nacchio certainly was apprised of the extant Daubert issue â Mr. Nacchio could have addressed the Daubert issue more thoroughly, offered substantially more methodology evidence, or requested a hearing or a continuance. Instead, Mr. Nacchio set forth only a few sentences regarding the propriety of Professor Fischelâs opinions under FRE 702.15 Aplt.App. 466.
⢠During the trialâs lunch recess on Wednesday, April 4, the court spoke with the attorneys and noted that Mr. Nacchio had filed a response to the governmentâs pending motion to exclude, but Mr. Nacchio did not make any requests regarding Professor Fis-chel. Aplt.App. 3721-23.
⢠At the close of the governmentâs case on April 4, the court heard Mr. Nac-chioâs motion for acquittal and discussed various matters with the attorneys. When the government asked about Professor Fischel, the court stated that it had âformed some preliminary viewsâ but was not yet ready*1250 to rule. Beyond noting that Professor Fischel would be the third defense witness, Mr. Nacchio did not offer any more information to the court. Aplt. App. 3834-35.
⢠The morning of Thursday, April 5, the court discussed pending motions and ruled on five of them. When the court mentioned the motion to exclude Professor Fischelâs expert testimony (âI know you want a rulingâ), Mr. Nacchio said nothing, and was silent regarding the matter while the first two defense witnesses testified. ApltApp. 3870.
⢠Although Mr. Nacchio argues that the ruling was issued before either party could say anything to the court, prior to calling Professor Fischel to the stand on April 5, Mr. Nacchio had the opportunity to, but did not, request time for argument, a hearing, or a continuance. When Professor Fischel was called, the court immediately announced that it needed to make some legal rulings and dismissed the jury. Aplt.App. 3913.
Mr. Nacchio asserts that the district courtâs refusal to allow him to orally argue Professor Fischelâs admissibility was unfair on account of the courtâs earlier statement that âIâm not criticizing anybody for not submitting things in writing.â Aplt. App. 3603. For two reasons, however, this argument is unavailing. First, the district court appears to have made this statement not as a general instruction to be applied wholesale throughout the trial, but in response to Mr. Nacchioâs specific inquiry as to the courtâs preferred practice for entertaining a Fed.R.Crim.P. 29 motion for a judgment of acquittal. See id. (âNormally, itâs done orally, and itâs certainly appropriate in this case.â (emphasis added)). Second, there is no evidence that the district court refused to hear Mr. Nacchioâs admissibility argument because it was made orally; rather, the district court denied Mr. Nacchio yet another opportunity to set forth a basis for admission because this argument could have been presented â no matter the format â before the ruling was made, particularly in response to the governmentâs motion to exclude. The district courtâs ruling was not a penalty or a punishment;
While it would be an abuse of discretion for the district court to unreasonably limit the evidence upon which it based its Dau-bert decision, see Dodge, 328 F.3d at 1228, that did not happen here. There is no evidence that the district court had imposed filing restrictions or had otherwise prohibited Mr. Nacchio from offering evidence or making a request. Cf id. at 1223-24, 1229 (concluding that in a case âwhere the expert testimony is crucial to the ultimate outcome, is vigorously challenged, and has several obvious areas of concern,â it was unreasonable for the court to severely limit the filing of underlying
Mr. Nacchio asserts that he lacked pre-ruling opportunity to present evidence or request a hearing because he had been under tremendous time pressure. Any purported lack of time to prepare a response must be considered in the context of months of trial and witness preparation that both parties had undertaken. Although Mr. Nacchio may have been on a tight deadline, a request for a continuance or a Daubert hearing, prior to calling Professor Fischel to the stand, would have been rather simple to undertake and certainly would not have required much time at all. The district court, having been alerted to the need for a ruling on admissibility and having given the parties an opportunity to present their arguments, was obligated to perform its gatekeeping function. See Macsenti, 237 F.3d at 1233-34; Goebel, 215 F.3d at 1088. Therefore, it should have come as no surprise to Mr. Nacchio that the district court ruled on admissibility; indeed, by waiting to rule until Professor Fischel actually was called, it had prolonged the opportunity for Mr. Nacchio to further address the Daubert challenge until such a ruling was compelled by Professor Fischelâs imminent testimony. Instead, after âthe district judge made clear his need for some proffer of data or literature underlying the expertâs assumptions and conclusions, ... the defense offered practically nothing, despite repeated opportunities to do so.â United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995).
c. Burden
If Mr. Nacchio desired an eviden-tiary hearing, he bore the burden of requesting one. As explained below, Tenth Circuit case law does not mandate that a hearing be held, and neither the government nor the district court was under any obligation to call for a hearing or to prod Mr. Nacchio to supplement his filings. According to Mr. Nacchio, the only directive he had received from the district court was to comply with Rule 16, and he read the courtâs order for a revised Rule 16 disclosure at face value. Even assuming that this was a natural reading of the courtâs order, however, the proponentâs burden of establishing admissibility of expert testimony arises from the offering of the expert for trial; it is not triggered by a courtâs directive. See Fed.R.Evid. 702 advisory committeeâs note (2000) (â[T]he admissibility of all expert testimony is governed by the principles of [Fed.R.Evid.] 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.â).
Relatedly, as discussed above, the governmentâs motion to exclude clearly set forth the FRE 702 issue, regardless of whether the partiesâ previous communications had taken place in a Rule 16 context. In ordinary motion practice, a respondent must address any and all issues raised by a moving partyâs papers, or else face the very real possibility that it will be deemed to have abandoned its right to do so.
Thus, having been placed on notice by the governmentâs motion to exclude that the admissibility of Professor Fis-chelâs testimony under FRE 702 was at issue, Mr. Nacchio â in addition to addressing any Rule 16 concerns â was obliged to marshal his FRE 702 arguments that would support admission of Professor Fis-chelâs testimony. Our adversary system of justice simply does not afford a respondent, like Mr. Nacchio, the luxury of ignoring the ebb and flow of litigation and steadfastly adhering to the initial framing of the issues. Cf. Lujan v. Natâl Wildlife Fedân, 497 U.S. 871, 897, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (â[A] litigantâs failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigantâs own risk.â).
That conclusion, moreover, is not enervated by the criminal nature of the proceedings. Like civil parties, criminal defendants must follow the well-settled rules of litigation. See, e.g., Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (âFew rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.â (citations omitted)); United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.2004) (âA defendant must raise a motion to suppress evidence before trial or that objection is waived.â).
Mr. Nacchio also asserts that he had no reason to request a hearing, because the government already had done so. However, Mr. Nacchioâs response to the motion to exclude â which stated that the motion was âwithout meritâ and should be denied, without itself requesting additional proceedings â -plausibly could be read as both opposing the governmentâs hearing request and inviting the court to rule on admissibility without further proceedings. Aplt.App. 463, 468. Furthermore, Mr. Nacchio was on notice that if he desired an evidentiary hearing to be held during these proceedings, he needed to request one. Specifically, the district court judgeâs published practice standards, of which Mr. Nacchio was aware, see Aplee. Supp. En Banc App. 63, provided that any party opposing a motion must state to the court whether that party believes an evidentiary hearing is necessary and estimate the length of such a hearing. Aplee. Supp. Br. Add. Âś 17, at 8.
As conceded by Mr. Nacchio in his belated mention of a hearing to the district court, see ApltApp. 481 n. 4, Tenth Circuit cases have interpreted Kumho Tireâs, directive that courts must have leeway in applying the Daubert framework to mean that although Daubert hearings are the most common way to fulfil the gatekeeper function, â âsuch a process is not specifical
Mr. Nacchio argues that he had no burden to request a hearing, in light of our case, United States v. Roberts,
More specifically, as to Roberts, Mr. Nacchio contends that the case indicates that âthe improper exclusion of Fischel requires reversal regardless of whether Nacchio provided sufficient information to establish admissibility before the courtâs in limine ruling.â Aplt. Supp. Br. 29. In Roberts, a tribal official was indicted on sexual abuse charges based on the allegations of three women. 88 F.3d at 875. The government sought to introduce under FRE 404(b) evidence of the defendantâs sexual abuse of nine other women not named in the indictment. Id. at 879. As part of its FRE 404(b) analysis, see, e.g., United States v. Parker, 553 F.3d 1309, 1313-14 (10th Cir.2009), the district court excluded the evidence under FRE 403 on the ground that its potential prejudice substantially outweighed its probative value. Roberts, 88 F.3d at 879. The government appealed, and this Court reversed and ordered a pretrial hearing. Id. at 881. We concluded that the district court failed to analyze the evidence in sufficient detail to determine whether it would demonstrate that the defendant engaged in a common scheme of sexual abuse â âthe governmentâs strongest rationale for introducing this evidence at trial.â Id. at 880-81. We further determined that the government needed to submit additional information about the womenâs proposed testimony on remand, because the record was insufficient to determine whether the testimony would sustain the common scheme hypothesis. Id. at 881.
Roberts should not be interpreted, however, as having placed the burden on the district court here to order a hearing, for two principal reasons. First, in Roberts, we emphasized that our ruling rested upon âthe unique and specific circumstances presentâ before us, and we did not purport
Second, the Roberts holding primarily was based on the district courtâs failure to appropriately analyze the proposed testimony, not the insufficiency of the information submitted by the proponent (i.e., the government). The instruction that the government must submit more information was a secondary consideration to the remand that was required due to the district courtâs failure to direct enough attention to the evidence of the governmentâs salient theory of relief (i.e., common scheme or plan). See id. at 880-81; see also United States v. Roberts, 185 F.3d 1125, 1142 (10th Cir.1999) (âWe believe the district court followed our remand order and decided correctly ... the six womenâs testimony was admissible to show a common scheme.â).
As for the Third Circuit case law, Mr. Nacchio relies heavily on Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir.1999). To the extent that Padillas should be looked to as persuasive authority, however, it does not mandate a hearing in every instance of Daubert gatekeeping. In Padillas, the Third Circuit reversed a grant of summary judgment premised upon the inadmissibility of an expertâs report under Daubert and ordered an evi-dentiary hearing. In that case, the appellate court stated that âplaintiff could not have known in advance the direction the district courtâs opinion might take and thus needed an opportunity to be heard on the critical issues before having his case dismissed.â Mat 417-18.
The Padillas court emphasized that the district court had not offered plaintiff sufficient process to defend the admission of the expert testimony and that the district courtâs rejection of the testimony did not establish that there were not âgood groundsâ for the testimony, but, rather, that the opinions were insufficiently explained and their foundations inadequately explicated. Id. at 418. Thus, Padillas is readily distinguishable from this case, in that: (1) Mr. Nacchio knew the court would have to determine Professor Fis-chelâs admissibility, given that the governmentâs motion to exclude was ripe for decision and Mr. Nacchio actually called Professor Fischel to the stand; and (2) as explained above, Mr. Nacchio passed over numerous opportunities to defend admissibility and provide more information about methodology. In fact, Padillas is most closely analogous to our decision in Procter & Gamble Co., 427 F.3d at 742, which, as discussed above, involved circumstances that sharply contrast with those here. See supra Part 11(B)(2)(a). Moreover, the language of Padillas itself does not mandate a hearing under the instant circumstances:
An in limine hearing will obviously not be required whenever a Daubert objection is raised to a proffer of expert evidence. Whether to hold one rests in the sound discretion of the district court. But when the ruling on admissibility turns on factual issues, as it does here, at least in the summary judgment context, failure to hold such a hearing may be an abuse of discretion. We hold that in this case, it was.
Padillas, 186 F.3d at 418 (emphasis added). As evident by the underscored text, Padillas narrowly tailored its holding to the summary judgment context and the factual circumstances of the case before it.
Furthermore, more recent decisions from the Third Circuit have rejected the notion that a hearing is always required for Daubert gatekeeping. As the Third Circuit stated in In re TMI Litigation: âWe did not intend to suggest [in Padil-las ] that an in limine hearing is always required for Daubert gatekeeping.â 199 F.3d at 159. Further, âPadillas certainly does not establish that a District Court must provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until plaintiff âgets it right.â â Id.; accord Oddi v. Ford Motor Co., 234 F.3d 136, 151-55 (3d Cir.2000); Nelson, 243 F.3d at 249 n. 3.
Therefore, neither Roberts nor holdings from the Third Circuit lift the burden of requesting a hearing from Mr. Nacchio.
d. No Abuse of Discretion
The district court fulfilled its duty as gatekeeper and did not abuse its discretion in excluding Professor Fischelâs expert testimony.
It appears that Mr. Nacchio relied on Professor Fischelâs qualifications to tip the balance in favor of the admissibility of his expert testimony. In doing so, Mr. Nacchio ignored the precept that when assessing expert testimony, âthe question before the trial court [i]s specific, not general.â Kumho Tire, 526 U.S. at 156, 119 S.Ct. 1167. Although Professor Fischel generally has been permitted to testify in the past, and a district court might well respect his credentials, the court had an obligation to assess the methodology that Professor Fischel had employed in the case at hand. See id. at 153-56, 119 S.Ct. 1167; Rodriguez-Felix, 450 F.3d at 1122. Mr. Nacchio could not assume that his expertâs testimony would be admitted because other courts had allowed it in; he had to carry his burden of demonstrating the admissibility of Professor Fischelâs testimony in this particular case. Mr. Nac-chio, however, failed to satisfy the district court that Professor Fischelâs testimony was reliable. Thus, the district court was well within its discretion in excluding it. See Rodriguez-Felix, 450 F.3d at 1125 (finding no abuse of discretion when the district court excluded testimony based on the âwoefully inadequateâ report regarding proffered testimony).
In Sprint, the Supreme Court explained that on account of the district courtâs familiarity with the case and greater experience with evidentiary matters, this Court must âafford broad discretionâ to the courtâs evidentiary rulings. Sprint, 128 S.Ct. at 1144-45. Here, the district court properly performed its Daubert gatekeep-ing role in excluding Professor Fischelâs testimony as inadmissible for lack of reliability under FRE 702, and Mr. Nacchio did not carry his burden of establishing the admissibility of Professor Fischelâs testimony. Perhaps more to the point, the district courtâs exclusion of the testimony was not arbitrary, capricious, whimsical, or manifestly unreasonable; nor are we convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.
Based upon the foregoing, we AFFIRM Mr. Nacchioâs conviction and VACATE the prior panel opinion insofar as it reversed the district courtâs judgment, including Parts 11(A), IV, and V, as well as the separate concurring and dissenting opinion. The remainder of the panelâs decision remains in effect. The governmentâs motion to file a supplemental en banc appendix is GRANTED. This Courtâs grant of release pending appeal is revoked, the unsecured bond executed by Mr. Nacchio in the district court is exonerated, and the stay of Mr. Nacchioâs sentence of imprisonment is hereby lifted. This case is remanded to the initial decisional panel for further proceedings relating to the unresolved sentence enhancement and asset forfeiture issues.
Joseph Nacchio was convicted by a jury and sentenced to six years in prison after the district judge refused to allow his expert witness, Professor Daniel Fischel, to testify at his trial for securities violations. The judge disqualified the witness without hearing argument from defense counsel or testimony from the witness regarding the reliability of his methodology. The judge based this ruling on what is now agreed was a mistaken interpretation of the rules of criminal procedure. The panel reversed that ruling, and in its petition for rehearing en banc the government did not even attempt to defend the district courtâs rationale. Instead, the government arguesâ and the en banc majority agrees â that the exclusion of this witness was the defendantâs fault, for failing to establish the foundation for his testimony in advance of putting him on the stand or to file a motion for permission to establish the foundation through testimony.
The flaw in the governmentâs argument is that the rules of criminal procedure, unlike the rules of civil procedure, do not require a criminal defendant to establish the foundation for expert testimony through advance written submissions. Unless the criminal defendant is otherwise directed by the district court â something which did not happen here â he may establish the foundation for witness testimony by putting the witness on the stand for voir dire examination. The defendant responded properly to every motion made by the government, and nothing in the conduct of the defense can reasonably be construed as abandoning or forfeiting his right to establish the reliability of the expert evidence through testimony. It was the district judge, not defense counsel, who misunderstood the procedural rules. We dissent on the ground that the defense did everything it was required to do â but that even if counsel somehow slipped up, it was an abuse of discretion for the court to shut down the primary line of defense in a criminal case on the basis of what was at worst an understandable and inconsequential mistake.
I. Parties In Criminal Cases Are Under No Obligation To Submit Written Information Sufficient To Resolve Daubert Issues In Advance, Or To Make A Motion For Permission To Establish Admissibility By Witness Testimony
At the heart of this case is the difference between discovery practice in criminal and civil cases, which âderives from the special constitutional constraints of criminal proceedings.â United States v. Mehta, 236 F.Supp.2d 150, 155 (D.Mass.2002) (Gertner, J.). In civil cases, both sides are entitled in advance of trial to know and to respond to the evidence that will be presented by the other side, including any expert testimony. In criminal cases, the defendant is entitled to keep his cards
Under Rule 26(a)(2) of the Federal Rules of Civil Procedure, any party who wishes to use a retained expert must give the opposing party in advance of trial a written expert report prepared and signed by the witness, containing a âcomplete statementâ of the witnessâs opinions and the âbasis and reasons for themâ; all data, other information, and exhibits on which the testimony is based; and the witnessâs qualifications, publications, previous testimony, and compensation statement. Moreover, in a civil case the opposing side is entitled to take the expertâs deposition under Rules 30 and 31 and, if the expert report and deposition testimony fail to establish the reliability of the methodology, can move for summary judgment under Rule 56. If issues regarding the reliability of the expertâs methodology â which we, like the majority and the parties, will call âDaubert issuesâ â are not resolved on summary judgment, they must be resolved through questioning the witness, either in a separate Daubert hearing outside the presence of the jury or by foundational testimony and voir dire examination on the stand prior to presentation of the witnessâs opinion evidence. The timing of the hearing, and whether it should be held in the presence of the jury, depend on the circumstances of the case. As the advisory committee note to Federal Rule of Evidence 104 points out: âNot infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury.â
In criminal cases, by contrast, neither side has a general right to discover the otherâs evidence, though the defendant is entitled to request and obtain certain specific types of evidence from the prosecution. Apart from Rule 16, which we discuss below, a criminal defendant may call an expert witness to the stand without any advance disclosure whatsoever. There is no requirement of an expert report; there are no depositions of the expert; there are no motions for summary judgment to test whether there are triable issues regarding the witnessâs methodology. As in civil cases, the proponent of an expert in a criminal case has the burden of establishing that the witnessâs methodology is sound under the standards of Daubert and Kumho Tire. But absent any countervailing directive from the trial court, parties in criminal cases can, and typically do, meet this burden by eliciting foundational testimony from the witness on the stand, subject to cross-examination by the opposing party. A party in a criminal case does not have to make a motion to proceed in this fashion; it is the default procedure. As in civil cases, the questioning may be conducted in a separate hearing outside the presence of the jury, by motion of either party or of the court, or at the beginning of the witnessâs testimony. If the opposing party wishes to obtain a ruling on admissibility in advance of the witnessâs testimony, it may file a motion in limine or a motion to conduct the hearing outside the presence of the jury.
The majority does not dispute that this is the typical procedure for resolving Dau-bert issues in criminal cases. The majority quotes the defendantâs contention that âthe presumptive time for establishing the reliability of the expertâs testimony is on the witness stand,â and cites an amicus brief filed by the National Association of Criminal Defense Lawyers (NACDL) that states that âthe prevalent practice is to address Daubert issues at voir dire.â Maj. Op. 1244, 1244-45 n. 10. The majority says it
The defendantâs position on this point is consistent with the discussion of Daubert procedures found in standard authorities. See, e.g., 29 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6265 (1997) (âNormally a trial court will hear qualification evidence before permitting the witness to give opinion testimony. That hearing may take place either in the presence or absence of the jury, at the discretion of the court.â (citations omitted)); see also Jack B. Wein-stein & Margaret A. Berger, Weinsteinâs Federal Evidence (Joseph M. McLaughlin, ed., 2d ed.2006) § 702.02[6][b] (âEvidentia-ry hearings, known as Daubert hearings, are the most common method trial courts use to fulfill their gatekeeper function.... When the hearing occurs during trial, the court has discretion to determine whether to hold it in the presence of the jury.... The reliability hearing may also be combined with voir dire to test the expertâs qualifications.â); Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000) (âThe most common method for fulfilling this function is a Daubert hearingâ).
It is thus undisputed that the âpresumptiveâ procedure for establishing admissibility of expert testimony is through voir dire examination of the witness on the stand, either in a separate Daubert hearing or at the beginning of the witnessâs testimony. But this proposition merits far more emphasis than the majority gives it. If the standard or presumptive procedure is to establish reliability through examination of the witness, it follows that the defendant is not required to make a motion asking for permission to follow that procedure. Motions are required to deviate from presumptive procedures, not to follow them. To be sure, the district court has authority to impose a different set of proceduresâ but Judge Nottingham did not do so in this case, or if he did, he made no mention of them prior to disqualifying the witness. And to be sure, a party can waive or forfeit his right to present a witness or to qualify him through voir dire examination â but nothing the defendant did at trial can reasonably be construed as a waiver or forfeiture. Mr. Nacchioâs counsel did not expressly move to be allowed to establish Professor Fischelâs admissibility on the witness stand, but given that this is the presumptive procedure, a motion to that effect was not necessary; therefore, his failure to make such a motion cannot be construed as a forfeiture. The majority has cited no case in which a criminal defendant has ever been held to forfeit his right to establish witness admissibility through voir dire examination by mere failure to file a motion asking for permission to do so; the government has cited no such case; and we have located no such case. This appears to be the first.
II. The District Court Was Wrong To Disqualify The Witness On The Basis Of The Lack Of Information About Methodology In The Defendantâs Rule 16 Disclosure
We address first the district courtâs rationale for excluding the expert witness
Rule 16 of the Federal Rules of Criminal Procedure creates an exception to the usual rule that defendants need not provide notice of their intention to offer expert witnesses. Under Rule 16(b), if a defendant requests disclosure of certain evidence and the government complies, the defendant becomes obligated to make certain disclosures in return. Specifically, if the defendant requests and receives a written summary of any expert testimony the government intends to introduce, the defendant must provide similar notice of any expert testimony he intends to use. Fed.R.Crim.P. 16(b)(1)(C). These written summaries must include a description of the witnessâs opinions, the bases and reasons for those opinions, and the witnessâs qualifications. Id. §§ 16(a)(1)(G), 16(b)(1)(C). The required âwritten summary,â however, falls far short of the âcomplete statementâ required of litigants in civil cases. See United States v. Mehta, 236 F.Supp.2d 150, 155-56 (D.Mass.2002). In particular, Rule 16 does not require experts in criminal cases to provide written reports explaining their opinions or to make a written proffer containing the information required under the civil rules. In this respect, the rules are the same for government and defendant. The amicus brief for the NACDL, for instance, states that they are âunaware of any instance in which the government has provided [their] members with a Rule 16 expert notice that laid out the full Daubert justification (or anything even approaching it) for the proposed testimony.â NACDL Br. 4-5.
Because the defense requested and obtained disclosure of the governmentâs experts in this case, Mr. Nacchio was obligated to disclose his experts in return. This he did. On the date set by order of the court, defense counsel provided the requisite notice of his intent to call Professor Fischel, in full compliance with Rule 16.
During trial, the prosecutor took the position that Mr. Nacchioâs written summary of âthe bases and reasonsâ for Professor Fischelâs opinions had to include sufficient description of his econometric methodology to enable the district court to discharge its Daubert gatekeeping function: âDefendant has not adequately complied with Rule 16âs requirements for any of the âopinionsâ he proposed to offer through Professor Fischel. He has not set forth the reasons and bases for his opinions .... â App. 418. Indeed, the government filed a lengthy motion arguing that the expert testimony should be excluded because â[t]he disclosure also does not show that Professor Fischel used a reliable methodology in reaching his opinions.â Id. at 363 (emphasis added). This argument took two forms. First, the government argued that the evidence should be excluded as a âsanction! ]â for the defendantâs supposed violation of Rule 16. Id. at 418. Second, the government argued that because the defendant had not established the reliability of the expertâs testimony in his expert disclosure, the evidence should
On April 5, defense counsel called Professor Fischel to the stand, but before he could even begin to establish the foundation for the witnessâs testimony, Judge Nottingham dismissed the jury and excluded the evidence in a ruling from the bench. Judge Nottingham accepted the governmentâs Rule 16 argument, ruling that âthe deficiencies under Daubert and Kumho Tire in these disclosures are so egregious that they hardly warrant the 63 pages of ink the Government has spilled in opposing the testimony.â App. 3914 (emphasis added). See id. at 3917 (âThe Court is concerned ... with the methodology, which is absolutely undisclosed in this expert disclosureâ). The judge ruled the expert testimony inadmissible on the ground that the defendantâs written submissions on the Rule 16 issue did not contain information sufficient to establish reliability under Daubert. This closely resembles the ruling a judge in a civil case might make on summary judgment, if the written submissions by the proponent of a witness failed to provide any evidence of reliability. Judge Nottingham also supplied other reasons for excluding the evidence, including that Professor Fischelâs testimony was not ârelevantâ or helpful to the jury. The judge specifically stated, however, that he was disqualifying Professor Fischel âprimarilyâ on account of defense counselâs âgross defect in failing to reveal the methodology.â App. 3921.
Judge Nottingham was evidently under the impression that the reliability of an expertâs methodology in a criminal case must be evaluated on the basis of written reports or disclosures, as is typically done in civil cases, rather than on the basis of oral testimony, as is typically done in criminal cases. Indeed, he specifically stated that the witness disclosure requirement under the criminal rules is âpretty close to what is required in the civil area.â App. 2041.
The majority purports to find the courtâs explanations for its ruling âambiguous,â Maj. Op. 1242, but they are not. Judge Nottinghamâs conclusion that the defendant had not established the reliability of Professor Fischelâs methodology was unambiguously premised on the erroneous assumption that the defendant was required to disclose the methodology in his written proffer rather than to do so through testimony. See App. 3916 (basing his Daubert ruling on â[t]he defendantâs only representation on this issue,â which was a sentence in the defendantâs response to the governmentâs motion to exclude); id. at 3917 (âThe Court is concerned ... with the methodology, which is absolutely undisclosed in this expert disclosure.â); id. at 4075 (pointing to the lack of any âmethodology or reliable application of methodology to the caseâ in â[t]he March 29, 2007, disclosureâ as the primary reason for excluding the evidence). Not only is that what Judge Nottingham said, but it is obvious from context. Unless the judge thought the defendant had to disclose the witnessâs methodology in his written submissions, it would have been patently irrational for him to base his Dauberb determination on those submissions. We do not doubt the majorityâs statement that âthe courtâs ruling was grounded in Daubert
On appeal to this court, the defendant argued that this was a misreading of Rule 16(b), that his disclosure statement did not have to include an explanation of Professor Fischelâs methodology, and thus that the absence of such disclosure of methodology was an improper basis for rendering a Daubert ruling. The government argued that Judge Nottingham was correct in his interpretation of Rule 16. This dispute over the meaning of Rule 16 was the principal issue before the panel on the expert witness question.
The panel reversed the district courtâs Rule 16 ruling, holding that Rule 16 does not compel the proponent of expert testimony to disclose information sufficient to demonstrate that the witnessâs methodology is reliable under Daubert. This portion of the holding was unanimous. See United States v. Nacchio, 519 F.3d 1140, 1173 (10th Cir.2008) (Holmes, J., dissenting) (agreeing with the panel majority that Rule 16 âcertainly did not require [the defendant] to demonstrate admissibilityâ). As the panel held, Rule 16 leaves criminal defendants free to present expert witnesses without satisfying Daubert in advance through written expert reports. The governmentâs argument, if accepted, would have foisted civil discovery burdens on criminal defendants. Accordingly, the panel held that Mr. Nacchioâs Rule 16 disclosure âdid exactly what the law requiredâ and the district court erred in excluding the evidence on the basis of the supposed âegregiousâ âdeficienciesâ in the disclosure. Nacchio, 519 F.3d at 1151.
In its petition for rehearing, the government abandoned its Rule 16 argument, and all parties now seem to agree that Mr. Nacchioâs disclosure was sufficient under Rule 16. If Rule 16 disclosures need not include information sufficient for the court to exercise its Daubert gatekeeping function, the district court necessarily abused its discretion in basing its Daubert determination on those disclosures. It would be like dismissing a case on the ground that the complaint failed to anticipate an affirmative defense, when it was under no obligation to do so. Judge Nottinghamâs stated reason for excluding the evidence is therefore wrong. Accordingly, only if there existed some alternative ground for basing its Daubert ruling on the written disclosures can the district courtâs decision be affirmed.
III. Although The District Court Has Discretion To Require The Parties To Proffer Daubert Reliability Evidence In Some Manner Other Than Witness Testimony, It Must Inform The Parties What Procedures It Wishes To Impose
The majority offers three rationales for concluding that the district court was within its discretion when it barred the defense from establishing admissibility through witness testimony. First, the majority rests on the trial courtâs discretion to determine alternative procedures and argues that the defendant had notice that he was required to establish Professor Fischelâs reliability in advance of the testimony. Second, the majority argues that the defendant âabandonedâ his right to proceed via testimony by failing to make a motion to do so. Third, the majority claims that the defendant conceded that his Rule 16 disclosure was his âsubmissionâ on the Daubert issue.- In this section we will address the first of those arguments.
We have no quarrel with the majorityâs uncontroversial premise that âMr. Nacchio had no entitlement to a particular method of gatekeeping by the district court,â Maj. Op. 1245, or its conclusion that â[t]he district courtâs failure to proceed as Mr. Nac-chio anticipated does not by itself constitute an abuse of discretion.â Id. If Judge Nottingham had imposed a reasonable set of alternative procedures, the defense would have been required to follow them. He did not. One searches the record in vain for any hint that Judge Nottingham instructed the defendant that he should proceed in any fashion other than that dictated by the rules. Apart from telling defense counsel to bring his expert disclosure into compliance with Rule 16, Judge Nottingham never discussed how the defense should go about demonstrating the reliability of Professor Fischelâs econometric methodology.
In its April 3 memorandum, the government requested that if the court did not exclude Professor Fischelâs testimony outright, the court should schedule a Daubert hearing outside the presence of the jury âprior to the admission of such testimony.â App. 421. The government also asked that Professor Fischel be compelled to provide âthe reasons and bases for his opinions,â presumably in writing, âin advance of such hearing.â Id.
The majority points to nothing in the record that indicates that Judge Nottingham imposed any additional procedures or notified the parties that he was doing so. That is because it did not happen. But the majority nonetheless denies that the defendant suffered âunfair surpriseâ when the court disallowed the expert evidence without hearing testimony from the witness. Maj. Op. 1246-47. The majority states that âMr. Nacchio was on notice that the admissibility of Professor Fis-chelâs testimony under FRE 702 was at issue well before the district court issued its ruling.â Maj. Op. 1246. Of course he was; his counsel said as much. (âIn Latin, forewarned is forearmed.â App.2042.) The surprise did not pertain to whether there was a Daubert issue, it pertained to when and how the Daubert issue was to be addressed. Never, prior to disqualifying the witness, did the district judge say or even imply that the issue could not be resolved in the usual way, through voir dire examination of the witness on the stand.
The majority points to several instances in which the defense was warned that Daubert would be an issue. None of them would have led counsel to think that his right to address the question through foundational testimony and voir dire examination had been abrogated. During the March 22 hearing, the prosecutor stated that âitâs my concern at least based on the way the disclosure is raised right now, there could be Daubert issues that arise with respect to certain parts of the testimony.â App.2041^12. Judge Nottingham chimed in that the relevant case was probably Kumho Tire rather than Daubert. App.2042. The majority describes this as âat the very least, de facto warning of the imminent need for Mr. Nacchio to meet his burden.â Maj. Op. 1246. We do not agree. Putting aside that this appears to be yet another example of the prosecutorâs erroneous interpretation of Rule 16 (hence the reference to the âdisclosureâ), the prosecutor said only that there âcould beâ Daubert issues with respect to âcertain parts of the testimony.â In other words, the prosecution might, in the future, object to certain parts of Professor Fischelâs testimony. The prosecutorâs remarks can scarcely be interpreted as notice that the defense was required âimminentlyâ to present evidence of the expertâs methodology on pain of having the entirety of his testimony excluded. As to the judgeâs intervention, it was nothing more than a
The majority points next to the governmentâs motion to exclude Professor Fis-chelâs testimony, which, as it observes, âinvoked Daubert and FRE 702 numerous times.â Maj. Op. 1246. But the governmentâs claim that Mr. Nacchio had failed to carry his burden to demonstrate the reliability of Professor Fischelâs methodology under Daubert and Rule 702 was parasitic on its claim that Rule 16 compels disclosure of an expertâs methodology in writing in advance of the testimony. The argument was that the disclosures did not satisfy Daubert or Rule 702. See Govât Motion to Exclude, App. 363 (âThe disclosure also does not show that Professor Fischel used a reliable methodology in reaching his opinions.â); to similar effect see id. at 385, 388, 390, 393, 396, 398, 400, 403, 405, 407-08, 415. The defense disagreed with that interpretation of Rule 16, and rightly so. The governmentâs legal error about Rule 16 cannot serve as notice that the defendant bears a burden it would not otherwise bear, no matter how often the error was repeated.
The cases cited by the majority provide no more support for its conclusion than does the record. On the contrary, they show just how extraordinary an outlier this decision will be. The majority first compares this case to Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir.2001), in which the court ruled on summary judgment that the expertâs own deposition showed that she was not qualified to opine on the matter at issue. The proponent of the evidence claimed âunfair surprise,â asserting that she did not know that the qualifications of the expert would be an issue at the summary judgment hearing. Id. at 970 n. 4. The court rejected the claim of surprise on the ground that the other party had devoted an entire section of one of its memoranda in support of summary judgment to the proposition that the expert was not qualified.
These cases are not remotely similar. In Ralston, a civil case, the issue arose on the defendantâs motion for summary judgment. The plaintiff must have known that the motion would be decided, as motions for summary judgment always are, on the evidence in the record. This included her expertâs deposition testimony admitting her lack of qualifications. Our case is a criminal case where there have been no depositions. The expert in our case has not admitted to any lack of qualifications. The proponent of the expert testimony in our case had no way of knowing that the reliability of his expertâs methodology would be evaluated on the basis of written submissions, since his only written submission was his Rule 16 disclosure. The judge in our case based his disqualification ruling on the failure of the defense to provide discovery that it was not required to provide, rather than on the expertâs own admissions, as in Ralston.
The majority also relies on an unpublished opinion, Solorio v. United States, 85 Fed.Appx. 705, 709-10 (10th Cir.2004), another civil case in which this court rejected a claim of unfair surprise in connection with the disqualification of an expert under Daubert. In Solorio, the Daubert issue was first raised in summary judgment papers and then orally argued during the summary judgment hearing, during which the district judge gave the proponent numerous opportunities to explain and defend the basis for the expertâs opinions. The present case could scarcely present a greater contrast. In Solorio, the proponent failed to establish reliability through the expert report, as the civil rules require, but the district judge nonetheless
Procter & Gamble Co. v. Haugen is more nearly on point. In that case, like this one, the district court rendered its Daubert disqualification ruling at a point in the litigation when the proponent of the expert testimony âhad not submitted any expert reports to the district court [and] the district court had not heard any expert testimony.â 427 F.3d 727, 741 (10th Cir.2005). Unlike this case, the other side in Procter & Gamble had not filed a motion to limit or exclude the evidence. This court reversed the disqualification ruling, for two reasons. First, the court concluded that the proponent of the evidence âhad absolutely no warning prior to the district courtâs order of dismissal that the district court would be considering, let alone ruling on, the admissibility of [the expertâs] testimony.â Id. at 742. Second, and âre-latedly,â the court noted that âthe district court failed to âcreat[e] ... a sufficiently developed record in order to allow a determination of whether [it] properly applied the relevant law.â â Id. (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003)) (ellipses in original) (internal quotation omitted). Because of the lack of notice, the parties had not provided the district court with âdetailed briefingâ on admissibility, and the district court rendered no âdetailedâ or âspecificâ findings to explain its ruling â leading this court to label the ruling âoff-the-cuff,â id. (quoting Goebel, 215 F.3d at 1088), and to reverse.
This case, while not identical, is similar. In both, the parties were aware that Dau-bert issues were in the offing and would have to be decided âat some point.â Id. In both cases the record at the time the court made its ruling was inadequate to enable the court to make a proper Daubert judgment. In neither case did the parties know the issues would be decided prior to briefing, argument, and either submission of an expert report or testimony. Thus the proponents were caught by surprise. To be sure, our case is complicated by the governmentâs erroneous Rule 16 motion; the defense certainly had notice that the court would decide the Rule 16 issue before the expert took the stand. But Mr. Nacchio had no notice that, apart from Rule 16, Judge Nottingham would take it upon himself to decide the merits of the Daubert issue âoff-the-cuff,â without hearing testimony or argument. In that sense, this case is similar to Procter & Gamble and should be decided the same way.
The majority purports to distinguish Procter & Gamble, but we think not persuasively. The majority states that âthe expert admissibility issue here had been put before Mr. Nacchio multiple times,â Maj. Op. 1249, as it had â but that provides no more notice that the district court would decide the admissibility question without hearing testimony than the parties received in Procter & Gamble. The majority also states that âthe district courtâs ruling offered specific support for its determination and referenced relevant filings by both Mr. Nacchio and the government,â id., as it did â but because the determination was based on the assumption that the defendant had to defend the expertâs methodology in his written disclosure, the district courtâs ruling in our case is no less an abuse of discretion than was that in Procter & Gamble. Both cases involved a premature decision on the Daubert issue without notice to the parties that they could not make their showing as the rules would lead them to expect.
The majority also points to repeated âopportunitiesâ for the defense to file a written proffer of evidence sufficient to satisfy the Daubert standards or to file a
In short, the majorityâs first alternative ground for affirmance â that the defense failed to comply with procedures imposed by the district court in its discretion â fails either because the district court did not impose any such procedures or because, if it did, it failed to inform the parties. Either way, it would be an abuse of discretion to disallow testimony on this basis.
We obviously disagree with the majorityâs view that Mr. Nacchio received adequate notice that the Daubert issue would be decided before he had a chance to put the witness on the stand. But that conclusion affects only this defendant. Far more troubling is the majorityâs holding, relegated to footnotes and utterly bereft of any citation of authority, that the defendant was not legally entitled to notice that the district court would decide the Daubert issue in this summary fashion. See Maj. Op. 1244-45 n. 10, 1245 n. 11. That unprecedented holding will apply in all future cases, until another en banc court convenes or the Supreme Court intercedes. It is simply not true that defendants have âno right to be schooled by the district court concerning the specific means it would use to decide the motion and the timing of its planned action.â Maj Op. 1245 n. 11. If the district court intends to adopt a procedure other than that set forth in the rules or familiar to the parties by custom, it must give notice. See Procter & Gamble Co., 427 F.3d at 742; Padillas v. Stork-Gamco, Inc., 186 F.3d at 417-18; In re Paoli R.R. Yard PCB Litigation, 916 F.2d at 855. To deny a criminal defendant, or any party, the right to put on relevant evidence without first informing him of the means the court would use to decide its admissibility is not merely an abuse of discretion; it is a violation of due process of law.
IV. The Defendantâs Reply To The Governmentâs Motion To Exclude Did Not Constitute Abandonment Of The Right to Present Testimony In Support of Admissibility
As a second alternative ground for affir-mance, the majority holds that the defendant forfeited or âabandonedâ his right to present evidence in support of the reliability of Professor Fischelâs methodology by his failure to request a hearing. Maj. Op. 1251-52. There are two versions of this argument. First, that â[i]f Mr. Nacchio desired an evidentiary hearing, he bore the burden of requesting one.â Maj. Op. 1251. Second, that the defendantâs failure to request a hearing in response to the governmentâs April 3 âMotion to Exclude Testimony by Daniel Fischelâ constituted abandonment of the right. Maj. Op. 1251-52. Both versions of the argument are unsupportable.
The majority denies that it is relying on a forfeiture argument, preferring to say that the defendant âabandonedâ his right
The majorityâs assertion that â[i]f Mr. Nacchio desired an evidentiary hearing, he bore the burden of requesting one,â Maj. Op. 1251, is accompanied by neither a citation of authority nor an argument. Moreover, it is logically inconsistent with the proposition, which the majority does not even attempt to dispute, id. at 1244-45 & n. 10, that the presumptive means of establishing reliability is through questioning the witness on the stand. See pages 1260-62, above. Motions are required when a party wishes the court to employ an alternative procedure, not when it wishes to proceed in the presumptive fashion. Moreover, to be precise, Mr. Nacchio did not desire a separate âDaubert hearingâ; his assumption was that he would establish the reliability of the expertâs methodology by putting Professor Fischel on the stand and eliciting testimony about his methodology. A criminal defendant does not have to make a motion for permission to do this. He simply calls his witness to the stand and does whatever is necessary under the circumstances to establish admissibility. Defense counselâs failure to file a formal motion for a âhearing,â therefore, cannot be construed as a forfeiture or abandonment of his right to put on the witness.
Nor did the defendantâs failure to request a hearing in response to the governmentâs âMotion to Exclude Testimony by Daniel Fischelâ constitute a forfeiture. The governmentâs 61-page motion argued primarily that the defendantâs Rule 16 disclosure was inadequate, and that the expert should be excluded on that ground. App. 362-63; see id. at 418 (arguing that exclusion was an appropriate âsanctionâ for the defendantâs failure to âobtain an adequate expert reportâ). With respect to each of the issues on which Professor Fis-chel planned to opine, the motion pointed out that the defendantâs Rule 16 disclosure did not set forth any description of the methodology Professor Fischel employed, and argued that this was grounds for exclusion. Id. at 385, 388, 390, 393, 396, 398, 400, 403, 405, 407-08, 415. This aspect of the motion, therefore, was nothing more than a repackaging of the argument that the defense was required to disclose methodology in the Rule 16 disclosure. The motion also argued that the evidence was inadmissible on a number of other grounds under Rule 702, which are not defended by the majority and are therefore not relevant. These included: that Professor Fis-chelâs testimony would be a statement of alleged facts, that his testimony would not be outside the juryâs ordinary range of knowledge, that his qualifications were not relevant to the particular opinions, and that his testimony might confuse or mislead the jury. The government argued that because of these flaws, along with the Rule 16 deficiencies, the testimony could
The next day, the defense filed a 7-page âReply to United States Motion to Exclude Testimony by Daniel Fischel.â The first section of the reply defended the defendantâs expert disclosure under Rule 16, accurately setting forth the requirements of the rule and showing that the disclosure was in full compliance. The second section of the reply addressed the admissibility arguments the government made under Rule 702, such as whether Professor Fis-chelâs opinion was the product of specialized knowledge, whether it was relevant, and whether it would assist the jury in understanding the evidence. The third section defended Professor Fischelâs qualifications. The reply did not make explicit reference to the governmentâs request for a Daubert hearing in the event these arguments for outright exclusion did not carry the day. The reply concluded with the request âthat United Stateâs [sic] Motion to Exclude Testimony by Daniel Fischel be denied.â App. 468. We believe that this reply was adequate under the circumstances and that the majority is wrong to hold that it âabandonedâ the defendantâs right to present testimony in support of the reliability of Professor Fischelâs methodology.
With regard to the governmentâs argument that the disclosures did not establish the reliability of Professor Fischelâs methodology, the reply was fully responsive, even though it did not persuade the district court. The reply showed, correctly, that the defendantâs Rule 16 disclosure was sufficient. It did not, of course, even purport to establish the reliability of Professor Fischelâs methodology; its point was that there was no legal requirement that the Rule 16 disclosure do so. Because Rule 16 did not require the disclosure to establish reliability, the governmentâs arguments based on the lack of any âindicationâ in the disclosure that the expert employed a reliable methodology were without merit. As noted above, no one now defends the governmentâs contention on this point.
The reply also addressed the governmentâs most serious arguments regarding other admissibility issues under Rule 702. This also did not persuade the district court. As part of his explanation for disqualifying the witness, though not the âprimaryâ reason, Judge Nottingham held that Professor Fischelâs testimony was not relevant and would not be helpful to the jury. App. 8919. On appeal, the panel considered this rationale on the merits and rejected it. Nacchio, 519 F.3d at 1155. The government did not seek review of that holding in its petition for rehearing, it was not within the questions posed by the court for en banc rehearing, and the majority does not rely upon it.
That leaves the governmentâs request for a separate Daubert hearing out of the presence of the jury. The defendantâs reply made no reference to that request, and it is not improbable that this is because the defense agreed with, or at least was indifferent to, the suggestion. It follows that the defendant forfeited any right to object to a Daubert hearing. But the defendant certainly did not forfeit or abandon any right to object to having the Daubert decision rendered without either a separate
Indeed, the government stated in its motion that if the court did not disqualify the witness under Rule 16, âthe Court would likely need to hold an evidentiary hearing.â App. 420. In the face of that admission, the defendant had no reason to doubt that, if the Rule 16 and other evi-dentiary issues were properly decided, a hearing would take place on the Daubert issues.
The majority suggests, however, that a combination of one sentence in the introduction to the reply and the prayer for relief at the end of the reply âplausibly could be read as both opposing the governmentâs hearing and inviting the court to rule on admissibility without further proceedings.â Maj. Op. 1253. We do not see how. The introductory sentence quoted by the majority reads in its entirety: âThe governmentâs arguments are without merit.â App. 463. The prayer for relief reads: âFor the reasons set forth above, Mr. Nacchio respectfully requests that the United Stateâs [sic] Motion to Exclude Testimony by Daniel Fischel be denied.â App. 468. Nothing in between makes any reference to the possibility that the court might make its Daubert ruling âwithout further proceedings.â As already noted, the government had not made any such suggestion. Judge Nottingham did not base his ruling on any such interpretation of the defendantâs reply, and if he had done so, it would surely have been an abuse of discretion. It cannot serve as an alternative ground for affirmance.
V. The Defendant Did Not Concede That His March 29 Disclosure Should Be Treated As His Dau-bert Submission
As a final attempt to justify the district courtâs refusal to allow the defense to establish the witnessâs reliability through hearing or testimony, the majority leaps on a sentence in the defendantâs filing concerning rebuttal testimony, and attempts to argue that this was an admission that the defendant âconsidered his revised Rule 16 disclosure to be a submission on Professor Fischelâs methodology,â Maj. Op. 1249 n. 15; id. at 48^19, citing Aplee Supp. En Banc App. 50. The theory seems to be that if the defense âconsideredâ its Rule 16 disclosure statement as a submission on the Daubert issue, the district court was entitled to treat it as such, and to make the Daubert determination on
This interpretation has no support in the record. First, whatever the defendant may have said in his response on the rebuttal issue, that response was filed three days after the districtâs courtâs ruling excluding the Fischel testimony without a hearing. It therefore could not have been the district courtâs reason for proceeding as it did. At the time of that ruling, the defendant had said nothing that could be construed as an invitation to regard the Rule 16 disclosure as a Daubert submission.
More importantly, the majorityâs interpretation of the defendantâs statement is completely unjustified. Since the majority does not quote the defendantâs words, we will do so: âThe government has had Professor Fischelâs opinion and methodology on this opinion since March 29, 2007 (see Defendantâs Expert Disclosure Âś 7). Thus, it is hard pressed to claim surprise.â Aplee Supp. En Banc App. 50. This says, plainly, that the disclosure precluded any âsurpriseâ to the government that the testimony would be presented; it does not identify the disclosure as a âsubmissionâ regarding the reliability of the testimony under Datibert. Rule 16(b) required the defendant to provide a âwritten summaryâ of the âbasis and reasonsâ for his expertâs opinions. Mr. Nacchioâs counsel did so on March 29, which is why the government could not claim âsurprise.â But as we have explained, and the majority does not contest, Rule 16(b) does not require the disclosure to contain a âcomplete statementâ of the expertâs methodology so as to demonstrate admissibility, and Mr. Nac-chioâs disclosure did not purport to do so. The majority is therefore wrong to treat this reference to the March 29 disclosure as an admission that it contained an explanation of methodology sufficient to permit the district court to decide the Daubert issue.
The majority uses this mistaken claim of a concession to avoid the real issue in this case, which is not whether the disclosures adequately established reliability, but whether it was an abuse of discretion to decide the Daubert issue on the basis of the disclosures alone, without hearing or testimony. The majority conducts its entire analysis of whether the district court abused its discretion as if the issue in this case were whether the defendantâs disclosures as of April 5 were sufficient to satisfy the Daubert test. See Maj. Op. 1256-59. But the defendant does not contend, and never has contended, that his written disclosures established reliability. The majorityâs discussion of that âissueâ is an exercise in misdirection. The question is whether the district court was correct to cut the defendant off, and exclude the witness, without allowing defense counsel time to establish reliability through voir dire examination. Because Rule 16 did not require the defendant to establish reliability through written submissions, because the district court did not instruct the defendant to do so as an exercise of its discretion to depart from usual procedures, and because the defendant did not forfeit or abandon his right to establish reliability through hearing or testimony, the decision below must be reversed.
VI. Even If The Defendantâs Reply To The Governmentâs Motion Were Somehow Deficient, It Was An Abuse of Discretion To Impose The Extreme Sanction of Disallowing A Criminal Defendantâs Key Witness
Even assuming, for sake of argument, that the defendant was under an obligation
Criminal defendants have a constitutional right to present admissible evidence, and exclusion of a defendantâs evidence on account of trial errors is a drastic sanction, reserved for only the most serious cases. It is an abuse of discretion for the trial court to exclude important defense evidence on account of discovery violations, such as inadequate disclosure under Rule 16, unless those violations seriously affect the trial. Short v. Sirmons, 472 F.3d 1177, 1188 (10th Cir.2006) (âWhere the discovery violation is not willful, blatant or calculated gamesmanship, alternative sanctions are adequate and appropriate.â (citation omitted)); cf. Young v. Workman, 383 F.3d 1233, 1239 (10th Cir.2004) (âWhere a party has failed to comply with a discovery request, and the failure is âwillful and motivated by a desire to obtain a tactical advantageâ at trial, then exclusion of the evidence âis entirely consistent with the purposes of the Compulsory Process Clauseâ of the Sixth Amendment.â (quoting Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988))). The same is true of less serious trial errors, such as defense counselâs âunwise[]â failure to âsecondâ the governmentâs motion for a Daubert hearing. Maj. Op. 1247-48 n. 14. As Justice Breyer has commented, it is âessentialâ in this context that âthe courts administer the Federal Rules of Evidence in order to achieve the âend[s]â that the Rules themselves set forth, not only so that proceedings may be âjustly determined,â but also so âthat the truth may be ascertained.â â Gen. Elec. Co. v. Joiner, 522 U.S. 136, 149, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Breyer, J., concurring) (citations omitted). Nothing about the circumstances here suggests that exclusion of Mr. Nacchioâs key witness was an appropriate or proportionate response to defense counselâs omission.
First, it was surely understandable, even if it was not correct, for defense counsel to assume that he would have the opportunity to establish the admissibility of the expert evidence through witness testimony. The majority explicitly notes that this assumption âmay have been reasonable.â Maj. Op. 1245. The government shared this reasonable assumption. App. 420 (stating that if the court did not disqualify the witness under Rule 16, âthe Court would likely need to hold an evidentiary hearingâ). No case (at least not one that has been cited, or that we have discovered) has ever held that a criminal defendantâs expert may be excluded merely because defense counsel did not move for permission to establish admissibility on the stand.
Second, far from being calculated to obtain tactical advantage, defense counselâs slip-up was wholly without consequence. The mistake on which the majority relies was counselâs failure to move for a hearing in response to the governmentâs motion to exclude, or to âsecondâ the governmentâs motion for a hearing. Yet the record demonstrates that this omission was of no benefit to the defense, did not delay the trial, and did not change the course of the trial in any way. The night before Professor Fischel was scheduled to take the stand, the district judge had not yet looked at the governmentâs motion to exclude. App. 3834. The next morning, in court, Judge Nottingham asked the prosecutor who was going to cross-examine Professor Fischel,
Third, as the Supreme Court explained in Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), â[t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.â Judge Nottinghamâs exercise of discretion with respect to defense counselâs failure to file a written motion for a hearing is inseparable from his legal errors regarding Rule 16 and the relevance of economic expertise. In determining whether to disqualify the witness for counselâs misstep, it would surely be significant to the judge that, in his eyes, the defendant had made âegregiousâ and âgrossâ failures to comply with his disclosure obligations, rather than merely having omitted to make a written motion â the sort of failing Judge Nottingham had seemed to say he would not criticize. App. 3603.
Even more so, the judge must have been influenced by his conclusion that, quite apart from methodology, the evidence excluded was irrelevant and would be confusing to the jury. In his explanation of his disqualification ruling, Judge Nottingham articulated a contempt for expert economic evidence that raises serious questions about any exercise of his discretion in this matter. He described Professor Fischelâs proposed testimony â without knowing anything more about it than was described in the cursory âwritten summaryâ required under Rule 16 â as âa waste of timeâ that would âmislead the juryâ by âinviting the jurors to abandon their own common sense and common experience and succumb to this expertâs credentials.â Id. at 3919, 3920. He said, among other things, that the jurors had no need of expert evidence in determining whether Mr. Nacchio had an âeconomic incentive to trade or not trade on inside information here,â App. 3917; that analysis of the defendantâs trading patterns was âessentially irrelevant,â id.; that economic analysis âis within the common knowledge of the jury,â id. at 3918; that an analysis of whether Mr. Nacchioâs sales could be explained on the basis of the âeconomics of diversificationâ is âa piece of elucidation we really donât need here,â id.; and that a comparison of Mr. Nacchioâs trades to those of other CEOs or Qwest directors at the same time, who lacked Mr. Nacchioâs inside information, is âalmost preposterous.â Id. at 3919. He opined that expert evidence is no more necessary in a complex securities matter than in âa simple negligence case.â Id. at 3841. These statements are in sharp conflict with the advisory committee note to Federal Rule of Evidence 702, which describes âthe venerable practice of using expert testimony to educate the factfinder on general principles,â specifically mentioning as an example âhow financial markets respond to corporate reports.â
On appeal the panel held that the districtâs courtâs exclusion of the evidence on the ground that economic analysis is irrelevant and misleading in a securities case of
The majority disregards the district courtâs erroneous view of the relevance of economic evidence on the ground that âreview of this ... issue was not sought on en banc rehearing.â Maj. Op. 1243 n. 9. That is upside-down. The panel explicitly reversed the district courtâs relevancy ruling, and the governmentâs decision not to seek rehearing on that issue means that holding is now undisputed. It does not make the holding disappear. Even though the panelâs opinion was vacated, as the majority points out, id., the district courtâs errors were still errors; no one defends them. Unless the errors were harmless, see United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.2005), they necessitate reversal of the district courtâs decision.
The majority also seems to suggest that the district courtâs relevancy ruling is outside the scope of this en banc proceeding. Maj. Op. 1243-44 n. 9. Not so. One of the issues posed in the en banc order was whether the district court âabuse[d] its discretion in disallowing the evidence.â United States v. Nacchio, 535 F.3d 1165 (10th Cir.2008) (order granting petition for rehearing en banc) (quoted at Maj. Op. 1236 n. 1). This court has held time and time again that a district court abuses its discretion if it applies the wrong legal standard. E.g., Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir.2009); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009); United States v. Ramirez, 304 F.3d 1033, 1035 (10th Cir.2002); Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1153 (10th Cir.2001). In its explanations for the evidentiary ruling, the district court made at least two glaring legal errors, which no one â neither the government nor the majority â now defends. First, confusing the civil and criminal discovery rules, the court held that the defendantâs Rule 16 disclosures were egregiously deficient because they failed to set forth the expertâs econometric methodology. App. 3914, 3917. Second, the court held that expert economic testimony in this case would be irrelevant and a waste of time. Id. at 3917-20. The abuse of discretion issue brings these errors squarely before this en banc court. That the courtâs decision to exclude the evidence was based in significant part on these errors of law renders the ruling an abuse of discretion.
The majority does not defend the district courtâs holdings on these points; it all but ignores them, and conducts its analysis of abuse of discretion without taking them into consideration. See Maj. Op. 1256-59. The majority offers no explanation why it regards the legal errors that informed the district courtâs decision as ânot germane.â Id. at 1244 n. 9. It simply declares them so.
It is black letter law that a district courtâs legal errors are relevant to whether it abused its discretion. Koon, 518 U.S. at 100, 116 S.Ct. 2035; Westar Energy, 552 F.3d at 1224; RoDa Drilling, 552 F.3d at 1208; Ramirez, 304 F.3d at 1035; Dominion Video Satellite, 269 F.3d at 1153. Judge Nottingham certainly regarded the supposed disclosure deficiencies and irrelevance of economic analysis as material to his evidentiary ruling. He said so, repeatedly. The judge explained that he was disqualifying Professor Fischel âpri
Even apart from Judge Nottinghamâs own words, the relevance of his legal errors to the evidentiary ruling is obvious. As we have already noted, in determining whether counselâs procedural derelictions should result in disqualification of the criminal defendantâs key witness, it must necessarily have been significant to the judge that they constituted (he thought) âegregiousâ and âgrossâ violations of the defendantâs disclosure obligations. Similarly, Judge Nottinghamâs notion that economic testimony is misleading and a waste of time must have influenced his ruling. A court must balance any procedural omission regarding the introduction of evidence against the importance of that evidence to the truth-seeking function of the trial. If the court regards the testimony as a âwaste of time,â this must necessarily affect its assessment of the balance. Indeed, if the court did not take into consideration the seriousness of the procedural infraction and the importance of the evidence to the defense, it would likely be an abuse of discretion. Those are among the most important factors the court is supposed to consider. See United States v. Bahamonde, 445 F.3d 1225, 1231 (9th Cir. 2006) (listing factors a district court must consider before excluding a defense witnessâs testimony); Short v. Sirmons, 472 F.3d 1177, 1188 (10th Cir.2006) (noting the importance of whether the procedural infraction was âwillful,â âblatant,â or in âbad faithâ); Fendler v. Goldsmith, 728 F.2d 1181, 1188 (9th Cir.1983) (describing the importance of the witness as the âmost significantâ consideration). If the considerations that guided the court were based on incorrect understandings of the law, as these were, the courtâs exercise of discretion was necessarily distorted.
Discretion involves a sense of proportion. Not every violation of procedural rules warrants the nuclear option of disallowing the defense to present its case. As the Seventh Circuit observed in Harvey, â[t]he stakes in criminal prosecution are always high, and defendantsâ Sixth Amendment rights must be protected to ensure that the truth is ultimately found.â 117 F.3d at 1048. We cannot regard the sanction here as proportionate to the procedural omission, which was both understandable and inconsequential. It strongly appears that the district courtâs exercise of discretion was affected by its unsupportable views regarding Rule 16 and the value of economic expertise. We have nagging doubts about the district judgeâs sense of fairness toward this defendant. If the decision here was not an abuse of discretion, we wonder what one would look like.
VII. Conclusion
The defendant complied with the rules of criminal procedure. The district courtâs ruling to the contrary was based on a confusion between civil and criminal discovery rules. Although the district court had discretion to impose its own procedures for litigation of the Daubert issue, it did not do so, or if it did, it failed to inform
. On rehearing en banc we asked the parties to brief the following:
[ (1) ] Was the defendant sufficiendy on notice that he was required either to present evidence in support of the expert's methodology or request an evidentiary hearing in advance of presenting the expert's testimony? [ (2) ] Did the defendant have an adequate opportunity to present such evidence or request an evidentiary hearing in advance of presenting the expertâs testimony? [ (3) ] Did the defendant bear the burden of requesting an evidentia-ry hearing? [ (4) ] Did the district court abuse its discretion in disallowing the evidence, and if so, is the appropriate remedy necessarily a new trial, or is a remand for purposes of conducting an evidentiary hearing adequate?
United States v. Nacchio, 535 F.3d 1165 (10th Cir.2008) (order granting petition for rehearing en banc).
. Whether the district court viewed the operative criminal discovery standards as being roughly conterminous with civil discovery standards, and therefore erred in its Rule. 16 determination, is not' â as the principal dissent suggests â material to our resolution of this matter. See Dissenting Op. at 1259-61 (McConnell, J., dissenting) [hereinafter Dissenting Op.]. As discussed further herein, by the time the district court issued its exclusion ruling, the front-and-center issue was the reliability of Professor Fischel's proferred expert testimony under Daubert and FRE 702, and it was upon that ground that the district court primarily acted to exclude Professor Fischelâs testimony, concluding that Mr. Nacchio had failed to make an adequate showing that the testimony was reliable.
. Here, as in the parties' briefs and the panel opinion, we use Daubert as legal shorthand for the district courtâs obligation to test a proposed expert's methodology in advance of his or her testimony. See Daubert, 509 U.S. at 592-93, 113 S.Ct 2786 (charging trial courts with the responsibility of acting as gatekeepers to ensure that expert testimony is both reliable and relevant); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (clarifying that the court's gatekeeper function applies to all expert testimony, not just testimony based in science).
. Presumably, the district court was referring to Mr. Nacchio's Rule 16 disclosure, as revised.
. Mr. Nacchio filed this motion on Saturday, April 7. Mr. Nacchio then filed an amended, essentially identical motion on Sunday, April 8. Mr. Nacchio requested reconsideration and mentioned a Daubert hearing in both the original and the amended motion. The district court discussed but did not rule on Mr. Nac-chioâs motion the morning of April 9, before Professor Fischel took the stand to give non-expert testimony. Aplt.App. 481 n. 4, 3969-75, 3980.
. The principal dissent highlights this April 9 ruling as further validation for its theory that the district courtâs April 5 ruling to exclude Professor Fischel's expert testimony was erroneously predicated solely upon Daubert shortcomings in the Rule 16 disclosure. See Dissenting Op. at 1263-64, 1276-77. The district court's April 9 ruling âis equally susceptible of a correct reading,â however. Sprint/United Mgmt. Co. v. Mendelsohn, - U.S. -, -, 128 S.Ct. 1140, 1146, 170 L.Ed.2d 1 (2008). The courtâs statements are more naturally read as generally explaining that the same lack of reliability that doomed Mr. Nacchioâs previous tendering of Professor Fischel as an expert witness continued to plague his proffer of Professor Fischel's testimony as an expert rebuttal witness. In other words, the district court was merely underscoring that neither prior to the latter proffer nor after it had the government or the court been "in possession of Fischelâs opinion and/or methodology." Aplt.App. 4075. While the district court allowed that there were "other reasonsâ for its April 5 decision to exclude Professor Fischelâs expert testimony, the court stressed that it was "preciselyâ that âlack of reliabilityâ â as revealed through all of Mr. Nacchioâs filings, not just through his March 29, 2007, disclosure â that prompted its exclusion ruling. Aplt.App. 4075.
Mr. Nacchio tacitly acknowledged the legitimacy of the comprehensive decision-making approach that the district court adopted when it considered all of Mr. Nacchio's filings with regard to the reliability issue, when Mr. Nac-chio himself subsequently took the position that his revised Rule 16 disclosure was part of his submission on Professor Fischelâs methodology. See infra notes 8, 13, 15. Contrary to the principal dissentâs argument, Dissenting Op. at 1272-73, we are not suggesting that this acknowledgment by Mr. Nacchio provided the authorization for the district court to follow such a comprehensive gatekeeping approach in excluding Professor Fischel's expert testimony on April 5. The district court did not need Mr. Nacchio's "invitation,â id. at 1273, or blessing to take this comprehensive approach. Rather, Mr. Nacchioâs subsequent reliance on his revised Rule 16 disclosure as part of his Daubert methodology submission simply indicates that even Mr. Nacchio viewed it as legitimate for a district court to consider all "the particular facts and circumstances of the particular case,â including Rule 16 disclosures, in assessing whether the requisite Daubert methodology showing had been made. Kumho Tire Co., 526 U.S. at 158, 119 S.Ct. 1167.
. The district courtâs focus on FRE 702 also belies the principal dissentâs suggestion that the district court excluded the expert testimony as a sanction for a Rule 16 discovery violation by Mr. Nacchio. See Dissenting Op. at 35-38. The cases cited by the principal dissent addressing the scope of a district courtâs discretion to impose such a sanction are inapposite, as the desire to levy an extreme sanction or penalty was not the impetus for the district courtâs evidentiary ruling in this case. Put most simply, the impetus for that ruling was Mr. Nacchioâs failure to cariy his evidentiary burden under Daubert.
. As part of these comments, the district court did note that it also had reviewed Mr. Nac-chio's Rule 16 disclosure. However, since Mr. Nacchio (as discussed more specifically supra note 6 and infra in text and note 15) considered his revised Rule 16 disclosure to be a submission on Professor Fischelâs methodology, the district courtâs consideration of his disclosure is entirely consistent with the idea that the courtâs principal focus, as well as the foundation for its ruling, was Daubert and FRE 702.
. The principal dissent asserts that the district court must have been influenced by its allegedly erroneous conclusion that the excluded evidence was irrelevant and unhelpful. See Dissenting Op. at 1275-76. However, as the principal dissent acknowledges, review of this relevancy issue was not sought on en banc rehearing, and it is not directly at issue here as explained infra in note 21. See id. at 1275-76; see also supra note 1. The panelâs holding regarding the district court's relevancy finding â that is, regarding the district courtâs finding that Professor Fischelâs economic evidence was not relevant â admittedly did not "disappear,â Dissenting Op. at 1276, with the grant of the en banc petition. However, in proceedings of this en banc court, that holding has no decisional significance. It is an historical artifact. See Brown v. Bryan County, OK, 219 F.3d 450, 453 n. 1 (5th Cir.2000) ("With this vacatur, our previous opinion is no longer the law of the case.â (citing OâConnor v. Donaldson, 422 U.S. 563, 577 n. 12, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) ("Of necessity our decision vacating the judgment of the Court of Appeals deprives that courtâs opinion of precedential effect....â))). Quite apart from the fact of vacatur, as a matter of logic, the panelâs holdings regarding admissibility of Professor Fischel's expert testimony should have no decisional force in this en banc proceeding. It is precisely the panel's work in finding error in the district courtâs exclusion of Professor Fischelâs expert testimony that is open to question here. It logically follows that the panelâs work on this point (including its holdings) cannot be permitted to guide the en banc courtâs assessment of the same general terrain. Even if the outcome here was once again a reversal, it would be the voice of the en banc court speaking, not that of the panel, and the outcome necessarily would be framed in terms of the en banc order and briefing. (Of course, the outcome is not a reversal, and we are expressly vacating the portion of the panel opinion, Part 11(A), that addressed the district courtâs finding regarding the relevance of Professor Fischelâs testimony.)
Furthermore, our decision to eschew any reliance on the panelâs relevancy holding makes sense as a matter of jurisprudence. As further explained infra in note 21, this en banc court vacated the judgment of the panel and agreed to a rehearing on the question of the admissibility of Professor Fischelâs expert testimony. That issue is multifaceted, and with great care the en banc court specified the areas for consideration. The en banc court could have included among those areas the district court's findings concerning the relevance of Professor Fischelâs economic evidence, but it did not. Rather, the en banc order specified that its grant of rehearing was focused on the issue of Mr. Nacchio's presentation of "evidence in support of the expertâs methodology,â i.e., the reliability of the testimony. See supra note 1. See generally 16AA Charles Alan Wright et al., Federal Practice
Accordingly, we have properly declined to incorporate such holdings into our analysis; they are not germane. We do not need to reach the relevancy question in our determination of the issue identified for en banc rehearing.
. In its amicus brief, the National Association of Criminal Defense Lawyers ("NACDL") also asserts that the prevalent practice is to address Daubert issues at voir dire. We note this practice only to explain Mr. Nacchioâs argument and to expressly recognize that this was one of the options that the district court had available to determine admissibility. We need not, and do not, offer any definitive opinion on whether this was the typical â or, using the more loaded language of Mr. Nac-chio and the principal dissent, "presumptive,â Dissenting Op. at 1261 â practice in criminal cases for resolving Daubert admissibility issues. The principal dissent concedes that the district court was not bound to adhere to this practice, whether or not it was typical or presumptive. Id. at 1261, 1264. It follows that Mr. Nacchio had no entitlement to establish his witness's admissibility on the
The principal dissent's argument leaves the tracks, moreover, when it suggests that the district court had some obligation to provide specific notice to Mr. Nacchio concerning âwhen and how the Daubert issue was to be addressed.â Id. at 18. The principal dissent offers no legal authority that even comes close to establishing its contention that trial courts are obliged to engage in such hand-holding, and we doubt that there is any. Indeed, in preparing to make his Fed.R.Crim.P. 29 motion for judgment of acquittal, Mr. Nacchio demonstrated his understanding of the true state of affairs: that is, it is a partyâs responsibility to seek to dispel any uncertainty concerning the courtâs practices and procedures. Specifically, Mr. Nacchioâs lawyer said to the court, "I am unfamiliar with your practice. May I make an inquiry?â Aplt.App. 3602. Mr. Nacchioâs aim was to determine "how extensive a presentation or argumentâ the court required as to Rule 29 motions, and the court answered the question. Aplt.App. 3602-03. As with his Rule 29 motion, if Mr. Nacchio was uncertain how the court wished to use its discretion to proceed regarding the admissibility of Professor Fischelâs expert testimony and the resolution of the governmentâs motion to exclude, or if he desired a specific method to be followed to assess admissibility, Mr. Nacchio was obliged to voice his query or request to the district court.
. The only notice to which Mr. Nacchio was entitled was notice of the fact that the admissibility of his expert witnessâs testimony had been challenged by a government motion which asked the district court to exclude the testimony. He got that. Once he had responded to that motion and it was thus at issue, Mr. Nacchio had no right to be schooled by the district court concerning the specific means it would use to decide the motion and the timing of its planned action. Moreover, the record suggests that Mr. Nac-chio actually should have been on notice that the district court was contemplating ruling on the motion without a hearing. For example, on April 4, the day before Professor Fischel was offered as a witness, when the government asked about Professor Fischel, the court stated that it had "formed some preliminary views, but they really havenât jelled to the point" where it was ready to rule on the government's motion to exclude. Aplt.App. 3834. Then, on the morning of April 5, when Professor Fischelâs appearance on the witness stand was not imminent, the district court raised the topic of the motion to exclude and said to the government, âI know that I have the motion on the expert testimony, but we're already a half hour overdue with the jury, and I know you want a ruling.â Aplt.App. 3870. The court's comments reasonably can be read as indicating that the court contemplated ruling on the admissibility of Professor Fischel's expert testimony before he took the stand, believed that the parties expected it to do so, and was acknowledging that the court had been somewhat tardy in providing that ruling. Therefore, in fact, Mr. Nacchio arguably should have been on notice that the Daubert admissibility issue concerning Professor Fis-chel's testimony probably would not be resolved through his testimony on the stand, unless Mr. Nacchio, as the proponent of that testimony, took affirmative measures to secure the use of that procedure from the district court â something that Mr. Nacchio, of course, did not do. In any event, the principal dissent's argument that Mr. Nacchio was entitled to notice from the district court of the means it would use to resolve the government's at-issue motion to exclude and the timing of its planned action, and that Mr. Nacchio therefore could rightly claim unfair surprise when he did not get such notice, is legally untenable.
. Mr. Nacchio himself had cited Daubert repeatedly, and expressly requested "a hearing, mandated by Daubert, prior to trialâ âto test the admissibility ofâ testimony from certain high-level Qwest executives who were expected to be government witnesses, whom Mr. Nacchio argued would offer expert testimony. Dist. Ct. Doc. 64, at 1, 2, 3-5, 8-9 (Def.'s Mot. to Compel, filed May 1, 2006); Dist. Ct. Doc. 103, at 2, 7, 8 (Def.'s Reply to Gov't's Resp. to Mot. to Compel, filed June 22, 2006); Aplt. App. 220. Mr. Nacchio again cited Daubert in (successfully) seeking to exclude the testimony of two of the government's computer experts. Aplee. Supp.App. 14. These repeated and salient references to Daubert by Mr. Nacchio severely undercut any argument that Mr. Nacchio would not recognize the Daubert challenge being raised in the government's motion to exclude.
. In other words, at this point Mr. Nacchio's decision to steadfastly continue to view the government's attack on Professor Fischelâs expert testimony solely as it was initially framed â that is, only through the lens of Rule 16 â became both unwise and perilous. Similarly, though the principal dissent emphasizes that a Rule 16 disclosure does not need to include the information sufficient to make a Daubert determination, see Dissenting Op. at 1263-64, that contention is premised upon the assumption that this Rule 16 analytical lens continued to be applicable up until the time the district court issued its exclusion ruling. As explained above in the text, however, despite Mr. Nacchio's desire to adhere to this standpoint â which he did to the exclusion of adequately turning his attention to the FRE 702 issue â Rule 16 did not principally govern the terms of the debate once he had received notice that Professor Fischel's methodology was controverted. The risk of not sufficiently rising to the governmentâs FRE 702 challenge and of not setting forth all
. In an unpublished decision where the Dau-bert issue was in high relief, Solorio v. United States, we followed Ralston's logic in rejecting a claim by plaintiffs of unfair surprise. 85 Fed.Appx. 705, 709-10 (10th Cir.2004). We recognize of course that Solorio is not binding precedent; however, given its factual similarity, we find its reasoning especially persuasive. There, plaintiffs contended that they did not receive adequate notice of the Daubert challenge to their expert and that the district court issued its ruling on an incomplete record. Id. It apparently was undisputed that the government defendant had not filed "a separate motion to exclude [the] evidenceâ
. As discussed below, Mr. Nacchio also considered his revised Rule 16 disclosure to be a submission on Professor Fischel's methodology. Aplee. Supp. En Banc App. 50. Mr. Nacchioâs assertion that he lacked notice and opportunity to establish reliability is undercut by his simultaneous assertion that he submitted methodology evidence (i.e., evidence concerning reliability) to the district court.
. More specifically, the district court did not exclude Professor Fischelâs expert testimony as a penalty for Mr. Nacchioâs failure to request a Daubert hearing or to second the governmentâs suggestion of such a hearing in his response to the governmentâs motion to exclude. The district courtâs ruling resulted instead from Mr. Nacchio's failure to meet the evidentiary challenge put forth by the government by any of the legal means available to him. If Mr. Nacchio felt that he could not adequately respond to the motion to exclude with his written response, it was incumbent upon him to request whatever additional proceedings he thought necessary to achieve his evidentiary objective. After he failed to do so, the district court made its ruling on the basis of the record that had been developed, which was fully adequate for the court to examine the reliability issue as we discuss in Part 11(B)(2)(d).
. We use the term "abandonedâ here only to explain how Mr. Nacchio necessarily lost his opportunity to mount a response to the governmentâs challenge to the admissibility of Professor Fischelâs testimony on any grounds
We simply recognize that the district court properly exercised its discretion under Dau-bert in finding that Mr. Nacchio had failed to carry his evidentiary burden and-that Professor Fischelâs expert testimony was inadmissible. In other words, the government presented a Daubert challenge, and though Mr. Nacchio actively participated he did not respond effectively â he did not squarely and sufficiently oppose that challenge. The district court was legally obligated to decide whether admissibility had been established. See, e.g., Dodge, 328 F.3d at 1223 (noting that the district court "has no discretion to avoid performing the gatekeeper functionâ). And Mr. Nacchio simply lost the contest over admissibility, which is fully contemplated by our adversary system of justice. No question of forfeiture or waiver, as those concepts are customarily understood, see United States v. Zubia-Torres, 550 F.3d 1202, 1205-07 (10th Cir.2008) (McConnell, J.), has any bearing on our recognition of the propriety of the district court's discretionary decision to exclude Professor Fischelâs expert testimony.
. Other circuits are in accord with the Tenth Circuit view. See, e.g., Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1113-14 (11th Cir.2005); Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1064 (9th Cir.2002), amended, 319 F.3d 1073 (9th Cir.2003); United States v. Evans, 272 F.3d 1069, 1094 (8th Cir.2001); Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 248-49 (6th Cir.2001); In re TMI Litig., 199 F.3d 158, 159 (3d Cir.2000), amending 193 F.3d 613 (3d Cir.1999).
. 88 F.3d 872 (10th Cir.1996), superseded by statute on other grounds, Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104-208, 110 Stat. 3009-25, as recognized in United States v. Meacham, 115 F.3d 1488, 1491 (10th Cir.1997).
. Mr. Nacchio and NACDL argue that because Professor Fischel's testimony was vital to Mr. Nacchioâs defense, the exclusion also deprived Mr. Nacchio of the right to a present a complete defense. That right, however, is not absolute: it "may bow to accommodate other legitimate interests in the criminal trial process." Young v. Workman, 383 F.3d 1233, 1237 (10th Cir.2004) (internal quotation marks omitted). As there was no abuse of discretion in the exclusion, there was no impingement upon Mr. Nacchio's right to present his defense. See Chambers, 410 U.S. at 302, 93 S.Ct. 1038 (noting that the accused must comply with rules of procedure and evidence in exercising the right to present a defense). Furthermore, the principal dissent analytically misfires in purporting to identify an abuse of discretion in the district court's supposed exclusion of "important defense evidence on account of discovery violations, such as inadequate disclosure under Rule 16.â Dissenting Op. at 1274. As discussed further above, supra notes 7, 16, the district court did not exclude Professor Fischel's expert testimony in order to penalize Mr. Nac-chio. Moreover, the specific suggestion that the exclusion was some sort of Rule 16 sanction is simply misguided. Instead, Mr. Nac-chio suffered the natural and unremarkable consequence of failing to carry his evidentiary burden with respect to the admission of Professor Fischelâs expert testimony: the district court excluded it. Mr. Nacchio's status as a criminal defendant did not relieve him of this evidentiary burden. Furthermore, although we generally find Judge Kelly's dissenting opinion to be unpersuasive, it is especially so insofar as it asserts that we have "cho[sen] expediency over due process.â Kelly Dissenting Op. at 1278. Far from it. As painstakingly recounted herein, Mr. Nacchio had ample opportunity to make his case for the admission of Professor Fischel's expert testimony to support his defense. And, irrespective of "the tone of this trial,â id.., Mr. Nacchio was obliged to attempt to make that case, consistent with the gatekeeping discretion vested in the district court by Daubert. Mr. Nacchio did not rise to this challenge.
. Noting that whether the district court abused its discretion was one aspect of the issue as to which the court granted en banc rehearing, the principal dissent attempts to use that simple point as the predicate for asserting arguments about two allegedly undisputed legal errors by the district court concerning the contents of Rule 16 disclosures and the relevancy of economic evidence. According to the principal dissent, arguments related to these purported errors are appropriate in this en banc proceeding because they allegedly played an important part in the district courtâs evidentiary ruling and at least partly caused that ruling to constitute an abuse of discretion. See Dissenting Op. at 1275-77. The principal dissent's attempt to shoehorn these otherwise extraneous purport
First, the initial premise of the principal dissentâs argument is flawed: it is not undisputed that these two issues involve legal errors. As noted supra at note 2, whether the district court confused civil and criminal discovery standards and therefore erred in its Rule 16 determination is irrelevant here because it is patent that the district court primarily based its decision on Daubert and FRE 702 grounds. Therefore, acting with prudent judicial restraint, we simply have elected not to opine on the Rule 16 issue. Our act of restraint does not amount to a concession that the district court erred. As for the district court's relevancy ruling, as evident in the panel's split decision, it is far from undisputed that the district court erred. See Nacchio I, 519 F.3d at 1174 (Holmes, J., concurring in part and dissenting in part) ("Such reasons [as stated by the district court regarding relevance] for excluding expert testimony are perfectly reasonable.... It was certainly permissible for the district court to conclude that [Professor Fischelâs expert testimony] was not relevant. The district court could have excluded Professor Fischel's testimony on grounds of relevance alone....â).
Second, the abuse of discretion component of our en banc order naturally must be read with reference to the overarching focus of that order: that is, the district courtâs exclusion of Professor Fischelâs testimony on Dau-bert and FRE 702 grounds. Indeed, the principal dissentâs own arguments tacitly acknowledge this: â[T]he real issue in this case ... is ... whether it was an abuse of discretion to decide the Daubert issue on the basis of the disclosures alone, without hearing or testimony.ââ Dissenting Op. at 1273. Our en banc order did not open the door for an inquiry into every purported legal error that the district court may have made in evaluating Professor Fischelâs proffered expert testimony. See supra notes 1, 9. The relevancy of Professor Fischelâs proffered expert economic evidence was a separate issue from the primary Daubert issue â i.e., the reliability of Professor Fischelâs methodology in arriving at his economic opinions- â and, in its findings, the district court treated the two issues as distinct. True, Mr. Nacchio failed to satisfy the district court that the testimony would be either relevant or reliable. Aplt. App. 3917 (noting that the court was âconcerned not only with the methodologyâ but also that the requirement that the testimony be helpful to the juiy was not met); cf. id. at 4075-76 ("[E]ven if [Professor Fischel's proposed expert rebuttal testimony was] reliable, the Court remains of the conclusion that the testimony is of no relevancy.â). However, it was the latter reliability issue that was the primary basis of the district court's ruling excluding Professor Fischelâs expert testimony. And it was only as to the latter separate issue that this Court granted en banc rehearing. Accordingly, the mere fact that our en banc order called for consideration of whether the district court abused its discretion does not provide free license, as the principal dissent would have it, for consideration of the separate issue of the district courtâs finding concerning the relevancy of Professor Fischel's expert testimony regarding economic evidence.
Third, and relatedly, even if the district court's purported legal errors concerning the Rule 16 and economic-evidence relevancy issues were properly within the zone of consideration in this en banc proceeding, it is not entirely clear why they would merit analytical attention. The principal dissent's assertion that "the relevance of [the district courtâs] legal errors to the evidentiary ruling is obviousâ is itself far from obvious. Dissenting Op. at 1277. The principal dissent offers us little more than this bald ipse dixit as support for this proposition.
The principal dissent does seem to rely on the notion the district courtâs allegedly erroneous view of these legal issues necessarily would have been factored into the courtâs determination of how to respond to what the court misguidedly believed to be Mr. Nac-chio's "procedural derelictionsâ or "procedural infraction.â Dissenting Op. at 1276-78. As noted repeatedly herein, see supra notes 7, 16, 20 and accompanying text, however, the district court did not exclude Professor Fis-chelâs expert testimony in order to penalize Mr. Nacchio for any procedural delict. The exclusion was simply the product of Mr. Nac-chioâs faire to carry his evidentiary burden concerning the admissibility of Professor Fis-chelâs expert testimony.
Therefore, we are brought back to the fact that the district court treated the Daubert issue as a separate (and primary) component of its multifaceted critique of the admissibility of Professor Fischelâs expert testimony. Consequently, even if the district courtâs purported Rule 16 and relevancy errors were proper subjects for consideration in this en banc proceeding, which is focused on reliability under Daubert, it is far from clear that we would devote more than minimal energy in inspect
. The government objected to the form of the initial disclosure and the district court required the defense to supplement, which it did. We need not determine whether this order of the district court was correct.
. As in civil cases, the district court in a criminal case has discretion to require the filing of a written proffer. But in criminal cases âthese procedures must be crafted in a way that respects the fact that the Defendant has no obligation to present a defense until the Government has established its case.â United States v. Impastato, 535 F.Supp.2d 732, 743 (E.D.La.2008); see United States v. Poulsen, No. 06-129 (S.D.Ohio September 28, 2007) (reproduced in Addendum to Def.âs Supp. Br. at 29) (ordering defendants to submit expert reports in camera to prevent the government from getting "an unjustified preview of Defendant's litigation strategyâ). We need not determine in this case what limits on the trial courtâs discretion are entailed by these considerations, because Judge Nottingham did not order the defendant to provide any proffer beyond what he (mistakenly) thought was required under Rule 16.
. This motion demonstrates that the government, at the time, understood that a motion was necessary lest the Daubert issue be decided through foundational testimony and voir dire examination in front of the jury.
. To be fair to the district court, Judge Nottingham did not base his ruling on the defendantâs failure to comply with procedures he imposed in his discretion. That is the majorityâs theory. Judge Nottingham excluded the witness on the basis of his erroneous interpretation of Rule 16. It is easy to understand why the judge did not think he needed to inform defense counsel of new procedures; the judge believed he was simply enforcing the standard disclosure requirements set forth in Rule 16.
. For the first time in this litigation, the government contends in its supplemental brief that the defense was required to request a hearing pursuant to Judge Nottingham's local rule that "[a]ny party opposing [a] motion must ... state whether that party believes an evidentiary hearing is necessary.â Nottingham, Practice Standards â Criminal Âś 17 (2004). But the defense did not take the position that a hearing was required in opposition to the governmentâs motion. The governmentâs Motion to Exclude argued on Rule 16 and various evidentiary grounds that the testimony was inadmissible as a matter of law, to which the defense responded, also on legal grounds. Neither side thought these issues required a hearing for their resolution. The government did move for a hearing in the event the court disagreed with these arguments, but the defense did not âopposeâ that motion. Judge Nottingham did not refer to the local rule in connection with his disqualification decision, and it apparently did not play a part.