Submitted: February 14, 2019
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
found Christopher Kessler guilty of two drug crimes. He
claims that he is entitled to a new trial because he received
inadequate notice of what an expert witness planned to say.
officers recovered two baggies in Kessler's pockets, one
containing 53.5 grams of methamphetamine and the other 7
grams of marijuana. Prosecutors filed two charges against
him: possession with intent to distribute methamphetamine, 21
U.S.C. § 841(a)(1), (b)(1)(A); and possession of
marijuana, id. § 844(a). Kessler's defense
to the methamphetamine charge was that the drugs were for his
own personal use, not for sale or distribution.
counter this defense, the government filed a notice several
weeks before trial that it would call police detective Kevin
Nightingale to provide expert testimony about the
"methods used by drug traffickers including how
methamphetamine is transported, packaged and sold;
trafficking amounts versus user amounts of methamphetamine,
including amounts typically sold; and the dollar values of
methamphetamine." Kessler moved to exclude
Nightingale's testimony, arguing, among other things,
that the government had not provided enough detail in its
notice. See Fed. R. Crim. P. 16(a)(1)(G) (requiring
the government to provide a "written summary" of
any planned expert testimony "[a]t the defendant's
request"). To address Kessler's concerns, the
district court allowed defense counsel to question
Nightingale at a special hearing the morning before trial.
The court then denied Kessler's motion.
before Nightingale's testimony on the second day of
trial, Kessler again objected, this time to the
government's failure to disclose Nightingale's
estimate of the value of the methamphetamine in Kessler's
possession. The court ordered the government to disclose this
information and called a one-hour recess. After the recess,
Nightingale testified that the 53.5 grams of methamphetamine
found in Kessler's pockets was worth approximately $1,
600. The jury eventually found Kessler guilty of both counts.
question on appeal is whether the district court abused its
discretion when it refused to exclude Nightingale's
testimony about the value of the methamphetamine. See
United States v. Buchanan, 604 F.3d 517, 524 (8th Cir.
2010) (setting out the standard of review). In answering this
question, we assume, but do not decide, that the
government's notice was deficient.
deficiency, if there was one, did not go unremedied. The
district court ordered the government to disclose the dollar
value of the methamphetamine and provided a one-hour recess
that allowed defense counsel to prepare a response. See
United States v. Shepard, 462 F.3d 847, 866 (8th Cir.
2006) (stating that potential remedies include
"order[ing] the government to disclose the
evidence, grant[ing] a continuance, prohibit[ing] use of
the evidence at trial, or 'enter[ing] any other order
that is just under the circumstances'" (quoting Fed.
R. Crim. P. 16(d)(2)) (emphasis added)). For two reasons, the
district court's response was not an abuse of its
Kessler knew ahead of time that one of the expected topics of
Nightingale's testimony would be "the dollar values
of methamphetamine." To be sure, the notice did not
provide details about what exactly Nightingale would say.
See Fed. R. Crim. P. 16(a)(1)(G) (stating that the
government's "summary" must "describe the
witness's opinions [and] the bases and reasons for those
opinions"). But the district court was still entitled to
conclude that Kessler's attorney was not blindsided by
his testimony, as he claimed, and that a remedy other than
complete exclusion was appropriate. Cf. United States v.
DeCoteau, 186 F.3d 1008, 1010 (8th Cir. 1999)
("When a court sanctions the government in a criminal
case for its failure to obey court orders, it must use the
least severe sanction which will adequately punish the
government and secure future compliance." (citation
Kessler's attorney had the opportunity to question
Nightingale beforehand. Cf. United States v.
Tenerelli, 614 F.3d 764, 773 (8th Cir. 2010) (affirming
the district court's decision not to exclude an expert
witness's testimony, in part because the government had
made her "reasonably available to defense counsel prior
to trial"). Rather than taking the opportunity to ask
about the value of the methamphetamine, however, he focused
on other aspects of Nightingale's ...