                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2008

USA v. Renard
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4705




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                       No. 07-4705
                                       __________

                          UNITED STATES OF AMERICA,
                                             Appellee,

                                           vs.

                                    VOLVIC RENARD
                                                         Appellant.
                                       __________

                On Appeal from the District Court of the Virgin Islands
                                 (Cr. No. 07-00053)
                     District Judge: Honorable Curtis V. Gomez
                                     __________

                                    Argued May 6, 2008

                                       ___________

           Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges

                              (Opinion Filed: July 31, 2008)
                                       __________

                                        OPINION
                                       __________


Jesse A. Gessin, Esq. [ARGUED]
Assistant Federal Public Defender
P.O. Box 1327
St. Thomas, VI 00804-1327

      Counsel for Appellant
Anthony J. Jenkins
United States Attorney
Everard Potter [ARGUED]
Assistant United States Attorney
Ron de Lugo Federal Building
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas, VI 00802-6424

       Counsel for Appellee


FUENTES, Circuit Judge:

       Appellant Volvic Renard appeals his conviction for violating 8 U.S.C. § 1326(a).

For the following reasons, we will affirm.

                                             I.

       Renard is a citizen of Haiti. On July 26, 2007, he entered the Department of

Homeland Security’s office in St. Thomas, Virgin Islands, seeking asylum under the alias

“Jean Durand Pierre.” Officials processed and fingerprinted Renard. A fingerprint

analysis revealed that Renard had been deported from the United States in January 1989

under the alias, “Andre Selant.”

       Because of his prior deportation, the Government charged Renard with one-count

of re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a).

Following Renard’s arraignment, the District Court entered an order requiring completion

of discovery by October 1, 2007. In compliance with this order, the Government turned

over the fingerprint cards containing the prints taken in 1989 of one Andre Selant and



                                             -2-
those taken of Renard in 2007. On Thursday, October 25, 2007, four days before the trial

was to begin, the Government received a report from Brian A. Jones, its fingerprint

specialist. The report confirmed that the fingerprints taken in 1989 of Andre Selant,

matched Renard’s fingerprints taken in 2007.

       Upon receipt, the Government emailed Jones’s report and his curriculum vitae to

Renard’s counsel who responded, stating that he did not consent to service of court

documents by email. The following day, the Government placed a copy of the report and

curriculum vitae in Renard’s counsel’s mail box at the District Court. Renard’s counsel

picked up the documents on Monday morning, just before jury selection and the start of

trial. No pre-trial motions were made by anyone respecting the fingerprint specialist’s

report or testimony.

       As expected, the Government called Jones to testify regarding the match between

Selant’s fingerprints taken in 1989 and Renard’s fingerprints taken in 2007. Renard’s

counsel moved to exclude the testimony or, alternatively, for a continuance stating that he

had only received notice of Jones’s testimony a few hours before. The District Court

denied the motion but allowed Renard’s counsel to voir dire Jones and gave him “broad

leeway in [his] cross-examination.” (App. 88.)

       At the end of the evidence and the summations of counsel, the jury found Renard

guilty. Renard was sentenced to time served, amounting to approximately five months as

well as a one-year term of supervised release. Renard now appeals. Renard’s principal



                                            -3-
issue on appeal is whether the District Court erred in admitting Jones’s testimony as to the

fingerprints or, in the alternative, for failing to grant him a continuance in response to the

Government’s Rule 16 violation. Renard asks that we vacate his conviction and remand

the case for a new trial. We have jurisdiction over Renard’s appeal pursuant to 28 U.S.C.

§ 1291.

                                              II.

       Federal Rule of Criminal Procedure 16(a)(1)(G) provides, in relevant part:

              At the defendant’s request, the government must give to the
              defendant a written summary of any testimony that the
              government intends to use under Rules 702, 703, or 705 of the
              Federal Rules of Evidence during its case-in-chief at trial.... The
              summary provided under this subparagraph must describe the
              witness’s opinions, the bases and reasons for those opinions, and
              the witness’s qualifications.

       If a party fails to comply with Rule 16's disclosure requirements, Rule 16(d)(2)

states that “the court may: (A) order that party to permit the discovery or inspection;

specify its time, place, and manner; and prescribe other just terms and conditions; (B)

grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or

(D) enter any other order that is just under the circumstances.”

       At trial, the District Court considered the defendant’s argument that it received the

fingerprint report too late to prepare and the Government’s explanation that it requested

the report just after the grand jury indictment was returned and before the case was set for

trial. The Government also noted that it provided defendant with copies the same day the



                                              -4-
report was received. Based on these arguments, the District Court concluded that the

Government had not acted in bad faith and, accordingly, allowed the fingerprint specialist

to testify and admitted the report in evidence, despite the fact that the court-ordered

discovery deadline had passed.

       In reviewing a District Court’s denial of a motion to exclude expert testimony, in

the face of the Government’s assumed violation of Rule 16, we have specifically held that

a new trial is only warranted if the “District Court’s actions resulted in prejudice to the

defendant.” United States v. Lopez, 271 F.3d 472, 483-484 (3d Cir. 2001). We have

further stated that “‘the prejudice that must be shown to justify reversal for a discovery

violation is a likelihood that the verdict would have been different had the government

complied with the discovery rules.’” United States v. Davis, 397 F.3d 173, 178 (3d Cir.

2005) (quoting Lopez, 271 F.3d at 483-484).

       In United States v. Lopez, a case dealing with a nearly identical scenario presented

here, we held that the Government’s failure to provide, before trial, the required written

summary of the Government’s fingerprint expert’s qualifications, and a list of the bases

and the reasons for the expert’s opinion, did not warrant a new trial given the discretion

explicitly provided to the District Court under Rule 16. We specifically noted in Lopez

that the defendant had failed to explain how the Government’s failure to disclose

information resulted in a denial of his right to a fair trial or how he was prejudiced by the

late disclosure. 271 F.3d at 482-484. In determining whether this Court should second



                                              -5-
guess the District Court’s view of what was a “just” action for a Rule 16 discovery

violation, we considered the harm, if any, caused by the Government’s violation. Id.1

       Four years after Lopez, we held, in United States v. Davis, that the District Court

did not abuse its discretion in denying defendants’ request for a new trial, where the

defendants failed to establish any prejudice stemming from the Government’s inadequate

discovery. 397 F.3d at 178. We agreed with the defendants that the Government failed to

adequately satisfy their Rule 16 obligations by failing to give the defendants a more

extensive written statement that included the “witness’s opinions, the bases and reasons

for those opinions, and the witness’s qualifications.” Id. However, because the

defendants only argued that the Government did not fully comply with its discovery

       1
          We note that our sister circuits have also held that the a defendant must show
that he was prejudiced by the District Court’s denial of a motion to exclude expert
testimony - in light of the Government’s Rule 16 violation - in order to warrant a new
trial. See United States v. Anderson, 446 F.3d 870, 875-76 (8th Cir. 2006) (affirming
conviction where defendant failed to demonstrate that he was unfairly prejudiced by the
decision to allow a police officer to testify as an expert when the Government failed to
provide disclosure); United States v. Mendoza, 244 F.3d 1037, 1047 (9th Cir. 2001)
(holding that the Government’s failure to comply with Rule 16 only compelled reversal
where the appellant “demonstrate[d] prejudice to substantial rights [where] [t]he
prejudice that must be shown to justify reversal for a discovery violation is a likelihood
that the verdict would have been different had the government complied with the
discovery rules, not had the evidence [been] suppressed”); United States v. Miller, 199
F.3d 416, 420 (7th Cir. 1999) (holding that Government’s failure to properly disclose
expert witness testimony did not warrant a new trial unless “the remedy offered by the
district court was inadequate to provide [the defendant] with a fair trial”); United States v.
DeWeese, 632 F.2d 1267, 1272-73 (5th Cir. 1980) (affirming conviction where
Government informed defendant that witness would be testifying the day before trial
where appellant failed to show prejudice other than complaint that he was unable to
properly prepare for cross examination).


                                             -6-
obligations and did not demonstrate that they were prejudiced by the inadequate

discovery, we concluded that they were not entitled to a new trial. Id.

       The essence of Renard’s argument is that the District Court abused its discretion

by allowing Jones to testify or, alternatively, by not granting a continuance. Renard

contends that he was prejudiced by the Government’s discovery violation because he was

unable to effectively cross-examine Jones and was unable to rebut Jones’s testimony. In

passing, Renard also notes that the Government did not produce a report describing the

bases and reasons for the fingerprint specialist’s opinion and that this had the potential to

prejudice the defense. Nonetheless, Renard does not explain how the verdict would have

been different had the Government provided him with notice of the fingerprint specialist

in accordance with Rule 16. Moreover, Renard does not explain, for example, how, if he

had been granted a continuance, he would have been able to impugn Jones’s testimony or

establish that the fingerprints taken of Renard in 2007 were different from those taken of

him when he was deported in 1989.

       In sum, Renard has failed to explain how reversal of any of the District Court’s

decisions would likely have resulted in a verdict of not guilty.2



       2
         We pause here to express our profound disapproval of the manner in which the
Government handled its discovery obligations in this case. Our review of the record does
not disclose any reasonable basis for the first disclosure of the relevant fingerprint
specialist’s report to the defense four days before the start of trial. When the court
ordered discovery deadline approached, the Government could have informed defense
counsel that they were awaiting the fingerprint specialist’s report or sought a continuance.
While we find that Renard did not meet his burden of showing the necessary prejudice for

                                             -7-
                                               III.

          Because we discern no abuse of discretion in the District Court’s rulings, we will

affirm.




a new trial, we are nonetheless concerned that the government’s delay might have
resulted in an aborted proceeding and substantial waste of judicial resources.

                                               -8-
