                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4294


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEFFREY JOSEPH MCCOY, a/k/a Chris Wilson,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00536-RWT-1)


Submitted:   December 27, 2012            Decided:   January 10, 2013


Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Cheryl L. Crumpton, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              A jury convicted Jeffrey Joseph McCoy of possession of

a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006),

possession with intent to distribute cocaine base, 21 U.S.C.

§ 841(a)(1) (2006), and possession of a firearm in furtherance

of a drug trafficking crime, 18 U.S.C. § 924(c) (2006).                                He

received      a    156-month    sentence.        On   appeal,      McCoy    argues    the

district court erred in denying his motion in limine to exclude

the   Government’s       expert    witness’s      testimony        regarding   McCoy’s

intent   to       distribute    drugs    because      McCoy    was    not   given    fair

notice and disclosure of the testimony.                  McCoy also contends the

trial court erred in limiting his probation officer’s testimony

concerning McCoy’s drug use.                   We review the district court’s

evidentiary rulings for abuse of discretion, and generally will

not reverse absent a showing of prejudice.                           United States v.

Smith, No. 11-4336, ___ F.3d ___, 2012 WL 6554868, at *4 (4th

Cir. Dec. 17, 2012).           We affirm.

              First, McCoy argues on appeal that the district court

erred in admitting the testimony of Government expert witness

Agent    Barnes      regarding    drug    trafficking         on   the   grounds     that

Barnes was “insufficiently designated” and notice was untimely.

Specifically,        McCoy     argues    the    Government’s         disclosure     under

Fed. R. Crim. P. 16(a)(1)(G) was particularly lacking in any

basis for Barnes’ opinion that the quantity of drugs in McCoy’s

                                            2
possession was more consistent with distribution than personal

use, that drugs are almost always an impulse purchase, and that

the amount of cash on McCoy’s person was more consistent with

distribution.       McCoy     further     maintains        that      because     the

Government’s expert witness disclosure changed three times the

notice was untimely and left McCoy inadequate time to prepare.

          Federal     Rule     of     Criminal      Procedure         16(a)(1)(G)

requires the Government to give, at the defendant’s request, a

written summary of any expert testimony that it intends to use

during its case-in-chief at trial.          This summary “must describe

the   witness’s    opinions,    the     bases    and       reasons     for     those

opinions, and the witness’s qualifications.”                 Fed. R. Crim. P.

16(a)(1)(G).      “As the rule’s Advisory Committee Notes explain,

Rule 16(a)(1)(G) ‘is intended to minimize surprise that often

results from unexpected expert testimony . . . and to provide

the opponent with a fair opportunity to test the merit of the

expert’s testimony through focused cross-examination.’”                      Smith,

___ F.3d at ___, 2012 WL 6554868 at *5 (quoting Fed. R. Crim. P.

16(a)(1)(G) Advisory Comm. Note to the 1993 amendment).

          In its order, the district court concluded that the

Government had met the requirements of Rule 16(a)(1)(G) as the

Government     provided,    after   McCoy   filed      a    motion     in    limine

(construed as a Rule 16 request), a written summary of expert

testimony that described Barnes’ opinions, the bases and the

                                      3
reasons for those opinions, and his qualifications.                          The court

further   concluded      that    an   additional       continuance      would     cause

delay and likely prejudice the Government.                       It further reasoned

that the Government’s initial letter of June 27, 2011, should

have alerted McCoy to the possible need to secure an expert

witness to rebut the Government’s expert witness in the field of

narcotics    trafficking        and     in    the      interstate      movement       of

firearms.    At the very least, reasoned the district court, it

should    have      prompted    McCoy    to    make     a    request     under    Rule

16(a)(1)(G).        We conclude the district court did not abuse its

discretion     in    allowing    Agent       Barnes’    testimony,          finding   no

violation of Rule 16(a)(1)(G). *

            Second, McCoy complains the district court abused its

discretion     in    excluding    the    testimony          of    McCoy’s    probation

officer regarding drug testing results.                      A salient aspect of


     *
       To the extent McCoy asserts the Government’s notice was
untimely,   this  argument   is  without   merit.     Under  Rule
16(a)(1)(G), the Government must give the defendant a written
summary only after the defendant requests it. See United States
v. Garza, 566 F.3d 1194, 1199-200 (10th Cir. 2009) (right to
pre-trial notice not violated if defendant did not make a
request for such notice); United States v. Johnson, 228 F.3d
920, 924 (8th Cir. 2000) (notice required only if defendant
makes a request). In this case, the Government provided McCoy a
written summary the day after he made the request.     See United
States v. Holmes, 670 F.3d 586, 598 (4th Cir. 2012) (noting
that, because Rule 16 is silent as to the timing of expert
witness disclosures, the appellate court reviews the district
court’s timeliness determination for abuse of discretion).



                                         4
McCoy’s     defense       at    trial     was       that   the    drugs      found        in   his

possession were for personal consumption, not distribution.                                     To

that    end,   McCoy       sought       to    introduce        the    testimony          of    his

probation officer that McCoy tested positive for either cocaine

or opiates on three separate occasions and that, on a number of

occasions, McCoy cheated on the tests by a process called water

loading.       The Government objected, arguing that the probation

officer had no involvement in the conducting of the drug tests,

and    no   basis    of     knowledge        with     respect        to    the     methodology

employed.       Furthermore,         the      Government         argued,     the        probation

officer’s      testimony         that     McCoy       tested      positive         on     various

occasions      would       be    hearsay.            The   court          agreed    with       the

Government that the probation officer could testify that she had

the tests conducted and as a result that she filed a petition

for a violation of the terms of probation, but that she could

not personally testify as to the results.

             McCoy argues for the first time on appeal that the

court   should      have       admitted      the     probation       officer’s          testimony

regarding the test results as non-hearsay evidence under the

“business records exception” pursuant to Fed. R. Evid. 803(6).

Because McCoy failed to argue for the admission on this ground

below, we review this argument for plain error.                                  See Fed. R.

Crim. P. 52(b); Puckett v. United States, 129 S. Ct. 1423, 1428-

29 (2009).

                                                5
              The   proponent     of   “records   of    a    regularly       conducted

activity”      must    establish       through    the       custodian       or     other

qualified witness that (A) the record was made at or near the

time by ­ or from information transmitted by ­ someone with

knowledge; (B) the record was kept in the course of a regularly

conducted activity of a business, organization, occupation, or

calling, whether or not for profit; and (C) making the record

was a regular practice of that activity.                      See Fed. R. Evid.

803(6)(A)-(C).        Assuming McCoy had sought to introduce the drug

test results under Rule 803(6), the probation officer would not

have served as a qualified witness as she had no basis to know

when the records were made, by whom, or whether they were kept

as a part of regularly conducted business.

              In any event, McCoy cannot show resulting prejudice as

he   introduced       the   challenged        testimony       through        his     own

testimony.      He testified that as a condition of his probation,

he underwent multiple drug tests and that he tested positive “a

couple   of    times.”      Defense     counsel   then      argued     to    the    jury

during   closing      arguments    that   McCoy   had       intended    to    use    the

crack cocaine for personal consumption, not distribution.                            We

conclude McCoy fails to meet the high burden of establishing

plain error.

              Accordingly, we affirm the judgment of the district

court.    We dispense with oral argument because the facts and

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legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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