                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0423p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 05-6350
          v.
                                                       ,
                                                        >
 ALBERT GANIER, III,                                   -
                               Defendant-Appellee. -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                      No. 04-00193—Karl S. Forester, District Judge.
                                         Argued: September 20, 2006
                                 Decided and Filed: November 15, 2006
                Before: BATCHELDER, MOORE, and BALDOCK, Circuit Judges.*
                                             _________________
                                                   COUNSEL
ARGUED: Eli Richardson, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellant. Thomas H. Dundon, NEAL & HARWELL, Nashville, Tennessee, for Appellee.
ON BRIEF: Eli Richardson, Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEYS,
Nashville, Tennessee, for Appellant. Thomas H. Dundon, Aubrey B. Harwell, Jr., NEAL &
HARWELL, Nashville, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        KAREN NELSON MOORE, Circuit Judge. The United States appeals the district court’s
decision excluding certain evidence from the criminal trial of Defendant-Appellee Albert Ganier,
III (“Ganier”). Ganier is charged with one count of endeavoring to obstruct justice in violation of
18 U.S.C. §§ 1503(a) and 2 and three counts of altering, destroying, or concealing documents in
violation of 18 U.S.C. §§ 1519 and 2 for, among other acts, allegedly deleting certain computer files
with intent to impede a federal investigation. On the morning on which Ganier’s trial was to begin,
Ganier filed a motion to exclude the proposed testimony of a government computer specialist,
arguing that it was expert testimony for which the government had not provided a written summary
as required by Federal Rule of Criminal Procedure 16(a)(1)(G). The district court granted the

         *
           The Honorable Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit,
sitting by designation.


                                                         1
No. 05-6350               United States v. Ganier                                                               Page 2


motion, bringing the proceedings to a halt while the government filed this interlocutory appeal. We
agree that the proposed testimony was expert testimony for which a written summary should have
been provided, but because less severe remedies were not given adequate consideration, we
VACATE the decision of the district court excluding the evidence and REMAND the case for
further proceedings consistent with this opinion.
                                               I. BACKGROUND
        According to the Superseding Indictment,1 Ganier was Chief Executive Officer, Chairman
of the Board, a shareholder, and a founder of Education Networks of America, Inc. (“ENA”) and
its predecessor companies. Joint Appendix (“J.A.”) at 23. In July 2002, a television station
broadcast news stories discussing alleged relationships 2between Ganier, certain high-ranking
Tennessee officials, and John Stamps, a lobbyist for ENA. The news stories included allegations
of improprieties and favoritism in connection with contracts awarded to ENA by the State of
Tennessee and solicitations of Tennessee and Texas officials for additional contracts.
        In August 2002, a federal task force was formed and began a criminal investigation of the
contracts and solicitations as well as various companies associated with John Stamps. Assisted by
the federal task force, a federal grand jury began an investigation in September 2002, later
transferred to a successive grand jury. Over the course of the next three months, the grand jury
issued a number of subpoenas. In December 2002, after the grand jury issued subpoenas on various
companies and state agencies, Ganier allegedly attempted to implement an email “retention” policy
at ENA in which employees’ emails would be set to delete after six months, deleted files relevant
to the ongoing investigation from his laptop computer, deleted relevant files from his desktop
computer, and deleted relevant files from an ENA employee’s computer.
         Ganier was ultimately indicted on one count of endeavoring to obstruct justice and three
counts of altering, destroying, or concealing documents with intent to impede a federal investigation,
and the case proceeded towards trial. As ordered by the district court, Ganier filed a summary of
expected expert testimony on June 17, 2005, in which he indicated that he would offer evidence that
the files in question were transferred to the recycle bin rather than deleted, and that approximately
225 duplicates and similar drafts of the allegedly deleted documents remained on the computers.
J.A. at 159-61 (Summ. of Expert Test. at 4-6). He also indicated that he would offer evidence
showing the following:
         The computers in question each possessed “search” functions that, if utilized, would
         have located all or substantially all of the duplicates and similar drafts or versions of
         the allegedly “deleted” documents, thereby permitting a user intent on concealment
         to delete all or substantially all copies of particular documents on those computers.
J.A. at 161.
        According to the government, its forensic computer specialist, Special Agent Wallace
Drueck of the IRS, decided to use forensic software to determine what searches were run on the
three computers. J.A. at 386, 389-90 (Hr’g Tr. (AUSA Eli Richardson) at 8, 10-11). On August 1,
2005, the day before the date set for trial, Drueck determined from reports generated by the forensic
software that searches had been run in December 2002 using search terms relevant to the grand jury

         1
          Because this is an interlocutory appeal, the background facts are taken from the allegations of the Superseding
Indictment.
         2
         The Superseding Indictment does not name John Stamps, but describes an unnamed “Individual A.” J.A. at
24. The government identified John Stamps as Individual A in its brief on appeal. Appellant Br. at 5.
No. 05-6350           United States v. Ganier                                                     Page 3


investigation and the allegedly deleted files. J.A. at 348-62 (Attachs. to Def.’s Mot. to Exclude);
J.A. at 386-87 (Hr’g Tr. (AUSA Richardson) at 8-9). The next morning, before the jury was
impaneled, Ganier filed a motion to exclude the reports and related testimony, J.A. at 346 (Def.’s
Mot. to Exclude), which the district court granted. The government timely appealed, and the district
court stayed the trial pending the appeal.
                                           II. ANALYSIS
A. Issue Preservation
       Ganier first argues that we should review the district court’s decision only for plain error
because the government failed to make an offer of proof in accordance with Federal Rule of
Evidence 103(a). Rule 103(a) states, in relevant part:
       (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which
           admits or excludes evidence unless a substantial right of the party is affected, and
               ...
               (2) Offer of Proof. In case the ruling is one excluding evidence, the
                   substance of the evidence was made known to the court by offer or was
                   apparent from the context within which questions were asked.
FED. R. EVID. 103(a). A formal offer of proof is not required, but the substance of the evidence,
what it will show, and the grounds for admissibility must be made known to the court or be apparent
from the context. See United States v. Crockett, 435 F.3d 1305, 1311-12 (10th Cir. 2006); United
States v. Moore, 425 F.3d 1061, 1068 (7th Cir. 2005); United States v. Jimenez, 256 F.3d 330, 343
(5th Cir. 2001), cert. denied, 534 U.S. 1140 (2002); United States v. Quinn, 123 F.3d 1415, 1420
(11th Cir. 1997), cert. denied, 523 U.S. 1012 (1998); cf. Waltzer v. Transidyne Gen. Corp., 697 F.2d
130, 134 (6th Cir. 1983) (“Since the trial court was aware of, and the transcript discloses, the general
nature of the evidence which was excluded, this issue may be considered on appeal.”) (citation
omitted).
         It is undisputed that the government did not make a formal offer of proof in this case. The
government would have been well advised to make a formal offer of proof, as the district court was
left to discern the substance of Drueck’s testimony from Ganier’s written motion and the parties’
arguments the next morning. Rule 103(a) does not require a formal offer of proof, however, and
despite the shortcomings in the government’s presentation, we conclude that it was adequate to
warrant normal appellate review.
        During the hearing on Ganier’s motion to exclude, the government informed the court that
Drueck would testify as to “what he found on the computers.” J.A. at 387 (Hr’g Tr. (AUSA
Richardson) at 9). The government explained that Drueck had run forensic software on the three
computers to generate reports of a series of search terms, including examples of particular names
and terms relevant to the case. The district court had before it copies of the reports generated by the
forensic software. Defense counsel gave further details, stating that Drueck had run software
revealing what searches had been run at particular dates and times. J.A. at 384 (Hr’g Tr. (Thomas
Dundon) at 6). As the district court’s Opinion and Order excluding the evidence confirms, that court
was adequately aware of the substance of the proposed evidence and what it would show. See J.A.
at 368-71, 373 (Dist. Ct. Op. & Order at 1-4, 6) (describing the reports and proposed testimony).
       Furthermore, because Ganier’s motion to exclude was based on an alleged violation of
Federal Rule of Criminal Procedure 16(a)(1)(G), Ganier did not argue that the proposed testimony
was not admissible under the Federal Rules of Evidence. Thus, the government adequately made
the grounds for admissibility known to the court simply by arguing that it should not be excluded
No. 05-6350               United States v. Ganier                                                              Page 4


for failure to comply with Federal Rule of Criminal Procedure 16(a)(1)(G). Accordingly, the
government satisfied the minimum requirements of Federal Rule of Evidence 103(a), and we do not
apply the plain-error doctrine in reviewing the district court’s order.
B. Exclusion of Evidence
         1. Standard of Review
         “We review the district court’s admission or exclusion of evidence for an abuse of
discretion.” United States v. Perry, 438 F.3d 642, 647 (6th Cir.), cert. denied, 126 S. Ct. 2045
(2006). At the same time, “[i]n reviewing a trial court’s evidentiary determinations, this court
reviews de novo the court’s conclusions of law and reviews for clear error the court’s factual
determinations that underpin its legal conclusions.” United States v. Baker, 458 F.3d 513, 516 (6th
Cir. 2006) (internal quotation marks omitted). These standards “are not in fact inconsistent, because
‘it is an abuse of discretion to make errors of law or clear errors of factual determination.’” Id. at
517 (quoting United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005)).
         2. Violation of Federal Rule of Criminal Procedure 16(a)(1)(G)
       We must first determine whether the district court erred by concluding that Drueck’s
proposed testimony fell within the scope of Federal Rule of Criminal Procedure 16(a)(1)(G).3 Rule
16(a)(1)(G) requires, in part, that “[a]t 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.” FED. R. CRIM. P.
16(a)(1)(G). Testimony falls under Federal Rule of Evidence 702 if it is based on “scientific,
technical, or other specialized knowledge.” FED. R. EVID. 702.
        The government argues that Drueck’s proposed testimony is not based on scientific,
technical, or other specialized knowledge, but is simply lay testimony available by “running
commercially-available software, obtaining results, and reciting them.” Appellant Br. at 38. The
government contends that this testimony is of the same type as “facts . . . that could be observed by
any person reasonably proficient in the use of commonly used computer software, such as Microsoft
Word and Microsoft Outlook (such as the existence and location of multiple copies of documents
that are identical or virtually identical to the allegedly ‘deleted’ documents),” which Ganier
previously indicated he did not consider to be expert testimony. J.A. at 156 (Def.’s Summ. of Expert
Test. 1).
      The reports generated by the forensic software display a heading, a string of words and
symbols, 4a date and time, and a list of words. See J.A. at 348-62 (Attachs. to Def.’s Mot. to
Exclude). The government asserts that these reports reveal three different types of searches


         3
           In its ruling from the bench, the district court excluded the proposed testimony pursuant to Federal Rule of
Criminal Procedure 16(a)(1)(F). J.A. at 395-96 (Hr’g Tr. at 17-18). In its Opinion & Order, however, the district court
relied on Rule 16(a)(1)(G). J.A. at 368-76. The later written opinion supersedes the earlier oral ruling. See O’Neill v.
AGWI Lines, 74 F.3d 93, 95 (5th Cir. 1996); Snow Machines, Inc. v. Hedco, Inc., 838 F.2d 718, 727 (3d Cir. 1988);
Harbor Tug & Barge, Inc. v. Belcher Towing Co., 733 F.2d 823, 827 & n.3 (11th Cir. 1984); White v. Washington Pub.
Power Supply Sys., 692 F.2d 1286, 1289 n.1 (9th Cir. 1982). Moreover, Ganier did not brief the issue relating to Rule
16(a)(1)(F) on appeal, and he does not appear to argue that we should decide this appeal on that ground.
         4
          For example, a portion of one report reads as follows:
         Registry - Al Ganier Desktop
                  Software\Microsoft\Internet Explorer\Explorer         Bars\{C4EE31F3-4768-11D2-BE5C-
                  00A0C9A83DA1}\FilesNamedMRU
         Last Written Time 12/09/02 08:34:57
No. 05-6350           United States v. Ganier                                                 Page 5


performed with particular search terms at particular times, but such an interpretation would require
Drueck to apply knowledge and familiarity with computers and the particular forensic software well
beyond that of the average layperson. This constitutes “scientific, technical, or other specialized
knowledge” within the scope of Rule 702.
        Because the categorization of computer-related testimony is a relatively new question,
comparisons with other areas of expert testimony are instructive. Software programs such as
Microsoft Word and Outlook may be as commonly used as home medical thermometers, but the
forensic tests Drueck ran are more akin to specialized medical tests run by physicians. Cf. Lyons
v. Stovall, 188 F.3d 327, 330 (6th Cir. 1999) (describing as “expert witnesses” two doctors who
performed blood paternity tests and testified as to the results), cert. denied, 530 U.S. 1203 (2000).
The average layperson today may be able to interpret the outputs of popular software programs as
easily as he or she interprets everyday vernacular, but the interpretation Drueck needed to apply to
make sense of the software reports is more similar to the specialized knowledge police officers use
to interpret slang and code words used by drug dealers. Cf. United States v. Garcia, No. 95-1224,
1995 WL 712757, at *4-*5 (6th Cir. Dec. 4, 1995) (unpublished) (affirming a decision to allow a
police officer to give expert testimony as to the meaning of certain code words); United States v.
Peoples, 250 F.3d 630, 640-41 (8th Cir. 2001) (concluding that a police officer should not have been
allowed to testify as to the meaning of code words on recorded conversations because she had not
been qualified as an expert).
        We have on occasion allowed witnesses to apply specialized knowledge while giving lay
testimony. See, e.g., United States v. Wells, 211 F.3d 988, 997-98 (6th Cir. 2000) (affirming a
decision allowing doctors to testify as fact witnesses that a person was cancer-free based on first-
hand observations) (citing Richardson v. Consol. Rail Corp., 17 F.3d 213, 218 (7th Cir. 1994));
United States v. Smith, No. 96-1885, 1998 WL 385471, at *4 (6th Cir. June 29, 1998) (unpublished)
(affirming a decision to allow police officers to give lay testimony explaining the code words they
used while negotiating a drug purchase). However, the 2000 amendment to Federal Rule of
Evidence 701 clarified that lay opinions or inferences cannot be based on “scientific, technical, or
other specialized knowledge within the scope of Rule 702.” FED. R. EVID. 701. Even before the
amendment, witnesses who performed after-the-fact investigations were generally not allowed to
apply specialized knowledge in giving lay testimony. See Richardson, 17 F.3d at 218 (stating that
a doctor is not an expert when his or her testimony is based on observations made during the course
of treatment, is not acquired for purposes of litigation, and is based on personal knowledge);
Peoples, 250 F.3d at 641 (“When a law enforcement officer is not qualified as an expert by the court,
her testimony is admissible as lay opinion only when the law enforcement officer is a participant in
the conversation, has personal knowledge of the facts being related in the conversation, or observed
the conversations as they occurred.”). Thus, the district court did not err by concluding that
Drueck’s proposed testimony could be offered only pursuant to Rule 702. Accordingly, the
government violated Federal Rule of Criminal Procedure 16(a)(1)(G) by not providing a written
summary of the testimony to Ganier.



               Name    Type           Data
               000     REG_SZ         al...
               001     REG_SZ         sony...
               002     REG_SZ         RFP...
               003     REG_SZ         sundquist...
               004     REG_SZ         ARC...
               005     REG_SZ         roadmap to
                                      revenue...
               006     REG_SZ         road...
               007     REG_SZ         roadmap...
J.A. at 359.
No. 05-6350           United States v. Ganier                                                    Page 6


       3. Remedy
       We still must determine whether the district court imposed an appropriate remedy. Federal
Rule of Criminal Procedure 16(d)(2) states:
       If a party fails to comply with [Rule 16], 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.
FED. R. CRIM. P. 16(d)(2). In deciding whether suppression of evidence is an appropriate remedy,
a district court should consider:
       (1) the reasons for the government’s delay in producing the materials, including
       whether it acted intentionally or in bad faith; (2) the degree of prejudice, if any, to
       the defendant; and (3) whether the prejudice to the defendant can be cured with a less
       severe course of action, such as granting a continuance or a recess.
United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995). “District courts should embrace the ‘least
severe sanction necessary’ doctrine, and hold that suppression of relevant evidence as a remedial
device should be limited to circumstances in which it is necessary to serve remedial objectives.”
Id. at 247-48. These principles apply with equal force to both the government and the defendant.
        The record in this case does not reflect whether the district court considered the reasons for
the government’s delay, the degree of prejudice to Ganier, or whether a less severe sanction was
appropriate. At least one court has concluded that excluding expert testimony without making a
record of these considerations is an abuse of discretion. United States v. Sarracino, 340 F.3d 1148,
1170-71 (10th Cir. 2003), cert. denied, 540 U.S. 1131, and 540 U.S. 1133 (2004). We agree under
the circumstances involved here.
         Furthermore, the record does not reflect bad-faith conduct by the government. The
government disclosed the reports that Drueck generated with forensic software almost immediately
after it received them. J.A. at 368 (Dist. Ct. Op. & Order at 1); J.A. at 386 (Hr’g Tr. (AUSA
Richardson) at 8); cf. United States v. Bartle, 835 F.2d 646, 649-50 (6th Cir. 1987) (affirming the
district court’s decision to admit evidence discovered the previous day though not disclosed in
accordance with Rule 16), cert. denied, 485 U.S. 969 (1988). Ganier argues that the government’s
failure to give a written summary of proposed testimony was an intentional violation of Rule
16(a)(1)(G) once it became clear that Drueck would offer expert testimony. However, there is no
evidence that the government argued in bad faith that Drueck would be giving only fact testimony,
and this appeal immediately followed the district court’s decision to the contrary. The government
may have been negligent in waiting until the day before trial to investigate search terms, but
negligence does not, by itself, warrant suppression.
        Finally, the record does not reflect any prejudice to Ganier that could not have been cured
with a less severe sanction, such as a continuance or a limitation in the scope of Drueck’s testimony.
Ganier raised the issue of computer searches himself and had an expert prepared to testify about
searches and search functions. J.A. at 161 (Def.’s Summ. of Expert Test. at 6). Ganier was thus
well aware that the issue could be raised at trial, reducing any potential prejudice. See United States
v. Melucci, 888 F.2d 200, 203 (1st Cir. 1989). The government gave Ganier a copy of the
underlying computer evidence in the fall of 2004 and a copy of the forensic software reports
immediately after they were produced. J.A. at 385-86 (Hr’g Tr. (AUSA Richardson) at 7-8). Access
No. 05-6350           United States v. Ganier                                                   Page 7


to the evidence and reports further reduces any potential prejudice. See United States v. Charley,
189 F.3d 1251, 1262 (10th Cir. 1999), cert. denied, 528 U.S. 1098 (2000). In the face of these
factors, Ganier has not identified any particular prejudice that he would suffer if the district court
admitted Drueck’s testimony.
         Ganier might be able to identify incurable prejudice or bad-faith conduct once the
government provides a written summary of Drueck’s testimony or additional facts otherwise come
to light. On the record as it stands, however, the district court abused its discretion by excluding the
proposed testimony.
C. Other Evidentiary Objections
        Finally, Ganier contends that the proposed testimony is inadmissible hearsay under Federal
Rules of Evidence 801 and 802, that the results produced by the forensic software would not be
properly authenticated by Drueck’s proposed testimony and are thus inadmissible under Federal
Rule of Evidence 901, and that the proposed testimony is irrelevant and thus inadmissible under
Federal Rule of Evidence 401. We decline to address these arguments, as they were not presented
to or addressed by the district court. See Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th
Cir. 2005). Ganier is free to raise them in the district court on remand.
                                        III. CONCLUSION
       Because remedies less severe than exclusion were not given adequate consideration, we
VACATE the decision of the district court and REMAND the case for further proceedings
consistent with this opinion.
