                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
__________________________
                            )
UNITED STATES OF AMERICA, )
                            )
     v.                     )
                            )    Criminal Action No. 10-178 (RWR)
CALEB GRAY-BURRISS,        )
                            )
     Defendant.            )
__________________________ )

                        MEMORANDUM ORDER

     On September 27, 2012, the government filed a motion in

limine to preclude the defendant from presenting under Federal

Rule of Evidence 702 an expert witness at trial.   The docket

shows that the motion was electronically served upon both counsel

for the defense, H. Heather Shaner and Patrick Christmas.   The

motion states that the defense asked the government if it had any

expert witness discovery.   See Fed. R. Crim. P. 16(a)(1)(G).     The

government says it complied with that rule by responding that it

will not present any expert testimony.   Upon complying, the

government says it demanded reciprocal discovery of defense

experts, as it is entitled to do under Rule 16(b)(1)(C), on

numerous occasions both outside of court and during multiple

status hearings in court.

     The government recites that it recently received a call from

an accountant who said he would be an expert for the defense.

The government states that the defense pledged to produce

information about its expert witness by September 15, 2012.     When
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the defense did not do so, the defense counsel proposed to do so

in a meeting set for September 27, 2012, but canceled the meeting

that day.   The government to date has received no Rule

16(b)(1)(C) material about the defendant’s expert witness.

     In considering whether to grant a motion to preclude an

expert witness, a court must balance the “defendant’s right to

offer the testimony of witnesses in his favor” against “[t]he

integrity of the adversary process, . . . interest in the fair

and efficient administration of justice, and the potential

prejudice to the truth-determining function of the trial

process[.]”   Taylor v. Illinois, 484 U.S. 400, 414-15 (1988).

      Rule 16(b)(1)(C) is designed in part to permit a fair

opportunity for the government to prepare for and test the value

of any expert testimony.   The defendant has not fulfilled his

obligation to comply with the rule.    If any defense expert

discovery were available at this stage, one possible remedy to

permit the government to prepare for it would be to delay the

start of the trial.   In this case, the trial has been set for

November 2, 2012 ever since the April 19, 2012 scheduling

conference was held and the pretrial order was issued.    That

unusually large amount of trial preparation time was provided “in

order to assure continuity of counsel and full readiness of all

parties for trial.”   Minute Order, June 13, 2012.   And the trial

date was finally set only after numerous scheduling continuances
                               - 3 -

sought by the defense ever since July 27, 2010.   The parties

confirmed their full readiness for trial in a joint status report

on June 13, 2012.   The interest of a “fair and efficient

administration of justice” counsels against opting to delay the

trial due to the defendant’s failure to abide by rules designed

to facilitate a fair exchange of relevant materials.   In

considering the last Taylor factor, allowing a defense expert to

testify without allowing the government its fair chance to

prepare for and to test the witness would undermine “the truth-

determining function of the trial process” by unduly constraining

the government’s ability to prepare for proper cross-examination.

     Ordinarily, the defense might be expected to aid the court

in assessing the Taylor factors by offering some explanation

about why it has not produced the Rule 16(b)(1)(C) discovery.     It

has certainly had that opportunity ever since it was served

electronically with the government’s motion 21 days ago.    Indeed,

the defense had an obligation to respond if it disputed the

factual allegations advanced or the relief sought by the

government.   But the defense has filed no response at all to the

government’s motion.   It has chosen to neither explain its

actions nor oppose the government’s request for relief.     Whether

its failure to comply with Rule 16(b)(1)(C) is willful or not is

unknown, but the government’s motion is deemed conceded in light

of the defense’s failure to respond to it.   LCrR 47(b).    The
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balance of factors under Taylor weighs in favor of granting the

government’s motion.   Accordingly, it is hereby

     ORDERED that the government’s motion in limine [136] to

preclude expert testimony by the defendant be, and hereby is,

GRANTED.

     SIGNED this 17th day of October, 2012.



                                        /s/
                               RICHARD W. ROBERTS
                               United States District Judge
