                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1390
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Eric Conroy,                            *
                                        *
             Appellant.                 *
                                    __________

                             Submitted: September 13, 2005
                                Filed: September 29, 2005
                                 ___________

Before RILEY, FAGG, and GRUENDER, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       Eric Conroy (Conroy) was convicted of aggravated sexual abuse in violation
of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and 1153, and abusive sexual conduct in
violation of 18 U.S.C. §§ 2244(a)(1), 2246(3), and 1153. Conroy challenges his
convictions, arguing the district court1 erred in (1) finding statements made by
Conroy to one of his victims, Raelene Tail (Tail), not subject to disclosure under
Brady v. Maryland, 373 U.S. 83 (1963); (2) not excluding or limiting the
government’s expert witness testimony following the government’s alleged improper

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
expert witness notice; (3) admitting the expert witness’s testimony; (4) admitting
Tail’s prior consistent statements; and (5) denying his motion for mistrial based on
prosecutorial misconduct. We affirm.

I.     BACKGROUND
       Conroy was indicted on five counts of sexually abusing three victims: Tail,
Sheila Slow Bear (Slow Bear), and Angela Sun Bear. The events giving rise to this
appeal took place on the Pine Ridge Indian Reservation, where Conroy’s father is a
tribal police officer.

       Following Conroy’s arrest, Tail provided a detailed written statement to police.
Tail’s disclosed statements included an explanation for her late reporting of the
assaults, saying she did not immediately report the rapes because Conroy’s father is
a tribal police officer. At a pretrial conference, the government asserted Tail would
testify at trial she did not immediately report her first rape by Conroy because Conroy
had told her the police had let him go in the past because of his father’s position.
Conroy objected and, pursuant to Brady, requested disclosure of the statement he
allegedly made to Tail. The district court held the statement was not exculpatory and
thus not subject to disclosure.

       At trial, Tail testified Conroy had bragged to Tail that he and others once were
stopped by police, but when he told police who his father was, the police set him free
while detaining the others. On cross-examination, Conroy attempted to impeach Tail
with her written statement to police regarding several specific factual details. On
redirect, the government was permitted, over Conroy’s objection, to rehabilitate Tail
with prior consistent statements she made in her written statement that did not
specifically pertain to the topics on which she was impeached.

      Also before trial, the government filed a notice to use expert witness Kandi
Smith (Smith) to testify as to laboratory results of a rug found outside Tail’s home on

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which Conroy allegedly wiped semen from his penis following one of the rapes of
Tail, including Smith’s opinions on why the laboratory results found no semen on the
rug. Conroy filed motions in limine arguing (1) the notice failed to provide adequate
notice of the substance of Smith’s opinions, and (2) the scope of Smith’s testimony
exceeded the scope of the laboratory results. The district court denied the motions.
Smith testified at trial as to why the laboratory results may not have found Conroy’s
semen on the rug. Conroy objected to the testimony as too speculative and not based
on facts or data, but the district court denied the objection and admitted the testimony.

       During closing argument, the government told the jury Conroy failed to
produce medical evidence supporting his arguments the victims would have been
bruised by Conroy’s actions, Conroy had the ability to subpoena witnesses, and
Conroy presented no evidence regarding how easily the victims bruised. After each
statement, the district court sustained Conroy’s objection. Following closing
arguments, the district court addressed these specific objections and admonished the
jury as to the government’s burden of proving its case beyond a reasonable doubt, and
explained “the defendant does not have the burden or duty of calling any witnesses
or producing any evidence.”

       Conroy was convicted on three of five counts. He moved for a mistrial based
on the prosecutor’s closing argument, but the district court held the statements, while
improper, were not prejudicial. Conroy was sentenced to 188 months’ imprisonment.

II.   DISCUSSION
      A.     Failure to Disclose Conroy’s Statements to Tail Pursuant to Brady
      We review for an abuse of discretion the government’s alleged violation of its
disclosure obligations under Brady. United States v. Deavault, 190 F.3d 926, 929
(8th Cir. 1999).




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       Brady requires the government to disclose “evidence favorable to an accused
upon request . . . where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
Impeachment evidence as well as exculpatory evidence falls within the Brady rule.
United States v. Bagley, 473 U.S. 667, 676 (1985). Impeachment evidence is
“evidence favorable to an accused, so that, if disclosed and used effectively, it may
make the difference between conviction and acquittal.” Id. (citations and quotations
omitted). Evidence is material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” Id. at 682.

       Conroy argues the government violated its duties under Brady by failing to
disclose Conroy’s statement to Tail about receiving favorable treatment by police
following a traffic stop. He claims this was impeachment evidence because, had he
known about it, he could have used facts surrounding the alleged stop to impeach
Tail’s credibility. The government implies the evidence was not impeachment
evidence, and argues it was not material.

        We disagree with the government as to impeachment, but agree the evidence
was not material. While a statement by a witness supporting her own testimony does
not fit what one normally thinks as impeachment evidence (such as bias or interest),
under the broad definition in Bagley, Tail’s testimony probably fits within an
expanded impeachment definition because, if used effectively, it may have been
useful in attacking Tail’s credibility. On the other hand, even if the statement was
impeachment evidence, it was not material. The issue at trial was not whether the
traffic stop occurred as Tail testified, but what Tail believed regarding Conroy’s
special treatment by the police. Tail’s belief or fear about Conroy and the police, i.e.,
her state of mind for not reporting the rapes, was material. The true facts surrounding
the alleged stop were not material. Further, had the statement been disclosed, it might

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have affected the trial’s outcome only indirectly if (1) the traffic stop did not occur
as Tail testified, (2) if Conroy somehow presented evidence contradicting Tail’s
account of the traffic stop, (3) if the jury believed Conroy’s evidence regarding the
stop over Tail’s testimony, (4) if this inconsistency affected the jury’s credibility
determination of Tail on the sexual abuse charge, and (5) if the jury based a not guilty
verdict on Tail’s diminished credibility. These many “if’s” do not create a reasonable
probability of a different outcome.

       B.   Insufficient Expert Witness Notice
       We review for an abuse of discretion alleged violations of Federal Rule of
Criminal Procedure 16(a)(1)(G). See United States v. Tibesar, 894 F.2d 317, 319 (8th
Cir. 1990).

       Rule 16(a)(1)(G) requires the government to provide a summary of an expert
witness’s expected testimony, including “the witness’s opinions, the bases and
reasons for those opinions, and the witness’s qualifications.” The government’s
notice of Smith’s expected testimony contained the following statement: “Ms. Smith
is expected to testify that no semen was detected on the rug and the reasons why no
semen or vaginal fluids were detected, including but not limited to environmental
impacts, non-secreter issues, and the lack of established vaginal fluid testing
availability.”

      Conroy argues the government’s notice of intent to use Smith was insufficient
because the notice failed to explain the bases for Smith’s opinions as to why
laboratory results did not find semen on the rug located outside Tail’s home. The
government responds claiming the notice was sufficient, and the level of detail argued
by Conroy is not required by the law.

      While the government’s notice did not explain in detail the bases for Smith’s
opinions, and its use of a non-exclusive list is questionable, the district court’s

                                          -5-
holding that the notice was sufficient was not an abuse of discretion. First, Conroy
cites no case law supporting his argument. Second, upon receiving the government’s
notice, Conroy had the opportunity for over five months before trial to move to
compel a more detailed notice, but he chose not to do so. Conroy also could have
sought the advice of his own expert. Third, a detailed notice would not have helped
Conroy. His defense was he never committed the rapes; thus, no semen could have
been found on the rug. Smith testified no semen was found on the rug, thereby
supporting Conroy’s defense. A more detailed notice, which arguably could have
helped Conroy cross-examine Smith as to her opinion regarding the different
scenarios for semen being on the rug and then disappearing, would have offered little
help to his defense claim that no semen was ever on the rug.2

       C.    Inadmissible Expert Witness Opinion
       Conroy argues the district court erred in admitting Smith’s testimony because
her testimony was too speculative in opining about the reasons for a lack of physical
evidence. As an initial matter, the government argues plain error review applies
because Conroy originally challenged the scientific basis of Smith’s testimony under
Daubert, but later withdrew that challenge. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993). Conroy responds an abuse of discretion standard applies
because he never actually raised a Daubert challenge and therefore never waived it,
but he did object to the testimony’s general admissibility under Federal Rule of
Evidence 702 both before and during trial. Because Conroy challenged the admission
of Smith’s testimony under Rule 702, we review for an abuse of discretion. See
Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761, 776 (8th Cir. 2004).

      It is not an abuse of discretion to allow an expert witness to testify as to a lack
of physical evidence as long as the expert’s opinion does not usurp the jury’s role of


      2
       The district court’s advice to the government “in the future . . . [to] be more
enlightening to the defendant” in Rule 16(a)(1)(G) expert disclosures is good advice.

                                          -6-
assessing whether the event occasioning the evidence actually occurred. United
States v. Kirkie, 261 F.3d 761, 766 (8th Cir. 2001). Such testimony assists the jury
in understanding the evidence or lack of it. See Fed. R. Evid. 702. We see little
difference between a forensic expert testifying as to the reasons for not finding bodily
fluid evidence on a rug, and the common situation of a fingerprint expert testifying
as to the reasons for not finding a defendant’s fingerprints on an object in question.
See, e.g., United States v. Solorio-Tafolla, 324 F.3d 964, 965 (8th Cir. 2003) (noting
a law enforcement expert’s testimony on the lack of fingerprint evidence on certain
drug packaging). Further, an expert’s testimony generally is admissible when it
“substantially track[s] the summary report.” United States v. Beltran-Arce, 415 F.3d
949, 953 (8th Cir. 2005). Smith’s testimony did so, and her speculation as to the
ways time and environmental factors might eliminate the presence of semen is
allowed and may even be encouraged: “A certain amount of speculation is necessary,
an even greater amount is permissible (and goes to the weight of the testimony), but
too much is fatal to admission.” Group Health Plan, Inc. v. Philip Morris USA, Inc.,
344 F.3d 753, 760 (8th Cir. 2003) (“[T]he district court is the ‘gatekeeper,’ and we
owe significant deference to its determination that expert testimony is excessively
speculative.”). We hold the district court did not abuse its discretion in admitting
Smith’s testimony.

       D.     Inadmissible Prior Consistent Statements of Tail
       We review for an abuse of discretion a district court’s decision to admit a prior
extrajudicial statement under Federal Rule of Evidence 801(d)(1)(B). United States
v. Blankinship, 784 F.2d 317, 320 (8th Cir. 1986).

      Conroy argues the district court abused its discretion in admitting prior
statements made by Tail to a police officer, because the prior consistent statements
did not relate to the specific subject matter of the prior inconsistent statements
Conroy had used to impeach Tail during cross-examination. Conroy attempted to
impeach Tail as to her testimony about whether the porch light was on, the number

                                          -7-
of adults at home, her missing clothes, and an encounter with Conroy at Slow Bear’s
home. Following cross-examination, the government attempted to rehabilitate Tail
with prior consistent statements regarding her desire to end her relationship with
Conroy.

       We hold the district court did not abuse its discretion. While the statements
admitted to rehabilitate Tail did not specifically relate to the subject matter of the
statements impeached by Conroy, it is not an abuse of discretion for a district court
to admit prior consistent statements “relevant to any other portion made the subject
of cross-examination,” Coltrane v. United States, 418 F.2d 1131, 1140 (D.C. Cir.
1969), cited in Blankinship, 784 F.2d at 320, when doing so is “necessary to show the
seriousness of the claimed inconsistencies,” as a result of “serious efforts ha[ving]
been made to show recent fabrication or improper motive.” Blankinship, 784 F.2d
at 320. Rule 801(d)(1)(B) permits prior statements consistent with the witness’s trial
testimony “to rebut . . . [a] charge . . . of recent fabrication or improper influence or
motive,” and does not expressly limit the prior consistent statements’ admissibility
to the subject matter of the statements challenged on cross-examination. We
generally leave decisions under Rule 801 to the “sound discretion of the trial court,”
and we do the same here. Blankinship, 784 F.2d at 320.

       E.     Prosecutorial Misconduct During Closing Argument
       We review for an abuse of discretion a district court’s ruling on a motion for
mistrial based on prosecutorial misconduct. United States v. Hernandez, 779 F.2d
456, 458 (8th Cir. 1985). “The test for reversible prosecutorial misconduct has two
parts: (1) the prosecutor’s remarks or conduct must in fact have been improper, and
(2) such remarks or conduct must have prejudicially affected the defendant’s
substantial rights so as to deprive the defendant of a fair trial.” Id.

     Conroy argues the prosecutor’s repeated attempts to shift the burden of proof
to Conroy during closing arguments constituted reversible misconduct. The

                                          -8-
government argues the comments were not improper, then contends even if they were,
they were not prejudicial, given the district court’s admonishment of the jury
following closing arguments as to the government’s burden of proof.

       Even if the prosecutor’s comments were improper, they were not prejudicial.
The comments were brief, over a matter of seconds in the context of the four-day trial
(three successive statements, with objections to each sustained); the government’s
case was strong (consisting of corroborating testimony of witnesses and three
victims); and the comments promptly were cured by the district court’s admonition.
Cf. United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992).

III.  CONCLUSION
      We affirm Conroy’s convictions for aggravated sexual abuse and abusive
sexual conduct.
                          ______________________________




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