                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                April 27, 2007
                               No. 06-15233                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 06-00003-CR-2

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MICHAEL ALLEN HOLLAND,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (April 27, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     Following a jury trial, Michael Allen Holland (“Holland”) was convicted of
one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)

and 924(e), and was sentenced to 180 months of imprisonment. Holland now

appeals, raising a number of evidentiary issues. We AFFIRM.

                               I. BACKGROUND

      Because most of the evidence adduced in Holland’s case is not in dispute,

we recite it only briefly, so as to provide some background. On 30 September

2004, Holland, a convicted felon, pawned a Remington model 742, .308 caliber

rifle to a pawn shop in Darien, Georgia. A subsequent investigation by the

government determined the following facts: that Holland had prior felony

convictions; that the receipt by which the gun was conveyed to the pawn shop

identified “Michael A. Holland” as the weapon’s seller and that the document

contained his signature; that Holland had been identified as a regular customer at

the pawn shop; and that the serial number on the pawn shop receipt matched a

Remington model 742 rifle that was subsequently recovered by the government.

      In light of this evidence, in February 2006, Holland was charged in a one-

count indictment with possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1) and 924(e). After a jury trial, Holland was convicted and

was sentenced to 180 months of imprisonment, which is the statutory minimum.

See 18 U.S.C. § 924(e)(1). This appeal followed.



                                          2
      On appeal, Holland argues that the district court made a number of

evidentiary errors during the course of his trial. Specifically, Holland argues that:

(1) the district court abused its discretion in permitting the government’s expert

witness to testify at his trial, where the government failed to comply with the

requirements of Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure,

which governs the disclosure of expert witnesses; (2) the district court abused its

discretion by not permitting his witness, pawn shop owner Mike Morey, to testify

as to the truthfulness of the shop employee who received the rifle from Holland;

and (3) the district court abused its discretion in permitting one of the

government’s witness to testify about a phone conversation he had with Holland,

because the Best Evidence Rule, Federal Rule of Evidence 1002, required the

admission of an original recording of the conversation. We address each of these

contentions in turn.

                                  II. DISCUSSION

A. Standard of Review

      Holland’s appeal is based on number of evidentiary rulings that the district

court made, both prior to and during his trial. We review a district court’s

evidentiary rulings, including those involving expert witnesses, for abuse of

discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006); United



                                           3
States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006). In the context of

evidentiary rulings we have defined an abuse of discretion as a situation “where the

district court applies the wrong law, follows the wrong procedure, bases its

decision on clearly erroneous facts, or commits a clear error in judgment.” United

States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).

      As a practical matter, however, “the abuse of discretion standard means that

the district court has a range of choice.” Id. at 1265. “We recognize a significant

range of choice for the district court on evidentiary issues, which is to say we defer

to its decisions to a considerable extent.” Id. Indeed, as we have stated, “[t]he

theme that shapes appellate review in this area is the limited nature of it.” Id.

Guided by that standard, we now turn to the issues raised by Holland on appeal.

B. District Court’s Decision to Permit Government’s Expert Testimony

      Holland first contends that the district court abused its discretion in

permitting the government’s expert witness, Tobias (“Toby”) Taylor, to testify as

an expert at trial. Holland argues that the government failed to comply with the

disclosure requirements for expert witnesses set forth in Rule 16(a)(1)(G) of the

Federal Rules of Criminal Procedure. Specifically, he maintains that the

government’s pre-trial disclosure concerning expert witness Taylor did not include

“the witness’s opinions” or “the bases and reasons for those opinions,” Fed. R.



                                           4
Crim. P. 16(a)(1)(G), and that therefore the district court abused its discretion in

permitting Taylor to testify.

       Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure imposes

specific disclosure requirements on the government with regards to expert

witnesses that the government plans to utilize at trial. The rule provides, in

pertinent part, that, “[a]t the defendant’s request,1 the government must give to the

defendant a written summary of any [expert] testimony that the government

intends to use.” Id. The “summary” provided by the government must include the

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

witness’s qualifications.” Id. The commentary to the Rule further provides that

the government’s summary “should cover not only written and oral reports, tests,

reports, and investigations, but any information that might be recognized as a

legitimate basis for an opinion . . . .” Id., Advisory Comm. Notes, 1993

Amendment.

       Here, the government made its expert witness testimony disclosure on 20

June 2006, approximately one month before trial. In that disclosure, which was

titled “Government’s Notice Re: Expert Witness Testimony” and which cited Rule

16, the government stated as follows:


       1
        In this case it is not disputed that Holland requested the disclosure of any anticipated
expert witness testimony as part of his discovery request to the government.

                                                 5
              Toby Taylor is a Special Agent with the Bureau of Alcohol,
              Tobacco, and Firearms, Savannah, Georgia. He will testify as
              to the origin and interstate nexus of the firearm at issue in this
              case. His curriculum vitae is attached.

R1-32. Subsequent to that disclosure, on 5 July 2006, the government sent a

supplemental e-mail, entitled “Addendum to Interstate Nexus Witness,” to

Holland’s counsel. The e-mail stated: “Taylor will testify that the Remington rifle

in question was manufactured in New York State.” R1-55, Exh. C.

       Prior to trial, Holland’s counsel filed a written objection to the admission of

Taylor as an expert witness. He argued that the government had failed to provide

him with either Taylor’s opinion or the basis for that opinion, as was required

under Rule 16(a)(1)(G). Holland’s counsel contended that, due to the

government’s failure to comply with Rule 16, he did not have a sense of what

Taylor would testify to, nor was he capable of deciding, prior to trial, whether and

how to rebut his testimony. At trial, he renewed this objection. The district court

overruled the objection, however, and permitted Taylor to testify. At trial, Taylor

essentially testified that the Remington rifle that Holland had pawned had been

manufactured in New York.2


       2
          This testimony was necessary to establish the “interstate commerce” element of the
charged offense. See 18 U.S.C. § 922(g) (stating that it is unlawful for a person with a prior
felony conviction “to ship or transport in interstate commerce, or possess in or affecting
interstate commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate commerce”).

                                              6
      On appeal, Holland contends that the government violated Rule 16 with its

inadequate disclosure as to its expert witness, that the violation “ambush[ed]” him

at trial and left him unable to formulate an effective defense, and that,

consequently, the district court abused its discretion in permitting Taylor to testify.

Br. of Appellant at 11. While we agree that the government’s conduct as to its

expert witness fell short of the requirements of Rule 16(a)(1)(G), Holland has

failed to establish that the admission of the expert’s testimony actually prejudiced

him. Consequently, we cannot find that the violation warrants a reversal of his

conviction. See, e.g., United States v. Davis, 397 F.3d 173, 178 (3d Cir. 2005)

(“Although we agree with defendants that the government failed to adequately

satisfy this requirement [of Rule 16] . . . a new trial is only warranted if the

[d]istrict [c]ourt’s actions [in admitting the testimony] resulted in prejudice to the

defendant.”) (citation and internal quotations omitted).

      As to the government’s expert testimony disclosure and the initial question

of whether it accorded with the protocol of Rule 16, we conclude that it did not.

The Rule makes clear that the government is required to provide a criminal

defendant with the both witness’s ultimate opinion and “the bases and reasons for

those opinions,” including “not only written and oral reports, tests, reports, and

investigations, but any information that might be recognized as a legitimate basis



                                            7
for an opinion . . . .” Fed R. Crim. P. 16(a)(1)(G), Fed R. Crim. P. 16, Advisory

Comm. Notes, 1993 Amendment. In this case, the government provided a terse

letter–which stated only that witness Toby Taylor would testify as to the interstate

nexus of the Remington rifle at issue–followed by an equally terse e-mail stating

that Taylor would state that the Rifle was manufactured in New York state. The

government failed to provide any additional information as to “the bases and

reasons” for Taylor’s conclusion that the rifle was made in New York; indeed, its

disclosure was devoid of any mention of “tests, reports, [] investigations,” or “any

information that might be recognized as a legitimate basis” for that opinion. Fed

R. Crim. P. 16, Advisory Comm. Notes, 1993 Amendment. In short, we agree that

the government’s conduct with respect to this witness disclosure was “not

impress[ive],” United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999),

and that, under the plain language of Rule 16, the government was required to

provide a more detailed explanation of Taylor’s anticipated expert witness

testimony.

      That determination, however, does not automatically lead to the conclusion

that Holland’s conviction must be reversed. Rather, we have held that where there

is a violation of Rule 16 and the district court nonetheless admits the testimony, the

defendant must establish that he or she suffered actual prejudice from the district



                                          8
court’s decision to admit the testimony. See id. at 1348 (“Violations of Rule 16

will result in a reversal of conviction only if such a violation prejudices a

defendant’s substantial rights.”). See also Davis, 397 F.3d at 178 (same); United

States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982) (assessing not only

whether Rule 16 was complied with, but also whether district court’s choice to

admit the testimony “prejudiced the substantial rights of the party seeking the

reversal”). We have construed actual prejudice as a showing that the Rule 16

violation affected the defendant’s ability to present an effective defense. See

Chastain, 198 F.3d at 1348. In other words, the defendant alleging the Rule 16

violation must establish “a likelihood that the verdict would have been different

had the government complied with the discovery rules.” Davis, 397 F.3d at 178.

      Here, although Holland contends that the admission of Taylor’s expert

testimony “ambush[ed]” him at trial, Br. of Appellant at 11, he has failed to

demonstrate how, if at all, the admission of Taylor’s testimony caused him

prejudice. Taylor’s testimony at trial was simple and straightforward; he

confirmed that the rifle that was pawned in Georgia had been manufactured in New

York. Any lay person could have observed this fact, because the gun indicated on

its barrel that the weapon was manufactured in New York. While Taylor also

testified as to his familiarity with the weapons that had been manufactured by



                                           9
Remington since the company’s inception, he stated that the fact that Holland’s

weapon had been made in New York easily could have been discovered through

the company’s website. Not only did Taylor testify exactly as the government’s

(inadequate) disclosure had indicated that he would, but Holland’s counsel, despite

his claimed lack of notice, engaged in a thorough cross-examination of the witness

as to where Taylor obtained the (largely commonplace) information on which he

based his opinion about the gun’s origins.

      Moreover, Holland has not demonstrated on appeal that the government’s

failure to fully comply with Rule 16 had an effect on the jury’s verdict, or that it is

likely that the “the verdict would have been different had the government complied

with the discovery rules.” Davis, 397 F.3d at 178. The sole purpose of Taylor’s

testimony was to establish that the weapon at issue had been “shipp[ed],”

“transport[ed],” or “possess[ed]” in or affecting interstate commerce, or that the

weapon had been “receive[d]” by a felon after being “shipped or transported in

interstate commerce.” 18 U.S.C. § 922(g). Put simply, as Holland had pawned the

gun in Georgia, Taylor’s testimony needed only to establish that the weapon’s

origins had been in a state other than Georgia. He confirmed in his testimony that,

since Remington’s inception in 1828, the company had manufactured weapons

only in three states–New York, Connecticut, and Kentucky–and that, implicitly,



                                           10
any Remington weapon bought, sold, possessed, or received in the state of Georgia

would have traveled in interstate commerce. See R2 at 69-71. Although Holland

contends that a more thorough disclosure by the government would have allowed

him to prepare a rebuttal witness to refute Taylor, we “fail to see how a defense

expert could have refuted” what was testimony of an “obvious” nature. See United

States v. Anderson, 446 F.3d 870, 876 (8th Cir. 2006) (internal quotation omitted).

Because Holland has not established that “the failure to disclose the existence of

this expert adversely affected [his] ability to present a defense,” Chastain, 198 F.3d

at 1348, we cannot find that a reversal of his conviction is warranted. Accordingly,

the district court’s decision to admit the testimony of expert Taylor is affirmed.

C. District Court’s Decision to Exclude the Testimony of Defense Witness Morey

      Holland next argues that the district court abused its discretion in excluding

the testimony of his witness, pawn shop manager Mike Morey, who Holland

sought to use to provide reputation and opinion testimony as to the truthfulness of

government witness James Riley Allen (“Allen”). The evidence in Holland’s case

established that Allen had been an employee at the pawn shop when Holland

allegedly pawned the Remington rifle to the store; Allen had completed the

paperwork in the transaction, and he subsequently identified Holland as the person

who pawned the rifle. The government sought to call Allen to testify as to these



                                          11
facts. However, it was subsequently discovered that Allen had been terminated by

the pawn shop for stealing money from the shop. (In fact, Allen later admitted that

he had stolen money from the shop.) Prior to trial it became clear that Holland

wanted to draw attention to this conduct by calling as a witness Mike Morey, the

pawn shop’s owner. Holland hoped to use Morey’s testimony about the theft

incident so as to cast doubt on Allen’s veracity as a government witness.

      Anticipating this issue, the government filed a motion in limine, seeking to

exclude all references to Allen’s act of theft. The government contended that the

theft incident constituted a specific instance of misconduct, which Holland was

seeking to use “for the purpose of attacking or supporting the witness’s character

for truthfulness.” Fed. R. Ev. 608(b). As such, the government argued that, under

the plain language of Rule 608(b), Allen’s specific instance of misconduct could

not be asked about during Morey’s direct testimony, although it could “be inquired

into on cross-examination” of Allen. Id. In response, Holland conceded that he

could not examine Morey regarding specific instances of misconduct by Allen

under Rule 608, but Holland contended that Morey could provide testimony

concerning Allen’s “character for truthfulness” in the form of his opinion and his

testimony about Allen’s general reputation in the community. See Fed. R. Ev.

608(a).



                                         12
      After hearing from the parties on this issue prior to trial, the district court

ruled that Holland would be allowed to cross-examine Allen about the specific

instance of theft at the store, see Fed. R. Ev. 608(b), but that Holland would not be

permitted to call Morey as a witness to testify about Allen’s reputation for

truthfulness in the community or to provide an opinion as to Allen’s character for

truthfulness. At trial, after Allen had testified about the gun transaction with

Holland as part of the government’s case-in-chief, Holland’s counsel cross-

examined Allen about the fact that he had stolen money from the pawn shop.

Before the jury, Allen admitted to stealing money from the shop, stating that

“[t]hose allegations were true.” R2 at 36.

      Holland, however, was not permitted to call Morey as a witness to testify

about his opinion of Allen’s character for truthfulness. The district court permitted

Holland to make an offer of proof outside of the jury’s presence; in that testimony

Morey stated his opinion that witness Allen was not “too trustworthy.” R2 at 88.

On appeal, Holland contends that the district court’s decision to preclude him from

calling Morey as a witness to give his opinion of Allen’s veracity was an abuse of

discretion.

      We disagree. Although Federal Rule of Evidence 608(a) permits a party to

challenge the credibility of a witness using “evidence in the form of reputation and



                                           13
opinion,” a district court is not required to admit such testimony. See id. (stating

that such evidence “may” be admitted) (emphasis added). In fact, Rule 403

expressly vests the district court with discretion to exclude otherwise admissible

testimony in certain circumstances. That Rule provides that, “[a]lthough relevant,

evidence may be excluded if its probative value is substantially outweighed by . . .

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

      In this case, Holland was permitted to bring out during his cross-

examination of Allen the fact that Allen had stolen money from the pawn shop.

This testimony was sufficient to draw the jury’s attention to Allen’s character for

truthfulness (or lack thereof). See, e.g., United States v. Frazier, 387 F.3d 1244,

1273 (11th Cir. 2004) (en banc) (finding that the district court’s exclusion of

certain portions of expert testimony “did not prevent [the defendant] from

introducing key elements of his defense and placing his story before the jury”).

      Moreover, we agree that calling an additional opinion witness to testify on

the question of witness Allen’s honesty would have been redundant. As such, we

cannot find that the district court abused its discretion in excluding Morey’s

testimony under Rule 403, on the basis that such evidence was cumulative in

nature and of negligible probative value. See, e.g., United States v. Haynes, 554



                                          14
F.2d 231, 234 (5th Cir. 1977) (finding no abuse of discretion where district court

declined to admit more than one witness’s testimony about a DEA agent’s

reputation for veracity, since the additional testimony would have been “the same,”

and “thus the testimony would [have been] cumulative” and thus excludable under

Rule 403).

      Finally, it bears noting that the district court has a large amount of discretion

in making evidentiary rulings as to which witnesses–and how many–may be

permitted to testify at trial. We have stated that “the district court is uniquely

situated to make nuanced judgments on questions that require the careful balancing

of fact-specific concerns like probativeness and prejudice,” and that therefore “we

are loath to disturb the sound exercise of its discretion in these areas.” United

States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003). Our case law has

reiterated that a district court’s rulings on “character evidence [under 608] will not

be disturbed on appeal absent a showing of abuse of discretion.” Haynes, 554 F.2d

at 234. See also Watson, 669 F.2d at 1382 (“[T]rial courts . . . may limit the

number of character witnesses a party may call and, absent an abuse of discretion,

the district court’s ruling will not be disturbed on appeal.”) (citation omitted).

Here, we cannot say that the district court’s decision to exclude Morey’s opinion

testimony about Allen’s honesty–an issue that had implicitly been raised during the



                                           15
cross-examination of Allen–constituted an abuse of discretion.

D. District Court’s Decision to Permit Lou Valoze’s Testimony

       Holland also argues that the district court erred in admitting the testimony of

Louis Valoze. Valoze, a special agent with the ATF who had initially investigated

Holland’s pawn of the Remington rifle to the pawn shop, was called by the

government as a witness. Valoze testified that, after discovering that Holland had

pawned his rifle, he had a conversation with Holland, via phone, to obtain more

detailed information about the transaction. As Valoze began to testify as to what

he and Holland discussed by phone, Holland’s counsel lodged an objection. The

basis of the objection was Federal Rule of Evidence 1002, the so-called “Best

Evidence Rule.” Specifically, Holland’s counsel argued that because a recording

had been made of the phone conversation between Valoze and Holland, the

original recording of the conversation was required to be admitted into evidence in

lieu of Valoze’s testimony about that conversation. The district court overruled

this objection, and allowed Valoze’s testimony.3 Holland argues that this was an


       3
          In debating the merits of Holland’s objection, the attorney for the government
responded that “the best evidence rule only applies to writings.” R2 at 39. This statement was
incorrect, as the Rule itself makes clear that it applies to “writing[s], recording[s], or
photograph[s].” Fed. R. Ev. 1002. See also McCormick on Evidence § 233 (6th ed. 2006)
(stating that the “common law rule that [the best evidence rule] is not applicable to any evidence
other than writings” has been “abandon[ed]” by the modern incarnation of Rule 1002).
        To the extent that the district court based its overruling of Holland’s objection on the
flawed legal argument of the government, it acted in error. However, as is discussed
subsequently, because we find that the Best Evidence Rule was not implicated at all by Agent

                                                16
abuse of discretion.

       The Best Evidence Rule states that “[t]o prove the content of a writing,

recording, or photograph, the original writing, recording, or photograph is

required.” Fed. R. Ev. 1002. “The purpose of the Rule is to prevent inaccuracy

and fraud when attempting to prove the contents of a writing [or recording].”

United States v. Ross, 33 F.3d 1507, 1513 (11th Cir. 1994). However, the Best

Evidence Rule only applies when the contents of the writing or recording are

sought to be proved. See Fed. R. Ev. 1002, Advisory Comm. Notes (“Application

of the rule requires a resolution of the question whether the contents are sought to

be proved.”); United States v. Howard, 953 F.2d 610, 612 (11th Cir. 1992) (per

curiam) (“The best evidence rule . . . requires the introduction of original

recordings, if at all, only when the content of the recording itself is a factual issue

relevant to the use.”).

       Here, Valoze’s testimony was not offered to prove the contents of the tape

recording; Valoze was testifying as to his recollection of the conversation with

Holland, based on his own personal knowledge, and the fact that a corroborative

tape recording of that phone conversation was made is inconsequential. Under

such circumstances the Best Evidence Rule is not implicated at all. See, e.g.,


Valoze’s testimony, we find that admission of the testimony was proper, irrespective of how the
court construed the scope of the Best Evidence Rule.

                                               17
Howard, 953 F.2d at 612-13 (“Since the proffered testimony was offered not to

prove the content of the tapes, but rather, the content of the conversations, the best

evidence rule does not apply and [the witness’s testimonial recollection of the

conversations] was properly admitted.”); United States v. Fagan, 821 F.2d 1002,

1009 n.1 (5th Cir. 1987) (“The prosecution is not trying to show the contents of the

tape, but rather the contents of the conversation, and, therefore, as the Advisory

Committee notes suggests, the best evidence rule is inapplicable.”); United States

v. Rose, 590 F.2d 232, 236-37 (7th Cir. 1978) (same).

      Because Holland’s objection to the admission of Valoze’s testimony based

on the Best Evidence Rule was “completely without merit,” see Fagan, 821 F.2d at

1009 n.1, the district court acted properly in admitting Valoze’s testimony about

the conversation. We reject his argument to the contrary.

                                III. CONCLUSION

      Holland has appealed his conviction for being a felon in possession of a

firearm, arguing that the district court committed a number of evidentiary errors

both prior to and during his jury trial. Having carefully reviewed the record, we

discern no error. Accordingly, Holland’s conviction is AFFIRMED.




                                          18
