                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          June 19, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellant,

 v.                                                       No. 05-6336
                                                        (W .D. Oklahoma)
 JO N K EN T R ED ELK ,                              (D.Ct. No. 05-CR -36-F)

          Defendant - Appellee.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      Seven days before John Kent Red Elk’s trial for the murder of his girlfriend

was to begin, the government notified his attorneys it would be presenting newly

discovered expert testimony. Red Elk filed a motion objecting to the admission

of this testimony or, in the alternative, requesting a continuance. After a hearing,

the district court granted, in part, Red Elk’s m otion. The government filed this

interlocutory appeal claiming the district court abused its discretion in excluding

a portion of its expert testimony. Exercising jurisdiction pursuant to 18 U.S.C. §

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
3731, 2 we AFFIRM .

                                     I. Background

      At approximately 5 a.m. on January 7, 2005, Red Elk called the 911 center

in Lawton, Oklahoma to report his girlfriend was not breathing. Sheriff’s deputies

arrived at Red Elk’s residence and discovered a deceased woman, Regina D upler,

laying on top of the bed in the master bedroom. After determining the residence

was located on Indian land, the deputies notified the Comanche Nation Police

Department, whose officers arrived on the scene shortly thereafter. In turn, they

notified the Federal Bureau of Investigation (FBI). Upon her arrival at the scene,

FBI Special Agent Decker interviewed Red Elk.

      Initially, Red Elk stated Dupler had committed suicide. He explained he

had fallen asleep on the living room couch and when he awakened, he went to the

bedroom. There, he found Dupler laying on her right side on the floor by the bed.

She had a plastic bag over her head, duct-taped around her neck. Her hands and

feet were also duct-taped together. Red Elk stated he used his buck knife to cut




      2
         Section 3731 allows an appeal from an order suppressing evidence in a criminal
trial when the appeal is made before double jeopardy attaches. The United States
Attorney must also certify to the district court that the appeal is not for the purpose of
delay and the evidence is a substantial proof of fact material in the proceeding. See
United States v. Mavrokordatos, 933 F.2d 843, 846 (10th Cir. 1991) (holding order
excluding evidence as a discovery sanction was an appealable order pursuant to 18 U.S.C.
§ 3731). While our cases suggest we more or less accept the government’s claim that the
evidence is needed, the government does not have carte blanche to bring such an appeal.
This case is on the margin.

                                           -2-
the tape from her hands and legs and ripped open the bag to apply emergency

resuscitation, but soon realized there was nothing he could do. Because he did

not have a telephone, he immediately went to his neighbor’s house to call 911.

He then lifted M s. Dupler’s body onto the bed and covered her w ith a blanket.

      Red Elk voluntarily accompanied Agent Decker to the FBI’s Lawton office

for further questioning. He stated he and Dupler had been living together since

November 2004. Red Elk said she had been depressed because her mother

comm itted suicide two years earlier and often talked to him about comm itting

suicide herself. He suspected she had been drinking alcohol that day, an activity

forbidden by the medication she was taking. During the interview, Agent Decker

received a call informing her the emergency medical technician had established

the time of death, which timing indicated Red Elk was not being truthful. After

being confronted with that information, Red Elk eventually was “ready to tell

what really happened.” (A ppx. at 37.)

      He stated M s. Dupler had often talked about suicide and asked him to help

her. He denied her prior requests because he loved her. However, he knew she

was in great emotional pain due to her mother’s suicide and “she did not want to

be in this w orld anymore.” (A ppx. at 38) H e agreed to help her. According to

Red Elk, Dupler taped her own feet together and put a plastic bag over her head.

He stated she “had some kind of white towel, but he was not sure what she did




                                         -3-
with it. He [thought] she may have put it in her mouth.” 3 (Id.) Dupler then

attempted to tape the bag around her neck, but could not get it tightly closed

because the tape raveled and caught in her hair. M s. Dupler asked Red Elk to get

her another bag. W hile retrieving a second bag, Red Elk got a ladder and threw

the first bag into the attic crawl space in the garage. W hen he returned to the

bedroom with the second bag, he watched Dupler successfully tape it shut around

her neck. He then complied with her request that he tape her hands behind her

back so she could not fight. Red Elk then left the room to avoid hearing her

struggle. H e returned to the bedroom in the morning and the subsequent events

were as he had stated earlier.

      On February 16, 2005, the government indicted Red Elk with willful,

deliberate, malicious and premeditated murder in violation of 18 U.S.C. §§

1111(a) and 1153. From the outset, the parties recognized the case would be

unusual because of its “expert-intensive nature.” (Appx. at 229.) The court first

held an in camera hearing with Red Elk’s counsel and, a few days later, held an

in camera hearing with Assistant United States A ttorney (A USA) M cCampbell,

the lead attorney for the government. The matters disclosed in these hearings

made it even more obvious that expert analysis of the forensic evidence and the

resulting expert opinions would be pivotal for both the prosecution and the



      3
        Throughout the proceedings the white towel was referred to as a “towel,” a
“wash cloth” or a “cloth.” For consistency, we will refer to it as a “towel.”

                                          -4-
defense. Given that a realistic assessment of the anticipated expert work revealed

a need for additional time, the district court entered a scheduling order requiring

submission of expert reports by July 1, 2005, supplemental expert reports by July

15, 2005, and Daubert motions 4 and responses by July 8 and July 22, 2005,

respectively.

       Both sides aggressively pursued pretrial investigations and filed numerous

pre-trial motions. The government submitted the report of Oklahoma State

M edical Examiner, Dr. Jeffrey Gofton, dated M arch 21, 2005. An attached chart

of a female figure (routinely used in such reports) documented adhesive material

on Dupler’s arms, but showed no adhesive on her legs. The summary of the

external autopsy examination was silent as to any fibers w ithin M s. Dupler’s

mouth. The report concluded the cause of death was asphyxiation. Dr. Gofton

opined:

       It is felt that it is highly unlikely that M s. Dupler could have taped
       her arms behind her back, and subsequently asphyxiated herself by
       placing a bag and taping it around her neck by herself. The opposite
       scenario of the decedent securing a plastic bag over her head and
       subsequently taping her arms behind her back is also extremely
       unlikely, if not impossible. Therefore, it is felt that the manner of
       death in this case is best classified as a homicide.

(A ppx. at 44.)



       4
        In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held the
Federal Rules of Evidence “assign to the trial judge the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to the task at hand.” 509
U.S. 579, 597 (1993).

                                            -5-
      AUSA M cCampbell withdrew as attorney of record on M ay 2, 2005. The

same day, AUSA Coats entered his appearance. Trial was scheduled for

September 11, 2005. On August 10, 2005, the government sent the towel and the

duct tape for testing. The materials were received at the FBI’s facility in

Quantico, Virginia, on August 12, 2005. The same day, the government moved

for a continuance of the trial date. On August 17, 2005, the district court granted

the government’s motion and rescheduled trial for the October 11, 2005 trial

session. Shortly thereafter, AUSA Sengel entered his appearance for the

government.

      After reviewing the case files, AUSA Sengel requested further testing of

the towel for the presence of mucous or saliva. During the week of September 14,

2005, Julie Ann Kidd, an FBI DNA analyst, orally reported to AUSA Sengel that

no blood or semen w as found on the towel and tape samples. This information

was consistent with her later written report. She also orally reported there was no

mucous or saliva, but information about any such testing, results or conclusions

was not included in her written report submitted to the government on September

21. On September 28, AUSA Sengel met with Dr. Gofton to discuss K idd’s

findings. Five days after this meeting, on October 3, 2005, the government sent

Red Elk notice by facsimile attaching Kidd’s examination of the towel and the

tape. The government’s cover letter stated:

      An alternate light source was used during the examination and did

                                         -6-
      not glow on the adhesive side of the tape or on either side of the
      towel . . . . The alternate light source did not detect any semen,
      saliva, mucous, or other fluids. M s. Kidd is of the opinion that the
      DNA detected is probably skin cells.

      Further, I anticipate that Dr. Jeffrey Gofton, the Oklahoma State
      M edical Examiner, will opine that the absence of adhesive or duct-
      tape fibers on the defendant’s knife, the absence of adhesive from the
      victim’s ankles, the apparent absence of saliva or mucous from the
      washcloth, and the absence of any fibers detected in the victim’s
      mouth are inconsistent with the defendant’s version of how Regina
      Dupler died.

(Appx. at 61.) Red Elk immediately filed a motion in limine requesting the

district court to exclude this testimony or, in the alternative, grant a continuance.

The government opposed this motion and objected to a continuance. The court

heard argument on October 5, 2005, but reserved its ruling on the admission of

testimony until after the voir dire of the experts.

      The court reconvened on October 11, 2005, the day before trial, to allow

the parties to examine Dr. Gofton regarding his proposed testimony. 5 The district

court addressed four categories of testimony: 1) “the absence of . . . duct tape

fibers on the knife;” 2) “the absence of adhesive on M s. Dupler’s ankles;” 3) “the

absence of saliva or mucous on the towel;” and 4) “the absence of fibers in M s.

Dupler’s mouth.” (Appx. at 157-60.) As to the first category, the government

retracted its request to question Dr. Gofton on the condition of the knife. The

district court agreed Dr. Gofton’s testimony on this subject would be outside his



      5
          Ms. Kidd was not available for examination until later in the week.

                                            -7-
area of expertise and, in addition, he had not examined the knife. Regarding the

lack of adhesive on M s. Dupler’s ankles (as opposed to finding adhesive on her

arms), the district court ruled Dr. Gofton would be allowed to state his

observations and his expectation, based on his experience as a pathologist, that

adhesive residue would be on her legs as well if, in fact, the same duct tape used

on her legs had been used on her arms. However, the court refused to let Dr.

Gofton expound further on the subject.

      The court excluded the third category of testimony — that the lack of saliva

or mucous on the towel indicated the towel was not near her mouth when Dupler

asphyxiated. The court found Dr. Gofton’s proposed testimony was “based on

variables sufficient to make it the subject of expert testimony, and under the

schedule it simply [came] too late.” H owever, Dr. Gofton would be allowed to

testify regarding his personal observation that he detected no fibers in M s.

Dupler’s mouth. The court reserved ruling on whether this testimony could be

expanded to include his opinion that this observation was inconsistent with Red

Elk’s version of the events.

      The next day, the government filed a motion for reconsideration requesting

the excluded portion of D r. Gofton’s testimony be allowed in the government’s

case-in-chief. W hile the court considered the motion, jury selection was

conducted. Prior to the jury being sworn, the government filed its notice of

appeal, certification and request for a stay of the proceedings. Based on these

                                         -8-
filings, the district court reluctantly dismissed the jury and stayed the case

pending this interlocutory appeal.

                                     II. Discussion

      “Rule 16(d)(2) of the Federal Rules of Criminal Procedure gives the district

court broad discretion in imposing sanctions on a party who fails to comply with a

discovery order.” United States v. Wicker, 848 F.2d 1059, 1060 (10th Cir. 1988). 6

In reviewing whether a district court has abused this discretion by prohibiting the

introduction of evidence, we are guided by several factors, including but not

limited to: “(1) the reasons the government delayed producing the requested

materials, including whether or not the government acted in bad faith when it

failed to comply with the discovery order; (2) the extent of prejudice to the

defendant as a result of the government's delay; and (3) the feasibility of curing

the prejudice with a continuance.” Id. at 1061. However, “these three factors [ ]

merely guide the district court in its consideration of sanctions; they are not

intended to dictate the bounds of the court's discretion.” Id. Generally, “if a

sanction is imposed, it should be the least severe sanction that will accomplish



      6
          Rule 16(d)(2) provides:

      If a party fails to comply with this rule, 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.

                                            -9-
prompt and full compliance with the court's discovery orders.” Id. at 1060

(quotations and citations omitted).

       The government claims the district court failed to adequately consider and

apply the three factors enumerated in Wicker. 7 It maintains Dr. Gofton’s



       7
           The government raises several issues and sets forth arguments on appeal that
were not presented to the district court. The government concedes it did not supply the
relevant reports and expected testimony of Ms. Kidd and Dr. Gofton within the time
designated by the pretrial order, but argues the violation of a discovery order is not
equivalent to a Rule 16 violation. According to the government, the court does not have
the authority under Rule 16 “to preclude the government from developing additional
expert testimony prior to trial by setting a discovery deadline for expert testimony and
enforcing it with the suppression sanction.” (Appellant’s Reply Br. at 4.) The
government contends it must be a Rule 16 violation, not merely a violation of the court’s
scheduling order, to justify the sanction of excluding evidence. Because it did not violate
Rule 16, the government concludes the district court abused its discretion in ordering
exclusion of portions of Dr. Gofton’s testimony.
        It also bootstraps this argument into its claim it did not violate the district court’s
pre-trial scheduling order. The government quotes United States v. Gowen, for the
proposition that, “Rule 16 does not require that all scientific testing be done prior to trial,”
but only requires prompt notice to the opposing party of pertinent evidence. 32 F.3d 1466,
1470 (10th Cir. 1994) (quotations omitted). See United States v. Edmonson, 962 F.2d
1535, 1546 (10th Cir. 1992). Therefore, a district court’s discovery order is reasonably
construed as merely directing the parties to provide expert reports by a certain date if
developed prior to that time. Proceeding from that assumption, the government argues
since it did not have Ms. Kidd’s oral report or Dr. Gofton’s resulting opinion prior to the
discovery deadline, and it promptly notified Red Elk when it determined the import of the
information, there was no violation of the discovery order. Neither argument was made
to the district court.
        The government disingenuously suggests it raised these issues twice, first in its
opposition to Red Elk’s motion to suppress and again in its motion for reconsideration. A
careful reading of those two documents, however, reveals only one very general statement
in each, with citations to United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999),
United States v. Gonzales, 164 F.3d 1285, 1292 (10th Cir. 1999), and United States v.
Golyansky, 291 F.3d 1245 (10th Cir. 2002). (Appx. at 67, 181) None of these cases
discuss the theories argued in the government’s opening appellate brief, nor were these
arguments presented to the district court at the suppression hearing.

                                             -10-
proffered testimony that the victim would have produced “copious saliva and

mucous while asphyxiating” should have been allowed because (1) there was no

bad faith, (2) the defense made no showing that it was prejudiced in preparing Dr.

Gofton’s cross-examination and (3) a short continuance would have allowed the

defense to overcome any difficulty arising from the timing of the disclosure.

(Appellant’s Br. at 22). Contrary to the government’s assertion, the district court

carefully considered the Wicker factors in reaching its decision.

A.    Reason For Delay

      The government’s current theory of the case is as follow s:

      The government intends to show that Red Elk staged the scene found
      by investigators in an attempt to hide his culpability for M s. Dupler’s
      murder. Red Elk claimed . . . that M s. Dupler placed the towel in her
      mouth or over her face before she taped a plastic bag over her head.



        “Vague, arguable references to a point in the district court proceedings do not
preserve the issue on appeal.” Bancamerica Commercial Corp. v. Mosher Steel of Kan.,
Inc., 100 F.3d 792, 798 (10th Cir. 1996). Moreover, “where a litigant changes to a new
theory on appeal or presents a theory that was discussed in a vague and ambiguous way
the theory will not be considered on appeal. Id. at 798-99 (quotation and citation
omitted); Southern Hospitality Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1142 (10th Cir.
2004). We are not “a ‘second-shot’ forum . . . where secondary, back-up theories may be
mounted for the first time . . . . [A]n issue must be presented to, considered and decided
by the trial court before it can be raised on appeal.” Tele-Communications, Inc. v.
Comm’r of Internal Revenue, 104 F.3d 1229, 1233 (10th Cir. 1997) (internal quotations
and citations omitted). It is questionable whether the government raised these arguments
before the district court in even a vague or ambiguous form. Therefore, we need not
consider them here.
        Similarly, the government argues Dr. Gofton’s opinion regarding the inferences
from the absence of saliva or mucous on the towel, if excluded from its case-in-chief,
should be allowed into evidence at other points in the trial. Again, this argument was not
made to the district court; we decline to consider it.

                                           -11-
      At the crime scene, the towel was discovered “around her neck.”
      Based on the expert testimony of Dr. Gofton, if that towel had been
      in M s. Dupler’s mouth, on her face, or even around her neck when
      she asphyxiated, then it would have absorbed her saliva and mucous
      and, according to M s. Kidd’s testimony, dried traces of those fluids
      would have been detected on the tow el. The prosecution would use
      this evidence to show that the towel could not have been near M s.
      Dupler’s face when she asphyxiated . . . . Rather, Red Elk
      asphyxiated M s. Dupler with the plastic bag he threw into the attic,
      and then staged a scene with the second plastic bag, the towel, and
      the duct tape.

(Appellant’s Reply Br. at 2-3). 8

      The government argues its failure to provide the information regarding the

towel to the defense was due to its ignorance of the towel’s relevance at the time

of the discovery deadline. It was only after AUSA Sengel became involved in the

case in late August that his review of the case materials led him to request further

testing by M s. Kidd. It posits that because Rule 16 does not prohibit the

government from continuing a criminal investigation once a discovery deadline

passes, and the government provided reasonably prompt notification to the

defense after learning of the import of the testimony to its case, there was no bad

faith violation of the scheduling order justifying exclusion of the evidence. 9 See


      8
         The only record of Red Elk’s statements are from Agent Decker’s interview
notes. Her notes indicate Red Elk said Ms. Dupler “had some kind of white towel, but he
was not sure what she did with it. He thinks she may have put it in her mouth.” (Appx. at
38.)
      9
        In footnote 3 of the government’s opening brief, it explains the import of the
evidence as follows:

      There is no indication in the record what the victim’s physical reaction

                                           -12-
United States v. Golyanski, 291 F.3d 1245, 1249 (10th Cir. 2002) (“It would be a

rare case where, absent bad faith, a district court should exclude evidence rather

than continue the proceedings.”).

       In its order denying the government’s motion to reconsider, the district

court explained its dissatisfaction with the actions taken by the government:

       The government did not inform the court or defendant’s counsel that
       it had initiated a new round of expert work by sending the towel and
       the tape to M s. Kidd at the FBI lab on August 10. Throughout this
       period, the government was, of course, well aware of the importance
       which the court and all parties, government included, had attached to
       expert work and to opportunities for rebuttal or Daubert [ ]
       challenges to expert work and opinions based on that work. Not only
       did the government not alert the court and defense counsel to the fact
       that it had initiated another round of expert work (with the
       consequent possibility that it might be feasible to complete
       responsive work on an expedited basis, thus avoiding a serious
       scheduling dilemma), the government waited until October 3, seven
       days before trial, to provide even a cryptic notification to defense
       counsel . . . even though the government, by its own admission, had
       been aware of the results of M s. Kidd’s additional work . . . since



       would have been if she were unconscious when the bag was taped over her
       head, but that scenario plainly defeats Red Elk’s claim that he merely
       assisted her suicide. If the evidence indicated that the towel was near the
       victim’s mouth when she suffocated, and if only an already unconscious
       victim would have failed to produce substantial saliva and mucous while
       asphyxiating, then this would be strong evidence that the victim did not
       herself tape the plastic bag around her head, but was unconscious when that
       was done by Red Elk.

(Appellant’s Br. at 24, n.3.) Dr. Gofton did not offer this opinion during his voir dire, nor
did he discuss whether saliva would be expected if the towel was not in Ms. Dupler’s
mouth. Prior to this appeal, the government did not advise the defense that any expert
would provide an opinion on comparative volumes of saliva or mucous secreted during
asphyxiation based on the consciousness of the deceased.

                                            -13-
      “sometime during the week of September 14, 2005.”

(Appx. at 231.) The court noted the tow el had been in the government’s

possession from January through August 2005, but the government could offer no

reason why it did not send the towel for testing to the FBI lab back in January.

Indeed, “the additional expert work was undertaken only because the

government’s new counsel reviewed the file long after the scheduling deadlines

had expired and perceived a new possibility for expert work.” (Appx. at 241-42.)

In addition, the government did not reveal M s. Kidd would testify that evidence

of mucous or saliva would be expected to remain detectable on the towel for eight

months until pointed questioning from the court at the October 5, 2005 hearing.

      Given this scenario, the district court concluded:

      A finding of bad faith, especially as to a dedicated prosecutor, is
      strong medicine, to w hich this court will not readily resort. His acts
      and omissions were obviously intentional; he has not claimed
      ignorance of the scheduling order that was entered four months
      before he entered his appearance. His failure to forthrightly broach
      the issue at a time when it might have been resolved with no
      substantial harm to either party cannot be excused - it bespeaks a
      willingness to cross the line far enough to assure the frustration of
      meaningful responsive efforts on behalf of the defendant. And his
      withholding, until October 3 (one w eek before trial), of the lab report
      that he had in hand on September 21 leaves very little room for a
      finding that he was interested in striking hard blows but not foul
      ones.

(A ppx. at 246.)




                                        -14-
       The government insists that under Rule 16 10 it was not required to disclose

M s. Kidd’s report until after it had spoken to Dr. Gofton and decided to use the

evidence in its case-in-chief. Therefore, the district court erred in its

determination regarding the timing of the government’s disclosure. W e disagree.

“Even where Rule 16 is inapplicable, the courts have discretion to exclude

evidence as a sanction for violation of a discovery order.” United States v.

Gonzales, 164 F.3d at 1291; see also United States v. Russell, 109 F.3d 1503,

1510 (10th Cir. 1997). There is no question that this expert report and testimony

were solicited and submitted after the discovery deadline and only a few weeks

before trial.

       The trial court observed it was not uncommon for a law yer w ho enters late

in the case to wish his predecessors had done more, but throughout this case the

government had been represented by veteran trial lawyers w ho had full access to

this evidence and the FBI’s forensic services. M oreover, we are not willing to

say it was unreasonable for the district court to expect that late-discovered expert

evidence supporting a new trial theory would be disclosed at the earliest

opportunity, notwithstanding the technical requirements of Rule 16, in order to



       10
          Fed. R. Crim. P. 16(a)(F) provides that “the government must permit a
defendant to inspect and to copy or photograph the results or reports of . . . any scientific
test or experiment if . . . (iii) the item is material to preparing the defense or the
government intends to use the item in its case-in-chief at trial.” Rule 16(c) imposes a
continuing duty to disclose additional evidence discovered prior to or during trial if the
material is subject to discovery under Rule 16.

                                             -15-
facilitate the trial schedule. Even assuming the government may not have been

certain that M s. Kidd’s report would be material to preparing the defense, it

surely knew the probability was high. W e agree with the district court that, while

the government may not have violated the letter of Rule 16, it certainly violated

its spirit. See Russell, 109 F.3d at 1512 (“Prompt notification [ ] could have

avoided the need for a continuance. [Counsel’s] actions constituted a wholly

unsatisfactory compliance with the first Wicker factor.”).

B.    Prejudice to the Defendant

      “To support a finding of prejudice, the court must determine that the delay

impacted the defendant's ability to prepare or present its case.” Golyansky, 291

F.3d at 1250. The government claims Red Elk made no showing that he was

prejudiced by the timing of the disclosure of Dr. Gofton’s testimony, there was no

reason to believe the defense was in fact prejudiced, and the district court made

no finding of such prejudice. It argues Red Elk knew since M arch 8, 2005, the

date of Dr. Gofton’s report, that Dr. Gofton would be an expert witness testifying

as to M s. Dupler’s cause of death. Thus, there was more than sufficient time to

prepare any challenge to his medical and forensic knowledge and little additional

preparation would be needed to cross-examine him on his opinion that M s. Dupler

would have produced copious amounts of saliva while she asphyxiated. The

government further asserts the district court did not rely on any showing of

prejudice when it made its oral rulings and only found prejudice to the defense in

                                        -16-
preparing a challenge to M s. Kidd’s testimony, an expert who also had been

identified since M ay 17, 2005.

      The government’s argument misrepresents the court’s careful consideration

of this factor in its observations at the hearing and in its written order. Prior to

issuing its oral ruling, the district court expressed concern as to w hether Dr.

Gofton’s expertise encompassed the areas needed to render an expert opinion as

to some of the newly-identified topics. It noted it would not “permit Dr. Gofton

to expound on . . . anything that would suggest that he has any particular

expertise beyond that which he clearly professes to have.” (Appx. at 159-60.) In

its written order, the court specifically addressed the prejudice to the defense,

phrasing the issue as follow s:

      The government [ ] put the defendant in the position, a w eek before
      trial, of contending with a newly-disclosed hypothesis, premised on
      new expert work, that if the defendant had acted as he claimed he
      had, M s. Dupler’s saliva and mucous would have been detectable on
      the towel eight months after the fluids w ere deposited on the towel.

(A ppx. at 240-41.) The court recognized that competent defense counsel, at a

minimum, would need time to ascertain the “methodology, factual accuracy and

significance of the ‘alternate light source’ tests” and the handling of the towel

while it was in the FBI’s possession for eight months, possibly being touched by

personnel unaware the towel would later be tested for the presence of any

substance. The court concluded the late disclosure “effectively preclude[d]

meaningful efforts by defense counsel to test the technical merit of the new expert

                                          -17-
testimony or to marshal the resources necessary to challenge the . . . testimony

either by way of a Daubert [ ] challenge or by way of rebuttal at trial.” (Appx. at

247.) W e find nothing in the facts to rebut the court’s conclusion. Contrary to

the government’s assertions, the prejudice to Red Elk’s case went beyond merely

needing a few days to prepare questions for cross-examination.

C.       Choice of Sanction

         Although the government initially opposed a continuance, it requested that

remedy as an alternative in its motion to reconsider. It is the government’s

position that a short continuance would have cured any prejudice. W hile a

continuance is the “preferred sanction,” the court has broad discretion whether or

not to grant one. Golyansky, 291 F.3d at 1249. “The trial judge is in the best

position to evaluate the effect of [ ] new evidence and determine the appropriate

course of action.” United States v. Edmonson, 962 F.2d 1535, 1549 (10th Cir.

1992).

         The court considered the effect of its limitation on Dr. Gofton’s testimony,

commenting: “There should be no misapprehension that the government’s case

would stand or fall with the admissibility of this hypothesis. [It is] but one of

numerous arrows in the government’s quiver - - not the least of which is the fact

that the defendant does not deny that he helped kill Regina Dupler . . . .” (Appx.

at 241, n. 10.) It also considered the fact it was excluding only a portion of D r.

Gofton’s testimony, while allowing him to opine on his personal observations

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made during his examination including the absence of adhesive on M s. Dupler’s

ankles and the absence of fibers in her mouth.

      In United States v. Wicker, we affirmed the district court’s decision to

exclude testimony and a lab report due to late disclosure. 848 F.2d at 1060, 1062.

Here, the court found the facts in Wicker were materially indistinguishable from

the facts before it, noting the prior efforts by the court to guarantee prompt and

complete discovery, the interest in maintaining the integrity and schedule of the

court, and the court’s “inherent power to control and supervise its own

proceedings.” (Appx. at 243 (quoting Wicker, 848 F.2d at 1061)). As w e stated in

Russell, “Wicker's admonition that the trial court must impose the least severe

sanction that will accomplish prompt and full compliance with the court's

discovery orders does not mean that a continuance is necessary just because it

will cure the prejudice . . . . A remedy that does not maintain [the court’s]

integrity and schedule does not accomplish prompt and full compliance with the

court's discovery orders.” Russell, 109 F.3d at 1512 (internal citations and

quotations omitted). In light of the district court's careful consideration of the

relevant factors and our review of the record, we hold the court did not abuse its

discretion in suppressing portions of Dr. Gofton’s testimony.




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AFFIRM ED.


             Entered by the C ourt:


             Terrence L. O ’Brien
             United States Circuit Judge




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