                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4707


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH R. BEILHARZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cr-00105-LMB-1)


Submitted:   April 16, 2010                 Decided:   May 13, 2010


Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chong C. Park, CLARK & ALLEN, PC, Leesburg, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Timothy D.
Belevetz,   Assistant   United States   Attorney,   Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Joseph R. Beilharz appeals his conviction and ninety-

two month sentence imposed following a jury trial on one count

of    conspiracy    to    commit          arson,       in   violation     of    18    U.S.C.

§ 844(n) (2006), two counts of mail fraud, in violation of 18

U.S.C. § 1341 (2006), and one count of money laundering, in

violation    of    18    U.S.C.      §    1957       (2006).      On    appeal,      Beilharz

contends    that    the       Government’s           disclosure    of     expert     witness

testimony was untimely under Federal Rule of Criminal Procedure

16(a)(1)(G).       As a result, Beilharz argues that the district

court’s admission of that testimony was an abuse of discretion

and   a   violation      of    his       Sixth       Amendment    right    to   compulsory

process.    Finding no reversible error, we affirm.

            We review the district court’s admission or exclusion

of evidence only for abuse of discretion.                              United States v.

Young, 248 F.3d 260, 266 (4th Cir. 2001).                              The same standard

applies to the district court’s decision as to whether a party

has complied with Rule 16.                 Id. at 269.           However, even if the

district court abused its discretion, we will reverse only upon

a showing that the error was not harmless.                             United States v.

Johnson, 587 F.3d 625, 637 (4th Cir. 2009); see Fed. R. Crim. P.

52(a) (“[A]ny defect, irregularity, or variance that does not

affect substantial rights must be disregarded.”).



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            Rule 16(a)(1)(G) requires the government to disclose,

at the defendant’s request, “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.”     The summary must “describe the witness’s opinions, the

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

qualifications.         Fed. R. Crim. P. 16(a)(1)(G).                 Upon Beilharz’s

motion,    the     district       court   issued     a    pre-trial    order       closely

tracking the requirements of Rule 16(a), including subsection

(a)(1)(G).        Importantly, neither Rule 16(a) nor the district

court’s    pre-trial        order    required       the   Government        to   disclose

expert testimony offered in rebuttal.

            Two days prior to trial, the Government identified two

expert witnesses it could call in rebuttal of laboratory reports

Beilharz intended to introduce as evidence.                        At trial, during

recross-examination          of    the    fire   marshal     who   investigated        the

fire, Beilharz sought to introduce three laboratory reports from

the     Bureau     of   Alcohol,         Tobacco,    Firearms,        and    Explosives

(“ATF”).        After a bench conference, the district court admitted

the reports as part of Beilharz’s case-in-chief and permitted

the Government to introduce expert witness testimony to explain

the reports.

                After    reviewing         the      transcript      of       the    trial

proceedings, we conclude that the expert testimony offered by

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the    Government       is    most    appropriately           classified     as   rebuttal

evidence and the district court did not abuse its discretion in

deeming it rebuttal.               See United States v. Stitt, 250 F.3d 878,

897     (4th    Cir.     2001)      (stating          that   “[r]ebuttal     evidence     is

defined    as     evidence       given       to   explain,     repel,      counteract,     or

disprove facts given in evidence by the opposing party.                                That

which     tends    to     explain       or    contradict         or   disprove    evidence

offered by the adverse party.”) (internal quotation marks and

brackets       omitted).         Accordingly,          because    Rule     16(a)(1)(G)     is

explicitly applicable only to expert testimony offered in the

government’s        case-in-chief            and       not    rebuttal      experts,      the

district court did not abuse its discretion in admitting the

testimony.        See United States v. Windham, 489 F.2d 1389, 1392

(5th    Cir.     1974)       (stating    that         “[r]ebuttal     witnesses     are    a

recognized exception to all witness disclosure requirements.”);

accord United States v. Frazier, 387 F.3d 1244, 1269 (11th Cir.

2004); United States v. DiCarlantonio, 870 F.2d 1058, 1063 (6th

Cir. 1989);        United States v. Barrett, 766 F.2d 609, 617 (1st

Cir. 1985); United States v. Angelini, 607 F.2d 1305, 1308-09

(9th Cir. 1979).             Further, the admission of the testimony did

not violate Beilharz’s Sixth Amendment rights.

               Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions         are    adequately          presented     in   the    materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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