                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3453
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

PATRICK L. ORIEDO,
                                          Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 03 CR 40050—G. Patrick Murphy, Chief Judge.
                        ____________
       ARGUED MAY 3, 2007—DECIDED AUGUST 6, 2007
                        ____________


  Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE,
Circuit Judges.
   RIPPLE, Circuit Judge. Patrick Oriedo was convicted of
various offenses related to distribution of crack cocaine and
firearm possession. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
841(b)(1)(C); 18 U.S.C. §§ 922(g)(1), 924(c). He was sen-
tenced to a total of 181 months’ imprisonment. He now
claims that the proceedings in the district court were
tainted by the denial of his constitutional right to a speedy
trial and by the admission of certain evidence over his
objection. For the reasons set forth in this opinion, we
affirm the judgment of the district court.
2                                                No. 06-3453

                              I
                     BACKGROUND
  On five occasions between June 20 and July 2, 2003, Mr.
Oriedo was among those who sold crack cocaine to a
confidential source participating in controlled buys orches-
trated by law enforcement. Following the last of these buys,
the police performed a traffic stop of the car driven by
Mr. Oriedo and recovered a revolver from his pocket,
additional crack and a significant amount of cash, includ-
ing $750 in recorded currency from the controlled buys.
Mr. Oriedo was arrested and, on July 8, 2003, was charged,
along with Antoine Smith, in a single-count indictment
that alleged a conspiracy to distribute and to possess
with intent to distribute crack in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) and 846.
  Over the next thirty-five months, the Government
obtained four superseding indictments against Mr. Oriedo.
During the same period, Mr. Oriedo and one of his co-
defendants also requested numerous continuances from
the district court. We shall examine in detail the course of
the pretrial proceedings in the context of our analysis of
Mr. Oriedo’s speedy trial claim.
  When Mr. Oriedo went to trial, the Government intro-
duced, as part of its case-in-chief, the testimony of multiple
law enforcement officials involved in the investigation of
Mr. Oriedo’s offenses. In examining certain of these
witnesses, the Government not only asked about their
observations during the investigation of Mr. Oriedo, but
also posed more general questions about typical drug
trafficking practices in the area. With respect to the latter
inquiries, Mr. Oriedo objected on the ground that such
testimony should be treated as expert testimony and,
No. 06-3453                                                3

therefore, should have been the subject of the expert
disclosure provision of Federal Rule of Criminal Procedure
16. The district court admitted certain of this testimony
over Mr. Oriedo’s objection; it determined that it was lay
testimony governed by Federal Rule of Evidence 701 rather
than expert testimony within the meaning of Rule 702.
We shall discuss the district court’s rulings and the
specific evidence admitted in our analysis of Rule 16 and
its effect on these proceedings.


                             II
                      DISCUSSION
A. Speedy Trial
  Mr. Oriedo first claims that the course of his pretrial
proceedings denied him his constitutional right to a speedy
trial. See U.S. Const. amend. VI (“In all criminal prosecu-
tions, the accused shall enjoy the right to a speedy and
public trial . . . .”). The Government counters that Mr.
Oriedo has waived any speedy trial objection. The Govern-
ment further maintains that, on the merits, a speedy trial
claim fails because Mr. Oriedo himself is responsible for a
substantial portion of the 35 month delay between his
original indictment and his trial.


                             1.
  Before the district court, Mr. Oriedo did not assert, at
every possible opportunity, his constitutional right to a
speedy trial. As we shall discuss in more detail later, the
record reveals that, in three years of pretrial proceedings,
he twice indicated his desire to oppose any further delays.
Also, in his final motion to sever his trial from that of his
4                                                      No. 06-3453

co-defendants, he made a single specific reference to his
constitutional right to a speedy trial. In the Government’s
view, although Mr. Oriedo raised the claim, his failure to
press it vigorously or to set forth specific arguments in
support of this claim amounts to waiver.
   In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court
noted the unique analytical problem presented by the
constitutional right to a speedy trial.1 Put simply, it is
difficult to determine precisely when, in the course of
protracted pretrial proceedings, delay amounts to a
constitutional violation. See id. at 521. It is also difficult to
identify with any precision when the defendant had the
obligation to object to the violation. Therefore, the right is
ill-suited to rigid forfeiture rules. See id. at 528 (rejecting
a rule “that a defendant who fails to demand a speedy
trial forever waives his right”). The “better rule is that
the defendant’s assertion of or failure to assert his right to
a speedy trial is one of the factors to be considered in an
inquiry into the deprivation of the right.” Id. This ap-
proach, said the Court, avoids the possible unfairness
that might result from an overly rigid application of a
forfeiture rule and permits the trial court the needed
discretion in assessing the particular circumstances in the
case before it. See id. at 528-29.2 Nevertheless, despite the


1
  Mr. Oriedo bases his speedy trial claim on the Constitution
only. The Speedy Trial Act, 18 U.S.C. § 3161 et seq., is not at issue
in this case.
2
   We have noted that the Supreme Court’s statements in Barker
express an “extreme reluctance” to find waiver of the speedy
trial right. See United States ex. rel. Fitzgerald v. Jordan, 747 F.2d
1120, 1127 (7th Cir. 1984). Accordingly, it is not surprising that
                                                        (continued...)
No. 06-3453                                                        5



2
  (...continued)
we have not had any occasion to apply plain error review to
constitutional speedy trial claims.
   Nevertheless, as we have acknowledged recently in United
States v. Luepke, ___ F.3d ___, No. 06-3285, slip op. at 5-10 (7th
Cir. July 24, 2007), plain error review is generally appropriate for
claims not pressed to the district court, see Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993), and this rule
applies even where, as here, the protection of the right during
trial is not the sole responsibility of the defendant, see Barker
v. Wingo, 407 U.S. 514, 527 (1972). See also United States v. Vonn,
535 U.S. 55 (2002) (applying plain error review to a district
court’s violation of Rule 11 of the Federal Rules of Criminal
Procedure). There well may be instances when plain error
analysis would be appropriate in the speedy trial context. Cf.
United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir. 2003)
(reviewing for plain error the defendant’s claim that a violation
of the constitutional right to a speedy trial resulted in actual
prejudice); United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir.
1995) (reviewing both statutory and constitutional speedy trial
claims for plain error where no motion to dismiss was filed
in the district court); United States v. Gomez, 67 F.3d 1515, 1521
(10th Cir. 1995) (reviewing constitutional speedy trial claim for
plain error where the issue was not raised at all before the
district court). However, we see no reason why the specific
circumstances of Mr. Oriedo’s case warrant treatment outside
the general approach set by the Supreme Court in Barker.
Certainly, a limited assertion on the part of the defendant
should not be treated as a waiver—an intentional relinquishment
of a known right, see Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Nor can we say, assuming plain error is appropriately applied
to speedy trial claims not raised in the district court, that Mr.
Oriedo had forfeited his claim by failing to bring a motion to
dismiss based on a Sixth Amendment violation. Cf. United States
                                                      (continued...)
6                                                   No. 06-3453

difficulty of pinpointing an appropriate time of forfeiture,
a defendant has some responsibility to assert the right. See
id. at 528. As we shall discuss in more detail later, just as
we give significant weight to the defendant’s assertion of
the right, a failure to assert it “will make it difficult for a
defendant to prove that he was denied a speedy trial.” Id.
at 532. The Supreme Court explicitly has made the quality
of the defendant’s assertion of the right not just a factor
in the analysis, but one entitled to significant weight and
one without which the claim will be difficult to prove. See
id. Accordingly, although we cannot accept the Govern-
ment’s suggestion that Mr. Oriedo’s failure to object
persistently justifies our finding the issue waived or
forfeited, significant weight must be given to that con-
duct in assessing his speedy trial claim.


                                2.
  We now turn to the merits of Mr. Oriedo’s speedy trial
claim. The principles that guide our analysis are well-


2
   (...continued)
v. White, 443 F.3d 582, 588-91 (7th Cir. 2006) (noting that, where
the defendant had never raised a speedy trial claim in the
district court, the Speedy Trial Act decreed that his statutory
right was “waived,” but reviewing the constitutional claim
without suggesting that plain error was the appropriate stan-
dard). Mr. Oriedo’s three assertions, at various times in the
trial process, of his desire to oppose future continuances and
proceed to trial sufficiently alerted the court and the Govern-
ment that the delay in the proceedings was a potential issue. See
id. at 590 (holding that the defendant “asserted his right” by
objecting to the first continuance, even though later joining
in the Government’s request for a further continuance).
No. 06-3453                                                   7

settled under the standard set forth in Barker. As we
recently have stated,
    [i]n considering a defendant’s Sixth Amendment
    speedy trial challenge, we apply the following four-
    part test: “whether delay before trial was uncommonly
    long, whether the government or the criminal defen-
    dant is more to blame for that delay, whether, in due
    course, the defendant asserted his right to a speedy
    trial, and whether he suffered prejudice as the delay’s
    result.”
United States v. White, 443 F.3d 582, 589 (7th Cir. 2006), cert.
denied, 75 U.S.L.W. 3173 (U.S. Oct. 2, 2006) (No. 06-5782),
(quoting Doggett v. United States, 505 U.S. 647, 651-52
(1992)).


                              a.
  The first factor, the length of delay, acts as a triggering
mechanism; unless a presumptively prejudicial amount of
time elapsed in the district court, it is unnecessary to
conduct a searching analysis of all the factors. Barker, 407
U.S. at 530. We have considered delays that approach one
year presumptively prejudicial, see White, 443 F.3d at 589-
90; see also Doggett v. United States, 505 U.S. 647, 652 n.1
(1992). In this case, nearly three years passed from original
indictment to trial. Therefore, full review of the Barker
factors is appropriate. In determining the weight to give
the length of the delay, we must look to the extent to
which it exceeds the minimum necessary to trigger the
analysis. Doggett, 505 U.S. at 652. In this case, a period of
three years is significantly more than the length necessary
to trigger the analysis, and, therefore, this factor weighs
in Mr. Oriedo’s favor.
8                                               No. 06-3453

                             b.
  The second Barker factor, the reason for the delay, is
“[t]he flag all litigants seek to capture.” United States v.
Loud Hawk, 474 U.S. 302, 315 (1986). In order to analyze
this factor with precision, we must examine in detail the
course of Mr. Oriedo’s pretrial proceedings.
  The original indictment, handed down on July 8, 2003,
charged Mr. Oriedo and his co-defendant Smith with a
single count of conspiracy to distribute and to possess with
intent to distribute crack cocaine. Between July 8, 2003 and
June 19, 2004, Smith requested and was granted five
continuances. The court also continued the case for three
months in light of the Government’s return of a supersed-
ing indictment. At the status conference in which Smith
requested his final continuance, Mr. Oriedo’s attorney
stated that her client opposed further continuances and
wished to proceed to trial. See Tr. 2 at 2 (Apr. 26, 2004).
Nonetheless, roughly a week later, Mr. Oriedo requested
and was granted a six-week continuance of the resched-
uled status conference.
  At the June 14, 2004 status conference, Smith pleaded
guilty to Count I of the indictment. In light of the simulta-
neous withdrawal of Mr. Oriedo’s attorney for a conflict of
interest, the court continued the trial once, and again three
consecutive times on the motion of Mr. Oriedo’s new
attorney, to December 6, 2004.3 On November 18, 2004,
roughly two weeks before the trial date as it then stood, the
Government returned a second superseding indictment


3
  The minute order entered at the November 8, 2004 status
conference notes that Mr. Oriedo “states [that] he wishes to
proceed to trial.” R.78.
No. 06-3453                                                     9

adding five counts of knowingly and intentionally dis-
tributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C). Mr. Oriedo moved to continue the
proceedings to prepare for trial on the additional charges,
and a final pretrial conference was rescheduled for Feb-
ruary 7, 2005.
  In January 2005, before the scheduled pretrial conference,
Mr. Oriedo’s second attorney withdrew for personal
reasons. While Mr. Oriedo was represented by his third
attorney, the court granted a series of continuances, on
Mr. Oriedo’s request, for trial preparation, time to review
a Government motion for notice of an alibi defense and to
accommodate counsel’s own scheduling conflict. Conse-
quently, the trial date was set for July 11, 2005.
  On June 21, 2005, the Government filed a third supersed-
ing indictment, amending the original conspiracy count to
allege that it involved at least 50 grams of cocaine base. Mr.
Oriedo’s counsel moved to continue in light of additional
discovery presented by the Government. Trial was set
for September 2005, and continued an additional month
by the court because of the judge’s illness.
  In early September, Mr. Oriedo sought and was granted
leave to file an amended motion to suppress certain
evidence. Consequently, new briefing began, including a
round of supplemental briefs4 initiated by the Government;
a hearing was held on the motion on January 23, 2006, and


4
  In one of Mr. Oriedo’s multiple briefs to the district court, he
objected that the Government had delayed trial by “an innumer-
able amount of superseding indictments” in what he character-
ized as “a straightforward case involving hand-to-hand sales
and possession of a firearm.” R.154 at 1.
10                                             No. 06-3453

the motion was denied on February 13, 2006. Mr. Oriedo
requested and received a further continuance, which the
court granted. Trial was reset for May 30, 2006, and the
case transferred from one judge’s docket to another.
  The Government then returned a fourth superseding
indictment on May 19, 2006, adding an additional co-
conspirator. Mr. Oriedo moved to sever his trial and keep
his May 30, 2006 trial date. His motion was granted and
trial proceeded as scheduled.
  As the foregoing demonstrates, the district court ordered
no fewer than twenty continuances over a three-year
period. Mr. Oriedo’s opening brief to this court acknowl-
edges that of these, four were granted on the court’s own
motion and five were at the request of Smith prior to his
plea agreement. The Government sought only one con-
tinuance, while Mr. Oriedo himself requested a continu-
ance on eleven separate occasions. Although this summary
might seem to demonstrate rather clearly that Mr. Oriedo
was primarily responsible for the delay, he disagrees. He
urges this court to hold the Government responsible for
delays that he requested following each of the multiple
superseding indictments and the withdrawal of two of
Mr. Oriedo’s appointed attorneys. With respect to the
multiple indictments, Mr. Oriedo contends that we
should infer impermissible motives on the part of the
Government, namely, an intent to delay and to harass
Mr. Oriedo. He bases his claim entirely on what he con-
siders to be relatively minor changes between the indict-
ments. We note that Mr. Oriedo has not presented us
with any support in the case law that allows the serious
charge of misconduct that he levels at the Government
to be established by weak inferences alone. Without more,
we cannot accept his suggestion that the Government’s
No. 06-3453                                                 11

approach was occasioned by improper motive.5
  Assuming, without evidence to the contrary, that the
Government’s motive was proper, our own review of the
relevant precedent reveals no clear consensus on the
appropriate treatment of the ordinary delays occasioned
by superseding indictments in constitutional speedy trial
claims. See, e.g., United States v. Gregory, 322 F.3d 1157,
1161-62 (9th Cir. 2003) (noting that the court did not
“condone” the delay in bringing a superseding indictment,
but finding that, because the Government-occasioned de-
lay was merely negligent, it did not weigh “heavily”
against the Government) (quoting Barker, 407 U.S. at 531);
United States v. Antwine, 873 F.2d 1144, 1149-50 (8th Cir.
1989) (attributing a delay occasioned by defense coun-
sel’s request for a continuance to prepare for trial on
charges in a superseding indictment to the defendant,
not the Government); United States v. Netterville, 553 F.2d
903, 914-15 (5th Cir. 1977) (not charging delay in super-
seding indictment to the Government, concluding that
such delays were justifiable rather than negligent, particu-
larly in light of the complexity of the case).
  We need not decide the appropriate treatment of delays
occasioned by superseding indictments, however, because,
even if we were to conclude that every such delay
should be charged to the Government, Mr. Oriedo remains
responsible for multiple additional and significant delays.
He relies on no precedent to support his view that, after
new counsel was appointed for him, the delays to prepare


5
  We note that there is no allegation that the Government acted
in bad faith in making the substantive changes to the charges
against Mr. Oriedo by bringing the subsequent indictments.
See Doggett v. United States, 505 U.S. 647, 656 (1992).
12                                              No. 06-3453

his defense should be charged to the Government. These
delays were substantial, amounting to nearly six months
in 2004, and several additional months in 2005. Further,
to address his final motion to suppress in September 2005,
the court allowed briefing and a hearing. After finally
denying the suppression motion, the court granted Mr.
Oriedo’s own further request for a continuance. These
continuances surrounding Mr. Oriedo’s suppression
motion delayed the proceedings roughly nine additional
months. Moreover, the delays occasioned by his co-defen-
dant’s motions, amounting to a year, are at best neutral
and not chargeable to the Government simply because it
elected to try together both defendants involved in a
single conspiracy. Under these circumstances, we cannot
conclude that the Government is substantially more at
fault in the trial delays than was Mr. Oriedo. Accordingly,
even if we were to conclude that this factor weighs against
the Government because of the multiple superseding
indictments, it would not weigh heavily in our final
analysis.


                             c.
  The third Barker factor is the defendant’s assertion of the
right. In this case, Mr. Oriedo never filed a motion for a
speedy trial or a motion to dismiss the indictment for a
speedy trial violation. As we have noted, he did make
statements on three occasions that could be construed as
asserting the right, twice in 2004 and once in his motion to
sever in 2006. In his early assertions, he simply stated that
he opposed all continuances (April 2004) and that he
wished to proceed to trial (November 2004). However,
Mr. Oriedo later sought numerous continuances for
myriad reasons and filed at least one substantive motion
No. 06-3453                                                     13

that substantially delayed his trial. See United States v.
Taylor, 196 F.3d 854, 862 (7th Cir. 1999) (noting that simul-
taneous assertion of the right and requests for delay makes
any demand “entitled to little, if any, weight”); see also
White, 443 F.3d at 590-91 (noting that when the right is
asserted only after a significant period of delay it does not
weigh strongly in a defendant’s favor). Given this
sequence of events, we cannot say that this factor weighs
in favor of Mr. Oriedo.


                                d.
  The fourth Barker factor is prejudice to the defendant. We
must examine the circumstances of this case in light of the
interests the right is intended to protect: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety
and concern of the accused; and (iii) to limit the possibility
that defense will be impaired.” Id. at 591 (citing Barker,
407 U.S. at 532) (internal quotation marks omitted). Actual
prejudice to the defense is the “most serious” concern
raised by a delay because it may “skew[] the fairness of
the entire system.”6 Doggett, 505 U.S. at 654. Mr. Oriedo
concedes that he suffered no particular prejudice to his


6
  Mr. Oriedo contends that no showing of prejudice should be
necessary because this court should apply the Supreme Court’s
recent holding in United States v. Gonzalez-Lopez, 126 S. Ct. 2557,
2562 (2006), and hold that a violation of the speedy trial right is
complete without a showing of prejudice. Gonzalez-Lopez does
not concern the speedy trial right but the right to counsel of
choice. The controlling Supreme Court precedent interpreting
the right to a speedy trial has deemed the existence of prejudice
an appropriate factor to be weighed in determining whether a
constitutional violation has occurred. See Barker, 407 U.S. at 532.
14                                                No. 06-3453

defense by the delay. The record certainly supports his
concession. As we have just noted, many of the continu-
ances were sought by the defense for trial preparation or
for late defense motions.
   The Supreme Court has rejected the view that a show-
ing of prejudice is necessary in all circumstances, Moore v.
Arizona, 414 U.S. 25, 26 (1973), and has acknowledged that,
in some circumstances, prejudice may be presumed. See
Doggett, 505 U.S. at 655 (“[E]xcessive delay presumptively
compromises the reliability of a trial in ways that neither
party can prove or, for that matter, identify.”). This pre-
sumed prejudice, although insufficient to carry a speedy
trial claim absent a strong showing on the other Barker
factors is nonetheless “part of the mix of relevant facts”
in the ultimate balancing analysis. Id. at 655-56.
  In addition to presumed prejudice bearing on the fairness
of the proceedings themselves, the Supreme Court repeat-
edly has admonished courts that prejudice in the presenta-
tion of a defense is not the only kind of prejudice that a
defendant may demonstrate in support of a speedy trial
claim. See United States v. Marion, 404 U.S. 307, 320 (1971)
(noting that delay “may seriously interfere with the
defendant’s liberty, . . . may disrupt his employment,
drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him,
his family and his friends”); see also Barker, 407 U.S. at 532-
33 (“The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job; it
disrupts family life; and it enforces idleness. Most jails
offer little or no recreational or rehabilitative programs.
The time spent in jail is simply dead time.” (footnote
omitted)). Mr. Oriedo’s three years of pretrial confinement
no doubt created some of this sort of prejudice.
No. 06-3453                                              15

  We are not without guidance on the weight to give
such prejudice when balancing all the Barker factors to
determine whether the conduct of the proceedings vio-
lated a defendant’s Sixth Amendment rights. We recently
have stated that
    [s]ignificant pretrial incarceration may support a
    presumption of prejudice, but this prejudice[,]
    unenhanced by tangible impairment of the defense
    function and unsupported by a better showing on the
    other factors than was made here, does not alone
    make out a deprivation of the right to [a] speedy trial.
White, 443 F.3d at 591 (internal quotation marks and
citation omitted) (final modification in original). Although
the delay in this case was substantial, the fault for that
delay is shared. Like the defendant in Barker itself, Mr.
Oriedo did not unambiguously or consistently assert his
right to a speedy trial, instead allowing continuances to
be granted without objection and indeed requesting the
better part of all continuances himself. Weighing these
factors alongside the type of prejudice Mr. Oriedo suffered,
and viewed in the context of the trial record as a whole,
we have little difficulty concluding that Mr. Oriedo has
not demonstrated a denial of his Sixth Amendment right
to a speedy trial.


B. Evidentiary Issues
  Mr. Oriedo also claims that the district court erroneously
admitted expert testimony that had not been disclosed to
the defense despite a pre-trial request under Federal Rule
16                                                    No. 06-3453

of Criminal Procedure 16(a)(1)(G)7 and a motion in limine
to bar undisclosed expert testimony. Specifically, the
Government introduced testimony of two law enforcement
officials involved in the investigation of Mr. Oriedo’s
offenses, over Mr. Oriedo’s objection that they were
undisclosed expert witnesses. In each case, the court
allowed the questioning to proceed, but requested further
support from the Government that no expert disclosure
was required under the circumstances. After reviewing
the Government’s submissions,8 the court made an oral
ruling that the evidence should be admitted as lay testi-
mony under Rule 7019 without the necessity of disclosure.



7
    Federal Rule of Criminal Procedure 16(a)(1)(G) provides:
      Expert witnesses.—At the defendant’s request, the govern-
      ment must give to the defendant 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. If the government requests discovery
      under subdivision (b)(1)(C)(ii) and the defendant complies,
      the government must, at the defendant’s request, give to the
      defendant a written summary of testimony that the govern-
      ment intends to use under Rules 702, 703, or 705 of the
      Federal Rules of Evidence as evidence at trial on the issue of
      the defendant’s mental condition. The summary provided
      under this subparagraph must describe the witness’s
      opinions, the bases and reasons for those opinions, and the
      witness’s qualifications.
8
    The record does not disclose the content of these submissions.
9
    Federal Rule of Evidence 701 provides:
      If the witness is not testifying as an expert, the witness’
      testimony in the form of opinions or inferences is limited to
                                                    (continued...)
No. 06-3453                                                             17

Tr. 4 at 336 (May 31, 2006). We now shall review each
witness’ testimony.


                                     1.
  Mr. Oriedo first objects to the testimony of Agent Stan
Reno. Agent Reno had worked surveillance over certain
of the controlled buys for which Mr. Oriedo was tried. See
Tr. 3 at 56 (May 30, 2006). In his direct examination by
the Government, Agent Reno described his own role in a
buy on June 27, 2003. He testified that, after observing the
buyer arrive at the appointed meeting place, he saw two
additional cars follow each other to the same location. He
was asked by the Government whether, “as a surveillance
agent,” this sequence of events “raise[d] any red flags”
with him. Id. Agent Reno testified that he became con-
cerned in watching a second vehicle arrive because “that
indicates to us that there is what is called counter-
surveillance occurring and they are looking for law
enforcement.” Id. at 57. Mr. Oriedo objected that this
was an undisclosed expert opinion. The Government
withdrew the question and rephrased: “Were you person-
ally concerned about there being two vehicles?” Id. Agent
Reno responded that he was, and, when asked why, he
stated that “more than one vehicle . . . raises concerns about


9
    (...continued)
       those opinions or inferences which are (a) rationally based
       on the perception of the witness, (b) helpful to a clear
       understanding of the witness’ testimony or the determina-
       tion of a fact in issue, and (c) not based on scientific, technical,
       or other specialized knowledge within the scope of Rule 702.
(emphasis added).
18                                             No. 06-3453

being countersurveillance [sic].” Id. The court ruled that
Agent Reno’s testimony on these matters was admissible.
  We see no error in the admission of Agent Reno’s
testimony as lay testimony under Rule 701. Although
Agent Reno’s specialized knowledge informed his mental
state, he was not called upon to testify generally about
narcotics counter-surveillance practices or to offer an
explicit opinion that what he observed was counter-
surveillance. Cf. United States v. Parra, 402 F.3d 752, 758-
59 (7th Cir. 2005) (approving of expert testimony that
both addressed counter-surveillance practices generally
and opined that the defendant’s apparently innocent
activities during a drug deal were consistent with a role in
counter-surveillance). Agent Reno was asked about his
own state of mind while observing this particular drug
deal; in response, he reported his state of mind and his
observations on the day in question. Accordingly, the
district court was correct in concluding that the expert
disclosure rules did not apply to this testimony.


                             2.
   The district court also admitted the testimony of Agent
Dave Gourley over Mr. Oriedo’s objection. Agent Gourley
had participated in surveillance of the controlled buys, in
the traffic stop and arrest of Mr. Oriedo and in a sub-
sequent search of a hotel room where Mr. Oriedo had
been staying. Agent Gourley testified as to the relevant
contents of the hotel room, mentioning, among other
items, plastic baggies left on an ironing board. The Gov-
ernment asked Agent Gourley about “the significance of
the baggies with the corners cut off,” and Agent Gourley
responded, “[t]hat’s usually the way drug dealers will
No. 06-3453                                                 19

package the crack cocaine for resale.” Tr. 3 at 124. After
asking Agent Gourley to identify certain Government
exhibits, one of which involved the baggies, the Govern-
ment asked Agent Gourley again if he could “tell the ladies
and gentlemen of the jury how those baggies . . . are used.”
Id. at 125. This time, Mr. Oriedo objected that the question
called for undisclosed expert testimony. The Government
offered to rephrase, and ultimately asked Agent Gourley
how, based on his own observations, crack cocaine is
packaged for distribution in the corner of a baggie. He
responded:
    They will take a small baggie and cut or tear the corner
    where it makes a longer end. . . . They’ll take corners of
    baggies either cut or torn away and they’ll place
    cocaine, crack cocaine, whatever type of drug they’re
    selling they’ll twist the baggie and tie it in a small knot
    or heat seal it.
Id. at 126.
  This testimony, although ostensibly couched as a matter
of Agent Gourley’s direct observation, fits squarely with-
in this court’s precedent defining expert testimony by
officers as to matters within their experience observing
narcotics trafficking practices. See United States v. Glover,
479 F.3d 511, 516 (7th Cir. 2007) (“[B]ecause the clandestine
nature of narcotics trafficking is likely to be outside the
knowledge of the average layman, law enforcement officers
may testify as experts in order to assist the jury in under-
standing these transactions.” (internal quotation marks
omitted) (modification in original)); United States v.
Brumley, 217 F.3d 905, 910-11 (7th Cir. 2000) (approving
of expert opinion of an agent, based on observation, that
packaged quantity was a dealer, not user, quantity of
methamphetamine); United States v. Navarro, 90 F.3d 1245,
20                                                     No. 06-3453

1260 (7th Cir. 1996) (reviewing challenge to expert testi-
mony “that baggies, with the corners cut, were a way of
packaging drugs”). Agent Gourley’s testimony was not
limited to what he observed in the search or to other
facts derived exclusively from this particular investiga-
tion; instead, he brought the wealth of his experience as a
narcotics officer to bear on those observations and made
connections for the jury based on that specialized knowl-
edge. Several of our sister circuits have examined similar
law enforcement testimony under the same expert wit-
ness rubric. See United States v. Hopkins, 310 F.3d 145, 150-
51 (4th Cir. 2002); see also United States v. Watson, 260 F.3d
301, 307 (3d Cir. 2001) (collecting cases from the Second,
Fifth, Eighth and Ninth Circuits holding “the operations
of narcotics dealers [to be] a proper field of expertise”);
United States v. Figueroa-Lopez, 125 F.3d 1241, 1245-46 (9th
Cir. 1997) (disagreeing with the district court’s conclusion
that certain details of narcotics trafficking practices were
“common enough and require such a limited amount of
expertise . . . that they can . . . be deemed lay witness
opinion”).10


10
  The Government urges this court to adopt the contrary
approach outlined by the First Circuit in United States v. Ayala-
Pizarro, 407 F.3d 25, 28-29 (1st Cir. 2005), cert. denied, 74 U.S.L.W.
3209 (U.S. Oct. 3, 2005) (No. 05-5436). The court held that, where
an officer’s testimony as to narcotics packaging was based on his
personal knowledge acquired from experience in investigating
drug trafficking, it was not technical or specialized within the
meaning of Rule 701’s limitations, but was simply particularized
lay testimony. We are not persuaded by the reasoning employed
in this case.
  First, we note that the Advisory Committee Notes to Rule 701
themselves cite with approval United States v. Figueroa-Lopez, 125
                                                    (continued...)
No. 06-3453                                                      21

  We therefore agree with Mr. Oriedo’s claim that the
district court’s characterization of Agent Gourley’s testi-
mony as lay witness testimony was incorrect. Accordingly,
the testimony should have been subject to the disclosure
required by Federal Rule of Criminal Procedure 16(a)(1)(G).
  We cannot agree, however, that Mr. Oriedo is entitled to
reversal because the district court admitted the testimony
without the appropriate disclosure. The Rules themselves
provide a panoply of remedies from which a district court,
recognizing non-compliance with the disclosure rule, may
choose. See Fed. R. Crim. P. 16(d)(2) (listing possible



10
  (...continued)
F.3d 1241, 1246 (9th Cir. 1997), for the proposition that law
enforcement testimony that particular conduct is consistent with
drug trafficking should be viewed as expert testimony within
Rule 702, because to view it as lay testimony “subverts” the
disclosure requirements for expert testimony. Fed. R. Evid. 701
(Advisory Committee’s Note). We also conclude that Ayala-
Pizarro confuses the Note’s reference to the kind of “particular-
ized knowledge” that a lay person may have of the value of their
own business with the kind of “specialized knowledge” that
brings testimony within Rule 702. The business owner has
knowledge of his own business in the particular; a narcotics
officer who draws on his broad experience, acquired from his
observations outside of this particular case, relies on his special-
ized knowledge of drug trafficking to draw conclusions about
the particular case. Finally, under the First Circuit’s reading of
the Rules in Ayala-Pizarro, a substantial argument could be made
that anyone who acquires broad knowledge of a topic through
direct experience would qualify as a lay witness; Rule 702 itself,
however, specifically defines a witness’ qualification as an
expert to arise because of “knowledge, skill, experience, training
or education.” Fed. R. Evid. 702 (emphasis added).
22                                                No. 06-3453

sanctions, including exclusion and “any other order
that is just under the circumstances”). Several of these
remedies fall short of outright exclusion of the evidence.
See United States v. Duvall, 272 F.3d 825, 829 (7th Cir. 2001).
  Even if we were to conclude that some unique circum-
stance present in this case made full exclusion the only
appropriate remedy for the discovery violation, we still
would not reverse the conviction on that basis if the
error were harmless. Id. Although Mr. Oriedo makes the
blanket assertion that he was deprived of an opportunity to
cross-examine adequately Agent Gourley or prepare a
defense, before this court he questions neither the ac-
curacy of the statements offered nor the qualifications
of Agent Gourley to make them. Moreover, our review of
the record demonstrates that the packaging testimony
offered by Agent Gourley was cumulative of Agent Reno’s
own testimony on crack packaging techniques, which had
been introduced without objection. See Tr. 3 at 61. Under
these circumstances, the error in classifying Agent
Gourley’s testimony as lay and in failing to subject it to
the disclosure requirements was harmless.


                        Conclusion
  We conclude that Mr. Oriedo has not demonstrated that
his Sixth Amendment right to a speedy trial was violated.
We further conclude that any error committed by the
district court in failing to subject certain of the Govern-
ment’s evidence to the disclosure requirements in the
Federal Rules was harmless. Accordingly, we affirm the
district court’s judgment of conviction.
                                                  AFFIRMED
No. 06-3453                                          23

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—8-6-07
