          United States Court of Appeals
                        For the First Circuit

No. 13-1066

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                          JOHN WENOR BRESIL,

                        Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. José A. Fusté, U.S. District Judge.]



                                Before

                         Lynch, Chief Judge,
                 Howard and Kayatta, Circuit Judges.



          Víctor Ramos-Rodríguez, with whom Wilfredo Díaz-Narváez,
was on brief, for appellant.
          Kelly Leann Tiffany, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F.
Klumper, Assistant United States Attorney, were on the brief, for
appellee.




                          September 24, 2014
              KAYATTA, Circuit Judge.        John Wenor Bresil was convicted

of illegally reentering the United States after he was found in the

middle of the night by Coast Guard and Border Patrol officials in

an open boat with seventeen others twenty-three nautical miles off

the coast of Puerto Rico.        On appeal he argues that he was wrongly

prevented from showing at trial that he did not intend to enter the

United States but instead was passing Puerto Rico on his way to the

island of St. Maarten.           Specifically, he argues that: (1) the

district      court   wrongly    denied   him    a    continuance    after    the

government announced its intention to call an expert witness only

five days before trial; (2) the government violated his due process

rights   by    sinking   his    boat   after    it   took   him   into   custody,

preventing a conclusive determination of whether it contained

enough fuel to make it to St. Maarten, and by deporting others

found in the boat with him who would have testified that the boat

was traveling to St. Maarten; and (3) there was insufficient

evidence to support his conviction.                  Though we find that the

government plainly violated Federal Rule of Criminal Procedure 16,

we affirm because that violation did not prejudice Bresil, and his

other claims are without merit.

                                 I. Background

              The basic facts leading to Bresil's conviction are not

disputed.      On the evening of March 19th, 2012, a border patrol

aircraft was patrolling the Mona Passage, the body of water that


                                       -2-
lies between the islands of Hispaniola (which contains Haiti and

the Dominican Republic), to the west, and Puerto Rico, to the east.

At around 9:40 P.M., the aircraft detected a vessel about 30 miles

southwest of Puerto Rico traveling toward that island.       Border

patrol agents tracked the vessel as it traveled northeast toward

Puerto Rico until it came to a stop twenty-three nautical miles off

the coast at approximately 1:00 A.M.

           Only then did a Coast Guard vessel intercept the boat,

which was twenty-six feet long and six feet wide with a forty

horsepower outboard engine and eighteen people aboard.     The boat

had taken on two feet of water by the time the Coast Guard reached

it.   From their vessel, the Coast Guard officials reported seeing

in the bottom of the boat a number of empty fuel containers and one

fifteen gallon container that was 75 percent full.       The boat's

outboard engine did not have an internal fuel tank, instead drawing

fuel from a container.    After the passengers were taken onto a

Coast Guard vessel, the Coast Guard set fire to the boat in order

to sink it because, government witnesses testified, it was a hazard

to navigation if it remained where it was and they were unable to

safely tow it somewhere else.      When interviewed, all eighteen

passengers on the boat said that they had departed from Miches in

the Dominican Republic.

           Bresil was indicted on one count of illegally attempting

to return to the United States after being deported for commission


                                -3-
of an aggravated felony.      8 U.S.C. § 1326(a)(2), (b)(2).           Bresil

was convicted on the sole count of the indictment and sentenced to

78 months' imprisonment and 36 months' supervised release.               This

appeal of his conviction followed.

                             II. Discussion

A. Timing of the Government's Rule 16 Disclosure

           The Government first informed Bresil of its intention to

call an expert witness who could testify about the boat's fuel

consumption five days before trial.             The expert proposed to

testify, and eventually testified, that, based on the type of boat,

the number of people in it, and the weight of fuel, it would have

traveled at most two and a half to three nautical miles per gallon

of gasoline.    St. Maarten is approximately 175 nautical miles from

the eastern coast of Puerto Rico.

           Federal Rule of Criminal Procedure 16(a)(1)(G) provides

that "[a]t the defendant's request, the government must give to the

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

government intends to use . . . during its case-in-chief at trial."

Bresil   had   timely   requested   such   a   disclosure   over   a    month

previously.    In response to the government's disclosure, Bresil

filed an emergency motion seeking a continuance to obtain his own

expert and to further investigate other facts included in the

government's disclosure which he claimed were new to him.                 The

district court denied Bresil's motion the same day he filed it on


                                    -4-
the grounds that "[a]ll the facts movant claims as requiring

additional investigative efforts were easily discernible from day

one."

                 The government claims that Bresil waived any objection to

its late notice under Rule 16 by not mentioning the rule by name in

his motion seeking a continuance based on the government's notice

that        itself      referred   to   Rule    16(a)(1)(G)      explicitly.     Not

surprisingly, the government cites no precedent for this contention

that        a   party    need   expressly      cite   a   rule   when   that   rule's

application is obviously the point of the motion.                       Bresil made

clear that he was seeking a continuance because he "need[ed], at

least, the services of an expert in navigation/captain to analyze

the evidence and inform us about the capacity of this boat to

travel to St. Maarten."            One reason he needed such testimony, his

motion explained, was that the government intended to address this

question with its expert.                In sum, Bresil clearly raised and

preserved his argument that the government's designation was filed

at a time that warranted a remedy to avoid prejudice to Bresil.

Because Bresil raised the issue before the district court we review

for abuse of discretion. See United States v. Espinal-Almeida, 699

F.3d 588, 614 (1st Cir. 2012).1


        1
         Bresil also suggests that the government's notice, in
addition to being untimely, did not provide a sufficient summary of
the "witness's opinions, the bases and reasons for those opinions,
and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G).
He does not explain how the government's notice was insufficient,

                                            -5-
            Rule 16(a)(1)(G) "is intended to minimize surprise that

often results from unexpected expert testimony, [to] reduce the

need for continuances, and to provide the opponent with a fair

opportunity to test the merit of the expert's testimony through

focused    cross-examination."   Fed.    R.   Crim.   P.   16   advisory

committee's note (1993 Amendment).     The fact that Bresil knew that

the boat's fuel usage would be at issue at trial does not excuse

the government of its duty under Rule 16(a)(1)(G) to give timely

notice of its intent to call an expert who would marshal evidence

on that issue in service of the government's case.     It is one thing

to be prepared to argue about a fact at trial, but quite another to

prepare to rebut an expert who can testify about implications of

that fact in a way different from a lay witness.           Prior to the

government's notice, the government gave no indication that it

would be presenting evidence to the jury that, if the government

witnesses were right about the amount of fuel on board, the boat

had only a fraction of the fuel it needed to make it to St.

Maarten.

            The government's notice was plainly untimely because it

is unreasonable to expect a defense attorney in the midst of trial

preparation to drop everything and try to obtain an expert five

days before trial.    See United States v. Martinez, 657 F.3d 811,


however, and our review of that notice does not show any obvious
omissions, much less omissions which could have prejudiced Bresil.


                                 -6-
817 (9th Cir. 2011) (government disclosure of expert five days

before trial not "timely" but district court was within its

discretion to deny a continuance where expert's testimony was a

month away); United States v. Hoffecker, 530 F.3d 137, 184-88 (3d

Cir. 2008) (defendant's disclosure of expert three business days

before jury selection untimely); United States v. Johnson, 228 F.3d

920, 922, 926 (8th Cir. 2000) (government's disclosure of expert

six   days   before    trial   in     violation   of   district   court   order

untimely).    Not knowing when to fold a losing hand, the government

nevertheless suggested at oral argument that because "Puerto Rico

is an island and it's surrounded by ocean" and one of the island's

largest marinas was located "forty-five minutes away" (from the

courthouse, presumably) it would have been "easy" for Bresil's

counsel to obtain an expert on short notice.                  The government

provides no evidence for its claim that this would be easy,

however, and, having no experience trawling marinas for experts on

outboard motorboat fuel efficiency, we can hardly presume it to be

so.   More to the point, the government should not be able to send

defense counsel on such a hunt when defense counsel is trying to

get ready for trial.

             The government also suggested at oral argument that

denying the motion for a continuance was appropriate because, by

the time the motion was filed, the government had already flown in

its   witnesses,      so   granting    a   continuance   would    have    caused


                                        -7-
inconvenience for the government and the agencies for which its

witnesses work.   In other words, the government claims that it can

create a last minute exigency by violating a rule, and then block

a remedy for the defendant merely because a remedy would be

inconvenient for the government.         This argument falls of its own

weight   and   suggests   that   the   government   does   not   take   its

obligations under Rule 16 seriously.

           Nonetheless we affirm because "[t]o obtain a reversal

based on a Rule 16 claim, a defendant has to show prejudice."

Espinal-Almeida, 699 F.3d at 614; see United States v. Melucci, 888

F.2d 200, 203 (1st Cir. 1989) (where results and identity of

handwriting expert were not disclosed until four days before expert

testified at trial, the district court did not abuse its discretion

by admitting the testimony because the defendant did not explain

how late disclosure prejudiced him). With the benefit of hindsight

(and time), it turns out that, when pressed to explain after the

trial what an expert actually could have said that might have

helped his defense, Bresil makes no claim that any expert could

have materially challenged (or, indeed, challenged at all) the

technical claims upon which the testimony of the government's

expert was based.    In other words, no defense expert would have

challenged the opinion that, given the factual assumptions made by

the government expert, the boat could not have traveled more than

two-and-one-half to three nautical miles per gallon.


                                   -8-
                   Instead, Bresil suggests that presenting his own expert

would       have     allowed    him    to   challenge   the        government       expert's

assumptions (about, for instance, the weight of the passengers)

that were incorporated into his calculations about the distance the

boat could travel on a given amount of fuel. But those assumptions

were        just    that--assumptions       dependent       on    facts   to       which   lay

witnesses testified.            No expert--and Bresil does not say he would

have called any additional non-expert witnesses if granted a

continuance--could testify to such facts.                    And if it is facts, not

expert testimony, that Bresil wishes to have explained, then as the

district court observed in denying the motion to continue, Bresil

had long had ample incentive to challenge the facts.                         Moreover, as

it turned out, it was highly improbable that any changes in the

facts could have materially changed the conclusion.                          The type and

size of the boat and its motor were undisputed, as was the number

of   passengers.           Bresil      says    that   the        weight   estimates        the

government's expert used were high, but there is no claim that

lesser        estimates    on    the    margins     would    have     made     a    material

difference.2

                   For these reasons, this is an instance of foul, but no

harm.        We caution the government, however, that our holding arises

from the particular facts of this case and we do not lightly find


        2
        One would need to increase the boat's fuel efficiency six-
fold to make it plausible that the boat had enough fuel to make it
to St. Maarten.

                                              -9-
harmless such a clear violation of Rule 16. By failing to disclose

experts in a timely fashion parties risk not only undesired and

inconvenient continuances but also the exclusion of their expert's

testimony entirely.         See Fed. R. of Crim. P. 16(d)(2) ("If a party

fails to comply with this rule, the court may . . . prohibit that

party from introducing the undisclosed evidence . . . .").

B. Due Process Claims

              Bresil   argues   that      the     government   violated    his due

process rights by destroying the boat, which contained evidence of

whether or not it had enough fuel to travel to St. Maarten, and by

deporting other passengers who, he argues, would have testified in

his defense that the boat was traveling to St. Maarten.                    Because

Bresil raised both arguments in the district court, we review de

novo the district court's legal conclusion that Bresil's due

process rights were not violated. See United States v. Teague, 469

F.3d 205, 210 (1st Cir. 2006).

              Bresil's argument concerning the destruction of the boat

fails because he does not show that there was anything else the

Coast Guard could have safely done. He provides no reason to doubt

testimony of government witnesses that it was unsafe for them to

board   the    boat    to   conduct   a    more    thorough    inventory   of   its

contents; that, had the boat been left where it was, it would have

been a "hazard of navigation;" and that the Coast Guard vessel was

not technically capable of safely towing it to another location.


                                          -10-
Absent any reason to doubt these claims, it is hard to understand

what Bresil thinks the government should have done.        Moreover,

because the evidence in the boat was      "no more than 'potentially

exculpatory evidence,'" he is only entitled to a new trial if he

can show that the government acted in bad faith by destroying the

boat.   Magraw v. Roden, 743 F.3d 1, 8 (1st Cir. 2014) (quoting

Arizona v. Youngblood, 488 U.S. 51 (1988)). Bresil does not argue,

nor would the record support an argument, that the government acted

in bad faith and so his due process argument concerning the

destruction of his boat fails.    See id.

          Bresil also argues that the government violated his due

process rights by deporting the other people on the boat who, he

says, would have testified that they were going to St. Maarten.

The boat contained eighteen people when stopped by the Coast Guard.

The record reflects that five of those eighteen people, including

Bresil, gave sworn statements that they were heading to St.

Maarten, while a sixth passenger gave a sworn statement that he was

heading to Puerto Rico.   Of the twelve remaining passengers, one,

Bresil's sister, was prosecuted for illegally attempting to enter

the United Sates, but charges against her were dropped (the record

does not reveal why).   It is unclear if she was then deported but,

even if she was, she was in the United States, apparently legally,

at the time of Bresil's trial.          The parties agree that the

remaining eleven passengers, about whose stated destination the


                                 -11-
record is silent, were deported the day the boat was stopped and

there is no reason to think they reentered the United States.

          Of the five passengers who claimed to be going to St.

Maarten, one later recanted and pled guilty to illegally attempting

to reenter the United States, expressly admitting that he was going

to Puerto Rico.    Excluding Bresil, that left three passengers who

made un-retracted claims that they were headed to St. Maarten.        At

some point before Bresil's trial and before Bresil's counsel

interviewed them, the government deported all three.

          Bresil   argues   on   appeal   that   all   the   deportations

violated his due process rights.    However, he limited his argument

in the district court to the deportation of four passengers who

initially gave sworn statements that they were headed to St.

Maarten3 and so review of his due process argument with regard to

the other passengers would, at best, be for plain error.         We first

discuss Bresil's preserved due process argument and, finding that

it fails, need not reach his unpreserved argument as it must fail

for the same reason.

          Our assessment of Bresil's complaint that the deportation

of the four passengers who initially claimed they were going to St.

Maarten violated his due process rights begins with the Supreme



     3
       He also argued that the government shouldn't have deported
his sister, one of the twelve passengers who did not give sworn
statements, who, he says, would also have testified that she was
going to St. Maarten. But since the record shows that she was in
the United States at the time of his trial this claim was moot.

                                 -12-
Court's decision in United States v. Valenzuela-Bernal, 458 U.S.

858 (1982).     In that case the Court found that the government did

not   violate      the   due    process   rights     of   a   man   prosecuted    for

transporting an illegal alien into the United States when it

deported     two     other      people    he     transported.        Id.     at   874.

Valenzuela-Bernal could be read as applying a single-prong test

under which a defendant's due process rights are violated when

witnesses are deported "only if the criminal defendant makes a

plausible showing that the testimony of the deported witnesses

would have been material and favorable to his defense, in ways not

merely cumulative to the testimony of available witnesses" such

that there is "a reasonable likelihood that the testimony could

have affected the judgment of the trier of fact."                   Id. at    873-74.

             Other circuits, however, have added a second, bad-faith

prong   to   the     test      by   drawing    on   the   Court's    statement     in

Valenzuela-Bernal that "the responsibility of the Executive Branch

faithfully to execute the immigration policy adopted by Congress

justifies the prompt deportation of illegal-alien witnesses upon

the Executive's good-faith determination that they possess no

evidence favorable to the defendant in a criminal prosecution," id.

at 872, and on Youngblood's characterization, 488 U.S. at 57, of

Valenzuela-Bernal as a case in which the government's good faith is

relevant.     See United States v. Damra, 621 F.3d 474, 485-90 (6th

Cir. 2010); United States v. Chaparro-Alcantara, 226 F.3d 616, 623-

24 (7th Cir. 2000); United States v. Dring, 930 F.2d 687, 693 (9th

                                          -13-
Cir. 1991); United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th

Cir. 1997).4    Under this view, if the government deports a person

with no reason to believe the person would give exculpatory

testimony in some case, the prosecution of that case does not

violate the defendant's due process rights.

             We need not decide in this case whether an absence of

government     bad   faith   can   defeat   Bresil's   argument   that   the

deportations violated his due process rights.            At the time the

government deported the other passengers, it presumably knew that

it might charge Bresil with illegally reentering the United States

and that his defense would likely be that he was going to St.

Maarten and not attempting to enter Puerto Rico. It also knew that

four passengers had, at least at one point, claimed to support that

assertion.     We therefore assume that Bresil has satisfied any bad




     4
        While we have never explicitly discussed the role of good
faith in applying Valenzuela-Bernal, we have done so in
interpreting Youngblood. See United States v. Garza, 435 F.3d 73,
75-76 (1st Cir. 2006). We have also described "the Supreme Court's
jurisprudence [as] divid[ing] cases involving nondisclosure of
evidence into two distinct universes . . . ," United States v.
Femia, 9 F.3d 990, 993 (1st Cir. 1993), one beginning with Brady v.
Maryland, 373 U.S. 83 (1963), and the other enunciated in
Youngblood and California v. Trombetta, 467 U.S. 479, 485 (1984).
In grouping Youngblood and Trombetta together we noted, see Fermia,
9 F.3d at 993, that both rely on Valenzuela-Bernal.             See
Youngblood, 488 U.S. at 55; Trombetta, 467 U.S. 485.         Unlike
Youngblood and Trombetta, Brady has no good faith requirement.
Brady, 373 U.S. at 87. Declining to read a bad-faith prong into
Valenzuela-Bernal when we have read one into Youngblood and made
clear that Youngblood and Valenzuela-Bernal apply the same
principle would thus be, at minimum, in tension with our precedent.

                                     -14-
faith prong by showing the government's awareness of the potential

exculpatory value of the testimony of the people it was deporting.5

          Bresil's appeal therefore turns on whether he has also

established that testimony by those passengers deported to the

Dominican Republic to a "reasonable likelihood . . .    could have

affected the judgment of the trier of fact."    Valenzuela-Bernal,

458 U.S. at 873-74.   We think not, for four reasons.

          First, and most importantly, given the direction in which

the boat was traveling (north-east toward Puerto Rico rather than

straight east toward St. Maarten), the location in which it was

intercepted (23 nautical miles from Puerto Rico and more than 175

nautical miles from St. Maarten), the limited fuel on board, and

the fact that it was traveling at night without lights, it is

highly unlikely that any reasonable jury would have believed any

claim that the boat was headed to St. Maarten based merely on self-

serving assertions to that effect from other passengers.6

          Second, if it had retained the four passengers Bresil

says it should have retained, a prudent government would also

likely have retained the other passenger who said from the start

that he was going to Puerto Rico and the government would have


     5
         Because we find that Bresil's argument fails on other
grounds, we also need not decide precisely how much knowledge by
the government of a witness's exculpatory value would be sufficient
to satisfy the defendant's burden under a bad-faith prong.
     6
        Bresil does not argue that the passengers, had they been
called, would have claimed anything other than they were headed to
St. Maarten.

                               -15-
likely waited until Bresil's trial to deport the passenger who pled

guilty to attempting to reenter the United States. The credibility

of the testimony of the three passengers who consistently said they

were going to St. Maarten would have been undercut by the testimony

of the other two passengers who admitted to attempting to enter the

United States.    In this respect, no passenger testimony was likely

better for     Bresil than conflicting passenger testimony.

             Third, Bresil could have called as a witness his sister,

who was on the boat and in the United States at the time of his

trial.   That he did not suggests he thought her "going to St.

Maarten" story would not have held up to cross-examination.

             Fourth,    if   Bresil     is    correct   that   the    deportation

wrongfully deprived him of relevant testimony, he could have put

into   evidence   the    favorable      hearsay    statements    of    the   other

passengers under Federal Rule of Evidence 804(b)(6).                   True, the

testimony would not have been live for the jury, but it also would

not have been subject to cross-examination by the government.                 Nor

would the government have likely been able to offer the conflicting

statements.

             In short, it is hard to see how Bresil would have been

better off if the five passengers (other than Bresil's sister)

whose stated destinations we know (three St. Maartens and two

Puerto Ricos) had testified.                 No one of these reasons alone

necessarily    defeats       Bresil's    argument.       All   four    considered

together, though, are sufficient to establish the absence of a

                                        -16-
reasonable likelihood that testimony by the deported witnesses

could have affected the judgment of the jury in a manner favorable

to Bresil.

C.   Sufficiency of the Evidence

             Bresil's final argument is that there was insufficient

evidence to convict him of attempting to reenter the United States.

For the reasons we have stated above, far from being insufficient,

the evidence was compelling that the boat and its passengers had

embarked for and were heading to Puerto Rico.     Bresil, moreover,

owned property in Puerto Rico and demonstrated no ties to St.

Maarten. In short, the circumstances of his capture were such that

a rational factfinder could have found beyond a reasonable doubt

that he intended to reenter the United States.

                           III. Conclusion

             For the foregoing reasons the judgment of the district

court is affirmed.

             So ordered.




                                 -17-
