United States v. Beilharz , 378 F. App'x 363 ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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