United States v. Jeffrey McCoy , 504 F. App'x 228 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4294
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY JOSEPH MCCOY, a/k/a Chris Wilson,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00536-RWT-1)
Submitted: December 27, 2012 Decided: January 10, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Cheryl L. Crumpton, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Jeffrey Joseph McCoy of possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006),
possession with intent to distribute cocaine base, 21 U.S.C.
§ 841(a)(1) (2006), and possession of a firearm in furtherance
of a drug trafficking crime, 18 U.S.C. § 924(c) (2006). He
received a 156-month sentence. On appeal, McCoy argues the
district court erred in denying his motion in limine to exclude
the Government’s expert witness’s testimony regarding McCoy’s
intent to distribute drugs because McCoy was not given fair
notice and disclosure of the testimony. McCoy also contends the
trial court erred in limiting his probation officer’s testimony
concerning McCoy’s drug use. We review the district court’s
evidentiary rulings for abuse of discretion, and generally will
not reverse absent a showing of prejudice. United States v.
Smith, No. 11-4336, ___ F.3d ___, 2012 WL 6554868, at *4 (4th
Cir. Dec. 17, 2012). We affirm.
First, McCoy argues on appeal that the district court
erred in admitting the testimony of Government expert witness
Agent Barnes regarding drug trafficking on the grounds that
Barnes was “insufficiently designated” and notice was untimely.
Specifically, McCoy argues the Government’s disclosure under
Fed. R. Crim. P. 16(a)(1)(G) was particularly lacking in any
basis for Barnes’ opinion that the quantity of drugs in McCoy’s
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possession was more consistent with distribution than personal
use, that drugs are almost always an impulse purchase, and that
the amount of cash on McCoy’s person was more consistent with
distribution. McCoy further maintains that because the
Government’s expert witness disclosure changed three times the
notice was untimely and left McCoy inadequate time to prepare.
Federal Rule of Criminal Procedure 16(a)(1)(G)
requires the Government to give, at the defendant’s request, a
written summary of any expert testimony that it intends to use
during its case-in-chief at trial. This 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). “As the rule’s Advisory Committee Notes explain,
Rule 16(a)(1)(G) ‘is intended to minimize surprise that often
results from unexpected expert testimony . . . and to provide
the opponent with a fair opportunity to test the merit of the
expert’s testimony through focused cross-examination.’” Smith,
___ F.3d at ___, 2012 WL 6554868 at *5 (quoting Fed. R. Crim. P.
16(a)(1)(G) Advisory Comm. Note to the 1993 amendment).
In its order, the district court concluded that the
Government had met the requirements of Rule 16(a)(1)(G) as the
Government provided, after McCoy filed a motion in limine
(construed as a Rule 16 request), a written summary of expert
testimony that described Barnes’ opinions, the bases and the
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reasons for those opinions, and his qualifications. The court
further concluded that an additional continuance would cause
delay and likely prejudice the Government. It further reasoned
that the Government’s initial letter of June 27, 2011, should
have alerted McCoy to the possible need to secure an expert
witness to rebut the Government’s expert witness in the field of
narcotics trafficking and in the interstate movement of
firearms. At the very least, reasoned the district court, it
should have prompted McCoy to make a request under Rule
16(a)(1)(G). We conclude the district court did not abuse its
discretion in allowing Agent Barnes’ testimony, finding no
violation of Rule 16(a)(1)(G). *
Second, McCoy complains the district court abused its
discretion in excluding the testimony of McCoy’s probation
officer regarding drug testing results. A salient aspect of
*
To the extent McCoy asserts the Government’s notice was
untimely, this argument is without merit. Under Rule
16(a)(1)(G), the Government must give the defendant a written
summary only after the defendant requests it. See United States
v. Garza, 566 F.3d 1194, 1199-200 (10th Cir. 2009) (right to
pre-trial notice not violated if defendant did not make a
request for such notice); United States v. Johnson, 228 F.3d
920, 924 (8th Cir. 2000) (notice required only if defendant
makes a request). In this case, the Government provided McCoy a
written summary the day after he made the request. See United
States v. Holmes, 670 F.3d 586, 598 (4th Cir. 2012) (noting
that, because Rule 16 is silent as to the timing of expert
witness disclosures, the appellate court reviews the district
court’s timeliness determination for abuse of discretion).
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McCoy’s defense at trial was that the drugs found in his
possession were for personal consumption, not distribution. To
that end, McCoy sought to introduce the testimony of his
probation officer that McCoy tested positive for either cocaine
or opiates on three separate occasions and that, on a number of
occasions, McCoy cheated on the tests by a process called water
loading. The Government objected, arguing that the probation
officer had no involvement in the conducting of the drug tests,
and no basis of knowledge with respect to the methodology
employed. Furthermore, the Government argued, the probation
officer’s testimony that McCoy tested positive on various
occasions would be hearsay. The court agreed with the
Government that the probation officer could testify that she had
the tests conducted and as a result that she filed a petition
for a violation of the terms of probation, but that she could
not personally testify as to the results.
McCoy argues for the first time on appeal that the
court should have admitted the probation officer’s testimony
regarding the test results as non-hearsay evidence under the
“business records exception” pursuant to Fed. R. Evid. 803(6).
Because McCoy failed to argue for the admission on this ground
below, we review this argument for plain error. See Fed. R.
Crim. P. 52(b); Puckett v. United States, 129 S. Ct. 1423, 1428-
29 (2009).
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The proponent of “records of a regularly conducted
activity” must establish through the custodian or other
qualified witness that (A) the record was made at or near the
time by ­ or from information transmitted by ­ someone with
knowledge; (B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or
calling, whether or not for profit; and (C) making the record
was a regular practice of that activity. See Fed. R. Evid.
803(6)(A)-(C). Assuming McCoy had sought to introduce the drug
test results under Rule 803(6), the probation officer would not
have served as a qualified witness as she had no basis to know
when the records were made, by whom, or whether they were kept
as a part of regularly conducted business.
In any event, McCoy cannot show resulting prejudice as
he introduced the challenged testimony through his own
testimony. He testified that as a condition of his probation,
he underwent multiple drug tests and that he tested positive “a
couple of times.” Defense counsel then argued to the jury
during closing arguments that McCoy had intended to use the
crack cocaine for personal consumption, not distribution. We
conclude McCoy fails to meet the high burden of establishing
plain error.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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