OPINION On November 9, 2023, a jury convicted Mounir Mrabet of narcotics conspiracy, two counts of narcotics distribution, and possessing a firearm in furtherance of a drug trafficking crime. At trial, the Government introduced the testimony of Alfred Hernandez, a Special Investigator and Assistant Inspector General at the New York City Department of Investigation and a Task Force Officer at the Drug Enforcement Administration, concerning drug sellers’ and buyers’ use of slang to describe illegal narcotics, the packaging of certain drugs for wholesale and retail distribution, and the pricing of certain illegal drugs. All this was introduced without objection. However, when the Government also attempted to introduce testimony from Mr. Hernandez about the sourcing of methamphetamine and fentanyl from Mexico, defense counsel objected to such testimony as outside the scope of Mr. Hernandez’s purported expertise. The Court asked the Government whether Mr. Hernandez had submitted a report in compliance with Federal Rule of Criminal Procedure 16(a)(1)(G). The Government’s answer was “yes.” But as it turned out, the Government’s answer was, at best, an exaggeration. After reviewing what the Government had submitted to defense counsel as Mr. Hernandez’s report, the Court concluded that it did not adequately comply with the 2022 amendments to Rule 16. Consequently, with the Government’s consent, the Court struck Mr. Hernandez’s testimony about the Mexican sourcing and also precluded certain additional opinions Mr. Hernandez was prepared to offer. Because this entire episode demonstrated the Government’s misunderstanding about what the 2022 amendments to Rule 16 require, the Court then indicated it would issue an Opinion clarifying what is required. Here is that Opinion.1 As amended in 2022, Federal Rule of Criminal Procedure 16(a)(1)(G) requires the Government, at the defendant’s request, to disclose certain information in writing “for any testimony that the government intends to use at trial under Federal Rule of Evidence 702, 703, or 705 [relating to expert testimony] during its case-in-chief.” Fed. R. Crim. P. 16(a) (1) (G) (i). In particular, “[t]he disclosure for each expert witness must contain,” inter alia, “a complete statement of all opinions that the government will elicit from the witness in its case-in-chief” and “the bases and reasons for” each of those opinions. Rule 16 (a) (1) (G) (iii). As noted in the official commentary to the 2022 amendment, these provisions exist for good reason. The 2022 additions to Rule 16 address “shortcomings of the prior provisions on expert witness disclosure” — chief among them, “the lack of adequate specificity regarding what information must be disclosed.” Rule 16, Notes of Advisory Committee on 2022 Amendment. The amendment “is intended to facilitate trial preparation, allowing the parties a fair opportunity to prepare to cross-examine expert witnesses and secure opposing expert testimony if needed.” Id. “To ensure that parties receive adequate information about the content of the witness’s testimony and potential impeachment,” the amendment “delete[s] the phrase ‘written summary’” from the previous version of the Rule and “substitute[s] specific requirements that the parties provide ‘a complete statement’ of the witness’s opinions, the bases and reasons for those opinions, the witness’s qualifications, and a list of other cases in which the witness has testified in the past 4 years.” Id. Although “the amendment is not intended to replicate all aspects of practice under the civil rule in criminal cases,” its language “is drawn from Civil Rule 26″ and, in no uncertain terms, “requires a complete statement of all opinions the expert will provide.” Id. As this official commentary recognizes, the prior practice of merely providing a criminal defendant with a brief “summary” of a prosecution expert’s opinions proved to be woefully inadequate. Since an expert witness, by definition, offers opinions outside the everyday knowledge of judges and juries, detailed specificity is required as to bases for those opinions before a court can adequately assess their admissibility or a defendant can contest their weight and meaning before a judge or jury. Although the amendments to Rule 16 largely mirror what has long been required in civil cases under Federal Rule of Civil Procedure 26, these requirements are even more important in criminal cases, since, while civil litigants may depose their opponent’s experts in advance of trial, see Fed. R. Civ. P. 26(b)(4), criminal defendants have no such opportunity. But the Government must take the 2022 amendment to Rule 16 seriously if it is to have its intended salutary effect. That did not occur here. While the first paragraph of Mr. Hernandez’s report (attached here as an Appendix) states that it is a “complete statement of all opinions that the Government will elicit from [Mr.] Hernandez,” what follows in the next paragraph is simply the broad statement that Mr. Hernandez will testify, “based on his training and experience,” regarding seven broadly and briefly described categories, such as “the means and methods used to produce, store, transport, and distribute wholesale quantities of methamphetamine and fentanyl in the New York City area.” The following paragraph only very lightly expands on these descriptions, stating that Mr. Hernandez “will explain,” e.g., “how methamphetamine is typically packaged in wholesale form (pounds) and in retail form (grams)”; “that, because drugs like methamphetamine and fentanyl are illegal, customers will frequently pay for the drugs in cash, and as the relationship develops, will be permitted to purchase larger quantities of drugs”; “how large quantities of such drug proceeds are bundled, transported, and laundered”; etc. Appendix. Even assuming arguendo that these broad and generalized “explanations” can somehow be understood as expert opinions, the problems only start there. For in place of the Rule’s requirement that the expert’s report contain “the bases and reasons for” each of the expert’s opinions, Fed. R. Crim. P. 16(a) (1)(G) (iii), Mr. Hernandez’s report contains just a single sentence in support of all the above: “Inspector Hernandez’s testimony will be based on his training, education, and experience, including his 37 years as a law enforcement officer primarily involved in investigating narcotics trafficking.” Appendix. Rather than comply with Rule 16, this statement — which is never elaborated in even the slightest respect — is a patent evasion of the Rule’s requirements. As the Supreme Court and the Second Circuit have long made clear in their holdings with respect to expert testimony under Federal Rule of Evidence 702 (applicable to both civil and criminal cases), a statement of an opinion’s bases and reasons cannot merely be “the ipse dixit of the expert” from experience. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Rather, “[a]n expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.” Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006). If defense counsel had lodged a pretrial objection to the Government’s purported Rule 16 “disclosure” of Mr. Hernandez’s testimony, the Court would likely have required the Government to amend the disclosure to comply with Rule 16 by providing far greater specificity and analysis. Instead, counsel, for whatever tactical reason, chose to wait until trial and then only to object to the testimony from Mr. Hernandez about the sourcing of drugs from Mexico. However, before the Court ruled on that objection, the Government voluntarily narrowed the categories of Mr. Hernandez’s testimony and agreed not to inquire not only about such sourcing, but also about most further aspects of Mr. Hernandez’s testimony that had not already been introduced without objection. Nevertheless, the Court hereby puts the Government on notice that in the future the Court will require the Government to produce to the Court in advance of trial its expert disclosures under Rule 16, so that the Court can timely assess their adequacy. The Government might also consider having its prosecutors take a look at expert witness reports in civil cases, which typically consist of 20 or more pages of specific opinions and detailed statements of the reasons for those opinions and the methodologies employed. Going forward, the Court will not tolerate the shoddy noncompliance with amended Rule 16 that was encountered in this case. Dated: November 27, 2023
