Gov't Expert Excluded Because of Late Disclosure

U.S. v. Red Elk, 2006 WL 1669903 (6/19/06)(unpub'd) - The 10th upholds a d.ct. order excluding, as a sanction for late disclosure, government expert testimony that the lack of saliva on a towel indicated the towel was not near the deceased at the time of death, (that would contradict the defendant's theory of an auto-erotic accidental death). The d.ct. was justified because the government had not informed the defendant or the court until the last minute that it was engaging in a new round of expert work, despite its awareness of the importance of the towel issue, and the untimely disclosure precluded the defendant from testing the technical merit of the new expert testimony. Even if Rule 16 did not require disclosure, an exclusion sanction can be applied based on a failure to obey a non-Rule 16 discovery order. While the government may not have violated the letter of Rule 16, it did violate its spirit. The extreme remedy of exclusion was warranted because "a remedy that does not maintain the court's integrity and schedule does not accomplish prompt and full compliance with the court's discovery orders."