by mr jennings that was mr polly or his lawyer in the trial court on december nd was insufficient and briefly to address my own line of the problems with those two bases for been in the court to testify as to specifically what he was going to testify to and the judge did allow him and counsel what is our standard of review on your argument land and help me a lot if you get to the argument of but their witness was allowed to testify mr jennings if you look at this timeline mr jennings was repeatedly asking for the d n a evidence and he couldn't do that he couldn't have an expert  atory but the government's presentation of the evidence to the jury its description of how the d n a evidence plays out is quite a bit different in tenor and tone and even  not be included in any of these items she said that's correct and they said he could not be executed for every single letter isn't that correct so the the the presentation that the prosecutor had to the jury was quite different and then they even speculated with no evidence at all in their rebuttal closing with no opportunity for mr jennings to stand up and rebut it that the other identified male d n a on the going to testify to this mr spence dr spence and mr jennings apparently fumbled and could not get an answer to that question doesn't that way into the use of discretion question yes going to hear from him it's good in your witness so i think that aspect of it i mean elevated want to have a record time over ten years of a man's life to need seems a good definition or a stance of example of an know know what they're going to say and they're not even in the courtroom well your honor if you if in the context that well st of all he did say media after saying that he said you are part of what dr spence is going to testify to is aspects of complex d n a analysis that you know i mr jennings don't fully understand that's why we're going to have an expert and secondly there were there were two notices that were provided to the court one in december nd and a nd on december  and he did identify that he was going to be given a quite different conclusions in certain respects than of what this conway offered so there was a notice that was own timeline the defendant was aware that d n a was going to be an issue in this case from the time he was swab in august to august th was any i mean it was not a surprise and then the to an expert presented the day before trial and under the defense doesn't even know what he's going to say if the defense doesn't know how is the prosecution supposed to prepare well your honor again  objects to is exacting the standard as it held mr jennings particularly when mr jennings in ten years of mr probably errors liberty was at stake and so given that the people were asked to have three  the exclusion of the d n a expert since that's where the focus has been this morning as has already been noted the standard of review is abuse of discretion so this is an exacting standard federal rule of criminal procedure sixteen sets forth a framework for the disclosure of expert testimony both the government and the defendant were required to provide a summary describing any expert witnesses opinions and the basis in reasons for those opinions and the witnesses qualifications by the date set by the district court the defendant's st expert notice was filed eighteen days after that deadline and the day before trial and it contained none of the requisite information the notice did not contain any information as to what qualified dr spence as an expert in d n a and it did not close through government report was late isn't it that is correct your honor the government filed its notice  five days late and we had a hearing on that matter to the defendant filed a motion to exclude that witness and at the hearing the district court went through the reasons for that being lay and found no bad faith on the part of the government and allowed that testimony and as your honor might remember in united states versus bishop this court found that there that one party's failure to comply with the rules does not excuse the other party's failure to comply with the rules otherwise trials but turn into a complete free for all so while the government's notice was late the district court found that the defendant should have been on notice as early as at least august that d n a was going to be an issue in this case and additionally the government's notice and the defendant's notice were due on the same day so his notice to file an expert disclosure was also due on november th and he just completely ignored that notice  trial the defendant even he filed his notice the afternoon before trial which was a sunday and then a trial the defendant conceded that this st notice was inadequate that it contained no summary because he had only  spoken to dr spence at three or four pm on the previous day so sunday before trial was the very st time he had ever even so much as spoken to the individual he proposed to offer as an expert witness on   st day of trial the district court heard from both sides and after analyzing the defendant's reasons the district court properly found that the defendants notice provided an insufficient basis to provide opposing counsel in order to prepare to prepare for fairly for cross examination it wasn't until one hundred and six pm on the last day of trial after the government had already rested and twenty days after the district court's deadline that the defendant filed an amended notice that was still utterly deficient the amended notice still contained none of the experts qualifications and again contained no opinions by dr spence other than a single sentence in conclusion that stated the forensic biology slash d n a results with this case investigation the i apologize the forensic d n a results from these eight evidence items provide no scientific support for the allegations associated with this case investigation and this it is the record i agree with you on the reports but those reports that there were hearings which time mr  evidence that that was actually something that miss that dr spence would come in and testify to there was never anything put forth that stated that dr spence was willing to come into court and testify that absolutely without a doubt one hundred percent the defendant's d n a would have been found on the victim had this occurred the way she said so i think that the district court properly found that while the defense counsel theorized about what he would like dr spence to testify to that there was just nothing explaining exactly that that is what dr spence would actually testify to specifically in his report he never stated  that in his report he specifically only stated that there was no scientific evidence to support the victim's allegations in this case and that was it and that was something that was discussed at length at trial both the government and the defendant were able to question the government's d n a witness jeralyn conway and when asked whether the results of miss conway's analysis allowed her to make a determination as to whether the defendant sexually abused jenny concluded what he said is that d n a results really don't tell us anything either way they certainly don't indicate that it's not possible that this could have occurred honor i do not believe that an objection was made to that testimony at that point in time you go well he were there was not one as far as my recollection from the trial i was the trial attorney on the case i do not recall  objection was made and i don't recall i can go back and review the record but en route my review of the record i do not recall any objection being made today and miss conway had just gotten through explaining the reasons why that supported that she had just finished explain had just gone through the amount of time that elapsed between the sexual assault and the time the d n a was taken from her which was nearly ten hours and we had just now if there are no questions i'll continue at this point even after the defendant filed multiple deficient notices the district court gave the defendant an additional opportunity to set supplement his notice on the last day of trial and when he was when defense counsel was pushed on what his expert would come into court and testify to what he stated was that his expert would testify to things beyond what he would understand and that he believed his expert would testify to something new beyond what miss conway had already testified to but he could not tell the court what that would be and  while it's been asserted here this morning that he could have been here in an hour to explain to everyone what he would have testified to that doesn't take into account the fact that the government that would be the st time the government would ever be a learning of this so the court could not proceed directly into his testimony at that point the government would need time to then take what that information he said he would testify to would be review it and prepare for cross examination that's the entire purpose of  there couldn't be a continuance at that point is it's twofold so st and i think most importantly our objection was not based on timing alone it was just base it was based purely on it was at least significantly based on this insufficient notice we needed time to review this expert's qualifications find out what he was going to say consult with our expert on this and a jury the government had already rested at this point a jury was sitting there waiting and the court found that it was not appropriate at that time to make the jury wait even longer to allow the government sufficient time to properly prepare for cross examination again in u s versus pop this court stated even in the absence of prejudice integrity and scheduling considerations alone may justify suppression of otherwise admissible evidence offered by the delinquent party the court had already addressed on numerous occasions that there was a pressing schedule that needed to be that needed to be addressed he had a pressing schedule the court further explained in pop that courts have no obligation to grant continuances ad infinitum to avoid prejudice to parties who have demonstrated repeated failures of diligence the government and the district court repeatedly tried to accommodate the defendant st by the district court granting the st motion to continue and then setting the trial on a specific date in december to accommodate defense counsel schedule and  an extremely untimely filing of his notice of intent to offer expert testimony should it provide sufficient notice to the government well you know the week which was us on the friday no your honor this would have been i believe on a wednesday trial started on monday and i believe the government rested on wednesday what it would have been wednesday afternoon the defendant knew from at least august two thousand and eighteen at least that d n a would be an issue in this case he and he acknowledged this multiple times in his pleadings but he took no meaningful steps to secure an expert until the day before trial  reason that a continuance wasn't feasible when the defendant's expert notice was filed the afternoon prior to the commencement of trial was because the district court already had sixty jurors from around the saw all of southern new mexico there at the courthouse assembled at the courthouse and the government had flown in witnesses from as far as way away is japan for a trial day that was set months in advance specifically to accommodate defense counsel schedule similarly in united states versus wicker the court found it was not feasible to continue the trial where jury was already at the courthouse and trial was ready to begin in wicker this court explained that while a continuance may normally be the most desirable remedy for failure to comply with a discovery order here in view of the district court's pressing schedule the status of the present case being in trial and the failure of a prior continuance and deadlines to and to ensure timely discovery the court concluded that a nd continuance would not compensate for the prejudice imposed and therefore the district court did not abuse its discretion in suppressing the evidence the facts here in this case bear a striking resemblance to those in wicker and none would this have been to continue it would have been there was an initial continuance in august and that was a  joint can motion to continue so the government was not was in agreement with that one and at that time the court gave a number of dates to the parties and in october and november and defense counsel could not make a date work and till december so this trial had already been pushed all the way out to december specifically to accommodate defenses scheduling issues none of the  factors and favor the defendant in this case and therefore the district court properly excluded his d n a witness and absolutely did not abuse its discretion in doing so further even if the district court abused its discretion in the defendant's d n a witness which the government does not concede this does not warrant reversal because there was harmless given that nothing in the record establishes what the defendant's expert would have actually come in and testified to particularly not anything that he would have offered that was not elicited from miss conway any error and excluding dr spence was harmless well you know the district court suggested that all of the evidence from conway was  think judge ball block has already pointed out a much because what what the expert the defense would presented would have had the lack of any d n a from the defendant is very surprising and is not consistent with the allegations of the victim which to me is completely different than what the government's experts that he and your honor there's nowhere in the record that that reflects that that's what the expert would have come in and testified to that's that's not what his notice of intent ever stated and so looking at what's contained in the record based what he stated his expert would come in and testify to that that's just not that's not present there so i see my time is up so i would just like to ask the court to affirm the defendant's