UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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