PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4738

DARRELL WALTER HOLMES,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Mark S. Davis, District Judge.

(4:09-cr-00085-MSD-FBS-1)

Argued: December 8, 2011

Decided: February 29, 2012

Before TRAXLER, Chief Judge, and AGEE and DIAZ,

Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Chief Judge Traxler and Judge Diaz concurred.
COUNSEL

ARGUED: William Francis O’Mara, Jr., SACKS & SACKS,

Norfolk, Virginia, for Appellant. Richard Daniel Cooke,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Andrew Michael

Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, Alexandria, Virginia, Lisa R. McKeel, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Newport

News, Virginia, for Appellee.

OPINION

AGEE, Circuit Judge:

Darrell Walter Holmes appeals his conviction in the District Court for the Eastern District of Virginia for two counts

of aggravated sexual abuse of a child, in violation of 18

U.S.C. §§ 7 and 2241(c). Holmes challenges the district

court’s pre-trial decisions denying his motions to dismiss the

indictment due to lack of venue and jurisdiction, denying his

motion to suppress statements he made to military investigators, and granting the Government’s motion in limine to

exclude an expert witness. See United States v. Holmes, 699

F. Supp. 2d 818 (E.D. Va. 2010) (Case No. 4:09cr85). Finding no error, we affirm the judgment of the district court.

I.

The conduct underlying Holmes’ conviction occurred while

he was on active duty with the United States Air Force and

stationed at Yokota Air Base in Japan. On two separate occasions "in or about" 1999 and 2002, Holmes forced his stepdaughter ("T.B.") to perform oral sex on him. At the time of

both acts, T.B. was under the age of nine. 

2 UNITED STATES v. HOLMES
Holmes and T.B.’s mother ("J.H.") were married at the

time of the acts of sexual abuse, but divorced in June 2003.

Shortly after the divorce, T.B. told J.H. what Holmes had

done to her. J.H. confronted Holmes via telephone about the

accusations, but the matter was not pursued by J.H. at that

time because T.B. recanted her statements. 

From January to May 2007, Holmes was deployed to Qatar,

working 12-16 hour days six days a week. While Holmes was

in Qatar, T.B. renewed her accusations against him and this

time J.H. reported the incident to the Air Force, leading to an

inquiry by the Air Force Office of Special Investigations

("OSI"). Holmes’ return from his duty post in Qatar was a

multi-stop journey that took approximately 77 hours before he

arrived in Norfolk, Virginia around 11:30 p.m. on May 20th.

Upon Holmes’ return to Langley Air Force Base mid-day on

the 21st, Holmes’ commanding officer instructed him to

report to OSI for questioning. 

OSI Agents Keith King and David Chan conducted the

interview, which lasted approximately two hours. Prior to

questioning, Holmes was informed of T.B.’s allegations and

given his rights under the Fifth Amendment of the United

States Constitution and Article 31 of the Uniform Code of

Military Justice. Holmes initialed and signed an acknowledgement and waiver of those rights. Agent King inquired as to

Holmes’ mental and physical state, and Holmes replied that

he "felt fine," "was good," and was "[h]appy to be home."

(J.A. 302-04.) When Holmes was asked about the accusations,

he repeatedly stated he did not "think [he] could do something

like that," although Agent King noted the fact that Holmes

never directly denied it. (J.A. 313.)

During the OSI interview, Holmes discussed with the

agents, inter alia, his marriage to J.H., their estrangement during the time of the accused conduct, T.B.’s prior statements

against him and her subsequent recantation, and what might

have led T.B. to make and renew these allegations. ThroughUNITED STATES v. HOLMES 3
out the interview, Holmes did not get angry, but remained

"very calm" and "level-headed." (J.A. 314.) He also "seemed

alert" and "was responsive to the questions," such that Agent

King did not observe any indication that he was sleepy or otherwise physically unable to continue. (J.A. 312.) At some

point in the interview, Agent King told Holmes that "if [they]

were able to find out the truth behind the allegation[s], . . .

[they] could settle this, [and] there’s a possibility that

[Holmes] could spare [T.B.] from having to testify. Getting up

on the stand would obviously be stressful for a child to have

to deal with . . . ." (J.A. 332.) When Holmes expressed concern about his career, Agent King explained that he "couldn’t

tell [Holmes] what would happen to his career" and that he

had "seen people be charged with things and still maintain

their career." (J.A. 352-53.) However, Agent King did not

recall indicating that an individual who had been "accused of

molesting a child" had kept his career. (J.A. 353.)

Eventually, Holmes admitted that he "had molested his

step-daughter." (J.A. 315.) Agent King asked Holmes to "talk

[him] through what had happened," and Holmes described

that his marital problems had led to drinking alcohol and

watching "a lot of pornography." (J.A. 315.) Holmes stated

that on numerous occasions when J.H. was attending night

school, he had taken care of T.B. And he confessed that on

two such evenings he had "brought [T.B.] into their room, and

. . . had her perform oral sex on him, orgasming into her

mouth." (J.A. 315.) 

Holmes agreed to make a written statement as well, in

which he described "the gravest mistake of [his] life" and provided the same account of what had happened. (J.A. 451.)

Agent King asked three follow-up questions, which Holmes

answered, initialing his responses. Specifically, Holmes

admitted to "orgasm[ing] into [his] step daughter’s mouth and

hav[ing] her spit the semen into the bedroom toilet," stated

that the second incident occurred for the same reasons as the

first time ("drinking and watching pornography"), and denied

4 UNITED STATES v. HOLMES
ever having sexual relations with another child or with his

step-daughter after the second incident. (J.A. 451-52.)

This case came before the district court following lengthy

procedural delays. In July 2007, the Air Force ordered a general court-marital of Holmes under the Uniform Code of Military Justice, but that proceeding was subsequently dismissed

without prejudice in March 2008. The following month, a

grand jury in the Eastern District of Virginia indicted Holmes

on two counts of aggravated sexual abuse of a minor, in violation of 18 U.S.C. §§ 7 and 2241(c) ("first indictment").

Holmes was arrested in the Eastern District of Virginia, but

the first indictment was subsequently dismissed without prejudice, although the order does not provide a reason for that

action.1

In October 2008, Holmes was discharged from the Air

Force and returned to Chicago, Illinois, where he had maintained his permanent residence throughout his military service. The following month Holmes was re-indicted in the

Eastern District of Virginia, upon the same two counts of

aggravated sexual abuse of a minor, in violation of 18 U.S.C.

§§ 7 and 2241(c) ("second indictment"). Holmes was arrested

in North Carolina and then transported to the Eastern District

of Virginia, where he remained in custody. 

The case was assigned to Judge Robert G. Doumar, who

initially denied, but on sua sponte reconsideration granted,

Holmes’ motion to dismiss the second indictment for lack of

venue under 18 U.S.C. § 3238. See United States v. Holmes,

618 F. Supp. 2d 529 (E.D. Va. May 22, 2009) (Case No.

4:08cr134) (denying motion); United States v. Holmes, 672 F.

Supp. 2d 739 (E.D. Va. Dec. 4, 2009) (Case No. 4:08cr134)

(granting motion on reconsideration). Holmes contended that

1

It appears from the Government’s motion to dismiss the first indictment that the district court lacked jurisdiction because Holmes was still an

active member of the Air Force. 

UNITED STATES v. HOLMES 5
venue was lacking in the Eastern District of Virginia because

he had been arrested under the second indictment in North

Carolina, and that arrest determined venue under § 3238.

Judge Doumar agreed, finding that Holmes’ "first arrest for

this offense occurred in North Carolina when he was arrested

on November 17, 2008 under the [second] indictment . . . as

the prior arrest [under the first indictment] was without any

jurisdiction. Since there was no jurisdiction to indict him in

April 2008, there was no jurisdiction to arrest him at that

time." 672 F. Supp. 2d at 747. Judge Doumar observed that

looking solely at the second indictment, venue was proper

under § 3238 where Holmes was arrested under that indictment, namely, in North Carolina rather than Virginia. Id. at

748. Accordingly, he concluded that venue did not lie in the

Eastern District of Virginia, and he dismissed the second

indictment without prejudice. Id. at 751. 

Within hours of the second indictment being dismissed, and

without having been released from the custody of the U.S.

Marshals, Holmes was rearrested on a criminal complaint

alleging the same charges based on the same conduct. In

December 2009, the third indictment for this conduct was

filed in the Eastern District of Virginia under the same statutes as in the prior indictments ("third indictment"). The third

indictment is the operative indictment for the proceedings in

the district court before Judge Mark S. Davis, which are presently before us on appeal. 

Holmes again filed a series of pre-trial motions, including

a motion to suppress his statements to the OSI agents, a

motion to dismiss for lack of venue in the Eastern District of

Virginia, and a motion to dismiss the indictment due to lack

of jurisdiction under 18 U.S.C. § 7. The district court denied

each motion. 699 F. Supp. 2d at 822.

Holmes pleaded not guilty and the case proceeded to be

tried by a jury. The Friday before the Tuesday when trial was

to begin, Holmes disclosed to the Government that he

6 UNITED STATES v. HOLMES
intended to call Dr. Richard Ofshe as an expert witness.

Holmes proffered Dr. Ofshe as an expert in confessions who

would testify as to the fact that, and reasons why, individuals

falsely confess to acts they did not commit. The district court

granted the Government’s motion in limine to exclude this

testimony, citing concerns about the late timing of the disclosure and the incompleteness of the disclosure under Federal

Rule of Criminal Procedure 16(b).

After a jury trial, Holmes was convicted on both counts.

The district court sentenced Holmes to 262 months’ imprisonment on each count, to be served concurrently. Holmes does

not raise any issues regarding the trial or sentencing. He noted

a timely appeal, and we have jurisdiction pursuant to 28

U.S.C. § 1291. 

II.

Holmes contends on appeal that the district court made the

following errors prior to trial, any of which would require

reversal of his convictions: the denial of his motion to suppress statements made to military investigators, denial of his

motion to dismiss the indictment due to the lack of venue, and

exclusion of his proposed expert witness. We address each

argument in turn.2

2Holmes also challenges the district court’s denial of his motion to dismiss the indictment due to the lack of jurisdiction for extraterritorial

offenses under 18 U.S.C. § 7. Holmes acknowledges that this Court’s

decision in United States v. Erdos, 474 F.2d 157 (4th Cir. 1973), precludes

his argument because Erdos held that § 7(3) encompasses criminal acts

occurring outside the geographical boundaries of the United States. Id. at

160. Holmes does not argue that Erdos is at all distinguishable from the

circumstances in his case, but instead "requests that the Court depart from

its decision in Erdos, and interpret 18 U.S.C. § 7(3) in accordance with"

the Second Circuit Court of Appeals’ contrary analysis in United States v.

Gatlin, 216 F.3d 207 (2d Cir. 2000). (Opening Br. 31.) Holmes has preserved his argument for a petition for rehearing en banc or petition for certiorari to the Supreme Court, but this panel is bound by the analysis of

§ 7(3) in Erdos, and we do not consider the issue further. See United

States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005). 

UNITED STATES v. HOLMES 7
A.

Holmes first argues that the district court erred in denying

his motion to suppress the statements (oral and written) that

he made to the OSI agents in which he admitted the charged

conduct. He contends the statements should have been suppressed because the "interrogation . . . was conducted under

circumstances causing [Holmes’] will to be overborne, which,

under the totality of the circumstances, rendered his confession involuntary." (Opening Br. 15-16.) To support this contention, Holmes points to his lengthy return trip from Qatar

immediately preceding the interview, the OSI agents’ failure

to permit him more than twelve hours’ re-acclimation prior to

the interrogation, the OSI Agents’ "train[ing] in interrogation

techniques," the failure to record the interrogation coupled

with gaps in Agent Chan’s written notes of the interrogation,

Agent King’s statement that Holmes’ career might be salvaged if he admitted to the acts, and Agent King’s statement

that if Holmes confessed, T.B. would be spared the trauma of

testifying. Based on these factors, Holmes contends the district court erred in concluding his statement was voluntary

and failing to grant his suppression motion. (Opening Br. 17-

20.)

When reviewing the district court’s denial of a motion to

suppress, we review factual findings for clear error and the

legal determination that the statement was voluntary de novo.

United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005).

A confession made during a custodial interrogation will be

suppressed unless police advise the defendant of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966), and the

defendant knowingly, intelligently, and voluntarily waives

those rights. United States v. Guay, 108 F.3d 545, 549 (4th

Cir. 1997). 

In considering whether a defendant’s waiver is voluntary,

the Court must determine "whether the confession was

extracted by any sort of threats or violence, [or] obtained by

8 UNITED STATES v. HOLMES
any direct or implied promises, however slight, [or] by the

exertion of any improper influence." Hutto v. Ross, 429 U.S.

28, 30 (1976) (per curiam) (internal quotation marks omitted).

Even where "threats, violence, implied promises, improper

influence, or other coercive police activity" exist, a confession

is not necessarily rendered involuntary. United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc). "The proper

inquiry is whether the defendant’s will has been overborne or

his capacity for self-determination critically impaired." Id.

(internal quotation marks omitted). We conduct this review by

considering "the totality of the circumstances, including the

characteristics of the defendant, the setting of the interview,

and the details of the interrogation." Id. at 781 (internal quotation marks omitted). Having reviewed the record, we conclude that the district court did not err in concluding that

Holmes’ confession was voluntarily made, and in denying

Holmes’ motion to suppress the statements on that basis.

Holmes does not deny that the OSI Agents informed him

of his constitutional rights under Miranda before he gave his

statement and that he voluntarily initialed and signed a statement saying that he understood and waived those rights prior

to communicating with them about T.B.’s allegations. The

record contains no indication that Agent King’s statements

"critically impaired" Holmes’ "capacity for selfdetermination," Braxton, 112 F.3d at 780, or that Holmes’

"will was overborne in such a way as to render his confession

the product of coercion." Arizona v. Fulminante, 499 U.S.

279, 288 (1991). As recounted above, Agent King testified at

the suppression hearing that he began the interview by asking

Holmes if he was tired or too sleepy to conduct the interview

at that time. Holmes replied that he "felt fine." (J.A. 303.)

This response was consistent with Agent King’s own observations of Holmes’ demeanor, physical appearance, and behavior. At no time did Holmes ask for the interview to end or

indicate that he was tired, desired a break, or otherwise was

unwilling to proceed. There is simply no connection in the

UNITED STATES v. HOLMES 9
record between Holmes’ decision to provide a statement and

his physical state as a result of his return from Qatar.

But even if Holmes was tired on the day of his interrogation, suppression is not required every time a defendant has

a diminished mental state. United States v. Cristobal, 293

F.3d 134, 141 (4th Cir. 2002) ("[A] deficient mental condition

(whether the result of a pre-existing mental illness or, for

example, pain killing narcotics administered after emergency

treatment) is not, without more, enough to render a waiver

involuntary."). Rather, there would also have to be evidence

that the police took advantage of Holmes’ incapacitation. As

we stated in Cristobal, 

[c]oercive police activity is a necessary predicate to

a finding that a confession is not "voluntary" within

the meaning of the Due Process Clause of the Fourteenth Amendment. As such, coercive police activity

is also a necessary predicate to a finding that a

waiver of Miranda rights is not voluntary. In determining whether a defendant’s will has been overborne, the Court has focused on the "crucial element

of police overreaching." While each case has turned

on its own set of factors justifying the conclusion

that police conduct was oppressive, "all have contained a substantial element of coercive police conduct." 

Id. at 140-41 (internal citations omitted).

There is no evidence in the record that the OSI Agents

coerced Holmes into making a statement, or otherwise overreached in order to cause Holmes to confess. Holmes contends that Agent King improperly coerced a statement by

observing that if he confessed, T.B. would not have to endure

the pain of testifying or going through a trial. However, "a

law enforcement officer may properly tell the truth to the

accused." United States v. Pelton, 835 F.2d 1067, 1072 (4th

10 UNITED STATES v. HOLMES
Cir. 1987) (quotation marks and citation omitted). Numerous

cases reiterate that statements by law enforcement officers

that are merely "uncomfortable" or create a "predicament" for

a defendant are not ipso facto coercive. See, e.g., id. at 1072-

73; United States v. Shears, 762 F.2d 397, 401 (4th Cir. 1985)

("[G]overnment agents may validly make some representations to a defendant or may discuss cooperation without rendering the resulting confession involuntary."). Agent King’s

statements fell within the acceptable ambit of truthfully

reflecting how Holmes’ decision whether or not to cooperate

could impact T.B.

Nor is there any merit to Holmes’ assertion that Agent

King’s statements regarding the impact of these allegations on

Holmes’ military career were impermissibly coercive. At the

suppression hearing, Agent King testified that he expressly

told Holmes that he could not say what impact these allegations would have on Holmes’ career, but that he had generally

known individuals charged with crimes to maintain their

careers. There is no evidence in the record to contradict Agent

King’s testimony on this point, nor is there any evidence that

Agent King made any direct or implied promises regarding

Holmes’ career or professional reputation that induced him to

provide a statement. 

Holmes’ testimony at the suppression hearing further supports our conclusion. While he recounted his return trip from

Qatar and summarized the interview that occurred, he did not

testify to any circumstances that overcame his will. Indeed,

Holmes’ own explanation for why he confessed was that he

could not remember not engaging in the alleged acts, and so

he thought maybe he had committed them. This explanation

does not indicate that he was exhausted from his trip, or that

he felt threatened, or that he otherwise had been lured into

confessing by something the OSI Agents said or did. Nor does

Holmes’ description of the interview suggest that the OSI

Agents used coercion, threats, or other promises to overcome

his exercise of self-determination or overcome his will such

UNITED STATES v. HOLMES 11
that his confession was not voluntary. And while Holmes on

appeal refers broadly to the OSI Agents’ training in questioning techniques and a gap in Agent Chan’s written record of

the interview, he points to no specific evidence that anything

occurred contrary to those notes or Agent King’s description

of the interview.

In light of our review of Holmes’ specific arguments, and

based on the totality of the circumstances surrounding the

interrogation of Holmes, we hold that the district court did not

err in concluding that Holmes’ statement was intelligently,

knowingly, and voluntarily made. Consequently, the district

court did not err in denying Holmes’ motion to suppress his

statements.

B.

Holmes next challenges the district court’s denial of his

motion to dismiss the third indictment for lack of venue under

18 U.S.C. § 3238. That provision states, in relevant part: "The

trial of all offenses begun or committed . . . out of the jurisdiction of any particular State or district, shall be in the district

in which the offender . . . is arrested or is first brought. . . ."

Holmes moved to dismiss the third indictment for lack of

venue, contending that under Judge Doumar’s reasoning in

dismissing the second indictment, venue was proper in North

Carolina, not the Eastern District of Virginia. In Holmes’

view, nothing changed following his re-arrest in the Eastern

District of Virginia prior to the third indictment because he

had not been released from custody following the dismissal of

the second indictment. 

The district court denied Holmes’ motion, concluding:

venue is determined by identifying the district in

which [Holmes] was first restrained on the charges

now alleged in the Third Indictment. Nothing in the

statute suggests that the first "arrest" requirement is

12 UNITED STATES v. HOLMES
indictment-specific. That is to say, nothing in § 3238

suggests that when an indictment is filed, dismissed,

and then re-filed against a defendant, the arrest on

the first indictment is not controlling for purposes of

assessing venue. Indeed, the statute is phrased in

terms of the offense committed, stating that "[t]he

trial of all offenses begun or committed upon the

high seas, or elsewhere out of the jurisdiction of any

particular State or district, shall be in the district in

which the offender . . . is arrested or is first brought."

18 U.S.C. § 3238 (emphasis added). This language

indicates that venue is proper in the district where

the defendant is first restrained in connection with

the underlying offense, rather than any particular

indictment. 

699 F. Supp. 2d at 827. The court observed that Holmes was

first arrested for the relevant offenses in the Eastern District

of Virginia, and so regardless of what happened subsequent

to that arrest, venue for the conduct charged was proper in

that district as a result of the original arrest under the first

indictment. Id. at 827-28.

On appeal, Holmes contends that the district court erred

because the statutory requirements to establish venue in the

Eastern District of Virginia were not satisfied. Relying on

Judge Doumar’s earlier analysis, Holmes asserts the original

arrest in the Eastern District of Virginia pursuant to the first

indictment was a legal nullity because there was no jurisdiction to arrest him at that time. Pointing out that his arrest

under the second indictment was in North Carolina, Holmes

posits that indictment could not establish venue in the Eastern

District of Virginia either. Lastly, Holmes asserts his arrest in

anticipation of the third indictment does not count as the "first

arrest" because the only reason he was in the Eastern District

of Virginia at that time was because he was still in federal

custody as a result of the second indictment. Because the third

arrest is the direct result of his arrest under the second indictUNITED STATES v. HOLMES 13
ment, Holmes argues that venue would be proper in North

Carolina, but not in the Eastern District of Virginia.3

We begin, as we must, with the text of § 3238, which establishes that venue for extraterritorial offenses "shall be in the

district in which the offender . . . is arrested or is first brought."4

Nothing in this text suggests that the provision is indictmentspecific. To the contrary, the text of the statute focuses on the

offense, establishing clear directions as to where venue for a

specific offense is proper. The court must look at the offenses

for which the defendant is facing punishment, and then determine where he was "arrested or first brought" for those

offenses. Under that analysis, Holmes was first arrested on

two counts of aggravated sexual assault of T.B. in the Eastern

District of Virginia. We need not look any further than this

first arrest for purposes of determining proper venue.

Our opinion in United States v. Erdos, 474 F.2d 157 (4th

Cir. 1973), is consistent with this understanding of the statute.

After reviewing the evolution of the statutory language, we

observed that

the phrase in the current version of the statute that

venue shall be in the district in which the offender

"is arrested or is first brought" means simply "arrested" — i.e., that venue is in that district within the

3Relying on the second part of § 3238, Holmes alternatively suggests

that venue would be proper in Illinois. The salient arguments and our analysis do not require us to address that claim. 

4The full text of § 3238 states: 

The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in

the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not

so arrested or brought into any district, an indictment or information may

be filed in the district of the last known residence of the offender or of any

one of two or more joint offenders, or if no such residence is known the

indictment or information may be filed in the District of Columbia. 

14 UNITED STATES v. HOLMES
United States where the offender is first restrained of

his liberty in connection with the offense charged.

. . . "First brought" within the context of the statute

means first brought in custody with liberty

restrained.

Id. at 160-61 (citations omitted) (first emphasis added).

Although Erdos involved a different inquiry than that presented here, its language nonetheless is consistent with reading the plain language of the statute to be offense-specific

rather than indictment-specific. For purposes of establishing

venue under § 3238, the relevant inquiry is not the district of

arrest for a specific indictment in a case’s procedural history,

but rather the district of arrest for that specific offense, even

if there is a subsequent dismissal of the original indictment or

filing of a subsequent indictment regarding that offense. 

In addition to being a straightforward reading of the statute,

this understanding also comports with the purpose of establishing venue. The principle of proper venue is concerned

with determining the appropriate location in which a criminal

proceeding will occur. Ordinarily, "proper venue in a criminal

case requires determination of where the crime was committed." United States v. Cores, 356 U.S. 405, 407 (1958).

"[T]rial in the vicinity of the crime is a safeguard against the

unfairness and hardship involved when an accused is prosecuted in a remote place." Id. Although the concerns are

slightly different when the crime occurs at a location outside

the territorial boundaries of the United States, the focus of

§ 3238 is still the same — to establish where venue for a specific crime, a specific offense, is proper. It is therefore appropriate for that determination to be made according to where

the offender is "arrested or first brought" the first time for the

charged offenses. This analysis permits venue to be definitively determined based on the static location of where a

defendant is determined to be "first arrested or brought" with

respect to the offense, without requiring reevaluation of that

point at each stage of any subsequent procedural developUNITED STATES v. HOLMES 15
ments as with subsequent or superseding indictments for the

same offense.

Lastly, contrary to Holmes’ assertions and Judge Doumar’s

earlier analysis of this issue, cases from our sister circuit

courts of appeals examining § 3238 are consistent with an

offense-based analysis to establish venue where an individual

is "arrested or first brought." For example, in United States v.

Wharton, 320 F.3d 526 (5th Cir. 2003), the Fifth Circuit

rejected a challenge to venue where the defendant had been

arrested for some offenses in Florida, then transferred to Louisiana, where the grand jury indicted the defendant on an additional charge. Id. at 536. The court held that the challenge to

venue in Louisiana failed because the defendant "was not

‘arrested’ on the [additional] charge until he was in Louisiana." Id. Venue for that charge was thus appropriate in Louisiana. Id. at 536-37. 

Similarly, the Second Circuit used an offense-specific

inquiry in determining proper venue under § 3238. In United

States v. Provoo, 215 F.2d 531 (2d Cir. 1954), the court analyzed a prior version of the statute, which established venue

in the district where the defendant was "found," a term courts

had interpreted to mean "arrested." Id. at 537. The defendant

in Provoo was a serviceman arrested in Maryland on sodomy

charges. Those charges were dropped, but he remained in custody and was transferred under guard to New York in order

for authorities to arrest, indict, and try him for the separate

crime of treason alleged to have been committed overseas. Id.

at 537-38. The court held that venue was not proper in New

York because "the army continued to hold him in Maryland

after the sodomy charge was dropped solely in order to send

him to New York to be tried for treason." United States v.

Catino, 735 F.2d 718, 724 (2d Cir. 1984) (citing Provoo, 215

F.2d at 538). The serviceman’s "continued restraint [in Maryland] ‘was an apprehension for treason,’" and thus constituted

being "found" in Maryland for purposes of venue under the

16 UNITED STATES v. HOLMES
earlier language of § 3238. Id. (citing Provoo, 215 F.2d at

538). 

This understanding expressed in Provoo is consistent with

an offense-specific reading of § 3238 because the court’s

inquiry was not focused on where the defendant was first

arrested for any purpose, but rather the location where he was

first arrested for the specific offense charged. Thus venue was

not appropriate in the location where the relevant indictment

for the offense was filed (New York), but where the arrest for

that offense occurred (Maryland). The Second Circuit’s analysis was directed by the locale of the arrest for a particular

offense, not the particular indictment authorizing arrest. See

also Catino, 735 F.2d at 724 (quoting Provoo and Erdos to

note that the location of the arrest "in connection with the

offense charged" determines where venue is appropriate, and

it is irrelevant that the arrest for the charges also could have

occurred in another district).

As the district court cogently explained, any defect in the

first indictment on these same offenses is not relevant to the

ultimate determination of proper venue:

nothing in § 3238 suggests that an arrest that is jurisdictionally defective does not still control for purposes of a determination of venue. In § 3238,

Congress sought to solve the problem of where to try

a case involving a crime occurring outside the

United States. This was not an issue of jurisdiction,

it was an issue of venue, i.e. where to try the case.

Congress simply, and to some extent arbitrarily,

deemed venue to be proper in the district where a

defendant, charged with an offense occurring outside

of the United States, "is arrested or is first brought."

18 U.S.C. § 3238. This Court must read the plain

language of the statute to give effect to congressional

intent. If Congress had wished to open up a

[P]andora’s box of legal questions with respect to

UNITED STATES v. HOLMES 17
determining venue for an offense occurring abroad,

it could have easily included language in § 3238

indicating that an arrest, to be controlling, must be

indictment-specific, or that the arrest must be valid

or without jurisdictional defect. Such questions

would, however, mix venue and jurisdiction principles and significantly cloud what is otherwise a relatively straightforward method of determining venue.

699 F. Supp. 2d at 828.

Because Holmes was first arrested for the two counts of

aggravated sexual abuse of T.B. in the Eastern District of Virginia, and that arrest was for the same charges for the same

conduct listed in the operative third indictment, venue was

proper in the Eastern District of Virginia. The district court

thus did not err in denying Holmes’ motion to dismiss the

indictment on that ground.

C.

Holmes’ final challenge is to the district court’s grant of the

Government’s motion in limine excluding Dr. Ofshe’s trial

testimony. On the Thursday before the Tuesday when trial

was to begin, the Government informed Holmes that it "may

offer two witnesses, as ‘experts’" regarding "matters involving the military," Yokota Air Base, and "procedures in the

military and at OSI." (J.A. 517.) The following day, Holmes

notified the Government that he intended to call an expert witness, Dr. Ofshe, to "explain why people falsely confess and

the factors that are considered." (J.A. 505.) At the Government’s request, Holmes later clarified that Dr. Ofshe would

not "be offering an opinion about whether . . . the statements

made by [Holmes] in this case were in fact false," but would

educate the jury "about the scientific research on false confessions, the fact that they occur, and some of the reasons why."

(J.A. 507.) Holmes also provided Dr. Ofshe’s twentytwo-page curriculum vitae. 

18 UNITED STATES v. HOLMES
The Government filed a motion in limine to exclude Dr.

Ofshe’s testimony, asserting that the notice it received failed

to comply with the requirements of Federal Rule of Criminal

Procedure 16(b)(1)(C) and this Court’s decision in United

States v. Dorsey, 45 F.3d 809 (4th Cir. 1995). The Government asserted that the notice was untimely, having been made

"Friday afternoon, three days before trial and before a weekend," and that it did not have sufficient time to investigate the

proposed testimony or Dr. Ofshe’s qualifications and opinions, or locate expert witnesses to present counter-testimony.

(J.A. 502.) It also alleged prejudice given the impending

unavailability of key witnesses if trial were delayed to provide

time to find and prepare rebuttal witnesses to Dr. Ofshe. 

Holmes responded that because the parties were operating

without a joint discovery order,5 there was no fixed time by

which he was required to disclose a witness and that witness’

proposed testimony. And he claimed that the contents of the

disclosure were specific enough to satisfy Rule 16 because

they informed the Government of the nature of Dr. Ofshe’s

qualifications and proposed testimony. Holmes also pointed to

the Government’s own disclosure the day before, as well as

the comparative content of the disclosures, to assert that his

notice was timely and sufficiently informative. 

The district court granted the Government’s motion to

exclude Dr. Ofshe’s testimony. In its bench ruling, the court

pointed to the absence of anything in the federal prosecution

up to that point to suggest that the Government should have

anticipated that this type of expert testimony would be

offered; the lateness of the notice in light of the nature of the

5At the hearing on this motion, the parties averred that in light of the

proceedings related to the first and second indictments, they had not

entered into a new discovery order upon the third indictment given that

neither party needed additional discovery. Both parties indicated they had

been operating under the prior discovery orders, which did not specify a

time frame to disclose expert witnesses. 

UNITED STATES v. HOLMES 19
disclosure and the Government’s inability to prepare a timely

response to such testimony; the insufficiency of the notice

under Rule 16 because Holmes’ disclosure did not "provide

the bases and reasons for [Dr. Ofshe’s] opinion"; and apart

from Rule 16, the failure of the disclosure to inform the Government "what it is that the witness is going to specifically

testify to such that a response [or] even a cross-examination

could be prepared." (J.A. 566, 567.) Lastly, the district court

granted Holmes’ oral motion to exclude the Government’s

expert witnesses that had been disclosed the day before

Holmes’, citing the interest of fairness and similar concerns

regarding timeliness as expressed when granting the Government’s motion. 

On appeal, Holmes reasserts the arguments he made to the

district court as to why his disclosure was timely and contained sufficient information for the Government to adequately prepare for Dr. Ofshe’s testimony. Holmes contends

the district court abused its discretion in granting the Government’s motion in limine. We do not agree. 

Federal Rule of Criminal Procedure 16(b)(1) sets forth a

defendant’s duty to disclose information to the Government,

and subpart (C) specifically deals with expert witnesses:

The defendant must, at the government’s request,

give to the government a written summary of any

testimony that the defendant intends to use under

Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—

(i) the defendant requests disclosure under

subdivision (a)(1)(G) and the government

complies; or

(ii) the defendant has given notice under

Rule 12.2(b) of an intent to present expert

20 UNITED STATES v. HOLMES
testimony on the defendant’s mental condition.

This summary must describe the witness’s opinions,

the bases and reasons for those opinions, and the witness’s qualifications.

Fed. R. Crim. Pro. 16(b)(1)(C). Under Federal Rule of Criminal Procedure 16(d)(2)(C), "[i]f a party fails to comply with

this rule, the court may prohibit the party from introducing the

undisclosed evidence." In addition to this specific authority,

district courts are to exercise their sound discretion in all rulings related to the admission and exclusion of evidence, and

this Court will not reverse the decision to exclude such evidence absent abuse of that discretion. See United States v.

Stitt, 250 F.3d 878, 896 (4th Cir. 2001). 

Because Rule 16 is silent as to the timing of expert witness

disclosures and there is no pre-trial discovery order governing

such timing in this case, our review considers whether the district court abused its discretion in finding that as a matter of

general fairness, Holmes’ disclosure was untimely. The district court cited Dorsey, 45 F.3d at 816, in reaching its decision, and we, too, find this case apposite. There, we stated:

[T]he case law is clear that it is not an abuse of discretion for a trial court to disallow expert testimony

where a late proffer of evidence by the defense substantially prejudices the government in its ability to

find its own expert and conduct similar testing. In

United States v. Curry, 977 F.2d 1042, 1052 (7th

Cir. 1992), cert. denied, 113 S. Ct. 1357 (1993), for

example, the Seventh Circuit, in holding that the district court did not err in excluding expert testimony

regarding the reliability of eyewitness identifications, found, among other things, that the district

court did not abuse its discretion because the defendants gave the government only four days’ notice of

UNITED STATES v. HOLMES 21
their intent to call their witnesses. See also United

States v. Dowling, 855 F.2d 114, 118 (3d Cir. 1988)

(finding that there was no abuse of discretion in

excluding expert testimony where the defendant

gave the government only 5 days notice of the proposed testimony because the government "could not

reasonably be expected to search for its own expert

and find one available to come to the Virgin Islands

in time to be given the available facts and the opportunity to assimilate them"). It is clear that Dorsey’s

notice to the government only on the first day of trial

that he was going to call expert witnesses to testify

is certainly a formidable reason in itself for the district court to have excluded the proffered expert testimony.

Id. (emphasis omitted). Holmes’ attempt to distinguish Dorsey based on the disclosure in that case being made on the

morning of trial is unavailing. Our rationale in Dorsey, and

the two out-of-circuit cases relied on, is clearly applicable to

the case at bar. Holmes disclosed his proposed expert witness

with only three days remaining before trial, two of which fell

during the weekend. The Government expressed concern,

unrebutted by Holmes, as to its ability to locate and prepare

adequate cross-examination and rebuttal expert witnesses in

time for trial. Given these circumstances, the district court

appropriately found that this consideration weighed in favor

of granting the Government’s motion.

But timing was not the only basis for the court’s decision.

The court also found that Holmes’ disclosure failed to satisfy

Rule 16(b)(1)(C)’s requirements as to the content of the disclosure. On this point, the language of Rule 16(b)(1)(C) is

unambiguous: the disclosure must "describe the witness’s

opinions, the bases and reasons for those opinions, and the

witness’s qualifications." (Emphasis added.) Even assuming

Holmes’ disclosure provided sufficient information as to the

first and third requirements, it clearly does not comply with

22 UNITED STATES v. HOLMES
the second. Neither Holmes’ brief synopsis of Dr. Ofshe’s

opinion nor Dr. Ofshe’s curriculum vitae provide the bases

and reasons for his proposed testimony that individuals sometimes make false confessions. Accordingly, the district court

did not abuse its discretion in concluding this consideration

also favored granting the motion in limine. See United States

v. Barile, 286 F.3d 749, 758 (4th Cir. 2002) (holding no abuse

of discretion in excluding testimony because the defendant’s

disclosure "did not describe [the witness’s] opinions beyond

stating the conclusion he had reached and did not give the reasons for those opinions as required under Rule 16(b)(1)(C)");

see also United States v. Johnson, 219 F.3d 349, 358 (4th Cir.

2000) (holding no abuse of discretion to exclude expert witness’s testimony where the defendants turned over the witness’s resume, but "there [was] nothing in the record that

demonstrate[d] that they complied with the other requirements of Rule 16, and the transcript indicate[d] that defense

counsel did not disclose the doctor’s opinion to the government"). 

Lastly, we note that Holmes’ argument relying on a comparison between the Government’s disclosure and his own

misses the mark. It bears repeating in this regard that the district court also granted Holmes’ motion to exclude those witnesses. Holmes’ argument thus is not relevant for purposes of

determining the equity of the court’s ruling. Moreover, the

relevant inquiry is not whether Holmes’ disclosure was more

substantive than the Government’s, but whether the disclosure

independently satisfies the requirements of timeliness and

Rule 16(b)(1)(C).

For these reasons, we cannot conclude that the district court

abused its discretion in granting the Government’s motion in

limine to exclude Dr. Ofshe’s testimony. See United States v.

Johnson, 617 F.3d 286, 292 (4th Cir. 2010) ("A court has

abused its discretion if its decision is guided by erroneous

legal principles or rests upon a clearly erroneous factual findUNITED STATES v. HOLMES 23
ing.") (quoting Brown v. Nucor Corp., 576 F.3d 149, 161 (4th

Cir. 2009)) (internal quotation marks omitted).

III.

Finding no error in the district court’s pre-trial decisions,

we affirm the judgment of the district court on Holmes’ convictions for two counts of aggravated sexual abuse of a child.

AFFIRMED

24 UNITED STATES v. HOLMES