UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

FRANCISCO JAVIER PALILLERO, 

 Defendant - Appellant.

No. 19-2111 

(D.C. No. 2:18-CR-02311-KG-1) 

(D. New Mexico) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges. 

_________________________________ 

A jury convicted Francisco Javier Palillero of sexual abuse, and the district 

court sentenced him to 121 months’ imprisonment. This is Mr. Palillero’s direct 

appeal from his conviction and sentence. He raises four arguments: (1) insufficient 

evidence; (2) improper exclusion of a defense expert; (3) imposition of a 

substantively unreasonable sentence; and (4) cumulative error. We affirm.

The evidence at trial was sufficient for a reasonable jury to find Mr. Palillero 

guilty of sexual abuse. The district court did not abuse its discretion when it excluded 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

October 5, 2020

Christopher M. Wolpert

Clerk of Court
2 

the testimony of Mr. Palillero’s DNA expert as a sanction for late and inadequate 

disclosure. The district court’s sentence was not unreasonable. And, because Mr. 

Palillero has not shown error, he cannot prevail on his claim of cumulative error.

I. BACKGROUND

A. Factual History

We review “the evidence and all reasonable inferences drawn therefrom in the 

light most favorable to the jury’s verdict.” United States v. Poe, 556 F.3d 1113, 1124 

(10th Cir. 2009).

Criminal Conduct

On April 27, 2018, Ashley Napier1 and her fiancé, Adam Pratschler, attended a 

backyard barbeque on Holloman Air Force Base hosted by their neighbors, Shante 

and Francisco Palillero. Ms. Napier and Mr. Pratschler had attended prior social 

events at the Palilleros’ house; Ms. Napier considered them “friends.” App., Vol. IV 

at 201. Yet, Ms. Napier had never spent any time alone with Mr. Palillero. Another 

neighbor, Lieutenant Douglas Cole, also attended the barbeque.2

 

Around 10:00 p.m., Ms. Napier walked home with Mr. Pratschler. Ms. Napier 

took her two dogs to bed with her and closed the bedroom door. She then fell asleep 

sometime before 11:00 p.m. Mr. Pratschler returned to the barbeque. 

1 Ashley Napier is now Ashley Pratschler. We refer to her using her last name 

at the time of the events in question: Napier. 

2 Lieutenant Cole arrived late and noticed that many of the people in 

attendance were intoxicated, including Mr. Palillero and Mr. Pratschler.
3 

Sometime later, Lieutenant Cole walked Mr. Pratschler home. Mr. Palillero 

accompanied them. Lieutenant Cole and Mr. Pratschler talked in the living room for 

thirty or forty-five minutes, with Mr. Palillero occasionally walking in and out of the 

room. 

At approximately 2:16 a.m., Ms. Napier was awakened by her dogs rustling on 

the bed. She perceived light coming through the bedroom door and could hear Mr. 

Pratschler, who “sounded upset.” App., Vol. IV at 218. Ms. Napier then texted Mr. 

Pratschler to “[g]o to sleep” and fell back asleep. App., Vol. IV at 218. 

Next, Ms. Napier “was woken up to someone’s hands all over [her], fast and 

hard, rubbing all over [her] body, like [her] breasts, into [her] underwear, sliding 

them around.” App., Vol. IV at 218. The assailant’s tongue touched her lips, face, 

and teeth. And, the assailant touched Ms. Napier’s clitoris with a fingernail, causing 

pain. Lastly, the assailant tried to push his finger inside Ms. Napier’s vagina. 

Ms. Napier recognized the assailant as Mr. Palillero and pushed him off. Mr. 

Palillero “scurried out of the room back into the hallway, and then came back in and 

said, ‘Don’t say anything. Don’t say anything.’” App., Vol. IV at 220. Ms. Napier 

then texted Mr. Pratschler, “Francisco was just in here trying to finger me as I slept.” 

App., Vol. IV at 220.

Meanwhile, Lieutenant Cole witnessed Mr. Pratschler exit the bathroom 

holding his phone, “very shaken up.” App., Vol. V at 42. Mr. Pratschler asked Mr. 

Palillero, “Did you touch my wife?” App., Vol. V at 42. Mr. Pratschler then asked 

Lieutenant Cole to read the text message because he was “the only one sober.” App., 
4 

Vol. V at 42. Lieutenant Cole read the text message and then asked Mr. Palillero 

whether he had touched Ms. Napier. Mr. Palillero answered no but “wasn’t making 

eye contact.” App., Vol. V at 42. Lieutenant Cole repeated the question, and Mr. 

Palillero again answered no. 

At that point, Ms. Napier put on a pair of pants and exited the bedroom. Seeing

Mr. Palillero “leaning up against the door at the end of the hallway,” she punched 

him in the face, screaming, “You were touching me when I slept.” App., Vol. IV at 

222. Ms. Napier shoved Mr. Palillero and he fell. Lieutenant Cole separated Ms. 

Napier and Mr. Palillero. At some point, Mr. Palillero left the house. 

Lieutenant Cole asked Ms. Napier if she wanted him to call the security forces 

at Holloman Air Force Base. When Ms. Napier responded yes,

3 Lieutenant Cole 

exited the house and called the security forces. 

The Investigation

Holloman Air Force Base Security Forces responded to the scene. According 

to the Security Forces report, Ms. Napier was “shocked” and “traumatized” during 

her discussion with the security forces officers, and could not recall her own address. 

App., Vol. IV at 225.4 In a written statement that Ms. Napier provided to Officer 

3 At trial, Lieutenant Cole suggested that he made the decision to call the 

security forces. Whether Lieutenant Cole or Ms. Napier made the ultimate decision to 

call the security forces is immaterial.

4 Sergeant Justin Goad spoke with Ms. Napier and did not notice any indicia of 

intoxication. 
5 

Shamelia Nicholson, Ms. Napier recalled Mr. Palillero entering the bedroom and 

attempting to touch her three times while she was sleeping, like “a bad dream.” App., 

Vol. IV at 227.5

Later, members of the Holloman Air Force Base Office of Special 

Investigations (“OSI”) arrived. OSI Special Agent Leslie Keopka6 interviewed Ms. 

Napier for approximately twenty-five minutes.

Agent Keopka then called Federal Bureau of Investigation Special Agent 

Karen Ryndak. Agent Ryndak and Supervisor Special Agent Amy Willeke traveled 

the approximately one-hour drive to Holloman Air Force Base. While Ms. Napier 

was waiting for the FBI agents to arrive, she repeatedly touched her face while 

adjusting her glasses, resting her hand on her face, and rubbing her neck. Agents 

Willeke and Ryndak then interviewed Ms. Napier, who was “visibly shaken,” 

“upset,” “embarrassed,” and “angry.” App., Vol. IV at 149, 189. During the 

interview, neither Agent Willeke nor Agent Ryndak “notice[d] any signs of 

intoxication on [Ms. Napier].” App., Vol. IV at 149, 190.

5 At trial, Ms. Napier clarified that she had not actually seen Mr. Palillero exit 

the bedroom and return. Rather, her written statement recounted three separate 

“glimpses” of him touching her before she opened her eyes. App., Vol. IV at 234.

6 Leslie Keopka is now Leslie Franz. As with Ms. Napier, we refer to Agent 

Keopka using her last name at the time of the events in question.
6 

After the interview, the FBI agents drove Ms. Napier back to her house, where 

they dusted for fingerprints. The fingerprints the agents collected were smudged, and 

consequently not suitable for analysis. 

The agents also obtained consent to search Ms. Napier’s cell phone. Mr. 

Palillero was not listed in Ms. Napier’s contacts, and there were no text messages 

between Mr. Palillero and Ms. Napier.

Around 11:45 a.m., the FBI agents sent Ms. Napier to a clinic for a Sexual 

Assault Nurse Exam (“SANE”). One standard step in a SANE is collection of DNA. 

Michelle Wood, a nurse, swabbed Ms. Napier’s face, lips, teeth, fingers, nails, 

knuckles, left arm, left hip, mons pubis, and labia majora. Nurse Wood also collected 

Ms. Napier’s underwear.7

Ms. Napier told Nurse Wood that after the assault she had inserted a tampon, 

thrown up, smoked, and drank.8 App., Vol. V at 136. Ms. Napier also specifically 

told Nurse Wood that Mr. Palillero had attempted “digital penetration.” App., Vol. V 

at 137.

Later that day, FBI agents arrested Mr. Palillero. During the drive to jail, 

Mr. Palillero asked for a drink of water. The agents provided Mr. Palillero with water 

7 As part of the SANE, Ms. Napier filled out a questionnaire. At trial, 

Ms. Napier acknowledged that several of her responses on that questionnaire were 

not accurate. For example, Ms. Napier answered that she had not brushed her teeth 

prior to the SANE when, in fact, she had brushed her teeth. 

8 It is not clear from the trial transcript what liquid Ms. Napier drank.
7 

from a water bottle and collected the bottle for a DNA sample. Agent Ryndak later 

collected an additional sample of Mr. Palillero’s DNA using a swab. Although 

Ms. Napier was menstruating on April 27, Agent Willeke did not recall seeing any 

blood on Mr. Palillero’s hands during her investigation.

At some point, Mr. Palillero called his wife from jail and stated that he “was in 

[Ms. Napier’s] bedroom” and “went in her room to wake her up.” App., Vol. IV at 

157, 184.

DNA Expert Testimony

At trial, the United States presented expert testimony from Jerrilyn Conway, 

an FBI forensic examiner. Ms. Conway explained that “DNA transfer can occur 

anytime someone comes in contact with an item.” App., Vol. V at 162. “Another way 

is through skin cells or contact,” with various factors influencing the amount of the 

transfer. App., Vol. V at 162. Two of those factors are post-transfer contact—for 

example, handwashing, teeth brushing, or vomiting—and the passage of time. 

Ms. Conway reviewed each DNA sample that was submitted to her laboratory 

and testified as follows:

• No DNA other than Ms. Napier’s was found in the mons pubis, labia 

majora, cheek, hip, arm, or mouth samples. 

• The finger and knuckle samples contained a mixture of male and 

female DNA. Ms. Conway excluded Mr. Palillero as a contributor. 

• A sample taken from the outside of Ms. Napier’s underwear 

contained a mixture of DNA. Ms. Conway was unable to exclude 

Mr. Palillero as a contributor. She testified that the amount of DNA 

present in the sample was so low it could have been the result of 

“going through the washing machine.” App., Vol. V at 173.
8 

• A sample taken from the inside of Ms. Napier’s underwear contained 

a mixture of male and female DNA. Ms. Conway excluded Mr. 

Palillero as a contributor. 

Ms. Conway explained that these “inconclusive” results do not “tell us 

anything either way” about Mr. Palillero’s guilt. App., Vol. V at 175. Ms. Conway 

further opined that she was not surprised at her inability to identify Mr. Palillero’s 

DNA in any of the samples, given the events that transpired in the ten hours between 

the assault and collection of the samples. 

B. Procedural History

On July 18, 2018, a grand jury in the District of New Mexico indicted 

Mr. Palillero on one count of knowingly engaging in a sexual act with a person 

incapable of appraising the nature of the conduct or physically incapable of 

declining, within the special maritime and territorial jurisdiction of the United States, 

in violation of 18 U.S.C. §§ 2242(2)(A) and (B) and 2246(2)(C). 

On November 7, 2018, the United States filed its witness list; this witness list 

included Ms. Conway, the FBI forensic examiner. On November 19, five days after 

the district court’s deadline for disclosure of experts, the United States gave notice of

its intent to introduce DNA expert testimony via Ms. Conway. In response, Mr. 

Palillero moved to exclude the United States’ DNA expert or, in the alternative, to 

delay the trial.

At the pretrial conference on November 30, the United States explained that it 

had been unable to provide notice of its intent to call a DNA expert before the district 

court’s deadline because it did not receive one of Ms. Conway’s DNA reports until 
9 

November 16. In addition, the United States argued there was no prejudice because it 

had included Ms. Conway on the November 7 witness list and had disclosed her first 

DNA report to defense counsel on October 29. The district court determined that the 

United States’ late filing was “excused” and permitted Ms. Conway to testify as a 

DNA expert. Appellee App. at 64.

On December 2, the day before trial, Mr. Palillero noticed his intent to 

introduce expert testimony from Dr. Michael J. Spence to rebut the United States’ 

DNA expert. That notice “anticipate[d] that [Dr.] Spence will provide rebuttal 

testimony regarding FBI policies and procedure relating to serological and DNA 

examination and their application to the examination in this case.” Appellee App. at 

36. The notice further “anticipated that [Dr.] Spence will testify in rebuttal to the

methods of DNA analysis including Y short tandem repeat and autosomal genotyping 

in addition to rebuttal testimony about the transfer of DNA, including by touch.” 

Appellee App. at 37.

At the start of trial on December 3, the United States asked that Dr. Spence’s 

testimony be excluded because Mr. Palillero’s notice did not include a meaningful 

summary. The district court asked defense counsel to clarify and he responded:

Well, Your Honor, he’s going to say that it is possible -- I mean, that 

it’s -- that it’s really not possible for all of this touching and kissing and 

licking and so on to go on without transferring DNA, Your Honor. But 

we’re anticipating that the Government’s expert is going to testify that 

it’s possible to touch someone and kiss them and do all these other 

things and not transfer DNA, Your Honor. He’s going to testify to just 

the opposite.

App., Vol. IV at 255–56. 
10

The district court then asked defense counsel what efforts he had made to 

secure expert testimony prior to trial, and defense counsel responded:

Your Honor, we contacted the New Mexico Criminal Defense 

Lawyers Association, we also called some other people that we know, 

and we did search for some other individuals, Your Honor.

Your Honor, so I -- some of my clients are doctors. We talked to 

them. We contacted the New Mexico Criminal Defense Lawyers 

Association. Beyond that, I’m not sure what else my staff may have 

done, but that’s -- that was the crux of it, Your Honor.

App., Vol. IV at 257–58.

The district court ruled that Dr. Spence would not be permitted to testify 

because defense counsel’s notice was neither timely nor detailed enough to give the 

United States a chance to prepare. The district court also found that Mr. Palillero 

would not be prejudiced by the inability to rebut the United States’ DNA expert 

testimony because that testimony was exculpatory. 

On December 4, after the prosecution rested, Mr. Palillero filed a renewed 

notice that he intended to introduce Dr. Spence’s testimony. The renewed notice 

parroted the first notice in all relevant respects. Attached to the renewed notice was 

Dr. Spence’s summary of his findings; namely, that DNA evidence provided “no 

scientific support for the allegations associated with this case investigation.” 

Appellee App. at 47.

The United States objected on the grounds that the renewed notice was not 

timely and that it was cumulative of Ms. Conway’s testimony. The district court 
11

asked defense counsel what would be “new” about Dr. Spence’s testimony. App., 

Vol. V at 208. Defense counsel replied:

Well, Your Honor, let me take a look here to see. Your Honor, I 

think he would definitely testify to some peer-review articles. That’s 

definitely new. Those haven’t been heard.

Let me see what else. So I know he has a peer-reviewed article 

that he wanted to discuss. And I’m trying to see what else he said here, 

Judge.

App., Vol. V at 208.

After the district court pointed out that defense counsel’s renewed notice did 

not mention any peer-reviewed articles, defense counsel stated, “I don’t know what 

all he’s going to testify to.” App., Vol. V at 210. And in response to more prodding 

from the district court, defense counsel replied, “I do think there would be something 

new, Your Honor, but I can’t tell you what that is.” App., Vol. V at 211.

The district court refused to permit Dr. Spence’s testimony on the basis that it 

would be cumulative of Ms. Conway’s testimony. The district court also found that 

Mr. Palillero was not prejudiced because defense counsel had the opportunity to 

cross-examine Ms. Conway. 

In addition to Ms. Conway, the prosecution called Ms. Napier, Lieutenant 

Cole, and others to testify. Defense counsel did not call any witnesses. The jury 

found Mr. Palillero guilty of sexual abuse. 

The United States Probation Office then prepared a Presentence Investigation 

Report (“PSR”). The PSR calculated a base offense level of 30, with a two-level 

enhancement because Mr. Palillero knew or should have known the victim was 
12

vulnerable. The resulting total offense level of 32, combined with a criminal history 

category of I, yielded a United States Sentencing Guidelines (“Guidelines”) 

imprisonment range of 121 to 151 months. 

On July 2, 2019, the district court sentenced Mr. Palillero to a 121-month term 

of imprisonment, to be followed by a 5-year term of supervised release. With respect 

to Mr. Palillero’s conduct, the district court stated:

I am convinced that you went down that hall and went into that bedroom 

with intentions to do more than just digitally touch. You went in there 

with the intentions to do much more, and it was only because -- it was 

only because she woke up that it didn’t go further.

App., Vol. VI at 107.

Mr. Palillero timely filed a notice of appeal. 

II. DISCUSSION

Mr. Palillero asserts four grounds for reversal: (1) that the prosecution

presented insufficient evidence; (2) that the district court improperly excluded 

defense expert testimony; (3) that the district court’s chosen sentence was 

substantively unreasonable; and (4) that the district court committed cumulative 

error. We address each of these contentions in turn.

A. Whether the Prosecution Presented Sufficient Evidence of Sexual Abuse

“We review the sufficiency of the evidence de novo.” Poe, 556 F.3d at 1124. 

“The evidence is insufficient to support a conviction only if no reasonable jury could 

have found the defendant guilty beyond a reasonable doubt.” Id. at 1124–25. “In our 

review, we do not weigh conflicting evidence or consider witness credibility, as that 
13

duty is delegated exclusively to the jury.” Id. at 1125 (internal quotation marks 

omitted).

The jury found Mr. Palillero guilty of violating 18 U.S.C. §§ 2242(2)(A) and 

(B) and 2246(2)(C). To find Mr. Palillero guilty, the jury needed to find that he 

“knowingly . . . engage[d] in a sexual act” with Ms. Napier while she was “incapable 

of appraising the nature of the conduct,” or “physically incapable of declining 

participation in, or communicating unwillingness to engage in, that sexual act.” Id.

§ 2242. Mr. Palillero does not contest he knew Ms. Napier was asleep, so we focus 

our analysis solely on the sexual act element of the offense.

The sexual act charged in the indictment was “the penetration, however slight, 

of the anal or genital opening of another by a hand or finger or by any object, with an 

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of 

any person.” Id. § 2246(2)(C). A reasonable jury could have found beyond a 

reasonable doubt that Mr. Palillero knowingly engaged in a sexual act.

First, a reasonable jury could credit Ms. Napier’s testimony that Mr. Palillero 

entered her bedroom and attempted to or did insert his finger into her vagina. Within 

seconds of the assault, Ms. Napier identified Mr. Palillero in her text message to Mr. 

Pratschler. And in multiple interviews with various law enforcement officers over the 

course of the subsequent twelve hours, Ms. Napier’s story remained consistent in all 

material respects.

Second, a reasonable jury could credit Lieutenant Cole’s testimony that Mr. 

Palillero was present in Ms. Napier’s house at the time in question, occasionally 
14

walking in and out of the living room. A reasonable jury could also credit Lieutenant 

Cole’s impression of Mr. Palillero’s reaction when initially confronted with Ms. 

Napier’s text message: namely, that he “wasn’t making eye contact.” App., Vol. V at 

42.

Third, a reasonable jury could partially disbelieve the statements Mr. Palillero 

made to Ms. Palillero from jail. To reiterate, Mr. Palillero stated that he “was in [Ms. 

Napier’s] bedroom” and “went in her room to wake her up.” App., Vol. IV at 157, 

184. A reasonable jury could accept that Mr. Palillero was in Ms. Napier’s bedroom 

but was not there to wake her up. None of the trial testimony suggests any reason 

why Mr. Palillero might have needed to awaken Ms. Napier. And if there were some 

emergency that required such an unusual step, Lieutenant Cole would presumably 

have been aware of it. Further, Mr. Palillero would have had ample incentive to 

misrepresent to his wife what his actual conduct and intentions were when he went 

into Ms. Napier’s bedroom. 

Mr. Palillero’s counterarguments all rest on the idea that the prosecution 

overlooked one or more dogs that did not bark (both figuratively and literally). That 

is, he relies on the absence of certain evidence. The overarching problem with these 

arguments is that, for them to create reasonable doubt, there must be some 

evidentiary support for the notion that we would ordinarily expect such things to 

happen under similar circumstances. And here that support is missing, in large part 

because Mr. Palillero did not call a single witness to the stand in his defense. With 

that in mind, we now review each of Mr. Palillero’s specific arguments. 
15

Mr. Palillero first argues that if Ms. Napier were telling the truth, there would 

have been DNA recovered from various parts of her person and clothing. To the 

contrary, Ms. Conway testified she was not surprised at her inability to identify 

Mr. Palillero’s DNA in any of the samples due to the time that had passed and the 

actions taken between the attack and the recovery of the samples. Mr. Palillero’s 

argument rests on the idea that the absence of DNA would support reasonable doubt. 

But no trial testimony, scientific or otherwise, supports that broad assertion. And 

even if such evidence had been presented, the jury was free to credit Ms. Conway’s 

contrary testimony.

Next, Mr. Palillero posits that—because Ms. Napier was menstruating on the 

night in question—investigators should have found blood on Mr. Palillero’s hands. 

First, no trial testimony, scientific or otherwise, supports the notion that any contact 

between a finger and a vagina during menstruation necessarily results in the transfer 

of residual blood to that finger. Second, Mr. Palillero went home before investigators 

arrived at the scene, leaving him time to wash his hands or otherwise wipe off traces 

of evidence. Third, Ms. Napier testified she was wearing a tampon at the time of the 

attack. 

Mr. Palillero also contends investigators should have taken DNA samples from 

his fingers or hands the night of the assault. Perhaps, but our task when reviewing the 

sufficiency of the evidence is to evaluate the evidence presented to the jury. We are 

not reviewing the thoroughness of the investigation, a topic that defense counsel 

could have explored during cross-examination but chose not to.
16

Mr. Palillero further asserts that—“[i]n light of [Ms. Napier’s] knowledge of 

martial arts”—there should have been “signs of an assault” on Mr. Palillero’s hands 

or face. Appellant Br. at 37. To the extent Mr. Palillero is suggesting he must not 

have assaulted Ms. Napier because she did not physically injure him as she woke 

from her slumber, a reasonable jury could reject that argument. No trial testimony 

supports the notion that a person trained in martial arts who awakens during a sexual 

assault usually (or even generally) inflicts physical injury on the assailant. Further, 

Ms. Napier did react physically once she was fully awake.

Mr. Palillero next argues Ms. Napier’s written statement contradicts her 

testimony at trial, because in that statement, she described Mr. Palillero entering the 

bedroom and attempting to touch her three times. At trial, Ms. Napier clarified her 

written statement, testifying that she glimpsed Mr. Palillero several times before she 

fully opened her eyes. A reasonable jury could credit Ms. Napier’s clarification and 

conclude that Mr. Palillero entered the bedroom once prior to the assault.

Mr. Palillero also contends it is implausible that Ms. Napier responded to 

sexual assault by immediately texting Mr. Pratschler. That misstates the record, 

somewhat. In fact, Ms. Napier responded by pushing Mr. Palillero away. Then, Mr. 

Palillero left her bedroom, returned, told her not to say anything, and left again. Only 

then did Ms. Napier text Mr. Pratschler.

Mr. Palillero similarly asserts that it “strains credulity” that Ms. Napier did not 

“fight back or scream or yell.” Appellant Br. at 38. First, no testimony supports the 

notion that victims of sexual assault—particularly those assaulted while sleeping—
17

typically do any of those things. So, the absence of those responses from Ms. Napier 

does not supply reasonable doubt. Second, Ms. Napier did fight back. She got up, put 

pants on, left the bedroom, and punched Mr. Palillero in the face.

Lastly, Mr. Palillero argues that one or both of Ms. Napier’s dogs should have 

barked during the assault. At trial, Ms. Napier testified that when Mr. Palillero 

entered her bedroom, the dogs rustled around on the bed and briefly woke her. 

Otherwise, no trial testimony addresses the question of how Ms. Napier’s dogs 

typically react or do not react to movement in the bedroom. 

In sum, a reasonable jury could conclude, beyond a reasonable doubt, that Mr. 

Palillero knowingly engaged in a sexual act when he inserted his finger into Ms. 

Napier’s vagina while she was sleeping. Mr. Palillero’s sufficiency of the evidence 

challenge fails.

B. Whether the District Court Erred when it Excluded the Defense’s DNA Expert

The district court excluded Dr. Spence’s testimony because Mr. Palillero’s two 

notices of intent to introduce that testimony were late and non-specific. “We review 

the exclusion of expert testimony for abuse of discretion.” United States v. Paup, 933 

F.3d 1226, 1230 (10th Cir. 2019). We uphold the district court’s decision to exclude 

Dr. Spence’s testimony due to its untimely disclosure and inadequacy. 

Discovery Violation

Rule 16 of the Federal Rules of Criminal Procedure states that, if the United 

States discloses a written summary of expert testimony, “[t]he defendant must, at the 

government’s request, give to the government a written summary of any testimony 
18

that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of 

Evidence as evidence at trial.” Fed. R. Crim. P. 16(b)(1)(C). In other words, the 

defendant must disclose a written summary of expert testimony. “This summary must 

describe the witness’s opinions, the bases and reasons for those opinions, and the 

witness’s qualifications.” Id.

There is no doubt that Mr. Palillero failed to comply with Rule 16. The district 

court set a deadline of November 14 for the disclosure of written summaries. Yet Mr. 

Palillero did not file his first notice of intent to introduce expert testimony until 

December 2, the day before trial. In addition, defense counsel provided only a vague 

statement of the expected testimony that lacked the bases and reasons for Mr. 

Spence’s opinions and his qualifications. 

Mr. Palillero responds that his late disclosure was justified by the United 

States’ late disclosure. It is true that the United States filed its written summary five 

days late. But Mr. Palillero does not cite anything in our cases suggesting that a short

delay by one party excuses a much longer delay by the other party. Cf. United States 

v. Bishop, 926 F.3d 621, 628 (10th Cir. 2019) (“[O]ne party’s failure to comply with 

the Rules does not alter the other party’s obligation to follow the Rules”). And while 

the United States’ disclosure was late, that disclosure was complete and provided 

well before the scheduled trial date. Accordingly, the district court did not err in 

concluding that Mr. Palillero failed to comply with Rule 16.

Sanction

Rule 16 also addresses the question of remedy. It states:
19

If a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; 

specify its time, place, and manner; and prescribe other 

just terms and conditions;

(B) grant a continuance;

(C) prohibit that party from introducing the undisclosed 

evidence; or

(D) enter any other order that is just under the 

circumstances.

Fed. R. Crim. P. 16(d)(2).

We have instructed district courts to consider three factors when contemplating 

a discovery sanction in a criminal case: “(1) the reason for the delay in disclosing the 

witness; (2) whether the delay prejudiced the other party; and (3) the feasibility of 

curing any prejudice with a continuance.” United States v. Adams, 271 F.3d 1236, 

1244 (10th Cir. 2001). “These factors do not dictate the bounds of the court’s 

discretion, but merely guide the district court in its consideration of sanctions.” Paup, 

933 F.3d at 1232 (internal quotation marks omitted).

a. The reason for the delay

At the start of trial, the district court asked defense counsel what efforts he had 

made to secure expert testimony in a timely manner. Defense counsel replied that he 

had “contacted the New Mexico Criminal Defense Lawyers Association” and others. 

App., Vol. IV at 257–58. But defense counsel did not contact Dr. Spence until the 

eve of trial and even then, did not know what the substance of his testimony would 

entail.

Defense counsel’s explanation for the delay was wholly inadequate. Defense 

counsel should have known from the start that DNA would play a role in this case, 
20

given that he was present when detectives swabbed Mr. Palillero. In addition, defense 

counsel received Ms. Conway’s lab report on October 29, which should have put him 

on notice of the significance of the DNA evidence. At the very latest, defense counsel 

should have known on November 7, when the United States disclosed its witness list, 

that it intended to call Ms. Conway to testify as to that report. 

This court has previously held defense counsel accountable for comparable 

delay. In Adams, for example, we upheld the district court’s exclusion of the 

defendant’s expert witness, reasoning

that three months had passed since the defendant’s indictment, that 

defense counsel knew or should have known of defendant’s claim that 

he lied to the police in order to protect his girlfriend, and that concerns 

about the defendant’s mental state and ability had been raised by the 

defendant’s grandmother both prior to and at the plea hearing. 

271 F.3d at 1244.

Here, the nurse collected evidence to be processed for DNA on the night of the 

attack and, as of September 21, defense counsel was provided with the results of 

those tests. To the extent defense counsel hoped to argue those results were 

exculpatory, he should have initiated his search for a DNA expert immediately. 

Instead, defense counsel waited until December 2, the day before trial, to name Dr. 

Spence as an expert and then did so without any understanding of the details of the 

anticipated testimony. 

b. Prejudice

The district court found that Mr. Palillero’s inadequate and late notice 

prejudiced the United States by denying it the chance to prepare for Dr. Spence’s 
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testimony. We agree. In Adams, we held that a notice filed three days before trial 

prejudiced the United States. Id. It follows that a notice filed the day before trial 

likewise creates prejudice.

Mr. Palillero argues that he was prejudiced by the exclusion of Dr. Spence’s 

testimony. But that turns the inquiry on its head. Our analysis asks whether the

failure to comply with the expert disclosure deadlines prejudiced the other party, not 

whether exclusion of the expert would harm the violator. Here, the prejudicial effect 

of the discovery violation is apparent. The United States had no opportunity to 

prepare for the cross examination of Dr. Spence. 

Regardless, “even in the absence of prejudice, a district court may suppress 

evidence that did not comply with discovery orders to maintain the integrity and 

schedule of the court.” Id. (internal quotation marks omitted). If we were to require 

the district court to allow Dr. Spence’s testimony where it was neither timely nor 

properly summarized, it could undermine the integrity of the judicial proceeding by 

encouraging gamesmanship.

c. The feasibility of a continuance

Next we consider the feasibility of granting a continuance.9

 This factor further 

supports the district court’s decision. The Air Force transported Lieutenant Cole from 

9 Although the district court did not expressly address the feasibility of a 

continuance, our precedents do not require that it do so. In United States v. Adams, 

for example, the district court failed to address this factor but we nevertheless 

affirmed its decision to exclude expert testimony. 271 F.3d 1236, 1244 (10th Cir. 

2001).
22

Japan to New Mexico so he could testify at trial. A continuance on the eve of trial 

would have required that Lieutenant Cole make an extra trip across the Pacific at 

some future date. As a result, a continuance was not feasible.

In summary, defense counsel failed to present a reasonable justification for the 

failure to adequately and timely comply with the disclosure of the defense’s DNA 

expert. The failure prejudiced the United States, and that prejudice could not have 

been feasibly avoided by a continuance. Accordingly, we affirm the district court’s 

exclusion of Dr. Spence’s testimony.

C. Whether Mr. Palillero’s Sentence is Substantively Unreasonable

Standard of Review

“This court reviews a district court’s decision to grant or deny a request for 

variance under a deferential abuse of discretion standard.” United States v. Beltran, 

571 F.3d 1013, 1018 (10th Cir. 2009). “A district court abuses its discretion when it 

renders a judgment that is arbitrary, capricious, whimsical, or manifestly 

unreasonable.” Id. (internal quotation marks omitted). “When the district court’s 

sentence falls within the properly calculated [G]uideline[s] range, this Court must 

apply a rebuttable presumption that the sentence is reasonable.” Id. “The presumption 

of reasonableness is, however, a deferential standard the defendant may rebut by 

demonstrating that the sentence is unreasonable when viewed against the other 

factors delineated in [18 U.S.C.] § 3553(a).” Id. (internal quotation marks omitted).

One of those factors is “the need to avoid unwarranted sentence disparities among 
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defendants with similar records who have been found guilty of similar conduct.” 18 

U.S.C. § 3553(a)(6).

Analysis

Mr. Palillero argues the district court’s sentence was unreasonable because his 

offense conduct was less severe than most offense conduct punishable under the same 

statute, as well as for the related reason that the cases cited by the prosecution and 

relied on by the district court involved more serious sexual abuse than what occurred 

in this case. Mr. Palillero fails, via these arguments, to rebut the presumption of 

reasonableness that we attach to his within-Guidelines sentence. 

The district court imposed a sentence of 121 months’ imprisonment, at the low 

end of the applicable Guidelines range. The district court agreed with the Guidelines 

calculations in the PSR and considered the § 3553 factors in imposing sentence. In 

addition, the district court noted, that to the extent Mr. Palillero’s assault was less 

serious than some other instances of sexual abuse, that was only because Ms. Napier 

woke up and pushed him away. Under these circumstances, the district court did not 

abuse its discretion in denying Mr. Palillero’s request for a variance. See United 

States v. Lente, 759 F.3d 1149, 1168 (10th Cir. 2014) (explaining that even “disparate 

sentences are allowed where the disparity is explicable by the facts on the record” 

(quotation marks omitted)).

Mr. Palillero also contends 121 months’ imprisonment is unreasonably long 

because “there was no force or intercourse.” Appellant Br. at 51. By intercourse Mr. 

Palillero appears to mean penetration with a penis. But that is not Congress’s 
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definition of a sexual act, which includes digital penetration of another person’s 

genital orifices. See 18 U.S.C. § 2246(2)(C). It was Mr. Palillero’s nonconsensual 

commission of a sexual act, as defined by Congress, that in turn determined his 

applicable Guidelines range of 121 to 151 months’ imprisonment.

Finally, Mr. Palillero argues that other sexual abuse cases resulting in 

comparable or longer sentences involved more serious sexual abuse than what 

occurred in this case. Though some of the cited cases involved observable physical 

injuries, here Mr. Palillero inflicted pain on Ms. Napier by rubbing his fingernail on 

her clitoris. Mr. Palillero’s argument also assumes the only relevant injuries are 

physical injuries. At the sentencing hearing, Ms. Napier testified about the long-term 

emotional harm she has suffered as a result of Mr. Palillero’s assault. In light of these 

considerations, the district court’s chosen sentence was neither unreasonable nor 

arbitrary.

D. Whether the District Court Committed Cumulative Error

Legal Standard

“We consider cumulative error only if the appellant has shown at least two 

errors that were harmless.” United States v. Christy, 916 F.3d 814, 827 (10th Cir. 

2019). “Anything less would leave nothing to cumulate.” Id. “The question is 

whether the two or more harmless errors together constitute prejudicial error.” Id.

Analysis

Mr. Palillero’s opening brief spends approximately three pages on cumulative 

error, in which he asserts seven errors allegedly made by the district court. The first 
25

four asserted errors are merely different versions of the argument that it was an abuse 

of discretion to exclude Dr. Spence’s testimony (discussed above). The other three 

asserted errors are each raised in a single sentence, and we do not consider them. 

United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (“[A]rguments may be 

deemed waived when they are advanced in an opening brief only in a perfunctory 

manner.” (internal quotation marks omitted)).

The district court did not err. As a result, Mr. Palillero’s cumulative error 

claim fails.

III. CONCLUSION

We AFFIRM Mr. Palillero’s conviction and sentence.

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge