IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

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UNITED STATES OF AMERICA

v. CRIMINAL NO. 15-00102-CG-B

DSD SHIPPING, A.S., et al.,

 Defendants.

ORDER

This matter is before the Court on Defendant DSD Shipping, A.S.’s Motion to 

Exclude the Government’s Proposed Expert Testimony or, in the Alternative, to 

Compel Supplemental Notice (Doc. 152), the United States’ Response in Opposition 

(Doc. 176) and Defendant’s Reply (Doc. 183). Two other defendants moved to adopt 

DSD Shipping, A.S.’s motion: Xiaobing Chen (Doc. 156) and Xin Zhong (Doc. 158).1 

The Court granted the motions to adopt. (Doc. 162, 163). Based on the foregoing, 

Defendants’ motion is denied in part and granted in part.

STATEMENT OF THE LAW

Upon a defendant’s request in a criminal matter, the government must 

provide the defendant with a written summary of any expert testimony it intends to 

use in its case-in-chief at trial. Fed. R. Crim. P. 16(a)(1)(G). Any expert summary 

the government provides “must describe the witness’s opinions, the bases and 

reasons for those opinions, and the witness’s qualifications.” Id. This rule does not 

 1 DSD Shipping, A.S.; Xiaobing Chen; and Xin Zhong are hereinafter referred to as 

“Defendants.”

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limit the amount of information the government may disclose but creates a 

minimum threshold. Fed. R. Crim. P. 16 advisory committee’s notes, 1974

amendment. In noticing a defendant, the Eleventh Circuit has made it clear that

the bases and reasons supplied in the summary should include “not only written 

and oral reports, tests, reports, and investigations, but any information that might 

be recognized as a legitimate basis for an opinion ....” United States v. Holland, 223 

F. App’x 891, 894 (11th Cir. 2007) (quoting Fed. R. Crim. P. 16 advisory committee’s 

notes, 1993 amendment).

Rule 16 disclosure is intended to “minimize the 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.” Fed. R. Crim. 

P. 16 advisory committee’s notes, 1993 amendment; see also United States v. Noe, 

821 F.2d 604, 607 (11th Cir. 1987) (noting that the purpose of Rule 16(a) is to 

protect a defendant's right to a fair trial). But as the committee notes caution, the 

requirement for expert disclosure is “not intended to create unreasonable 

procedural hurdles.” Fed. R. Crim. P. 16 advisory committee’s notes, 1993 

amendment. And disclosure does not require the government to disclose every 

“nuance and detail” of its expert’s opinion, “or which may be drawn out on crossexamination.” United States v. Campbell, 2006 WL 346446, at *1 (N.D. Ga. Feb. 13, 

2006).

 

DISCUSSION

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On July 10, 2015, the United States filed its Notice of Expert Witnesses. 

(Doc. 82). Within the filing, the United States notified Defendants of five potential 

expert witnesses: (1) Kristy Juaire, (2) James Dolan, (3) Kathryn Cappetta, (4) 

Kevin Levy, and (5) Fred Reynolds. Defendants argue that each should be

excluded. The Court will address each in turn. 

1. Kristy Juarie

The first expert the United States proposes is Kristy Juarie (“Juaire”). The 

United States disclosed:

Ms. Kristy Juaire is an expert in the field of oil sample analysis. Ms. 

Juaire will testify about testing she conducted of oil samples taken 

from the M/T Stavanger Blossom. A report of Ms. Juaire’s analysis 

and results has been previously provided to counsel for the defendants. 

Ms. Juaire is prepared to testify consistent with the report. Ms. Juaire 

bases her opinions on the results of analysis of samples by gas

chromatography (GC) and gas chromatography-mass spectrometry 

(GC-MS). She further bases her opinions on her experience and 

training, as described in her curriculum vitae that has been separately 

provided to counsel for the defendants as part of this notice. Finally, 

Ms. Juaire will testify about the differences between samples taken 

from pipes, storage tanks, and various locations on the vessel.

Id. at 1.

Defendants aver that the United States’ disclosure regarding Juaire fails to 

offer her opinion, a summary interpretation of her report relied on, or how the 

sampling method she used related to her reports. On the other hand, the United 

States contends that its notice is sufficient when considered in conjunction with 

Juaire’s resume and 300-page report provided in discovery. (Doc. 176, p. 15). 

The United States’ disclosure of Juaire’s curriculum vitae may provide 

sufficient notice of her qualifications. Further, a solid foundation has been laid for 

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the bases and reasons of Juaire’s opinion by stating that she relied on GC and GCMS testing and prepared a 300-page report of analysis.2 But as Defendants argue, 

it is intuitive that complex expert testimony requires a heightened level of detail to 

at least summarize the methodology used and conclusion(s) drawn. (Doc. 152, p. 6). 

The United States, however, fails to provide a summary of the methodology

employed. This summary is necessary to test the merits of Juaire’s analysis. See

United States v. Davis, 514 F.3d 596, 613 (6th Cir. 2008) (finding the government’s 

disclosure insufficient when it failed to provide the methods that led a chemist to 

his conclusion). 

Instead, the disclosure “provide[s] a list of the general subject matters to be 

covered, [and] d[oes] not identify what opinion[s] the expert w[ill] offer on those 

subjects.” United States v. Duval, 272 F.3d 825, 828 (7th Cir. 2001). But see

United States v. Campbell, 2006 WL 346446, at *1 (N.D. Ga. Feb. 13, 2006) (finding 

the government’s disclosure of an expert forensic document examiner sufficient 

based on a four page summary of testimony and twelve-page, single-spaced report

describing credentials, opinions, and overview of the process and reasoning in 

reaching the opinion). Therefore, the United States’ expert disclosure for Juaire 

fails to satisfy Rule 16 because it does not provide an opinion and a summary of the 

methodology Juaire relied on in reaching an opinion.

 2 GC and GC-MS testing separates a sample into its individual components, which 

allows for the identification and measurement of the component. WAKE FOREST 

UNIVERSITY, www.wfu.edu/chemistry/courses/organic/GC/index.html (last visited

September 24, 2015). 

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2. James Dolan

The second expert the United States proposes is James Dolan (“Dolan”). The 

United States disclosed:

Mr. Dolan is an expert in marine engineering. He is expected to testify 

about the engineering components on the M/T Stavanger Blossom

including, but not limited to: the Oily-Water Separator; Bilge Pump; 

Overboard Discharge Valve; storage tanks such as the Bilge Tank, 

Dirty Bilge Tank, Fuel Oil Sludge Tank, Waste Oil Tanks, Lube Oil 

Tank, and the Soot Collecting Tank; as well as associated piping, 

pumps, and hoses. He will also testify regarding his review of various 

documents from the vessel including, but not limited to: vessel 

diagrams of the M/T Stavanger Blossom, Oil Record Books; Rough 

Logs and Daily Sounding Logs; maintenance logs and records; and 

other machinery logs and documents. Further Mr. Dolan will testify 

that the engineering components, construction, and subsequent 

modification of the M/T Stavanger Blossom would allow the discharge 

of oily-waste from the vessel as described by the vessel’s crew. Mr. 

Dolan bases his opinions on his experience and training, as described 

in his curriculum vitae that has been separately provided to counsel for 

the defendants as part of this notice.

(Doc. 82, p. 2).

Defendants aver that a scientific expert’s opinion may be precluded if “[his]

basis is nothing more than the expert’s experience and training.” (Doc. 152, p. 7). 

Defendants cite United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004), in support 

of this proposition. If applicable to Rule 16 disclosure, this could be problematic for 

the United States. The Eleventh Circuit did affirm the district court’s exclusion of 

an expert’s opinion when it was generally based on his experience and training in 

Frazier. Id. at 1267. But a closer reading shows that the circumstances under 

which the expert in Frazier was excluded can be differentiated from those in this 

case. First, the district court in Frazier excluded portions of the expert’s testimony 

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after conducting a Daubert hearing. The instant matter is before the Court on 

Defendants’ Rule 16 motion and not after a Daubert hearing. Second, the central 

issue in Frazier revolved around the expert’s reliability. “Frazier[’s] [expert] was 

afforded every opportunity at the hearing to adduce the foundations of [his] 

challenged opinion” through direct and cross-examination. Id. at 1264. At this 

point, the United States has not had “every opportunity” to provide a foundation for 

its expert’s opinion through a Daubert hearing to establish reliability. The instant 

matter is before the Court to decide whether the United States met the threshold 

requirement to provide a “written summary of any [expert] testimony the” United 

States intends to use. See Fed. R. Crim. P. 16(a)(1)(G). Therefore, excluding an 

expert’s opinion because it is based on his experience and training goes too far at 

this point. But that does not mean that citing an expert’s experience and training

equals automatic satisfaction of Rule 16. The disclosure should summarize the 

experience and training that “might be recognized as a legitimate basis for an 

opinion ....” See Holland, 223 F. App’x at 894.

With regards to Dolan’s qualifications, the United States provided 

Defendants with a copy of his curriculum vitae and disclosed that he has fifty-three 

years experience in the relevant field. This may satisfy the qualification aspect of 

Rule 16. Also, the United States sufficiently provided Dolan’s opinion. He will 

opine that the M/T Stavanger Blossom could discharge oily-waste from the vessel. 

The fact that Dolan bases his opinion on his experience and training is not fatal. 

Further, it is reasonable that the experience and training of this fifty-three year 

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veteran in marine engineering could form the basis for his opinion. The problem is 

a summary regarding what part of his experience and training Dolan relied on is 

absent. And there is no summary at to his testimony “regarding various documents 

taken from the vessel.” Rule 16 requires more than broad and sweeping references 

to general documents. Therefore, the United States’ Rule 16 disclosure for Dolan is 

insufficient because it fails to summarize what parts of his experience and training 

played a part in his opinion and summarize his testimony regarding the documents 

Dolan reviewed.

3. Kathryn Cappetta, Lieutenant Junior Grade

The third expert the United States proposes is Lt. Kathryn Cappetta 

(“Cappetta”). The United States disclosed: 

Lt. Cappetta has been employed for three years as a Marine Inspector 

for the United States Coast Guard, Sector Mobile. During this time, 

she has conducted numerous inspections of large vessels for 

compliance with U.S. and international law, including inspections to 

confirm compliance with pollution prevention regulations such as 

MARPOL and the Act to Prevent Pollution from Ships. Lt. Cappetta 

has received training from the United States Coast Guard in marine 

inspections, including inspections of cargo and storage tanks aboard 

vessels. As such, Lt. Cappetta is an expert in the measurement of 

vessel storage tanks, the conversion of these measurements, and the 

records and logs necessary to document these measurements. She 

bases her opinion on her experience and training, as described in her 

curriculum vitae that has been separately provided to counsel for the 

defendants as part of this notice. Lt. Cappetta will testify regarding 

her review and comparison of various documents from the M/T 

Stavanger Blossom, including but not limited to: the Oil Record Book; 

Rough Logs and Daily Sounding Logs; the Garbage Record Book; 

maintenance logs and records; and other machinery logs, sounding 

logs, and documents. Further, she will testify that the Oil Record Book 

was fictitious, that the Oil Record Book was inconsistent with 

sounding logs found aboard the M/T Stavanger Blossom, and that the 

sounding logs reflect the discharge of oily-wastes from the M/T 

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Stavanger Blossom.

(Doc. 82, p. 3).

Defendants argue that the disclosure is deficient because it makes reference 

to numerous documents and Cappetta relied on her training and experience to come 

to an opinion. (Doc. 152, p. 9). The United States contends that the curriculum 

vitae, expert notice, and supporting documents in combination satisfy Rule 16. 

Like Dolan, the fact that the United States disclosed that Cappetta relied on 

her experience and training is not fatal. The United States provided Cappetta's 

curriculum vitae and disclosed that Cappetta is a seasoned inspector for the Coast 

Guard. Based on the disclosure, her inspection consisted of measurements of the 

vessel, conversions of the measurements, and comparison to the logs maintained on 

the vessel. All of this information is part of Cappetta’s report and lead to her 

opinion that the Oil Record Book was fictitious. Such “bases and reasons” are 

surely the type of “information that might be recognized as a legitimate” bases for 

an expert’s opinion. But what is absent is a summary of Cappetta’s experience and 

training that spells out the required steps for the measurements, conversions, and 

comparisons to the logs. Without more, an opposing party or expert would be hard 

pressed to analyze the merits of an expert’s opinion.

Therefore, the United States’ Rule 16 disclosure for Cappetta is insufficient. 

It fails to summarize the relevant portions of her experience and training that led to 

her conclusion and the steps included therein.

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4. Kevin R. Levy

The United States fourth proposed expert is Kevin R. Levy (“Levy”). The 

United States disclosed:

Mr. Levy is an expert in computer and electronic forensic analysis. He

is expected to testify about the forensic analysis of computers and 

other electronic devises, and the seizure of electronic information from 

these devices. Any specific documents or other items of electronic 

evidence that Mr. Levy will testify about will be identified in the 

governments exhibit list in advance of trial. Mr. Levy bases his 

opinion on his experience and training, as described in his curriculum 

vitae that has been separately provided to counsel for the defendants 

as part of this notice.

(Doc. 82, p. 2).

Defendants argue that Levy’s experience and training are insufficient bases 

for his opinion and that there is no opinion offered for Levy. (Doc. 152, pp. 8-9). 

The United States contends that its disclosure for Levy meets Rule 16’s 

requirement when considered in conjunction with Levy’s curriculum vitae and 

disclosed report. (Doc. 176, p. 8).

Here, the disclosed curriculum vitae may supply the necessary qualification 

notice. And like Dolan and Cappetta, Levy’s reliance on his experience and training 

is not necessarily fatal. But like Dolan and Cappetta, the United States fails to 

identify what parts of Levy’s experience and training provide the relevant “bases 

and reasons” for his opinion. The United States does attempt to disclose that Levy 

will testify in accordance with the “reports provided,” but it is just in a generalized 

reference to a document. And the disclosure contains no opinion. The United 

States does attempt to expand on Levy’s potential use at trial. See (Doc. 176, p. 9, 

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n. 6). This explanation moves towards what Rule 16 requires, but it still does not 

provide a an opinion nor summary of the method(s) Levy relied on to analyze the 

electronic equipment. Therefore, the United States has failed to meet its Rule 16 

burden as to Levy.

5. Fred Reynolds, Special Agent

The last expert the United States proposed is Special Agent Fred Reynolds 

(“Reynolds”). The United States disclosed:

S/A Reynolds is an expert in the forensic analysis of digital and 

electronic images and videos. He is expected to testify about his 

analysis and use of computer software to visually enhance digital 

videos taken aboard the M/T Stavanger Blossom. Both the original 

videos and S/A Reynold’s [sic] enhancements have been previously 

provided to counsel for the defendants in discovery. S/A Reynolds 

bases his opinions on his experience and training, as described in his 

curriculum vitae that has been separately provided to counsel for the 

defendants as part of this notice.

(Doc. 82, p. 3). 

Defendants argue that Rule 16 requires more disclosure than Reynolds will 

rely on his “experience and training” and that the United States failed to provide 

Reynolds’ opinion. (Doc. 152, p. 8). The United States counters that Reynolds'

curriculum vitae detailed his experience and training that formed the bases and 

reasons for his opinion. (Doc. 176, pp. 9-10). Further, the United States argues 

that it provided detailed reports of Reynolds’ actions during discovery. Id. 

The curriculum vitae may provide sufficient notice of Reynolds’ 

qualifications, and as with the other experts, the fact that Reynolds relies on his 

experience and training is not fatal. But the United States failed to summarize 

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what part of Reynolds’ training and experience provides the relevant methodology 

for “visually enhancing” the digital videos. Regardless of the videos being supplied 

to Defendants, a summary of how the enhancement occurred is necessary for 

Defendants to “test the merits” of his opinion “through focused cross-examination.” 

Fed. R. Crim. P. 16, advisory committee’s notes, 1993 amendment. It surely must 

be more involved than how the United States categorizes it: “similar increasing the 

contrast on a television.” (Doc. 176, p. 9, n. 7). Further, the United States offers no 

opinion for Reynolds. Therefore, the United States Rule 16 disclosure is insufficient 

because it fails to summarize what part of Reynolds’ experience and training 

provide the bases and reasons of his work or the opinion he reached based on his 

work.

Finding the United States expert disclosures deficient, it is necessary to 

decide what is necessary to bring them into compliance with Rule 16. If a party 

fails to comply with this rule, the court may do one of four things: (1) “order that 

party to permit the discovery or inspection; specify its time, place, and manner; and 

prescribe other just terms and conditions:” (2) “grant a continuance;” (3) “prohibit 

that party from introducing the undisclosed evidence;” or (4) “enter any other order 

that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2).

Defendants argue that the United States’ proposed expert testimony should 

be excluded, or in the alternative, the government should provide supplemental 

expert disclosure. Exclusion is an extreme remedy as an initial matter. The Court 

finds that the appropriate remedy in this matter is for the United States to 

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supplement its Rule 16 disclosures.

CONCLUSION

Based on the foregoing, Defendants’ motion to Compel Supplemental Notice 

is GRANTED, and the motion to Exclude the United States’ experts is otherwise 

DENIED. It is hereby ORDERED and ADJUDGED that the United States shall 

supplement its disclosures as stated above, no later than October 7, 2014.

DONE and ORDERD this 30th day of September, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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