# United States v. Nacchio

> Court of Appeals for the Tenth Circuit · February 25, 2009 · 555 F.3d 1234

URL: https://www.frixlaw.com/law-library/cases/9563204

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. NACCHIO, Defendant-Appellant
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** February 25, 2009
- **Citations:** 555 F.3d 1234; 2009 U.S. App. LEXIS 7796; 2009 WL 455666
- **Precedential status:** Published
- **Opinion:** Dissent by Kelly
- **Judges:** Henry, Tacha, Kelly, Briscoe, Lucero, Murphy, Hartz, McConnell, Holmes
- **Cited by:** 402 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563204

## How later opinions describe it (automated extraction)

- explaining that an expert may have extensive credentials that may qualify the expert to testify in other cases but that the Daubert inquiry must focus on the specific testimony in the particular case
- stating that “the district court must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact” (internal quotations marks omitted)
- noting that the appellate court’s review is deferential, and it will not disturb the lower court’s ruling on the admission or exclusion of an expert “unless it is arbitrary, capricious, whimsical or manifestly unreasonable,” or the appeals court is “convinced that the district…
- stating that an ipse dixit conclusion, or “simply ‘taking the expert’s word for it[,]’” is not admissible.

## Opinion text

KELLY, Circuit Judge,
dissenting.
It is indeed unfortunate that the court chooses expediency over due process. It is equally unfortunate that the court attempts to spin the facts to elevate a Rule 16 challenge to one based upon Dauberb and Fed.R.Evid. 702. That Mr. Nacchio’s counsel should have had the prescience to anticipate the trial court’s mercurial procedure is unsupported by the record, and unsupportable. Although the court suggests that there were numerous opportunities to have (a) provided more argument and evidence on methodology, (b) requested a hearing, or (c) requested a continuance, all of these suggestions presuppose that a rational lawyer would anticipate that a criminal trial court would (1) misunderstand the scope of what is required under Rule 16, (2) employ a variant procedure for the admissibility of crucial expert testimony, and (3) not notify the parties of this procedure.
Moreover, given the tone of this trial, it is quite likely Mr. Nacchio’s counsel would have been prohibited from doing exactly what the court suggests he should have done. Culminating with the remark that “it’s [not] an interactive process where you get to argue later on,” App. 3921, Mr. Nacchio was prevented from calling his main witness and then deprived of the right to put on an effective defense. To the extent that the court suggests that the trial court gave Mr. Nacchio every opportunity by waiting to rule until Dr. Fischel was actually called, nothing could be further from reality. As noted by this court, the district court knew that the parties were awaiting a ruling on the Rule 16 motion and deliberately declined to rule until the very morning Dr. Fischel was to testify. This becomes even more egregious when placed in the context of how the trial court proceeded after the second Rule 16 disclosure. In the middle of a complex criminal trial, the government filed a 63-page motion clearly aimed at the Rule 16 disclosure; the defense was given overnight to respond, and a ruling not based on the taking of any evidence or listening to any argument was rendered the next morning. Counsel then was denied an opportunity to confront the underlying basis of the ruling. Our founders must have had similar scenarios in mind when they wrote “nor shall any person ... be deprived of life, liberty, or property, without due process of law....” U.S. Const, amend. Y. We reverse judgments when a district court exercises its discretion on a material matter based upon an incorrect view of the law and when a defendant has not been given an adequate opportunity to be heard — that is what happened here. I would reverse and remand for a new trial. I join Judge McConnell’s dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563204. Public record. Not legal advice.