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Case 1:20-cr-00330-PAE Document 715 Filed 07/12/22 Page6of8 The Honorable Alison J. Nathan December 6, 2021 Page 6 The government did not timely disclose Examiner Flatley’s expert opinions, waiting until November 26, December 3, and late last night to make the disclosures. Under Rule of Criminal Procedure 16(d)(2), this Court can exclude these opinions. Rule 16(d)(2) says: (2) Failure to Comply. Ifa 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). “T]he government . . . violate[s] Rule 16 if it... call[s] expert witnesses who were not timely disclosed.” United States v. W.R. Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en banc). “When the government has failed to comply with Rule 16, the district court has broad discretion to determine what remedial action, if any, is appropriate.” United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997). “Tt is well-settled that a court may in its discretion preclude expert examination pursuant to Rule 16(d)(2)(C) of the Federal Rules of Criminal Procedure regarding any topics or opinions not properly disclosed.” United States v. Mahaffy, No. 0O5CR613(S- 3)(ILG), 2007 WL 1213738, at *2 (E.D.N.Y. Apr. 24, 2007). “A court may preclude the testimony as a whole, or any part that it determines was not properly disclosed to the [defense].” Id. “Even if the disclosure provides a sufficient summary of any opinions to be offered by the witness, it may be excluded if the [party] has made no attempt at all to describe the bases and reasons for those opinions.” /d. DOJ-OGR-00011316