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Case 1:20-cr-00330-PAE Document 393 Filed 10/29/21 Page 6 of 10

In turn, if a prosecution witness offers expert opinion testimony under Rule 702, Federal
Rule of Criminal Procedure 16(1)(G) requires the government to make significant and
substantive pretrial disclosures. The government must disclose “a written summary of any
testimony that the government intends to use . . . during its case-in-chief at trial.” Fed. R. Crim.
P. 16(1)(G). The summary “must [also] describe the witness’s opinions, the bases and reasons
for those opinions, and the witness’s qualifications.” Id.

The government has not endorsed [REDACTED] as expert witnesses
under Rule 702 or made any pretrial disclosures for these witnesses under Rule 16(1)(g).
Accordingly, none of these witnesses can offer expert opinion testimony at trial. That means
these witnesses should not be permitted to offer testimony on any of the following subjects:

• Any expert “overview” testimony about the case, its origins, and the investigation.
E.g., United States v. Brooks, 736 F.3d 921, 930-31 (10th Cir. 2013) (overview
testimony can include improper expert opinion testimony).1

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1 Overview testimony is susceptible to abuse because it strays

into matters that are reserved for the jury, such as opinions about a defendant’s guilt
or a witness’s credibility. An overview witness, for example, might express
opinions about the defendant’s truthfulness at certain times or [her] likelihood of
being involved in a scheme or crime, thus usurping the jury’s role in making fact
findings based on the credibility and demeanor of witnesses with personal
knowledge. Other potential problems include the government’s ability (1) to spin
the evidence in its favor before it is admitted (assuming it is ever admitted), (2) to
give its official imprimatur to certain evidence, and (3) to allow its witnesses
(usually law enforcement) to testify on matters about which they have no personal
knowledge or that are based on hearsay.

Brooks, 736 F.3d at 930.

[S]uch testimony raises the very real specter that the jury verdict could be
influenced by statements of fact or credibility assessments in the overview but not
in evidence. There is also the possibility that later testimony might be different than
what the overview witness assumed; objections could be sustained or the witness
could change his or her story. Overview testimony by government agents is

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