United States of America v. Raymond Howard, a/k/a Smiles a/k/a Smizz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1920
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UNITED STATES OF AMERICA
v.
RAYMOND HOWARD,
a/k/a Smiles
a/k/a Smizz,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:17-cr-00291-004)
District Judge: Honorable Matthew W. Brann
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 23, 2022
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Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.
(Filed: July 6, 2022)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PHIPPS, Circuit Judge.
In prosecuting Raymond Howard in federal court for conspiracy to distribute an
illegal mixture of heroin and carfentanil, the government relied on expert testimony for
the meaning of a handful of coded terms used in the drug trade. Those terms were
‘brick,’ ‘sleave,’ ‘shyt,’ ‘hammer,’ ‘fire,’ ‘paper,’ ‘breezier,’ ‘breezie,’ ‘brizzy,’ and
‘brizz.’ Howard’s trial began on Monday, October 19, 2020, and years beforehand
Howard had requested a summary of the government’s expert testimony under Federal
Rule of Criminal Procedure 16(a)(1)(G). But the government did not reveal that it would
use an expert to testify to the meaning of those drug-trade terms until the evening of
October 16, 2020, the Friday before trial. Based on the timing of that notice, Howard
objected and asked for a continuance, but the District Court proceeded with the trial as
scheduled. The government’s expert testified on the fourth day of trial. A jury convicted
Howard, and the District Court sentenced him to 300 months in prison. See 18 U.S.C.
§ 3231 (conferring jurisdiction to district courts over “all offenses against the laws of the
United States”).
Through a timely appeal, Howard now seeks a new trial or alternatively
resentencing. See 28 U.S.C. § 1291; Fed. R. App. P. 4(b). In reviewing the District
Court’s decision for an abuse of discretion, we will affirm the judgment. See United
States v. Davis, 397 F.3d 173, 178 (3d Cir. 2005).
Under Federal Rule of Criminal Procedure 16, a defendant may request a written
summary of expert testimony that the government intends to use in its case-in-chief at
trial. See Fed. R. Crim. P. 16(a)(1)(G). Such a request obligates the government to
provide a description of the expert’s opinions, the bases and reasons for the opinions, as
well as the expert’s qualifications. See id. But unlike its civil counterpart, Criminal

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Rule 16 does not specify a time for disclosing expert testimony. Compare Fed. R. Civ.
P. 26(a)(2)(D)(i) (setting a presumptive expert disclosure date 90 days before trial), with
Fed. R. Crim. P. 16(a)(1)(G) (providing no date for disclosure of expert materials). Nor
do the District Court’s local rules impose a deadline for the government’s expert
disclosures. See M.D. Pa. R. Ch. VIII (pertaining to depositions and discovery). And
although the District Court’s scheduling order set a date to exchange witness lists, it did
not set a date for summaries of expert testimony. Nonetheless, this Court has cited with
approval the expectation announced in the advisory committee notes to Criminal Rule 16
that “the parties will make their requests and disclosures in a timely fashion.” United
States v. Hoffecker, 530 F.3d 137, 185 (3d Cir. 2008) (quoting advisory committee notes
(1966 amendment)). And a district court’s order in response to an objection to the
timeliness of an expert disclosure will be upheld unless it is “arbitrary, fanciful, or clearly
unreasonable.” Id.
But it is not necessary to address timeliness here because obtaining relief for the
government’s violation of a criminal discovery rule requires showing prejudice. See
Davis, 397 F.3d at 178. And Howard does not make that showing. To demonstrate
prejudice, a criminal defendant has to establish “a likelihood that the verdict would have
been different had the government complied with the discovery rules.” Id. (quoting
United States v. Lopez, 271 F.3d 472, 483–84 (3d Cir. 2001)). Here, Howard posits that,
absent the expert testimony, the jury would not have convicted him. But that answers the
wrong question. Howard must show what would likely occur, not in the absence of the
expert testimony, but rather if the testimony had been disclosed earlier. See id. And
Howard does not demonstrate that earlier notice of the government’s intention to use
expert testimony for the meaning of ten terms used in the drug trade – a “relatively

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uncontroversial” topic1 – would have changed the verdict or his sentence. Without doing
so, Howard does not prove the prejudice needed for a new trial, even if the government
did violate Criminal Rule 16(a)(1)(G).2 Accordingly, we will affirm the judgment of the
District Court.
1 United States v. Gibbs, 190 F.3d 188, 211 (3d Cir. 1999).
2 On appeal, the government argues that Howard had to renew his request for Criminal
Rule 16 expert disclosures after each superseding indictment and that Howard did not do
so. But the government forfeited that argument by not raising it before the District Court,
and no “truly exceptional circumstances” warrant its consideration. Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir. 2017).

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