USA v. Burgos-Lopez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Jesus Antonio Burgos-Lopez,
Defendant.
No. CR-25-01394-001-PHX-SHD
ORDER
Pending before the Court is Defendant’s Motion to Exclude Expert Testimony and
Objection to Government’s Expert Notice. (Doc. 33.) The Government responded, (Doc.
43), and, at the direction of the Court, the parties submitted supplemental briefing, (Docs.
55, 57). For the reasons stated below, the motion will be granted.
I. Legal Standard
Defendant Jesus Antonio Burgos-Lopez (“Burgos”) argues that the Government1
has failed to comply with Federal Rule of Criminal Procedure Rule 16(a). Under that Rule,
the government must, at a defendant’s request, disclose any expert testimony that it intends
to offer at trial. Fed. R. Crim. P. 16(a)(1)(G). The government’s disclosure must be
timely—that is, submitted “sufficiently before trial to provide a fair opportunity for the
defendant to meet the government’s evidence”—and it must include “a complete statement
of all opinions that the government will elicit from the witness,” as well as “the bases and
1 The Court capitalizes “Government” when referring to the executive branch as a
party in this case and does not capitalize “government” when referring to the executive
branch generally.
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reasons” for those opinions. Id.
If the government fails to timely supply adequate notice, district courts may
“(A) order [the government] 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 [the government] from introducing the undisclosed evidence; or (D) enter any
other order that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2). In determining
appropriate sanctions, courts consider several factors, including (1) the reasons for the
government’s failure to disclose, (2) the prejudice to the defendant, and (3) the feasibility
of curing any prejudice by continuance or other means. See United States v. Mendoza-Paz,
286 F.3d 1104, 1111–12 (9th Cir. 2002) (balancing the government’s diligence against
prejudice to the defendant); United States v. Frazer, 2014 WL 12677065, at *1 (D. Ariz.
2014) (ordering immediate supplementation to remedy any prejudice under Rule 16(b), the
mirror provision for a defendant’s disclosures); see also United States v. Wicker, 848 F.2d
1059, 1061 (10th Cir. 1988).
II. Discussion
A. The Government’s Initial Notice
The parties’ expert disclosures were due on December 2, 2025. (Doc. 21 at 2.) On
November 26, 2025, six days before the deadline, the Government filed a Notice of Intent
to Introduce Fingerprint Testimony. (Doc. 22.) The Notice stated that the Government
intended “to offer the expert opinion of United States Customs and Border Protection
(“CBP”) Physical Scientist Marie Yochum in conducting examinations of fingerprints.”
(Id. at 1.) The Government provided Yochum’s qualifications and stated that Yochum
would testify that “friction ridge skin,” (a fingerprint) is a “complex, unique, and persistent
morphological structure” often used for identification. (Id.) The Notice then described “a
process called ACE-V” or “Analysis, Comparison, Evaluation, and Verification,” which
fingerprint examiners use to analyze and compare fingerprints, and asserted that the
Government intended to “take Defendant’s fingerprints at the final pre-trial conference”
and that Yochum would then “examine, analyze and compare those fingerprints with three
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to four sets of fingerprints . . . taken from Defendant by immigration officials.” (Id. at 2–
3.) After conducting her analysis, Yochum would “testify that she followed the ACE-V
process to form her opinions and interpretations, and that the process is accepted as reliable
in the relevant scientific community.” (Id. at 3.)
The Government acknowledges that its Notice did not “provide Expert Witness
Yochum’s specific conclusions or opinions because she had not yet performed her
examination of Defendant’s fingerprints.” (Doc. 43 at 2.) It nonetheless maintains that
because the Notice stated what Yochum might testify to, it satisfied Rule 16. (See id.) But
it does not cite to any case supporting the proposition that it satisfies its Rule 16 obligations
by providing a hypothetical range of conclusions that may or may not be reached by an
expert based on a vaguely-identified data set. (See id. (stating that Yochum will reach one
of three possible conclusions by comparing “three or four fingerprints” with the Burgos’s
fingerprints, which the Government had not yet sought to compel).) And the Court did not
find any cases to support this proposition in its independent research. In any event, such a
proposition is inconsistent with the plain language of Rule 16, which requires “a complete
statement of all opinions” the expert will provide at trial. Fed. R. Crim. P. 16(a)(1)(G).
The Government’s initial Notice did not provide Burgos any of Yochum’s opinions, let
alone the “bases and reasons for them,” and thus, did not comply with Rule 16(a)(1)(G)’s
disclosure requirements.
B. The Government’s Supplemental Notice
On December 15, 2025, nearly two weeks after the expert disclosure deadline, the
Government sent Defense Counsel an unsigned “initial report,” (Doc. 55 at 3), which
included a summary of some of Yochum’s opinions, (Doc. 33 at 2). Two days later, on
December 17, the Government supplied a “full report.” (Id. at 3–4.) This report was filed
with the Court on December 22 and 29, 2025, as an exhibit to the Government’s
Supplemental Notice and Amended Supplemental Notice.2 (Docs. 36, 41.) The
2 The Government’s Amended Supplemental Notice supplied Yochum’s signature,
which was absent from the Supplemental Notice, but otherwise the filings are the same.
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Government argues that because it supplemented its initial notice with Yochum’s reports
as they became available, it satisfied its obligations under Rule 16. (Doc. 33 at 2–4.) But
the Government’s Supplemental Notice and Yochum’s report also fail to provide a
“complete statement” of Yochum’s opinions and “the bases and reasons for them.” Fed.
R. Crim. P. 16(a)(1)(G)(iii).
As with the initial Notice, the Supplemental Notice provided Yochum’s
qualifications and described the ACE-V methodology. (Doc. 41 at 2–5.) And like the
initial Notice, the Supplemental Notice includes the general statement that Yochum’s
opinions will be based on her “personal examination of the fingerprints” and her “training,
education, experience, and expertise.” (Id. at 4.) The Supplemental Notice supplies some,
but not all, of Yochum’s conclusions. It states that Yochum “examined and analyzed four
record fingerprint images from different forms associated with the defendant” and “that
three out of the four fingerprints belong to the same individual,” while the fourth fingerprint
“was not suitable for comparison.” (Id. at 3.) Finally, the Supplemental Notice attached
Yochum’s report, which identifies the fingerprints Yochum analyzed, and states that those
that were suitable for comparison, “were compared and identified as being made by the
same source.” (Id. at 15.)
The Government’s Supplemental Notice is inadequate under Rule 16(a)(1)(G)(iii)
because it fails to provide “a complete statement of all of the opinions [it] intend[s] to
elicit” from Yochum, and “the bases and reasons for” those opinions. The Government
took Burgos’s fingerprints at the Final Pretrial Conference on January 6, 2026, but could
not say when Yochum’s analysis and conclusions based on those fingerprints would be
available, estimating that it could be up to a week, which would make the report available
the morning of trial.3 Thus, to date, Burgos has not received “a complete statement of all
The Court cites only to the Amended Supplemental Notice but will refer to the
supplemental notices collectively as the “Supplemental Notice” for simplicity.
3 The Court granted the Government’s Motion to Compel Fingerprinting on January
2, 2026, and ordered Burgos to submit to fingerprinting at the Final Pretrial Conference.
(Doc. 51). The Court made clear, however, that it reserved ruling on Burgos’s motion to
exclude Yokum’s testimony. (Id.)
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opinions” the government intends to elicit from Yochum. See Fed. R. Crim. P.
16(a)(1)(G)(ii) (emphasis added).
Further, the Supplemental Notice fails to identify “the bases and reasons” for the
opinions it does provide. The Government argues that its explanation of the ACE-V
method satisfies Rule 16(a)(1)(G)(iii)’s “bases and reasons” requirement. (See, e.g., Doc.
55 at 2.) The Ninth Circuit has not addressed this argument, and the Government cites no
cases to support it,4 but the Seventh Circuit has directly addressed this issue. In United
States v. Saunders, that court held that “discuss[ing] the ACE-V method” does not equate
to disclosure of “the bases and reasons” for an expert’s opinions. 826 F.3d 363, 369 (7th
Cir. 2016). The court further explained that “the ACE-V method is a process” and “is not
the basis or reason for an expert’s conclusion any more than the scientific method is the
basis or reason for other scientific conclusions.” Id. Rather, “the ACE-V method boils
down to recognizing and categorizing distinctive features in prints and it is the
distinctiveness of these features, rather than the ACE-V method itself, that enables
fingerprint examiners to match fingerprints.” Id. Thus, to satisfy the “bases and reasons”
requirement of Rule 16, the Government must provide a fingerprint expert’s explanation
of the “points of comparison” she used to analyze the specific fingerprints at issue. Id. at
370.
The Government’s Supplemental Notice itself does not provide any explanation for
Yochum’s conclusions beyond a general reference to the ACE-V method and Yochum’s
training and experience. Indeed, in the section titled “Bases and Reasons,” the Government
stated the following:
Physical Scientist Yochum’s opinions will be based on her personal
examination of the fingerprints in four documents, including fingerprints
taken from Defendant by immigration officials in connection with his
4 The Government cites two district court cases in which similar disclosures were
accepted. See Doc. 55 at 4 (citing United States v. Valenzuela-Muro, No. CR-25-01135-
PHX-GMS, (D. Ariz. Sept. 15, 2025) (Doc. 25) and United States v. Villanueva-Brown,
No. CR-25-00285-PHX-SMB (D. Ariz. Mar. 12, 2025) (Doc. 21)). The defendant did not
challenge the adequacy of the Government’s Rule 16 disclosure in either case cited, so the
court did not address the question. The cases are therefore unpersuasive.
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expedited removal, considering her training, education, experience, and
expertise as a Certified Latent Print Examiner (as outlined in Exhibit 1).
(Doc. 41 at 4.) This is plainly insufficient.
Yochum’s report, attached as Exhibit 2 to the Supplemental Notice, does not cure
this insufficiency because it sets forth only a single, bare-boned, paragraph generically
explaining her conclusions:
The identification conclusion is based on the examiner's opinion that there is
sufficient quality and quantity of corresponding friction ridge detail in
agreement to conclude that two impressions originated from the same source,
and such that the same arrangement of details is not expected to be observed
in two impressions that came from different sources.
(Doc. 41 at 15–16.) The thirteen words in this paragraph that ostensibly explain her
analysis—“there is sufficient quality and quantity of corresponding friction ridge detail in
agreement”—are themselves a conclusion masquerading as reasoning, and thus is
insufficient. And while the report contains photographs of the fingerprints examined, one
of which includes “colorful dots” which the Government asserts are Yochum’s “notes,”
(Doc. 55 at 3), such unexplained markings are likewise insufficient to identify “the bases
and reasons” for Yochum’s opinions.
To summarize, the Government has disclosed Yochum’s methodology (the ACE-V
method) and her conclusions (that three of the four fingerprints belong to the same
individual), but has not disclosed her analysis—that is, her application of the ACE-V
method to the fingerprints in this case. This does not satisfy Rule 16(a)(1)(G)(iii)’s “bases
and reasons” requirement. See Saunders, 826 F.3d at 370 (reasoning that specific
identification of points of comparison is “a crucial, yet subjective, variable” in the ACE-V
process, which “arguably makes the number of points and what those points are even more
important”).
The Government argues that because it has been diligent in obtaining Yochum’s
expert reports and has promptly supplemented its disclosures, it has satisfied the
requirements of Rule 16(a)(1)(G). (Doc. 43 at 3.) Not so, given that the Supplemental
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Disclosure is still deficient. But in any event, Rule 16(a)(1)(G)(vi)’s requirement that the
Government “supplement or correct its disclosures” does not relieve the Government of its
burden to provide a complete statement of the expert’s opinions in the first instance. See
Fed. R. Crim. P. 16 advisory committee’s commentary to the 2022 Amendments (noting
that Rule 16(a)(1)(G)(vi) was intended to ensure the Defendant would be promptly notified
of “modifications” to expert testimony or “change in the identity of an expert”). If the
Government were able to satisfy Rule 16 by promising to supply the requisite information
as it became available, it could postpone its disclosure obligations indefinitely. Indeed, the
Government could do precisely what it is attempting to do in this case: provide a plainly
inadequate disclosure by the disclosure deadline, and then avoid any consequences for
violating Rule 16 by stating that it will eventually (by the first day of trial) meet its
obligations. This position is inconsistent with the purpose of Rule 16(a)(1)(G), which is to
ensure the Defendant is aware of the Government’s expert testimony “sufficiently before
trial to provide a fair opportunity for the defendant to meet the government’s evidence.”5
Fed. R. Crim. P. 16(a)(1)(G)(ii).
In short, the Government violated Rule 16(a)(1)(G) when it failed to adequately
disclose Yochum’s expert testimony by the December 2, 2025 deadline. Its Amended
Supplemental Notice did not remedy the Government’s error; as discussed, it does not
provide the information required by Rule 16(a)(1)(G)(iii). And the Government’s promise
to provide a more complete report at some point in the future—no matter how genuine—
does not rectify its present Rule 16 violation, particularly where, as here, trial rapidly
approaches.
5 Prior to 2022, courts allowed the Government to produce its Rule 16 disclosures on
the eve of trial. See United States v. Taylor, 467 Fed. App’x 670, 672 (9th Cir. 2012)
(finding that notice by the government before trial and an expert’s report given to defendant
on the first day of trial was not prejudicial). But in 2022, the Federal Rules were amended
to include a deadline for disclosure. The advisory committee specified that the new
deadline requirement was necessary “to ensure enforceable deadlines that the prior
provisions lacked” and to ensure the parties have “a fair opportunity for each party to meet
the other side’s evidence.” Fed. R. Crim. P. 16 advisory committee’s commentary to 2022
amendments. Last-minute disclosures of expert testimony are no longer permitted under
Rule 16(a)(1)(G)(ii).
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C. Sanctions
District courts have discretion to impose sanctions for Rule 16 violations and
possess broad discretion to determine whether a continuance is warranted to remedy any
prejudice to the defendant. United States v. Burke, 15 F.3d 1090 (9th Cir. 1994) (reviewing
the district court’s decision to deny a continuance and allow a fingerprint expert to testify
for abuse of discretion); Frazer, 2014 WL 12677065 at *1 (finding inadequate disclosure
under Rule 16 and then analyzing the appropriate sanction).
Defendant argues that the appropriate sanction is exclusion of Yochum’s testimony.
For the following reasons, the Court agrees.
1. The Government’s Delay
While the Government has not exhibited bad faith, it has known that this case was
likely to proceed to trial since mid-October 2025. (Doc. 57 at 1 n.1.) And the Government
agreed that it could be prepared for trial—and, thus, meet its pretrial deadlines—at the
hearing setting a firm trial date on November 21, 2025. (Doc. 19.) It is the Government’s
responsibility to marshal the necessary reports and evidence by the disclosure deadline.
See Fed. R. Crim. P. 16(a)(1)(G)(ii). Rule 16 contemplates that the parties may encounter
bureaucratic hurdles like those the Government asserts are responsible for its delay. See
Fed. R. Crim. P. 16 advisory committee’s commentary to 2022 amendments (“Deadlines
should accommodate the time [it] may take” for the parties to secure expert witnesses).
But the Government’s disclosure deadlines are designed to ensure that defendants have
time to navigate those same processes to secure experts of their own. Id. (noting that
disclosure deadlines must occur sufficiently before trial to account for “the time an
appointed attorney may need to secure funding to hire an expert witness” for rebuttal
testimony). In the end, the Government still has not provided adequate Rule 16(a)(1)(G)
notice. The deadline to do so passed over a month ago, and Burgos’s trial begins in less
than two business days. The Government’s delay is significant.
2. Prejudice to the Defendant
Burgos asserts that he is prejudiced by the Government’s inadequate notice because
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it has deprived him of “a fair opportunity to prepare to cross-examine expert witnesses and
secure opposing expert testimony.” (Doc. 57 at 2; see also Doc. 57 at 3 n.2 (“Burgos could
not feasibly engage a qualified expert during the time frame allotted . . . .”).) The
Government argues that Burgos is not prejudiced because he (1) “has not alleged that he
indeed wishes to call another expert; he only complains that he did not have time to do so”;
(2) could have retained his own fingerprint expert when he became aware that the
Government had fingerprints on file, and (3) declined a continuance. (Doc. 55 at 4–5.)
The Government’s arguments miss the mark. First, Burgos contends, and the Court
agrees, that he still does not have the information necessary to (1) determine whether a
rebuttal fingerprint expert would be necessary or fruitful, and (2) provide the rebuttal expert
with sufficient information to prepare rebuttal testimony. Burgos cannot “allege that he
wishes to call another expert” because—due to the Government’s deficient notice—he
lacks the requisite information to decide whether “he wishes to call another expert.” (Doc.
55 at 4–5.)
Second, in addition to frustrating Burgos’s ability to obtain a rebuttal expert, Burgos
also asserts that the Government’s inadequate notice leaves him unable to properly cross-
examine Yochum. (Doc. 57 at 2.) This too, is a prejudice Rule 16(a)(1)(G)’s requirements
were designed to forestall. See Fed. R. Crim. P. 16 advisory committee’s commentary to
2022 amendments (noting that the 2022 amendments were “intended to facilitate trial
preparation, allowing the parties a fair opportunity to prepare to cross-examine expert
witnesses and secure opposing expert testimony if needed”). “If a defendant does not have
the bases for the government’s opinion, there is no way the defendant’s counsel can
effectively cross-examine the expert.” United States v. Robinson, 44 F. Supp. 2d 1345,
1347 (N.D. Ga. 1997)); cf. United States v. Alahmedalabdaloklah, 94 F.4th 782, 838–39
(9th Cir. 2024) (holding that the defendant was not prejudiced by the Government’s Rule
16 violation where its untimely—but sufficient—disclosure “gave defense counsel a fair
opportunity to test the merits of [the expert’s] opinions through focused cross-
examination”).
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Third, that Burgos could have retained an expert when he became aware the
Government had fingerprints on file, (see Doc. 55 at 4 (explaining that the Government
disclosed some of the analyzed fingerprints in September and October 2025)), does not
remedy the prejudice of the Government’s Rule 16 violation. “A defendant . . . is never
required to introduce any evidence . . . and therefore . . . has a right to predicate a trial
strategy solely on an attack of the opinion evidence offered by the government.” Robinson,
44 F. Supp. 2d at 1347. Without notice of (1) Yokum’s actual (not hypothetical) opinions,
and (2) the bases and reasons for those opinions, Burgos remains unable to make informed
decisions about whether he should invest limited resources in a rebuttal fingerprint expert
or in some other trial strategy. That is precisely why the disclosure requirements of Rule
16(a)(1)(G)(iii) exist. Burgos has thus been prejudiced by the Government’s Rule 16
violation, and his prejudice increases as trial approaches.
3. Feasibility of a Continuance or Other Remedy
Rule 16 violations can be remedied with case management strategies. See Frazer,
2014 WL 12677065 at *1 (requiring immediate production of adequate disclosure); United
States v. Tribby, 990 F.2d 1265 (9th Cir. 1993) (holding that the district court’s offer of a
continuance to remedy the prejudice caused by a Rule 16 violation was not an abuse of
discretion).
Here, immediate production of an adequate Rule 16 Notice will not remedy the
prejudice to Burgos. The Government stated at the Final Pretrial Conference that it cannot
guarantee Yochum’s complete report will be available any sooner than the first day of trial.
The Court thus doubts the Government’s ability to obtain not only the pending report
analyzing Burgos’s fingerprints, but a corrected version of the existing report that includes
the missing bases and reasons for her conclusions. In any event, even if the Government
could produce the required disclosures today, Burgos would not have time to retain, let
alone obtain an opinion from, an expert before trial.
The Government asserts that Burgos is not prejudiced because the Court offered a
continuance, and Burgos declined. A continuance can be an effective remedy for a Rule
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16 violation. But the Court is not required to order a continuance, even when doing so
would remedy the prejudice to the defendant. See Wicker, 848 F.2d at 1061 (“On occasion
the district court may need to suppress evidence that did not comply with discovery orders
to maintain the integrity and schedule of the court even though the defendant may not be
prejudiced.”); see also Fed. R. Crim. P. 16(d)(2) (authorizing district courts to impose a
range of sanctions for Rule 16 violations, including, but not limited to, a continuance).
Nor is the defendant required to request a continuance to remedy the Government’s
Rule 16 violation. Such a requirement would force Burgos to choose between two equally
untenable positions: On one hand, Burgos could decline a continuance and risk forfeiting
his challenge to the Government’s Rule 16 violation while proceeding to trial unprepared.
On the other, he could request a continuance and further delay his trial, unwillingly waiving
time and his right to a speedy trial under the Sixth Amendment and the Speedy Trial Act,
while also prolonging his detention. Such a dilemma is a Hobson’s choice—which is to
say, it is no choice at all.
Further, requiring a defendant to seek a continuance every time the Government
fails to meet its Rule 16 obligations would render Rule 16’s disclosure requirements
meaningless. In that scenario, the Government could produce its Rule 16 disclosures
whenever it wanted, in whatever form it wanted, and be rewarded for its noncompliance
with the Federal Rules either by thwarting the defendant’s ability to prepare for trial, or by
being allowed more time to prepare. Such a result is incompatible with Rule 16. Robinson,
44 F. Supp. 2d at 1348 (“Failing to impose a sanction on this record would be to establish
a precedent countenancing a disregard of discovery obligations which will assure either a
snail like progression of the 800 felony cases filed in this court annually or a succession of
trial in which the United States Department of Justice is allowed to flaunt the law it exists
to support and defend.”).6 Because a lesser sanction would be insufficient to address the
6 Indeed, the Government’s argument would effectively rewrite Rule 16(d)(2) to
eliminate subsection (C), which allows the exclusion of evidence, in favor of subsection
(B), which allows the granting of a continuance. Neither the Government nor this Court
has the authority to rewrite the Federal Rules of Criminal Procedure.
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Government’s violation of Rule 16 and to remedy the prejudice Burgos has suffered, and
continues to suffer, Burgos’s motion to exclude the expert testimony of Marie Yochum
will be granted.
Accordingly,
IT IS ORDERED granting the Motion to Exclude Expert Testimony, (Doc. 33).
Dated this 9th day of January, 2026.
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