Did the District Court Properly Exclude Mr. Nichols Expert Witness as a Sanction for Violation of Discovery Rules?
Mr. Nichols claims he should have been allowed to call Dr. Frederic Whitehurst, an FBI agent on administrative leave, as an expert witness. He contends Dr. Whitehurst would have challenged the testimony of government expert, Steven Burmeister, about the ammonium nitrate found on Q507. The district court did not permit Dr. Whitehurst to appear because it held the defense had not given the government adequate notice of an intent to call him. Mr. Nichols claims the sanction was unwarranted and the court should have granted a short continuance to permit the government to prepare for cross-examination. To exclude the witness, he further argues, infringed upon his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process. We review a district court’s decision to exclude a defense witness as a discovery sanction for an abuse of discretion. See United States v. Russell, 109 F.3d 1503, 1509 (10th Cir. 1997).2 “Excluding witnesses for failure to comply with discove
