KELLY, Circuit Judge, dissenting. It is indeed unfortunate that the court chooses expediency over due process. It is equally unfortunate that the court attempts to spin the facts to elevate a Rule 16 challenge to one based upon Dauberb and Fed.R.Evid. 702. That Mr. Nacchio’s counsel should have had the prescience to anticipate the trial court’s mercurial procedure is unsupported by the record, and uns…
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