UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. NACCHIO, Defendant-Appellant, 555 F.3d 1234

OPINION ON REHEARING EN BANC HOLMES, Circuit Judge, joined by TACHA, BRISCOE, LUCERO, and HARTZ, Circuit Judges. A jury convicted Joseph Nacchio, the former CEO of Qwest Communications International, Inc. (“Qwest”), of nineteen counts of insider trading. On appeal, Mr. Nacchio challenged his conviction, his sentence, and the forfeiture of his assets. Regarding his conviction, he argued that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded both expert-testimony evidence and classified information important to his defense.

A divided panel of this Court affirmed on the sufficiency of the evidence, jury instruction, and classified information issues but held that the expert testimony had been improperly excluded. The panel did not reach the challenges that Mr. Nac-chio raised to the forfeiture of his assets or his sentencing enhancement. Thus, the case was reversed and remanded for a new trial. See United States v. Nacchio (“Nacchio I”), 519 F.3d 1140 (10th Cir.2008). We granted rehearing en banc to consider the expert testimony issue.

In accordance with our local rule, the judgment was vacated, the mandate stayed, and the case was restored as a pending appeal. See 10th Cir. R. 35.6. On rehearing en banc, we hold that the expert testimony was properly excluded and affirm the district court’s judgment. We now vacate the panel opinion insofar as it reversed the district court’s judgment, including Parts 11(A), IV, and V, as well as the separate concurring and dissenting opinion. The remainder of the panel’s decision remains in effect. I.

BACKGROUND As the panel opinion provides a full recitation of the factual background, see Nacchio I, 519 F.3d at 1144-48, we discuss only the relevant events and rulings as needed to frame our analysis. The government had alleged that Mr. Nacchio, the former CEO of Qwest, made sales of shares of Qwest stock from January to May 2001 on the basis of material, nonpublic information. The jury trial commenced after more than a year of discovery and motions in limine, during which Mr. Nac-chio disclosed no expert witness. On March 16, 2007 — three days prior to the start of trial — Mr.

Nacchio first disclosed, pursuant to Fed.R.Crim.P. 16(b)(1)(C) (“Rule 16”), that he planned to call to the stand Professor Daniel Fischel as an expert. Under certain circumstances, Rule 16 requires a defendant to provide to the government, upon request, a written

summary of any expert testimony that the defendant intends to use as evidence at trial under Federal Rules of Evidence (“FRE”) 702, 703, or 705. “This

summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed.R.Crim.P. 16(b)(1)(C). It is undisputed that a Rule 16 disclosure was required in this case, because Mr. Nacchio previously had requested, pursuant to Fed.R.Crim.P. 16(a)(1)(G), a

summary of any expert testimony the government intended to use during its casein-chief at trial. Aplee. Supp. En Banc App. 3. The provisions of Rule 16 are “intended to meet [the need for counsel to learn that an expert is expected to testify] by first, requiring notice of the expert’s qualifications which in turn will permit the requesting party to determine whether in fact the witness is an expert within the definition of Federal Rule of Evidence 702.” Fed.R.Crim.P. 16 advisory committee’s note (1993). Next, “the requesting party is entitled to a

summary of the expected testimony.” Id. And finally, “and perhaps most important, the requesting party is to be provided with a

summary of the bases of the expert’s opinion.” Id. (emphasis added). Pursuant to Rule 16, Mr. Nacchio provided the government with a short

summary of Professor Fischel’s anticipated testimony as well as his curriculum vitae. Aplt.App. 460. The government objected that the disclosure did not satisfy the requirements of Rule 16 and requested a complete, proper disclosure. Aplee. SuppApp. 35. The government’s objection additionally highlighted shortcomings of the disclosure under various rules of evidence, including FRE 702, and it included several references to the expert testimony requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Aplee. Supp.App. 35, 38-42.

The district court agreed that Mr. Nacchio’s notice did not comply with Rule 16 because it “offered] no bases or reasons whatsoever for Professor Fischel’s opinions contained in the

summary” and stated that “[t]he matter may be settled through analysis under Rule 16.” Aplt.App. 349-52. The district court also noted, however, the government’s additional assertion that the disclosure did not satisfy “[FRE] 401, 403, 602, 702, and 704.” Aplt.App. 351. The district court instructed that “Defendant shall produce an expert disclosure compliant with the federal rules described herein by March 26, 2007.” Aplt.App. 352 (emphasis added). On March 22, 2007, while the jury was dismissed, the district court granted Mr. Nacchio three extra days to provide his revised Rule 16 disclosure.

In doing so, the district court judge stated that he was “flabbergasted ... that - [Mr. Nacchio] could think that was an adequate expert disclosure” and that “I think the rule is pretty clear, and ... it’s pretty close to what is required in the civil area.” Aplt.App.2038, 2041. The following exchange then took place: [GOV’T ATTORNEY]: Hit’s my concern at least based on the way the disclosure is raised right now, there could be Daubert issues that arise with respect to certain parts of the testimony....

THE COURT: Probably not Daubert, but maybe Kumho Tire issues. [GOV’T ATTORNEY]: Yes, I misspoke. [DEFENSE COUNSEL]: In Latin, forewarned, is forearmed. THE COURT: That’s not Latin. [DEFENSE COUNSEL]: No, but I don’t speak Latin. THE COURT: All right. Aplt.App.2041^42 (emphasis added). Mr. Nacchio provided a revised Rule 16 disclosure on March 29 which summarized Professor Fischel’s qualifications as an academic, his research and teaching in law and finance, and his previous experience both consulting and testifying.

The disclosure outlined the bases for Professor Fis-chel’s opinions and highlighted specific expected areas of testimony as well as the documents and data reviewed by Professor Fischel in connection with this matter. Aplt.App. 425-34. This revised Rule 16 disclosure explained that in reaching his conclusions, Professor Fischel had conducted a “study of the Questioned Sales in relation to various benchmarks and other relevant criteria.” Aplt.App. 427.

The revised disclosure also noted that Professor Fischel had analyzed Qwest’s guidance, its actual stock performance, and reaction from the investment community; Qwest’s guidance history compared to the guidance history of other telecommunications firms; and various facets of Qwest’s revenue from indefeasible rights of use. Aplt.App. 430-32. On Tuesday, April 3, the government filed a 63-page motion to exclude Professor Fischel’s expert testimony. Aplt.App. 362.

In this motion, the government thoroughly addressed the standards and case law of Rule 16 and FRE 401, 403, 602, 702, and 703, and discussed them in the context of Professor Fischel’s qualifications and relative to each of his opinions as set forth in the revised Rule 16 disclosure. Aplt. App. 367-418. Included throughout were references to Professor Fischel’s methodology and arguments regarding the role of Daubert and FRE 702’s reliability requirement in establishing the admissibility of expert testimony. See, e.g., Aplt.App. 385, 388, 390, 405, 408. The government asserted that not only had Mr.

Nacchio failed to comply with Rule 16, but that Mr. Nacchio had not established the admissibility of the evidence with respect to any of the proposed opinions due to, inter alia, failure to comply with FRE 702, and thus Professor Fischel’s testimony should be excluded.

The government further requested that, if the district court was inclined to allow any portion of the expert testimony “based on the disclosures to date,” the court grant a hearing prior to the admission of the testimony “in order to [permit the government to] challenge its admissibility out of the presence of the jury.” Aplt.App. 421 (“taking note of ‘Daubert’s requirement that some reliability determination must be made by the trial court before the jury is permitted to hear the evidence’ ” (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1229 (10th Cir.2003))).

The government additionally requested that in advance of such a hearing, Professor Fischel should provide the reasons and bases of his opinions for the government’s review. Aplt.App. 421-22. Mr. Nacchio filed a seven-page response to the government’s motion to exclude the following day. Aplt.App. 463. Mr. Nacchio’s response asserted that: (1) the revised disclosure complied with Rule 16;

(2) Professor Fischel’s opinions were proper under FRE 702 and 602; and

(3) Professor Fischel was qualified to give the opinions set forth in the “expert report.” While Mr. Nacchio did not specifically cite Daubert in the FRE 702 discussion — titled “Professor’s Opinions Are Proper Under Rule 702” — or use the term “methodology,” the response asserted that Professor Fischel would opine on “specialized knowledge as contemplated under Rule 702, which will assist the trier of fact” and that Professor Fischel has undertaken “extensive review” “to formulate opinions that go well beyond ‘simple inference.’ ” Aplt.App. 466. The next day, Thursday, April 5, trial resumed, and Mr.

Nacchio called Professor Fischel to the stand. The district court dismissed the jury, saying, “I need to make some legal rulings at this time.” ApltApp. 3913. Neither party made any statement to the court at that time, and the district court proceeded to rule upon the government’s motion to exclude.

Observing that “the deficiencies under Dau-bert and Kumho Tire in these disclosures are so egregious that they hardly warrant the 63 pages of ink the Government has spilled in opposing the testimony,” the court then explained why the testimony was “excludable on a number of rationales,” including under FRE 702 and Daubert and Kumho Tire. Aplt.App. 3914-21.

Specifically, the court noted its concern with the methodology, “which is absolutely undisclosed in this expert disclosure,” and “[m]ost convincingly, the defendant has made no attempt to comply with Rule 702 or Daubert and establish that Fischel’s testimony is the product of reliable principles and methods or that Fischel applied some principles and methods reliably in this case.” Aplt.App. 3915, 3917. The court noted that Mr.

Nacchio’s “only representation on this issue” was one “woefully inadequate” sentence, and it quoted from the sentence noted above regarding the allegedly “extensive review” undertaken by Professor Fischel in formulating his opinions, which was included in Mr. Nac-chio’s response to the government’s motion to exclude. Aplt.App. 3916. The court concluded that “[f]or all of those reasons, primarily the gross defect in failing to reveal the methodology,” the government’s motion was granted. Aplt.App. 3921. After the ruling was announced, Mr.

Nacchio’s attorney asked if he could be heard, and the district court refused his request, saying, “I have your motion, I have the Government’s motion, I have your response. Any argument that you wish to make could have been put in the response.” Aplt.App. 3921. Mr. Nacchio’s attorney then requested and received permission to put Professor Fischel on the stand as a nonexpert witness. The court recessed over Friday and the weekend. Over the weekend, Mr.

Nacchio filed a motion requesting, inter alia, permission for Professor Fischel to testify as an expert in rebuttal to the testimony of two financial analysts that the government presented as witnesses, or alternatively to strike the testimony of those two analysts. Aplt.App. 474. Mr. Nacchio included a footnote requesting reconsideration of the district court’s prior exclusion of Professor Fischel’s expert testimony and asserting that the district court did not have sufficient evidence nor did it develop a sufficient record to fulfill its Daubert gatekeep-ing function. In this footnote, Mr.

Nacchio also suggested for the first time that, while a Daubert hearing is not specifically mandated, it would be “particularly appropriate where, as here, the court believes the expert[’s] report was insufficiently detailed.” Aplt.App. 481 n. 4. On Sunday, April 8, the government filed a motion to exclude the rebuttal testimony, and Mr. Nacchio responded. On Monday, April 9, after Professor Fischel had provided some nonexpert testimony, the district court dismissed the jury and ruled from the bench. The district court denied Mr.

Nacchio’s motion to permit Professor Fischel’s expert rebuttal testimony and to strike the government analysts’ testimony, granted the government’s motion to exclude Professor Fischel’s rebuttal testimony in part, and then dismissed Professor Fischel. In denying Mr.

Nacchio’s motion, the district court stated that an expert was not necessary to rebut the analysts’ opinions, that it “continue[d] to have the same difficulty with this methodology and non-disclosure of the methodology as it had with respect to the original expert report,” and that “even if it were reliable, ... the testimony is of no relevancy.” ApltApp. 4075-76. Following the sixteen-day trial, the jury deliberated for six days and convicted Mr. Nacchio on nineteen counts of insider trading covering trades that he had made in April and May 2001. Mr.

Nacchio was acquitted of twenty-three counts covering earlier trades. II. EXPERT TESTIMONY A. Standard of Review The proponent of expert testimony bears the burden of showing that its proffered expert’s testimony is admissible. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n. 4 (10th Cir.2001). We review de novo “whether the district court employed the proper legal standard and performed its gatekeeper role” in determining whether to admit or exclude expert testimony. United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006).

We review for abuse of discretion the manner in which the district court performs this gatekeeping role. Dodge, 328 F.3d at 1223 (“Though the district court has discretion in how it conducts the gatekeeper function, we have recognized that it has no discretion to avoid performing the gatekeeper function.”).

Provided the district court performs the role, this Court’s review is deferential: we will not disturb the ruling “unless it is arbitrary, capricious, whimsical or manifestly unreasonable,” or “we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. (internal quotation marks omitted). “Under Rule 702, the district court must satisfy itself that the proposed expert testimony is both rehable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.” Rodriguez-Felix, 450 F.3d at 1122.

In determining whether expert testimony is admissible, the district court generally must first determine whether the expert is qualified “by knowledge, skill, experience, training, or education” to render an opinion. See Fed.R.Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable by assessing the underlying reasoning and methodology, as set forth in Daubert. Rodriguez-Felix, 450 F.3d at 1123; see, e.g., 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006).

Reliability questions may concern the expert’s data, method, or his application of the method to the data. See Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir.1999); see also Fed.R.Evid. 702 (noting that the testimony must be “based upon sufficient facts or data” as well as “the product of reliable principles and methods” and the expert must have “applied the principles and methods reliably to the facts of the case”).

The party offering the expert “must show that the method employed by the expert ... is scientifically sound and that the opinion is based on facts which satisfy Rule 702’s reliability requirements.” Dodge, 328 F.3d at 1222. “Under Daubert, any step that renders the expert’s analysis unreliable ... renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” Mitchell, 165 F.3d at 782 (alteration in original) (internal quotation marks omitted).

In making a reliability determination, “[generally, the district court should focus on an expert’s methodology rather than the conclusions it generates.” Dodge, 328 F.3d at 1222. B. Exclusion of Expert Testimony 1. The District Court Performed Its Gatekeeping Role Although Mr. Nacchio argues that the district court abdicated its gatekeeping function, his argument really concerns the manner in which the district court fulfilled this role, e.g., allegedly failing to ensure the creation of a sufficiently developed record and declining to hold a hearing to reconsider Professor Fischel’s admissibility.

As discussed below, in its ruling the district court stated and applied the Dau-bert framework—the proper legal standard in determining the admissibility of expert testimony — and it properly performed its role as “gatekeeper” in deciding whether to admit or exclude Professor Fischel’s expert testimony. Compare Rodriguez-Felix, 450 F.3d at 1125-26 (examining for an abuse of discretion the exclusion of expert testimony on the basis of a report that was insufficient to allow assessment of the reasoning and methodology of the expert as a component of the district court’s application of Daubert), and United States v.

Turner, 285 F.3d 909, 912-13 (10th Cir.2002) (reviewing the denial of a Daubert hearing for abuse of discretion), with United States v. Call, 129 F.3d 1402, 1405 (10th Cir.1997) (rejecting the defendant’s argument that the district court had applied a per se rule of inadmissibility instead of properly applying Daubert when the court had expressly stated and demonstrated that it applied Daubert). Mr. Nacchio argues that the district court’s ruling was premised upon Rule 16 and that, consequently, it was patently erroneous. We disagree.

The district court’s exclusion of Professor Fischel’s testimony rested on Daubert grounds. True, the government first framed its challenge to Professor Fischel’s expert testimony as an objection to the sufficiency of Mr. Nac-chio’s Rule 16 disclosure. But, by the time the district court ruled to exclude Professor Fischel’s testimony, it was clear that the court’s principal concern was Daubert. As is evident from its ruling, the district court excluded Professor Fischel’s testimony because Mr. Nacchio had not met his burden of demonstrating admissibility as required by FRE 702.

For example, after stating that Professor Fischel’s testimony could be excluded on a number of grounds, the district court stated: “Most convincingly, the defendant has made no attempt to comply with Rule 702 or Daubert and establish that Fischel’s testimony is the product of reliable principles and methods or that Fischel applied some principles and methods reliably in this case.” Aplt.App. 3915. Further, the district court stated that “Rule 702 governs this issue.” Id. This indicates that lack of reliability under FRE 702 was the primary rationale for the court’s decision.

Although the district court ruling does include two ambiguous references to “disclosures,” when read in context, these references do not indicate that the exclusion was based upon allegedly incorrect Rule 16 grounds or that the district court was referring solely to Mr. Nacchio’s Rule 16 disclosures. “When a district court’s language is ambiguous ... it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion.” Sprint/United Mgmt. Co., 128 S.Ct. at 1146.

First, the district court’s enigmatic reference to “these disclosures” occurred in its ruling after the court had outlined the contents of the government’s motion to exclude and indicated that it also had read Mr. Nacchio’s response to the government’s motion. It was from Mr. Nacchio’s response to the motion to exclude — rather than from Mr. Nacchio’s revised Rule 16 disclosure — that the district court quoted the sentence that it characterized as Mr.

Nacchio’s “only representation” on the issue of methodology, which the court found to be “woefully inadequate” to support the admissibility of Professor Fischel’s testimony. Aplt.App. 3914, 3916. Thus, notwithstanding the “these disclosures” reference, the court’s ruling was grounded in Daubert and FRE 702 methodology concerns. Second, although the district court stated that Professor Fischel’s methodology was undisclosed “in this expert disclosure,” the discussion immediately preceding that comment did not refer to Mr. Nacchio’s Rule 16 disclosure. Aplt.App. 3917.

Rather, the district court had just quoted from Mr. Nacchio’s argument — made in his response to the motion to exclude— that Professor Fischel’s opinions were proper under FRE 702. Compare Aplt. App. 3916 with Aplt.App. 466. At most, then, the district court’s ruling contains two ambiguous references to “disclosures” that arise in the context of the district court’s assessment of Mr. Nac-chio’s Daubert arguments.

Although the district court did cite other bases for its ruling, including its doubt that Professor Fischel’s testimony was relevant, the decision to exclude Professor Fischel’s expert testimony clearly was premised upon Mr. Nacchio’s failure to establish that the testimony was reliable under Daubert and FRE 702 — a determination that was focused on Professor Fischel’s methodology.

We underscore, moreover, that to endorse the assertion that the district court made a ruling excluding the testimony on allegedly incorrect Rule 16 grounds alone would be particularly problematic in light of the instruction provided by the Supreme Court in Sprint. In light of the deference that is “the hallmark of abuse-of-discretion review,” we “should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading.” Sprint, 128 S.Ct. at 1145, 1146 (internal quotation marks omitted).

A fair, natural reading of the district court’s decision indicates that the basis for the ruling was Daubert. And, the Supreme Court’s guidance further demonstrates the impropriety of presuming that the district court based its ruling on purportedly erroneous Rule 16 grounds. 2. The District Court’s Determination to Exclude the Expert Testimony a. Notice Mr. Nacchio was sufficiently on notice that he was required to present evidence in support of his expert’s methodology or request an evidentiary hearing in advance of presenting the expert’s testimony.

It is well established that, as the proponent of Professor Fischel’s expert testimony, Mr. Nacchio bore the burden of establishing its admissibility pursuant to FRE 702. See Ralston, 275 F.3d at 970 n. 4. This evidentiary burden put Mr. Nac-chio on effective notice that, if Professor Fischel’s testimony was going to be admitted, it would only be because Mr. Nacchio took appropriate action to get the job done. Mr.

Nacchio argues, however, that there is no requirement that admissibility be shown at any specific time before presenting the witness and that he did not have notice of any obligation to proffer additional evidence or request a hearing. In particular, Mr. Nacchio contends that the presumptive time for establishing the reliability of the expert’s testimony is on the witness stand and that he had every right to assume that the court would conduct voir dire or permit the questioning of Professor Fischel before ruling on admissibility. Though Mr.

Nacchio’s expectation that Professor Fischel’s admissibility would be established after he took the stand may have been reasonable, see, e.g., Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000), Mr. Nacchio had no entitlement to a particular method of gatekeeping by the district court. Indeed, Mr. Nacchio’s purported entitlement is squarely at odds with the directive in Kumho Tire that “[t]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” 526 U.S. at 152, 119 S.Ct. 1167.

The district court’s failure to proceed as Mr. Nacchio antiei-pated does not by itself constitute an abuse of discretion. See id. (“The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.”). Mr. Nacchio was on notice that the admissibility of Professor Fischel’s testimony under FRE 702 was at issue well before the district court issued its ruling.

As early as the government’s motion regarding the first Rule 16 disclosure, the government argued that FRE 702 was implicated. Aplee. Supp.App. 39. Furthermore, the March 22nd in — court oral exchange that raised the possibility of Daubert issues arising — in which Mr. Nacchio’s counsel noted that “forewarned is forearmed” — was, at the very least, de facto warning of the imminent need for Mr. Nacchio to meet his burden. Cf. Macsenti v.

Becker, 237 F.3d 1223, 1231-32 (10th Cir.2001) (noting that even when a party does not timely raise a Daubert objection, “the trial judge is assigned the task of insuring that an expert’s testimony rests on a reliable foundation and is relevant, but Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party”). Even if nothing previously had alerted Mr. Nacchio to the burgeoning Daubert issue, the government’s motion to exclude Professor Fischel’s expert testimony invoked Daubert and FRE 702 numerous times.

The motion was based on deficiencies in the Rule 16 disclosure and on Mr. Nacchio’s failure to carry his burden to demonstrate that Professor Fischel’s testimony was admissible. The government’s motion explicitly set forth authority and analysis regarding FRE 702’s mandate that the expert testimony be “the product of reliable principles and methods,” and it offered detailed reasons why those specific opinions did not meet this methodology requirement. ApltApp. 374-78, 385, 388, 390, 396, 407-08, 415. Furthermore, there can be no question, given the explicit language and tenor of Mr.

Nacchio’s response to this motion, that he understood that Daubert issues had arisen. Therefore, he also should have understood that, if the time had not earlier been ripe to bear the admissibility burden, that time had arrived. Specifically, when Mr. Nacchio responded, in substance, he addressed Daubert issues in discussing FRE 702 and Professor Fischel’s qualifications. Although the precise word Daubert was not invoked, a

section heading in his response was “Professor’s Opinions Are Proper Under Rule 702.” In that section, Mr. Nacchio discussed the “specialized knowledge” that Professor Fischel purportedly would bring to the jury and the analytic approach toward the financial data that he had undertaken to “formulate opinions,” i.e., his methodology. Aplt.App. 466. Thus, as of April 4, when he filed his response, Mr. Nacchio was not only on notice that Daubert was in play, he had affirmatively responded to the Daubert issues. Mr.

Nacchio is attempting to recast an unremarkable district court evidentiary ruling as an invidious act of judicial hubris. But it will not work. At bottom, Mr. Nacchio’s argument is no more than a run-of-the-mill lament of unfair surprise. We have rejected similar claims when, as here, the record belies them. For example, in Ralston, we concluded that the record did not support plaintiffs claim that she was unfairly surprised by the district court’s decision at a

summary judgment hearing to exclude her expert’s testimony under FRE 702. 275 F.3d at 970 n. 4. The district court found that the expert was unqualified to render an opinion in support of plaintiffs liability theory. Id. at 968. We noted that in the defendant’s written response to plaintiffs

summary judgment filing “an entire

section is devoted to the argument that [plaintiffs expert] was not qualified to render an expert opinion.” Id. at 970 n. 4. And we commented further: “As the purpose of the hearing was to discuss the issues raised in the parties’ supplemental

summary judgment papers, it is disingenuous for Plaintiff to now claim that she was unaware that [her expert’s] qualifications would be at issue at the hearing.” Id. (emphasis added). Therefore, we rejected plaintiffs claim of unfair surprise. The reasoning of Ralston applies with even greater force on these facts. As in Ralston, before the district court acted to exclude it, the opponent of the expert testimony — the government — specifically challenged the admissibility of the expert testimony in its briefing and detailed the legal bases for its exclusion (e.g., methodology deficiencies under Daubert).

In its motion to exclude Professor Fischel’s testimony, the government referred to Daubert and FRE 702 numerous times in pointing out alleged deficiencies in Professor Fischel’s testimony. By way of notice, however, Mr. Nacchio got more than the Ralston plaintiff. Among other things, he received the de facto warning of possible Daubert issues associated with Professor Fischel’s testimony arising from the March 22nd oral exchange with the government and the district court. Accordingly, under Ralston’s logic, we find unpersuasive (if not disingenuous) Mr.

Nacchio’s argument that he did not have notice, before the district court ruled against him, that the admissibility of Professor Fischel’s testimony under Daubert was at issue. Cf. Starter Corp. v. Converse, Inc., 170 F.3d 286, 299 (2d Cir.1999) (finding no abuse of discretion when district court granted in-junctive relief to defendant sua sponte without a formal hearing when plaintiff had both notice of the court’s intention and the opportunity to address the issue through its briefs). On the other hand, our decision in Procter & Gamble Co. v.

Haugen illustrates well the rare set of circumstances — not found here — in which a proponent of expert testimony had so little notice of the district court’s impending exclusion of its expert testimony that a claim of unfair surprise would have been justified. 427 F.3d 727, 736-37, 742 (10th Cir.2005). In that case, the district court dismissed with prejudice the plaintiffs’ Lanham Act claims following a hearing on a motion for discovery sanctions against the plaintiffs. Id. at 736-37. The dismissal was partly based on the court’s finding that the plaintiffs’ expert testimony on damages was inadmissible.

Id. at 737. The admissibility ruling was only a paragraph, and the entire rationale was that the expert’s damages testimony was not admissible under FRE 702 and Daubert because the testimony was based on an examination of too few products. The district court found that “[s]uch testimony clearly would not be based upon sufficient facts or data to be admissible in this Court” and without damages evidence the plaintiffs’ claims must fail. See id.

Observing that the district court doubtless would have had to determine the admissibility of the expert testimony “at some point,” we concluded that this basis did not justify dismissal of the case. Id. at 742. We noted that there were two major problems with the district court’s ruling that the expert’s testimony was inadmissible. First, the plaintiffs “had absolutely no warning prior to the district court’s order of dismissal that the district court would be considering, let alone ruling on, the admissibility of [their expert’s] testimony.” Id.

Second, “[u]ndoubtedly due to the lack of prior notice, neither side ... provided the district court with detailed briefing regarding the admissibility of [the plaintiffs’] expert’s testimony”; in turn, the district court record lacked specific findings as to why it concluded the testimony was inadmissible. Id. Thus, the circumstances strongly suggested that the district court had “ ‘simply made an off-the-cuff decision to [exclude] the expert testimony.’ ” Id. (alteration in original) (quoting Dodge, 328 F.3d at 1223).

Accordingly, we determined that the district court abused its discretion in excluding the expert’s testimony. Procter & Gamble Co. starkly reveals the weaknesses of Mr. Nacchio’s claim of unfair surprise. There, admissibility of the plaintiffs’ expert testimony had not been the subject of any filings or discussion, and the proponents “had not submitted any expert reports to the district court, the district court had not heard any expert testimony, and no motion to limit or exclude [the plaintiffs’] expert was before the court.” Id. at 741. By contrast, the expert admissibility issue here had been put before Mr.

Nacchio multiple times, and the district court’s ruling offered specific support for its determination and referenced relevant filings by both Mr. Nacchio and the government. In short, Mr. Nac-chio’s claim of unfair surprise is woefully deficient and does not provide a basis for us to conclude that the district court abused its discretion in excluding Professor Fischel’s testimony. b. Opportunity Mr. Nacchio had an adequate opportunity to present evidence in support of Professor Fischel’s methodology or to request an evidentiary hearing in advance of presenting the expert’s testimony.

In addition to a continuous opportunity to file a written proffer of evidence, or to file a request for a hearing or a continuance, there were several specific instances, arising after the Daubert issue had come into focus, where Mr. Nacchio could have presented evidence or requested a hearing to meet his burden of admissibility: • Initially, in his response to the government’s April 3rd motion to exclude Professor Fischel’s expert testimony-through which Mr. Nacchio certainly was apprised of the extant Daubert issue — Mr.

Nacchio could have addressed the Daubert issue more thoroughly, offered substantially more methodology evidence, or requested a hearing or a continuance. Instead, Mr. Nacchio set forth only a few sentences regarding the propriety of Professor Fischel’s opinions under FRE 702. Aplt.App. 466. • During the trial’s lunch recess on Wednesday, April 4, the court spoke with the attorneys and noted that Mr. Nacchio had filed a response to the government’s pending motion to exclude, but Mr. Nacchio did not make any requests regarding Professor Fis-chel.

Aplt.App. 3721-23. • At the close of the government’s case on April 4, the court heard Mr. Nac-chio’s motion for acquittal and discussed various matters with the attorneys. When the government asked about Professor Fischel, the court stated that it had “formed some preliminary views” but was not yet ready to rule. Beyond noting that Professor Fischel would be the third defense witness, Mr. Nacchio did not offer any more information to the court. Aplt. App. 3834-35. • The morning of Thursday, April 5, the court discussed pending motions and ruled on five of them.

When the court mentioned the motion to exclude Professor Fischel’s expert testimony (“I know you want a ruling”), Mr. Nacchio said nothing, and was silent regarding the matter while the first two defense witnesses testified. ApltApp. 3870. • Although Mr. Nacchio argues that the ruling was issued before either party could say anything to the court, prior to calling Professor Fischel to the stand on April 5, Mr. Nacchio had the opportunity to, but did not, request time for argument, a hearing, or a continuance.

When Professor Fischel was called, the court immediately announced that it needed to make some legal rulings and dismissed the jury. Aplt.App. 3913. Mr. Nacchio asserts that the district court’s refusal to allow him to orally argue Professor Fischel’s admissibility was unfair on account of the court’s earlier statement that “I’m not criticizing anybody for not submitting things in writing.” Aplt. App. 3603. For two reasons, however, this argument is unavailing.

First, the district court appears to have made this statement not as a general instruction to be applied wholesale throughout the trial, but in response to Mr. Nacchio’s specific inquiry as to the court’s preferred practice for entertaining a Fed.R.Crim.P. 29 motion for a judgment of acquittal. See id. (“Normally, it’s done orally, and it’s certainly appropriate in this case.” (emphasis added)). Second, there is no evidence that the district court refused to hear Mr. Nacchio’s admissibility argument because it was made orally; rather, the district court denied Mr.

Nacchio yet another opportunity to set forth a basis for admission because this argument could have been presented — no matter the format — before the ruling was made, particularly in response to the government’s motion to exclude. The district court’s ruling was not a penalty or a punishment; rather, the exclusion was the obligatory result of Mr. Nacchio’s failure to meet his requisite burden under FRE 702 despite serial opportunities to do so.

While it would be an abuse of discretion for the district court to unreasonably limit the evidence upon which it based its Dau-bert decision, see Dodge, 328 F.3d at 1228, that did not happen here. There is no evidence that the district court had imposed filing restrictions or had otherwise prohibited Mr. Nacchio from offering evidence or making a request.

Cf id. at 1223-24, 1229 (concluding that in a case “where the expert testimony is crucial to the ultimate outcome, is vigorously challenged, and has several obvious areas of concern,” it was unreasonable for the court to severely limit the filing of underlying documentation, decline to accept proffers, and to otherwise circumscribe the information upon which it based its decision); see also In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 854 & n. 30 (3d Cir.1990). Mr.

Nacchio made no mention of a Daubert hearing to the district court until he inserted the footnote in his motion filed after the court issued its ruling excluding Professor Fischel’s expert testimony. Even in this footnote, Mr. Nacchio fails to address the key concern that the district court previously had highlighted in excluding Professor Fischel’s testimony — his methodology for this particular case. Mr. Nacchio asserts that he lacked pre-ruling opportunity to present evidence or request a hearing because he had been under tremendous time pressure.

Any purported lack of time to prepare a response must be considered in the context of months of trial and witness preparation that both parties had undertaken. Although Mr. Nacchio may have been on a tight deadline, a request for a continuance or a Daubert hearing, prior to calling Professor Fischel to the stand, would have been rather simple to undertake and certainly would not have required much time at all. The district court, having been alerted to the need for a ruling on admissibility and having given the parties an opportunity to present their arguments, was obligated to perform its gatekeeping function.

See Macsenti, 237 F.3d at 1233-34; Goebel, 215 F.3d at 1088. Therefore, it should have come as no surprise to Mr. Nacchio that the district court ruled on admissibility; indeed, by waiting to rule until Professor Fischel actually was called, it had prolonged the opportunity for Mr. Nacchio to further address the Daubert challenge until such a ruling was compelled by Professor Fischel’s imminent testimony.

Instead, after “the district judge made clear his need for some proffer of data or literature underlying the expert’s assumptions and conclusions, ... the defense offered practically nothing, despite repeated opportunities to do so.” United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995). c. Burden If Mr. Nacchio desired an eviden-tiary hearing, he bore the burden of requesting one. As explained below, Tenth Circuit case law does not mandate that a hearing be held, and neither the government nor the district court was under any obligation to call for a hearing or to prod Mr. Nacchio to supplement his filings.

According to Mr. Nacchio, the only directive he had received from the district court was to comply with Rule 16, and he read the court’s order for a revised Rule 16 disclosure at face value. Even assuming that this was a natural reading of the court’s order, however, the proponent’s burden of establishing admissibility of expert testimony arises from the offering of the expert for trial; it is not triggered by a court’s directive. See Fed.R.Evid. 702 advisory committee’s note (2000) (“[T]he admissibility of all expert testimony is governed by the principles of [Fed.R.Evid.] 104(a).

Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.”). Relatedly, as discussed above, the government’s motion to exclude clearly set forth the FRE 702 issue, regardless of whether the parties’ previous communications had taken place in a Rule 16 context. In ordinary motion practice, a respondent must address any and all issues raised by a moving party’s papers, or else face the very real possibility that it will be deemed to have abandoned its right to do so. See, e.g., Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146-47, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (finding no abuse of discretion in district court’s exclusion of expert testimony when the proponent’s response was nonresponsive to the critique of the opponent, even though the district court did not hold oral argument); In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 352 (S.D.N.Y.2004) (“It would be inappropriate to permit litigants to take it upon themselves to litigate issues in whatever piecemeal fashion they wish, trying out one argument and then, if unsuccessful, starting all over again with a new one....

Plaintiffs’ obligation was to make their complete argument ... and then to abide the result.”); cf. Feinstein v. Resolution Trust Corp., 942 F.2d 34, 43-44 (1st Cir.1991) (“In this case, there is no sound reason to overlook the usual rules of pleading and practice and relieve the appellants from their seemingly deliberate choice to stand or fall upon their complaint as pleaded.... [W]e are not so foolhardy as to require district judges to act as mind readers [regarding plaintiffs’ desire to amend their complaint].”). Courts are not disposed to allow litigants to have two or more bites at the proverbial apple.

See, e.g., EEOC v. Westinghouse Elec. Corp., 925 F.2d 619, 631 & n. 20 (3d Cir.1991) (“A remand should not be ordered when ‘two bites of the apple’ would be given to a litigant who, under circumstances such as those at bar, has neglected to produce evidence to support a desired finding and has, therefore, failed to carry its requisite burden as to a particular issue.”); cf. Weisgram v.

Marley Co., 528 U.S. 440, 455, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000) (“It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.”). Thus, having been placed on notice by the government’s motion to exclude that the admissibility of Professor Fis-chel’s testimony under FRE 702 was at issue, Mr. Nacchio — in addition to addressing any Rule 16 concerns — was obliged to marshal his FRE 702 arguments that would support admission of Professor Fis-chel’s testimony.

Our adversary system of justice simply does not afford a respondent, like Mr. Nacchio, the luxury of ignoring the ebb and flow of litigation and steadfastly adhering to the initial framing of the issues. Cf. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 897, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“[A] litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant’s own risk.”). That conclusion, moreover, is not enervated by the criminal nature of the proceedings.

Like civil parties, criminal defendants must follow the well-settled rules of litigation. See, e.g., Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (citations omitted)); United States v.

Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.2004) (“A defendant must raise a motion to suppress evidence before trial or that objection is waived.”). Mr. Nacchio also asserts that he had no reason to request a hearing, because the government already had done so. However, Mr. Nacchio’s response to the motion to exclude — which stated that the motion was “without merit” and should be denied, without itself requesting additional proceedings — -plausibly could be read as both opposing the government’s hearing request and inviting the court to rule on admissibility without further proceedings. Aplt.App. 463, 468.

Furthermore, Mr. Nacchio was on notice that if he desired an evidentiary hearing to be held during these proceedings, he needed to request one. Specifically, the district court judge’s published practice standards, of which Mr. Nacchio was aware, see Aplee. Supp. En Banc App. 63, provided that any party opposing a motion must state to the court whether that party believes an evidentiary hearing is necessary and estimate the length of such a hearing. Aplee. Supp. Br. Add. ¶ 17, at 8. As conceded by Mr.

Nacchio in his belated mention of a hearing to the district court, see ApltApp. 481 n. 4, Tenth Circuit cases have interpreted Kumho Tire’s, directive that courts must have leeway in applying the Daubert framework to mean that although Daubert hearings are the most common way to fulfil the gatekeeper function, “ ‘such a process is not specifically mandated.’ ” See Turner, 285 F.3d at 913 (quoting Goebel, 215 F.3d at 1087); accord Dodge, 328 F.3d at 1228; United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.1999); Call, 129 F.3d at 1405. Therefore, if Mr.

Nacchio was not satisfied with the district court’s failure to address the government’s request for a hearing, the burden of requesting one fell to him. Cf. Greenlaw v. United States, — U.S. -, -•, 128 S.Ct. 2559, 2564, 171 L.Ed.2d 399 (2008) (“[0]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (internal quotation marks omitted)). Mr. Nacchio argues that he had no burden to request a hearing, in light of our case, United States v.

Roberts, as well as some Third Circuit decisions, which he cites for the proposition that district courts err when they exclude expert testimony without conducting a hearing, when the record is inadequate to allow for a proper reliability determination. Mr. Nacchio’s argument is contrary, however, to the case law of this and other circuits. And his cited cases do not stand for the proposition that the burden was on the district court, rather than on him, to initiate an eviden-tiary hearing on the Daubert issue. More specifically, as to Roberts, Mr.

Nacchio contends that the case indicates that “the improper exclusion of Fischel requires reversal regardless of whether Nacchio provided sufficient information to establish admissibility before the court’s in limine ruling.” Aplt. Supp. Br. 29. In Roberts, a tribal official was indicted on sexual abuse charges based on the allegations of three women. 88 F.3d at 875. The government sought to introduce under FRE 404(

b) evidence of the defendant’s sexual abuse of nine other women not named in the indictment. Id. at 879. As part of its FRE 404(

b) analysis, see, e.g., United States v. Parker, 553 F.3d 1309, 1313-14 (10th Cir.2009), the district court excluded the evidence under FRE 403 on the ground that its potential prejudice substantially outweighed its probative value. Roberts, 88 F.3d at 879. The government appealed, and this Court reversed and ordered a pretrial hearing. Id. at 881.

We concluded that the district court failed to analyze the evidence in sufficient detail to determine whether it would demonstrate that the defendant engaged in a common scheme of sexual abuse — “the government’s strongest rationale for introducing this evidence at trial.” Id. at 880-81. We further determined that the government needed to submit additional information about the women’s proposed testimony on remand, because the record was insufficient to determine whether the testimony would sustain the common scheme hypothesis. Id. at 881.

Roberts should not be interpreted, however, as having placed the burden on the district court here to order a hearing, for two principal reasons. First, in Roberts, we emphasized that our ruling rested upon “the unique and specific circumstances present” before us, and we did not purport to extend our holding beyond the Rule 404(

b) context. Id. Indeed, we recognized that even in that context our holding would have limited application: “[T]his holding does not portend a requirement that district courts conduct similar hearings in all Fed.R.Evid. 404(

b) cases involving the government’s attempt to establish the defendant’s common scheme or plan. The nature of the evidence relied upon by the prosecution will dictate how the issue must be resolved.” Id. Second, the Roberts holding primarily was based on the district court’s failure to appropriately analyze the proposed testimony, not the insufficiency of the information submitted by the proponent (i.e., the government).

The instruction that the government must submit more information was a secondary consideration to the remand that was required due to the district court’s failure to direct enough attention to the evidence of the government’s salient theory of relief (i.e., common scheme or plan). See id. at 880-81; see also United States v. Roberts, 185 F.3d 1125, 1142 (10th Cir.1999) (“We believe the district court followed our remand order and decided correctly ... the six women’s testimony was admissible to show a common scheme.”). As for the Third Circuit case law, Mr. Nacchio relies heavily on Padillas v.

Stork-Gamco, Inc., 186 F.3d 412 (3d Cir.1999). To the extent that Padillas should be looked to as persuasive authority, however, it does not mandate a hearing in every instance of Daubert gatekeeping. In Padillas, the Third Circuit reversed a grant of

summary judgment premised upon the inadmissibility of an expert’s report under Daubert and ordered an evi-dentiary hearing. In that case, the appellate court stated that “plaintiff could not have known in advance the direction the district court’s opinion might take and thus needed an opportunity to be heard on the critical issues before having his case dismissed.” Mat 417-18.

The Padillas court emphasized that the district court had not offered plaintiff sufficient process to defend the admission of the expert testimony and that the district court’s rejection of the testimony did not establish that there were not “good grounds” for the testimony, but, rather, that the opinions were insufficiently explained and their foundations inadequately explicated. Id. at 418. Thus, Padillas is readily distinguishable from this case, in that:

(1) Mr. Nacchio knew the court would have to determine Professor Fis-chel’s admissibility, given that the government’s motion to exclude was ripe for decision and Mr. Nacchio actually called Professor Fischel to the stand; and (2) as explained above, Mr. Nacchio passed over numerous opportunities to defend admissibility and provide more information about methodology. In fact, Padillas is most closely analogous to our decision in Procter & Gamble Co., 427 F.3d at 742, which, as discussed above, involved circumstances that sharply contrast with those here. See supra

Part 11(B)(2)(a). Moreover, the language of Padillas itself does not mandate a hearing under the instant circumstances: An in limine hearing will obviously not be required whenever a Daubert objection is raised to a proffer of expert evidence. Whether to hold one rests in the sound discretion of the district court. But when the ruling on admissibility turns on factual issues, as it does here, at least in the

summary judgment context, failure to hold such a hearing may be an abuse of discretion. We hold that in this case, it was. Padillas, 186 F.3d at 418 (emphasis added). As evident by the underscored text, Padillas narrowly tailored its holding to the

summary judgment context and the factual circumstances of the case before it. Thus, Mr. Nacchio’s argument that Padil-las required the district court during the course of this criminal trial to sua sponte order an evidentiary hearing fails. Furthermore, more recent decisions from the Third Circuit have rejected the notion that a hearing is always required for Daubert gatekeeping. As the Third Circuit stated in In re TMI Litigation: “We did not intend to suggest [in Padil-las ] that an in limine hearing is always required for Daubert gatekeeping.” 199 F.3d at 159.

Further, “Padillas certainly does not establish that a District Court must provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until plaintiff ‘gets it right.’ ” Id.; accord Oddi v. Ford Motor Co., 234 F.3d 136, 151-55 (3d Cir.2000); Nelson, 243 F.3d at 249 n. 3. Therefore, neither Roberts nor holdings from the Third Circuit lift the burden of requesting a hearing from Mr. Nacchio. d. No Abuse of Discretion The district court fulfilled its duty as gatekeeper and did not abuse its discretion in excluding Professor Fischel’s expert testimony.

There was a sufficiently developed record, a concrete reliability determination, and specific findings and discussion by the district court. See Dodge, 328 F.3d at 1223. In particular, the court did not abuse its discretion in finding that Mr. Nacchio did not carry his burden under Daubert, In addition to the sentence included in his response to the motion to exclude noting that Professor Fischel had undertaken “extensive review of SEC filings, press releases and other financial data,” Aplt. App. 466, Mr. Nacchio considered his revised Rule 16 disclosure to be a submission on Professor Fischel’s methodology.

Aplee. Supp. En Banc App. 50. This filing indicated that Professor Fischel was basing his opinion on analysis of, inter alia, market — -and stock-related information. These assertions indicate that Professor Fischel was applying his experience to material that he reviewed to formulate an opinion. An expert witness’s testimony can rely solely on experience.

When that is the case, however, “the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Fed.R.Evid. 702 advisory committee’s note (2000). Mr.

Nacchio did not offer any of this additional information. “The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’ ” Id. “[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Joiner, 522 U.S. at 146, 118 S.Ct. 512. It appears that Mr. Nacchio relied on Professor Fischel’s qualifications to tip the balance in favor of the admissibility of his expert testimony. In doing so, Mr.

Nacchio ignored the precept that when assessing expert testimony, “the question before the trial court [i]s specific, not general.” Kumho Tire, 526 U.S. at 156, 119 S.Ct. 1167. Although Professor Fischel generally has been permitted to testify in the past, and a district court might well respect his credentials, the court had an obligation to assess the methodology that Professor Fischel had employed in the case at hand. See id. at 153-56, 119 S.Ct. 1167; Rodriguez-Felix, 450 F.3d at 1122. Mr.

Nacchio could not assume that his expert’s testimony would be admitted because other courts had allowed it in; he had to carry his burden of demonstrating the admissibility of Professor Fischel’s testimony in this particular case. Mr. Nac-chio, however, failed to satisfy the district court that Professor Fischel’s testimony was reliable. Thus, the district court was well within its discretion in excluding it. See Rodriguez-Felix, 450 F.3d at 1125 (finding no abuse of discretion when the district court excluded testimony based on the “woefully inadequate” report regarding proffered testimony).

In Sprint, the Supreme Court explained that on account of the district court’s familiarity with the case and greater experience with evidentiary matters, this Court must “afford broad discretion” to the court’s evidentiary rulings. Sprint, 128 S.Ct. at 1144-45. Here, the district court properly performed its Daubert gatekeep-ing role in excluding Professor Fischel’s testimony as inadmissible for lack of reliability under FRE 702, and Mr. Nacchio did not carry his burden of establishing the admissibility of Professor Fischel’s testimony.

Perhaps more to the point, the district court’s exclusion of the testimony was not arbitrary, capricious, whimsical, or manifestly unreasonable; nor are we convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. III. CONCLUSION Based upon the foregoing, we AFFIRM Mr. Nacchio’s conviction and VACATE the prior panel opinion insofar as it reversed the district court’s judgment, including Parts 11(A), IV, and V, as well as the separate concurring and dissenting opinion. The remainder of the panel’s decision remains in effect.

The government’s motion to file a supplemental en banc appendix is GRANTED. This Court’s grant of release pending appeal is revoked, the unsecured bond executed by Mr. Nacchio in the district court is exonerated, and the stay of Mr. Nacchio’s sentence of imprisonment is hereby lifted. This case is remanded to the initial decisional panel for further proceedings relating to the unresolved sentence enhancement and asset forfeiture issues. McCONNELL, Circuit Judge, dissenting, joined by HENRY, Chief Judge, and KELLY and MURPHY, Circuit Judges.

Joseph Nacchio was convicted by a jury and sentenced to six years in prison after the district judge refused to allow his expert witness, Professor Daniel Fischel, to testify at his trial for securities violations. The judge disqualified the witness without hearing argument from defense counsel or testimony from the witness regarding the reliability of his methodology. The judge based this ruling on what is now agreed was a mistaken

interpretation of the rules of criminal procedure. The panel reversed that ruling, and in its petition for rehearing en banc the government did not even attempt to defend the district court’s rationale. Instead, the government argues— and the en banc majority agrees — that the exclusion of this witness was the defendant’s fault, for failing to establish the foundation for his testimony in advance of putting him on the stand or to file a motion for permission to establish the foundation through testimony.

The flaw in the government’s argument is that the rules of criminal procedure, unlike the rules of civil procedure, do not require a criminal defendant to establish the foundation for expert testimony through advance written submissions. Unless the criminal defendant is otherwise directed by the district court — something which did not happen here — he may establish the foundation for witness testimony by putting the witness on the stand for voir dire examination.

The defendant responded properly to every motion made by the government, and nothing in the conduct of the defense can reasonably be construed as abandoning or forfeiting his right to establish the reliability of the expert evidence through testimony. It was the district judge, not defense counsel, who misunderstood the procedural rules.

We dissent on the ground that the defense did everything it was required to do — but that even if counsel somehow slipped up, it was an abuse of discretion for the court to shut down the primary line of defense in a criminal case on the basis of what was at worst an understandable and inconsequential mistake. I.

Parties In Criminal Cases Are Under No Obligation To Submit Written Information Sufficient To Resolve Daubert Issues In Advance, Or To Make A Motion For Permission To Establish Admissibility By Witness Testimony At the heart of this case is the difference between discovery practice in criminal and civil cases, which “derives from the special constitutional constraints of criminal proceedings.” United States v. Mehta, 236 F.Supp.2d 150, 155 (D.Mass.2002) (Gertner, J.).

In civil cases, both sides are entitled in advance of trial to know and to respond to the evidence that will be presented by the other side, including any expert testimony. In criminal cases, the defendant is entitled to keep his cards close to the vest; he may not be required to disclose his evidence or trial strategy until after the government has presented its case. These differences are reflected in the discovery rules.

Under Rule 26(a)(2) of the Federal Rules of Civil Procedure, any party who wishes to use a retained expert must give the opposing party in advance of trial a written expert report prepared and signed by the witness, containing a “complete statement” of the witness’s opinions and the “basis and reasons for them”; all data, other information, and exhibits on which the testimony is based; and the witness’s qualifications, publications, previous testimony, and compensation statement.

Moreover, in a civil case the opposing side is entitled to take the expert’s deposition under Rules 30 and 31 and, if the expert report and deposition testimony fail to establish the reliability of the methodology, can move for

summary judgment under Rule 56. If issues regarding the reliability of the expert’s methodology — which we, like the majority and the parties, will call “Daubert issues” — are not resolved on

summary judgment, they must be resolved through questioning the witness, either in a separate Daubert hearing outside the presence of the jury or by foundational testimony and voir dire examination on the stand prior to presentation of the witness’s opinion evidence. The timing of the hearing, and whether it should be held in the presence of the jury, depend on the circumstances of the case.

As the advisory committee note to Federal Rule of Evidence 104 points out: “Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury.” In criminal cases, by contrast, neither side has a general right to discover the other’s evidence, though the defendant is entitled to request and obtain certain specific types of evidence from the prosecution.

Apart from Rule 16, which we discuss below, a criminal defendant may call an expert witness to the stand without any advance disclosure whatsoever. There is no requirement of an expert report; there are no depositions of the expert; there are no motions for

summary judgment to test whether there are triable issues regarding the witness’s methodology. As in civil cases, the proponent of an expert in a criminal case has the burden of establishing that the witness’s methodology is sound under the standards of Daubert and Kumho Tire. But absent any countervailing directive from the trial court, parties in criminal cases can, and typically do, meet this burden by eliciting foundational testimony from the witness on the stand, subject to cross-examination by the opposing party.

A party in a criminal case does not have to make a motion to proceed in this fashion; it is the default procedure. As in civil cases, the questioning may be conducted in a separate hearing outside the presence of the jury, by motion of either party or of the court, or at the beginning of the witness’s testimony. If the opposing party wishes to obtain a ruling on admissibility in advance of the witness’s testimony, it may file a motion in limine or a motion to conduct the hearing outside the presence of the jury.

The majority does not dispute that this is the typical procedure for resolving Dau-bert issues in criminal cases. The majority quotes the defendant’s contention that “the presumptive time for establishing the reliability of the expert’s testimony is on the witness stand,” and cites an amicus brief filed by the National Association of Criminal Defense Lawyers (NACDL) that states that “the prevalent practice is to address Daubert issues at voir dire.” Maj. Op. 1244, 1244-45 n. 10. The majority says it declines to “offer any definitive opinion” regarding how Daubert issues are ordinarily resolved, Maj.

Op. 1244-45 n. 10, but it makes no attempt to dispute the defendant or the NACDL on this point. Indeed, the majority concedes that it “may have been, reasonable” for Mr. Nacchio to assume “that Professor Fisehel’s admissibility would be established after he took the stand.” Id. at 1245. The majority qualifies this concession only by noting, correctly, that the trial court has broad discretion to vary from the presumptive procedure and thus that a criminal defendant has “no entitlement to a particular method of gatekeeping by the district court.” Id. at 1245.

The defendant’s position on this point is consistent with the discussion of Daubert procedures found in standard authorities. See, e.g., 29 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6265 (1997) (“Normally a trial court will hear qualification evidence before permitting the witness to give opinion testimony. That hearing may take place either in the presence or absence of the jury, at the discretion of the court.” (citations omitted)); see also Jack B. Wein-stein & Margaret A. Berger, Weinstein’s Federal Evidence (Joseph M.

McLaughlin, ed., 2d ed.2006) § 702.02[6][b] (“Evidentia-ry hearings, known as Daubert hearings, are the most common method trial courts use to fulfill their gatekeeper function.... When the hearing occurs during trial, the court has discretion to determine whether to hold it in the presence of the jury.... The reliability hearing may also be combined with voir dire to test the expert’s qualifications.”); Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000) (“The most common method for fulfilling this function is a Daubert hearing”).

It is thus undisputed that the “presumptive” procedure for establishing admissibility of expert testimony is through voir dire examination of the witness on the stand, either in a separate Daubert hearing or at the beginning of the witness’s testimony. But this proposition merits far more emphasis than the majority gives it. If the standard or presumptive procedure is to establish reliability through examination of the witness, it follows that the defendant is not required to make a motion asking for permission to follow that procedure.

Motions are required to deviate from presumptive procedures, not to follow them. To be sure, the district court has authority to impose a different set of procedures— but Judge Nottingham did not do so in this case, or if he did, he made no mention of them prior to disqualifying the witness. And to be sure, a party can waive or forfeit his right to present a witness or to qualify him through voir dire examination — but nothing the defendant did at trial can reasonably be construed as a waiver or forfeiture. Mr.

Nacchio’s counsel did not expressly move to be allowed to establish Professor Fischel’s admissibility on the witness stand, but given that this is the presumptive procedure, a motion to that effect was not necessary; therefore, his failure to make such a motion cannot be construed as a forfeiture. The majority has cited no case in which a criminal defendant has ever been held to forfeit his right to establish witness admissibility through voir dire examination by mere failure to file a motion asking for permission to do so; the government has cited no such case; and we have located no such case.

This appears to be the first. II. The District Court Was Wrong To Disqualify The Witness On The Basis Of The Lack Of Information About Methodology In The Defendant’s Rule 16 Disclosure We address first the district court’s rationale for excluding the expert witness testimony. Although no one defends that rationale anymore, the district court’s error colors the entire matter. Rule 16 of the Federal Rules of Criminal Procedure creates an exception to the usual rule that defendants need not provide notice of their intention to offer expert witnesses.

Under Rule 16(b), if a defendant requests disclosure of certain evidence and the government complies, the defendant becomes obligated to make certain disclosures in return. Specifically, if the defendant requests and receives a written

summary of any expert testimony the government intends to introduce, the defendant must provide similar notice of any expert testimony he intends to use. Fed.R.Crim.P. 16(b)(1)(C). These written summaries must include a description of the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. Id. §§ 16(a)(1)(G), 16(b)(1)(C). The required “written

summary,” however, falls far short of the “complete statement” required of litigants in civil cases. See United States v. Mehta, 236 F.Supp.2d 150, 155-56 (D.Mass.2002). In particular, Rule 16 does not require experts in criminal cases to provide written reports explaining their opinions or to make a written proffer containing the information required under the civil rules. In this respect, the rules are the same for government and defendant.

The amicus brief for the NACDL, for instance, states that they are “unaware of any instance in which the government has provided [their] members with a Rule 16 expert notice that laid out the full Daubert justification (or anything even approaching it) for the proposed testimony.” NACDL Br. 4-5. Because the defense requested and obtained disclosure of the government’s experts in this case, Mr. Nacchio was obligated to disclose his experts in return. This he did.

On the date set by order of the court, defense counsel provided the requisite notice of his intent to call Professor Fischel, in full compliance with Rule 16. The disclosure identified the witness, stated his credentials, and provided a brief

summary of the opinions he would present and the sources on which those opinions were based. The disclosure did not contain the “complete statement” of the witness’s econometric methodology that would be necessary under the civil rules. Professor Fischel did not prepare or provide an expert report, which, as noted, is not required under the criminal discovery rules. During trial, the prosecutor took the position that Mr. Nacchio’s written

summary of “the bases and reasons” for Professor Fischel’s opinions had to include sufficient description of his econometric methodology to enable the district court to discharge its Daubert gatekeeping function: “Defendant has not adequately complied with Rule 16’s requirements for any of the ‘opinions’ he proposed to offer through Professor Fischel. He has not set forth the reasons and bases for his opinions .... ” App. 418.

Indeed, the government filed a lengthy motion arguing that the expert testimony should be excluded because “[t]he disclosure also does not show that Professor Fischel used a reliable methodology in reaching his opinions.” Id. at 363 (emphasis added). This argument took two forms. First, the government argued that the evidence should be excluded as a “sanction! ]” for the defendant’s supposed violation of Rule 16. Id. at 418.

Second, the government argued that because the defendant had not established the reliability of the expert’s testimony in his expert disclosure, the evidence should be excluded for not having passed the Daubert test. Id. at 363 (“The disclosure also does not show that Professor Fischel used a reliable methodology in reaching his opinions. The disclosure is essentially a list of facts and conclusions — with nothing in between. There is no suggestion that Professor Fischel actually selected any reliable principles and applied them reliably to the facts, as he must.”) (emphasis added).

These arguments amount to the same thing, because both presuppose the defendant’s obligation to make his Daubert showing in his written disclosure under Rule 16. On April 5, defense counsel called Professor Fischel to the stand, but before he could even begin to establish the foundation for the witness’s testimony, Judge Nottingham dismissed the jury and excluded the evidence in a ruling from the bench.

Judge Nottingham accepted the government’s Rule 16 argument, ruling that “the deficiencies under Daubert and Kumho Tire in these disclosures are so egregious that they hardly warrant the 63 pages of ink the Government has spilled in opposing the testimony.” App. 3914 (emphasis added). See id. at 3917 (“The Court is concerned ... with the methodology, which is absolutely undisclosed in this expert disclosure”). The judge ruled the expert testimony inadmissible on the ground that the defendant’s written submissions on the Rule 16 issue did not contain information sufficient to establish reliability under Daubert.

This closely resembles the ruling a judge in a civil case might make on

summary judgment, if the written submissions by the proponent of a witness failed to provide any evidence of reliability. Judge Nottingham also supplied other reasons for excluding the evidence, including that Professor Fischel’s testimony was not “relevant” or helpful to the jury. The judge specifically stated, however, that he was disqualifying Professor Fischel “primarily” on account of defense counsel’s “gross defect in failing to reveal the methodology.” App. 3921.

Judge Nottingham was evidently under the impression that the reliability of an expert’s methodology in a criminal case must be evaluated on the basis of written reports or disclosures, as is typically done in civil cases, rather than on the basis of oral testimony, as is typically done in criminal cases. Indeed, he specifically stated that the witness disclosure requirement under the criminal rules is “pretty close to what is required in the civil area.” App. 2041. The majority purports to find the court’s explanations for its ruling “ambiguous,” Maj. Op. 1242, but they are not.

Judge Nottingham’s conclusion that the defendant had not established the reliability of Professor Fischel’s methodology was unambiguously premised on the erroneous assumption that the defendant was required to disclose the methodology in his written proffer rather than to do so through testimony.

See App. 3916 (basing his Daubert ruling on “[t]he defendant’s only representation on this issue,” which was a sentence in the defendant’s response to the government’s motion to exclude); id. at 3917 (“The Court is concerned ... with the methodology, which is absolutely undisclosed in this expert disclosure.”); id. at 4075 (pointing to the lack of any “methodology or reliable application of methodology to the case” in “[t]he March 29, 2007, disclosure” as the primary reason for excluding the evidence). Not only is that what Judge Nottingham said, but it is obvious from context.

Unless the judge thought the defendant had to disclose the witness’s methodology in his written submissions, it would have been patently irrational for him to base his Dauberb determination on those submissions. We do not doubt the majority’s statement that “the court’s ruling was grounded in Daubert and Rule 702 methodology concerns,” Maj. Op. 1243, but the point is that the court based its evaluation of those concerns solely on the written disclosures. Because the judge was wrong to believe that the disclosures had to explain the methodology, he was wrong to base his Daubert determination on those disclosures.

On appeal to this court, the defendant argued that this was a misreading of Rule 16(b), that his disclosure statement did not have to include an explanation of Professor Fischel’s methodology, and thus that the absence of such disclosure of methodology was an improper basis for rendering a Daubert ruling. The government argued that Judge Nottingham was correct in his

interpretation of Rule 16. This dispute over the meaning of Rule 16 was the principal issue before the panel on the expert witness question. The panel reversed the district court’s Rule 16 ruling, holding that Rule 16 does not compel the proponent of expert testimony to disclose information sufficient to demonstrate that the witness’s methodology is reliable under Daubert. This portion of the holding was unanimous. See United States v.

Nacchio, 519 F.3d 1140, 1173 (10th Cir.2008) (Holmes, J., dissenting) (agreeing with the panel majority that Rule 16 “certainly did not require [the defendant] to demonstrate admissibility”). As the panel held, Rule 16 leaves criminal defendants free to present expert witnesses without satisfying Daubert in advance through written expert reports. The government’s argument, if accepted, would have foisted civil discovery burdens on criminal defendants. Accordingly, the panel held that Mr.

Nacchio’s Rule 16 disclosure “did exactly what the law required” and the district court erred in excluding the evidence on the basis of the supposed “egregious” “deficiencies” in the disclosure. Nacchio, 519 F.3d at 1151. In its petition for rehearing, the government abandoned its Rule 16 argument, and all parties now seem to agree that Mr. Nacchio’s disclosure was sufficient under Rule 16.

If Rule 16 disclosures need not include information sufficient for the court to exercise its Daubert gatekeeping function, the district court necessarily abused its discretion in basing its Daubert determination on those disclosures. It would be like dismissing a case on the ground that the complaint failed to anticipate an affirmative defense, when it was under no obligation to do so. Judge Nottingham’s stated reason for excluding the evidence is therefore wrong.

Accordingly, only if there existed some alternative ground for basing its Daubert ruling on the written disclosures can the district court’s decision be affirmed. III. Although The District Court Has Discretion To Require The Parties To Proffer Daubert Reliability Evidence In Some Manner Other Than Witness Testimony, It Must Inform The Parties What Procedures It Wishes To Impose The majority offers three rationales for concluding that the district court was within its discretion when it barred the defense from establishing admissibility through witness testimony.

First, the majority rests on the trial court’s discretion to determine alternative procedures and argues that the defendant had notice that he was required to establish Professor Fischel’s reliability in advance of the testimony. Second, the majority argues that the defendant “abandoned” his right to

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