Common use of United States x Clause in Contracts

United States x. Xxxx, supra, 152 F.3d at 398 (noting that sealing of record, although not constitutionally required, ‘‘likely advances inter- ests of judicial economy by avoiding litigation over [derivative use issue]’’). Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the gov- ernment’s examination, disclosure of the results and reports of the defendant’s expert examination is man- datory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissi- xxxxxx of the defendant’s statements during the course of an examination conducted under the rule to an issue respecting mental condition on which the defendant ‘‘has introduced testimony’’—expert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendant’s introduction of ex- pert evidence. The Committee believed that, in this context, it was appropriate to limit the government’s ability to use the results of its expert mental examina- tion to instances in which the defendant has first intro- duced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or sub- mit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivi- sion (d) recognizes that the court may exclude the evi- dence of the defendant’s own expert in such a situation, the court should also consider ‘‘the effectiveness of less severe sanctions, the impact of preclusion on the evi- dence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.’’ Xxxxxx v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Xxxxxxx x. Xxxxxxxxx, 728 F.2d 1181 (9th Cir. 1983)). COMMITTEE NOTES ON RULES—2005 AMENDMENT The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of ‘‘any expert evidence’’ for failure to give notice or failure to submit to an exam- ination, but provides no sanction for failure to disclose reports. The proposed amendment is designed to ad- dress that specific issue. Rule 12.2(d)(1) is a slightly restructured version of current Rule 12.2(d). Rule 12.2(d)(2) is new and permits the court to exclude any expert evidence for failure to comply with the disclosure requirement in Rule 12.2(c)(3). The sanction is intended to relate only to the evidence related to the matters addressed in the report, which the defense failed to disclose. Unlike the broader sanction for the two violations listed in Rule 12.2(d)(1)—which can substantially affect the entire hearing—the Committee believed that it would be overbroad to expressly authorize exclusion of ‘‘any’’ ex- pert evidence, even evidence unrelated to the results and reports that were not disclosed, as required in Rule 12.2(c)(3). The rule assumes that the sanction of exclusion will result only where there has been a complete failure to disclose the report. If the report is disclosed, albeit in an untimely fashion, other relief may be appropriate, for example, granting a continuance to the government to review the report.

United States x. Xxxx, supra, 152 F.3d at 398 (noting that sealing of record, although not constitutionally required, ‘‘likely advances inter- ests of judicial economy by avoiding litigation over [derivative use issue]’’). Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the gov- ernment’s examination, disclosure of the results and reports of the defendant’s expert examination is man- datory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissi- xxxxxx of the defendant’s statements during the course of an examination conducted under the rule to an issue respecting mental condition on which the defendant ‘‘has introduced testimony’’—expert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendant’s introduction of ex- pert evidence. The Committee believed that, in this context, it was appropriate to limit the government’s ability to use the results of its expert mental examina- tion to instances in which the defendant has first intro- duced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or sub- mit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivi- sion (d) recognizes that the court may exclude the evi- dence of the defendant’s own expert in such a situation, the court should also consider ‘‘the effectiveness of less severe sanctions, the impact of preclusion on the evi- dence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.’’ Xxxxxx v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Xxxxxxx x. Xxxxxxxxx, 728 F.2d 1181 (9th Cir. 1983)). COMMITTEE NOTES ON RULES—2005 AMENDMENT The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of ‘‘any expert evidence’’ for failure to give notice or failure to submit to an exam- ination, but provides no sanction for failure to disclose reports. The proposed amendment is designed to ad- dress that specific issue. Rule 12.2(d)(1) is a slightly restructured version of current Rule 12.2(d). Rule 12.2(d)(2) is new and permits the court to exclude any expert evidence for failure to comply with the disclosure requirement in Rule 12.2(c)(3). The sanction is intended to relate only to the evidence related to the matters addressed in the report, which the defense failed to disclose. Unlike the broader sanction for the two violations listed in Rule 12.2(d)(1)—which can substantially affect the entire hearing—the Committee believed that it would be overbroad to expressly authorize exclusion of ‘‘any’’ ex- pert evidence, even evidence unrelated to the results and reports that were not disclosed, as required in Rule 12.2(c)(3). The rule assumes that the sanction of exclusion will result only where there has been a complete failure to disclose the report. If the report is disclosed, albeit in an untimely fashion, other relief may be appropriate, for example, granting a continuance to the government to review the report.Notes on Rules—2005 Amendment

United States x. Xxxx, supra, 152 F.3d at 398 (noting that sealing of record, although not constitutionally required, ‘‘likely advances inter- ests of judicial economy by avoiding litigation over [derivative use issue]’’). Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the gov- ernment’s examination, disclosure of the results and reports of the defendant’s expert examination is man- datory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissi- xxxxxx of the defendant’s statements during the course of an examination conducted under the rule to an issue respecting mental condition on which the defendant ‘‘has introduced testimony’’—expert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendant’s introduction of ex- pert evidence. The Committee believed that, in this context, it was appropriate to limit the government’s ability to use the results of its expert mental examina- tion to instances in which the defendant has first intro- duced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or sub- mit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivi- sion (d) recognizes that the court may exclude the evi- dence of the defendant’s own expert in such a situation, the court should also consider ‘‘the effectiveness of less severe sanctions, the impact of preclusion on the evi- dence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.’’ Xxxxxx v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Xxxxxxx x. Xxxxxxxxx, 728 F.2d 1181 (9th Cir. 1983)). COMMITTEE NOTES ON RULES—2005 AMENDMENT The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of ‘‘any expert evidence’’ for failure to give notice or failure to submit to an exam- ination, but provides no sanction for failure to disclose reports. The proposed amendment is designed to ad- dress that specific issue. Rule 12.2(d)(1) is a slightly restructured version of current Rule 12.2(d). Rule 12.2(d)(2) is new and permits the court to exclude any expert evidence for failure to comply with the disclosure requirement in Rule 12.2(c)(3). The sanction is intended to relate only to the evidence related to the matters addressed in the report, which the defense failed to disclose. Unlike the broader sanction for the two violations listed in Rule 12.2(d)(1)—which can substantially affect the entire hearing—the Committee believed that it would be overbroad to expressly authorize exclusion of ‘‘any’’ ex- pert evidence, even evidence unrelated to the results and reports that were not disclosed, as required in Rule 12.2(c)(3). The rule assumes that the sanction of exclusion will result only where there has been a complete failure to disclose the report. If the report is disclosed, albeit in an untimely fashion, other relief may be appropriate, for example, granting a continuance to the government to review the report.