Full opinion text
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