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Full Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-30146
Plaintiff-Appellee, 15-30036
v. D.C. No.
3:13-cr-00008-
JAMES MICHAEL WELLS, RRB-1 (JDR)
Defendant-Appellant.
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted July 10, 2017
Seattle, Washington
Filed December 19, 2017
Amended January 11, 2018
Before: A. Wallace Tashima and Jacqueline H. Nguyen,
Circuit Judges, and Donald E. Walter, * District Judge.
Opinion by Judge Walter;
Concurrence by Judge Nguyen;
Partial Concurrence and Partial Dissent by Judge Tashima
*
The Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
2 UNITED STATES V. WELLS
SUMMARY **
Criminal Law
The panel reversed convictions for two counts of First
Degree Murder, two counts of Murder of a Federal
Employee, and two counts of Use of a Firearm in Relation
to a Crime of Violence Resulting in Death; and remanded for
a new trial.
The panel disapproved of the Governmentâs interference
in the status of the defendantâs representation, but held that
the magistrate judgeâs removal of the defendantâs second
court-appointed attorney following the Governmentâs
decision not to seek the death penalty did not constitute an
abuse of discretion. The panel wrote that the magistrate
judge was within his discretion to find that the federal public
defenderâs continued representation afforded the defendant
adequate representation under the Criminal Justice Act.
The panel held that the district court erred in allowing
the Government to use criminal profile testimony as
substantive evidence of guilt, and that the error is reversible.
The panel rejected the defendantâs contention that
testimonial excerpts admitted by the district court were
improper character evidence under Fed. R. Evid. 404(a)(1).
The panel held that the district court erred in admitting a
2003 incident that was neither inextricably intertwined nor
permissible motive evidence under Fed. R. Evid. 404(b)(2).
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. WELLS 3
The panel upheld the admission of remaining other-acts
evidence under Rule 404(b)(2).
The panel held that the district court did not abuse its
discretion by allowing a forensic tire expert and a Honda
expert to testify.
The panel found that the prosecutor committed
misconduct in connection with the direct examination of a
witness, but held that there was no prejudice, and that the
district court did not plainly err in failing to declare a
mistrial.
The panel held that the district court properly excluded
evidence of third-party culpability.
The panel concluded that the Governmentâs actions,
unchecked by the district court at critical points, so tipped
the scales of justice as to render the trial fundamentally
unfair.
The panel instructed that the case be reassigned on
remand in order to preserve the appearance of justice.
Judge Nguyen concurred in part. She did not join fully
in Part III.A of the opinion because, although she agrees that
the magistrate judge did not abuse its discretion by removing
CJA-appointed counsel, she sees no need to âoffer a
cautionary noteâ on the magistrate judgeâs decision-making
process, once the government was no longer seeking a
punishment of death.
Judge Tashima concurred in part and dissented in part.
He dissented from the majorityâs decision to reassign the
4 UNITED STATES V. WELLS
case on remand because the circumstances here were neither
rare nor extraordinary.
COUNSEL
Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.
Elizabeth D. Collery (argued), United States Department of
Justice, Washington, D.C.; E. Bryan Wilson, Assistant
United States Attorney; Bryan Schroder, United States
Attorney; United States Attorneyâs Office, Anchorage,
Alaska; for Plaintiff-Appellee.
ORDER
The Opinion filed on December 19, 2017, is amended as
follows: on slip opinion page 66, lines 12â22, replace the
following text:
âThe defendantâs right to present evidence
which may exonerate him, however, is not
absolute and may have to âbow to
accommodate other legitimate interests in the
criminal trial process.ââ Id. (quoting
Chambers v. Mississippi, 410 U.S. 284, 295
(1973)). This type of evidence is not
admissible âif it simply affords a possible
ground of suspicion against such person;
rather, it must be coupled with substantial
evidence tending to directly connect that
person with the actual commission of the
offense.â Perry v. Rushen, 713 F.2d 1447,
UNITED STATES V. WELLS 5
1449 (9th Cir. 1983) (internal quotation
marks omitted) (emphasis added).
with the following text:
The admission of third-party culpability
evidence is governed by â[f]undamental
standards of relevancy, subject to the
discretion of the court to exclude cumulative
evidence and to insure orderly presentation of
a case.â United States v. Armstrong, 621 F.2d
951, 953 (9th Cir. 1980). Wellsâ proffered
testimony, however, was not even minimally
relevant.
OPINION
WALTER, District Judge:
Defendant-Appellant James Michael Wells (âWellsâ)
appeals from his jury trial convictions for two counts of First
Degree Murder, in violation of 18 U.S.C. § 1111(a), (b); two
counts of Murder of a Federal Employee, in violation of
18 U.S.C. §§ 1114, 1111; and two counts of Use of a Firearm
in Relation to a Crime of Violence Resulting in Death, in
violation of 18 U.S.C. § 924 (c), (j). Wells was sentenced to
four consecutive, and two concurrent, terms of life
imprisonment, and ordered to pay restitution, in the total
amount of $1,483,475.00, to the victimsâ estates. Wells
challenges his convictions and restitution order. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
As Justice Louis D. Brandeis warned many years ago:
âThe greatest dangers to liberty lurk in insidious
6 UNITED STATES V. WELLS
encroachment by men of zeal, well-meaning but without
understanding.â Olmstead v. United States, 277 U.S. 438,
479 (1928) (Brandeis, J., dissenting). After all, United States
prosecutors are bound to appear in the name of Justice. We
are of the opinion that the Government overstepped its
bounds early in the pretrial process and continued to
overreach during trial. The Governmentâs actions,
unchecked by the district court at critical points, so tipped
the scales of justice as to render Wellsâ trial fundamentally
unfair. Therefore, we reverse and remand for a new trial.
I. BACKGROUND
A. The Crime and Investigation
Wellsâ convictions arise out of the deaths of Richard W.
Belisle and James A. Hopkins, federal employees and Wellsâ
co-workers at the United States Coast Guard (âUSCGâ)
antenna maintenance facility, located at the USCG
Communication Station (âCOMMSTAâ) on Kodiak Island,
Alaska. COMMSTA consists of two main buildings: a large
operations center, known as T1; and the antenna
maintenance facility, or ârigger shop,â known as T2. Most
COMMSTA members work in the T1 building, while T2
maintains only eight regular employees, which included
Wells and both of the victims.
Surveillance cameras captured Hopkinsâ truck pulling
into the T2 parking lot at approximately 7:09 a.m. on April
12, 2012. Relevant footage also showed a blurry image of a
small blue SUV, which had been traveling behind Hopkins,
without headlights. At approximately 7:14 a.m., a small blue
SUV was again captured, this time traveling in the opposite
direction at almost twice the speed of the blue car captured
just a few minutes earlier, traveling behind Hopkins.
UNITED STATES V. WELLS 7
Wellsâ typical 8.8-mile morning commute, from his
residence to COMMSTA, included approximately 5.1 miles
to the USCG main gate, then 1.7 miles to the Kodiak airport,
and finally 2 more miles to reach T2. Along that route,
various surveillance cameras are positioned to capture
passing traffic and parking lots. Wells claimed that, on the
morning of April 12, upon noticing that he had a flat tire, he
turned around in a hotel parking lot adjacent to the airport,
and drove back home to change the tire. The surveillance
camera at the USCGâs main entrance gate captured Wellsâ
white Dodge pickup truck passing at 6:48 a.m., traveling
away from his residence and towards COMMSTA, and then
again at 7:22 a.m., traveling in the opposite direction,
leaving an unaccounted for 34-minute window. At 7:30 a.m.,
Wells left a voicemail message on then-deceased Hopkinsâ
phone, as well as Chief Scott Recknerâs phone, explaining
that he had a flat tire and would be at work as soon as he
could change the tire.
At the time of the murders, Wellsâ wife, Nancy Wells,
was away from Kodiak Island and had left her vehicle, a blue
2001 Honda CR-V, parked at the Kodiak airport. On the
afternoon of April 12, a law enforcement agent, who was
aware of the surveillance image of the small blue SUV,
noticed Nancy Wellsâ car in the airport parking lot. The
investigation subsequently revealed that, on April 12, the car
was not parked where Nancy Wells had left it two days
earlier. At trial, the Governmentâs theory was that Wells
drove his white Dodge pickup truck to the airport, where he
swapped vehicles and drove Nancy Wellsâ blue Honda CR-
V to COMMSTA to commit the murders.
At approximately 7:30 a.m., on April 12, 2012, Petty
Officer Third Class Cody Beauford arrived to work at T2 and
discovered the bodies of Hopkins and Belisle. Each victim
8 UNITED STATES V. WELLS
had suffered multiple gunshot wounds from a large caliber
weapon. There was no evidence of forced entry or robbery,
and nothing else in T2 appeared to have been disturbed.
Hopkins, an Electronic Technician First Class (ET1) and the
rigger shop supervisor, was found on the break-room floor.
Belisle, a retired Chief Boatswainâs Mate and one of the
rigger shopâs two civilian employees, was found in the
adjacent office. Wells, the other civilian employee who
would have normally been present at that time, was absent.
Each victimâs arrival at T2 on the morning they were
murdered was time-stamped by surveillance footage, which
monitored the usual employee parking area situated at the
front of T2. The times of their respective arrivals, combined
with the last recorded activity on Belisleâs computer and the
positions of the bodies relative to the known morning rituals
of each victim, led the investigators to conclude that the
murders occurred between 7:10 and 7:14 a.m., on April 12,
2012. The crime window thus fit squarely within the 34-
minute period of time for which Wells could not account. It
was this unexplained discrepancy which captured the
attention of the interviewing agents and upon which the
Government relied heavily at trial.
Upon discovering the bodies, Beauford notified the
USCG watch officer and requested that emergency services
be dispatched. Soon after the first responders arrived, an
Alaska State Trooper cleared and secured the facility, now a
crime scene, for investigative purposes. Wells arrived at T2
at approximately 8:23 a.m., well over an hour past his
normal start time, immediately claiming to have had a flat
tire.
In the aftermath of the murders, Wells consented to a
search of his truck, where law enforcement agents found and
seized a tire with a nail in it. The Government sent the tire to
UNITED STATES V. WELLS 9
its forensic tire expert, Gary Bolden, for examination and
testing. The tire was then returned to the FBI lab, where a
tool mark examiner performed further testing on the nail and
its position in the tire. Both Bolden and the tool mark
examiner concluded that the nail had been manually inserted
into the tire, undermining the foundation of Wellsâ alibi that
he had picked up a nail while driving to work on the morning
of the murders.
B. The Indictment and Wellsâ Representation
Approximately ten months after the murders, on
February 19, 2013, Wells was indicted on the following six
counts: Counts 1 and 2, murder in the first degree, in
violation of 18 U.S.C. §§ 7(3) and 1111(a), (b); Counts 3 and
4, murder of an officer or employee of the United States, in
violation of 18 U.S.C. §§ 1114, 1111; and Counts 5 and 6,
possession and use of a firearm in relation to a crime of
violence resulting in death, in violation of 18 U.S.C. § 924
(c), (j). Pursuant to 18 U.S.C. § 3006A, Alaskaâs Federal
Public Defender (âFPDâ), F. Rich Curtner, was appointed to
represent Wells. Within three weeks of Wellsâ initial
appearance, FPD Curtner successfully moved to have a
second court-appointed attorney, Peter Offenbecher,
assigned to the then-capital case, pursuant to 18 U.S.C.
§ 3005. In a motion for reconsideration thereof, the
Government unsuccessfully challenged, inter alia, the ex
parte nature of Mr. Offenbecherâs appointment.
Soon thereafter, beginning on May 7, 2013 and
continuing through the conclusion of trial on April 25, 2014,
the Government was represented by no fewer than three
attorneys, including then-United States Attorney for the
District of Alaska, Karen Loeffler. On August 5, 2013, the
Government declared that it would no longer seek the death
penalty. On August 21, 2013, the Government filed a motion
10 UNITED STATES V. WELLS
to remove Wellsâ second court-appointed counsel, arguing
that Mr. Offenbecherâs appointment was no longer
appropriate, as this had become a non-capital case. Because
Mr. Offenbecher is based out of Seattle, the Government
also argued that the appointment of a geographically distant
attorney could not be justified. Although it recognized that
the Criminal Justice Act does not prohibit maintaining two
court-appointed attorneys in non-capital cases, the
Government insisted that the instant case lacked
âextenuating circumstances,â which might otherwise
support Mr. Offenbecherâs continued appointment, pursuant
to the Guide to Judiciary Policy §§ 630.30.10 and 630.30.20.
FPD Curtner opposed the Governmentâs motion, arguing
that âextenuating circumstancesâ did exist because: Mr.
Offenbecher had established an attorney-client relationship
with Wells and invested considerable time and effort in
reviewing discovery; Mr. Offenbecherâs removal would
leave FPD Curtner as the sole attorney, while simultaneously
managing an FPD office in an unprecedented fiscal crisis;
there were no available FPD staff attorneys to assist Curtner;
and the Governmentâs three trial attorneys constituted an
unfair imbalance of resources, all of which jeopardized
Wellsâ Sixth Amendment right to counsel.
On September 11, 2013, the magistrate judge granted the
Governmentâs motion, excusing Mr. Offenbecher and
leaving FPD Curtner as Wellsâ sole attorney, until March
2014, when Mr. Offenbecher re-enrolled as retained counsel
prior to trial. FPD Curtner filed objections to the magistrate
judgeâs order. Therein, he stressed the unique burdens being
faced by the FPD, the Governmentâs lack of standing to
interfere with counselâs appointment, and the imbalance of
resources. In closing, FPD Curtner stated that â[u]nder these
unique circumstances, the trial of Mr. Wells could hardly be
UNITED STATES V. WELLS 11
deemed a âfair fight.ââ The objections were never addressed,
and no further action was taken by the district judge on the
issue of Wellsâ representation.
II. ISSUES ON APPEAL
Wells raises the following issues on appeal. First, Wells
challenges the district courtâs removal of his second court-
appointed attorney following the Governmentâs decision not
to seek the death penalty. Second, Wells challenges the
admission of expert testimony from three witnesses, one of
which we address separately, for reasons explained below.
Third, Wells challenges the admission of various character
and âother actsâ evidence. Fourth, Wells alleges
prosecutorial misconduct in the elicitation of prejudicial
testimony. Fifth, Wells claims that the district court abused
its discretion in precluding evidence of third party
culpability. Sixth, Wells requests that we reassign this case
to a different district judge on remand. 1
We do not discuss Wellsâ challenge to the sufficiency of
the evidence, as we explicitly do not vacate the conviction
on the basis of insufficiency of evidence and therefore do not
risk offending the Double Jeopardy Clause in remanding for
1
Wells also appeals the denial of his motion to suppress certain
statements made during investigative interviews in the days following
the crime. We address this challenge in a memorandum disposition filed
concurrently with this opinion. Additionally, Wells has conceded two
other claims on appeal. In light of recent Ninth Circuit decisions in
Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016) and United
States v. Calvillo-Palacios, 860 F.3d 1285 (9th Cir. 2017), Wells has
conceded that murder is a âcrime of violenceâ under 18 U.S.C.
§ 924(c)(3). Wells further concedes that binding precedent forecloses his
claim that Counts One and Two are multiplicitous with Counts Three
and Four, in violation of the Double Jeopardy Clause. United States v.
Hairston, 64 F.3d 491, 496 (9th Cir. 1995).
12 UNITED STATES V. WELLS
a new trial. See Burks v. United States, 437 U.S. 1, 15 (1978)
(â[R]eversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that
the government has failed to prove its case[;] it implies
nothing with respect to the guilt or innocence of the
defendant.â). Finally, because we reverse Wellsâ
convictions, we do not discuss the restitution order, which is
necessarily vacated pursuant to this opinion.
III. DISCUSSION
A. The Government Overstepped in Moving To
Excuse Second Defense Counsel
A district courtâs decision to grant or deny services under
the Criminal Justice Act (âCJAâ), 18 U.S.C. § 3006A, is
reviewed for abuse of discretion. See United States v. Smith,
893 F.2d 1573, 1580 (9th Cir. 1990). Thus, the relevant
question is not whether we, as the reviewing court, would
have reached the same result. See Natâl Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); Krull
v. S.E.C., 248 F.3d 907, 912 (9th Cir. 2001) (our task is ânot
to revisit the [issue] anew or impose our independent
judgment on the meritsâ thereof). Applying this deferential
standard, we do not find that the removal of Mr. Offenbecher
was reversible error, but neither can we accept without
comment the Governmentâs interference in the status of
Wellsâ representation.
Mr. Offenbecher was appointed pursuant to 18 U.S.C.
§ 3005. In this circuit, § 3005 does not require that two
attorneys be, or continue to be, appointed whenever the
Government indicts a defendant for a crime punishable by
death but does not seek the death penalty. United States v.
Waggoner, 339 F.3d 915, 919 (9th Cir. 2003).
Acknowledging this Courtâs precedent in Waggoner, Wells
UNITED STATES V. WELLS 13
argues that this case is distinguishable, because Waggoner
fails to address the impact of 18 U.S.C. § 3599(e), on which
Wells relies to urge an enhanced statutory right to continuity
of counsel. Because we find that Wells failed to properly
present this statutory argument below, we decline to
entertain it on appeal. See Peterson v. Highland Music, Inc.,
140 F.3d 1313, 1321 (9th Cir. 1998). Instead, we address
Wellsâ assertion that Mr. Offenbecherâs removal constituted
an abuse of discretion under 18 U.S.C. § 3006A. See Martel
v. Clair, 565 U.S. 648, 659 (2012) (recognizing that
âCongress enacted the legislation now known as § 3599 to
govern appointment of counsel in capital cases, thus
displacing § 3006A for persons facing execution (but
retaining that section for all others)â).
The CJA does not prohibit courts from appointing, or
maintaining, a dual appointment in a non-capital case.
Instead, § 3006A(c) generally governs the duration and
substitution of all CJA appointments and directs the
magistrate judge or the court to make such determinations in
accordance with the âinterests of justice.â 18 U.S.C.
§ 3006A(c). Section 630.30 of the Guide to Judiciary Policy
(âthe Guideâ) specifically governs âDeath Eligible Cases
Where Death Penalty Is Not Sought,â and assists courts in
determining whether a particular case supports continuation
of a dual appointment.
As recognized by the magistrate judge, § 630.30.10
directs a court to consider the questions of number of counsel
and rate of compensation, once it is determined that the death
penalty will not be sought. The Guide, Vol. 7, Ch. 6,
§ 630.30.10. Section 630.30.20 explains that a court âshould,
absent extenuating circumstances, make an appropriate
reduction in the number of counsel.â Id. § 630.30.20(a)
(emphasis added). The Guide then sets out the following four
14 UNITED STATES V. WELLS
factors to consider in deciding whether extenuating
circumstances exist:
(1) the need to avoid disruption of the
proceedings; (2) whether the decision not to
seek the death penalty occurred late in the
litigation; (3) whether the case is unusually
complex; and (4) any other factors that would
interfere with the need to ensure effective
representation of the defendant.
Id. § 630.30.20(b). Here, the magistrate judge adequately
considered the Guideâs directives and found that this case
was not unusually complex, the parties were adhering to the
pretrial motion schedule, the decision not to seek the death
penalty was not delayed, and the continuation of FPD
Curtnerâs representation would conserve the District of
Alaskaâs CJA budget while protecting Wellsâ Sixth
Amendment right to counsel and preserve any attorney-
client relationship. In upholding the excusal of Mr.
Offenbecher, we intentionally employ the word adequately,
to emphasize the limitations placed on our review, and we
offer a cautionary note. 2
First, problematically, we find no indication that the
magistrate judge considered the candid statements of FPD
Curtner, advising of the crippling effects of the
unprecedented fiscal crisis as it related to his ability to serve
as Wellsâ sole counsel. Given FPD Curtnerâs statements, the
absence of any explicit consideration thereof sits in stark
contrast to at least one other non-capital case, wherein the
2
The concurrence criticizes the inclusion of a cautionary note, in
part, âbecause we ultimately conclude that the ruling was correct.â This
opinion merely finds no abuse of discretion.
UNITED STATES V. WELLS 15
same magistrate judge reconsidered his denial of dual-
appointed counsel. See United States v. Kott, No. 3:07-CR-
056-JWS-JDR, 2011 WL 2357508, at *1 (D. Alaska June 13,
2011). There, the defendant was being retried, after an initial
15-day trial, involving two retained defense counsel. Id. at
*3. In denying dual appointment for the re-trial, the
magistrate judge, inter alia, found persuasive that the
previously-retained attorneys would be available for
consultation and that the original trial transcripts would
provide appointed counsel with knowledge of the
Governmentâs case. Id. Noting, first, that counsel had been
appointed at her own request, the magistrate judge
nevertheless recognized the attorneyâs express concerns
about serving as the defendantâs sole attorney. Id. at *4. The
magistrate judge requested that the attorney âreassess her
roleâ and advise accordingly, implying that her relative
willingness to serve in that capacity would be taken into
consideration. Id. In this Courtâs opinion, the careful
consideration given to the concerns of appointed counsel in
Kott is highly preferable to the lack thereof afforded to FPD
Curtner in this case.
Second, and of much greater concern to this Court, is the
means by which the question of Mr. Offenbecherâs
continued appointment was placed before the magistrate
judge. After contesting the initial dual appointment, the
Government again placed itself in an ethically compromised
position by challenging the continuation of Mr.
Offenbecherâs appointment once the death penalty was
eliminated. This strikes the Court as highly unusual. Indeed,
it constitutes two improper insertions by the prosecution into
a matter exclusively within the province of the judiciary.
While such a motion would be disfavored in any setting, it is
particularly so where a successful challenge would leave a
uniquely beleaguered FPD battling against the unlimited
16 UNITED STATES V. WELLS
resources of the Government, on behalf of a client whose
liberty is at stake. See United States v. Hartfield, 513 F.2d
254, 258 (9th Cir. 1975), abrogated on other grounds by
United States v. Sneezer, 900 F.2d 177 (9th Cir. 1990) (âIf
the fairness of our system is to be assured, indigent
defendants must have access to minimal defense aids to
offset the advantage presented by the vast prosecutorial and
investigative resources available to the Government.â). The
Governmentâs decision to insert itself into the important
determination of Wellsâ fair representation carries with it a
reproachable air of stacking the deck, for which we cannot
offer tacit acceptance.
The administration of the CJA is a judicial function for
which the Judicial Conference of the United States has
approved official guidelines. In re Smith, 586 F.3d 1169,
1172 (9th Cir. 2009). The prosecution is typically precluded
from participating in the determination of a defendantâs
eligibility for CJA-appointed counsel. See The Guide, Vol.
7, Ch. 2, § 210.40.20(e) (âEmployees of law enforcement
agencies or U.S. attorney offices should not participate in the
completion of the Form CJA 23 (Financial Affidavit) or seek
to obtain information from a person requesting the
appointment of counsel concerning the personâs
eligibility.â); id. § 230.26.20(c) (âCase budgets should be
submitted ex parte and filed and maintained under seal.â);
18 U.S.C. § 3006A(e) (directing that CJA applications for
services other than counsel should be filed ex parte, and
proceedings on such applications should be heard ex parte);
see also United States v. Feldman, 788 F.2d 625, 626 (9th
Cir. 1986) (declining to call on government to brief a novel
CJA reimbursement claim because âthe [CJA] excludes the
government from participation in the Actâs compensation
and reimbursement arrangementsâ); United States v.
Gonzales, 150 F.3d 1246, 1257 (10th Cir. 1998) (the CJA
UNITED STATES V. WELLS 17
process is non-adversarial and has âtraditionally been closed
to the prosecutionâ).
The Governmentâs exclusion from the administration of
the CJA is a significant contributing factor to the fairness of
our system and the CJAâs role in redressing the imbalance of
power between an indigent defendant and the Government.
âA contrary position might well result in a system wherein
the outcome of criminal trials would be determined by the
poverty of the accused rather than the integrity of the fact-
finding process.â Hartfield, 513 F.2d at 258.
While we find that that the juryâs fact-finding role was
reversibly undermined by errors in this case, we do not find
that Mr. Offenbecherâs removal constituted an abuse of
discretion. Despite our disapproval of the Governmentâs
interference, and regardless of whether we might have
decided the question differently, the magistrate judge was
within his discretion to find that FPD Curtnerâs continued
representation afforded Wells âadequate representationâ
under the CJA. 18 U.S.C. § 3006A(a). Nevertheless, in the
future, the Government should tend to its own knitting.
B. The District Court Erred in Allowing the
Government To Use Criminal Profile
Testimony as Substantive Evidence of Guilt
We generally review a district courtâs decision to admit
or deny expert testimony for abuse of discretion. United
States v. Reed, 575 F.3d 900, 918 (9th Cir. 2009). However,
we review de novo the âconstruction or interpretation of . . .
the Federal Rules of Evidence, including whether particular
evidence falls within the scope of a given rule.â United
States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006). Where
the district court fails to engage in necessary Rule 403
balancing, we likewise review de novo. United States v.
18 UNITED STATES V. WELLS
Boulware, 384 F.3d 794, 808 n.6 (9th Cir. 2004) (where
â[t]he district court [] did not perform a Rule 403 balancing
analysis,â the âreview [is] de novoâ); see also United States
v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007) (per curiam).
Dr. J. Reid Meloy is a licensed, board-certified forensic
psychologist, who was tendered as an expert in âtargeted,
intended workplace multiple-homicide violence.â 3 While
the parties portray the substance of Dr. Meloyâs testimony
differently, there is no real dispute as to the intended role of
his testimony within the Governmentâs case. This testimony
was presented on the sixth day of trial, during the
Governmentâs case-in-chief, and invited the jury to find a
âfitâ between Dr. Meloyâs criminal profile and the lay
witnessesâ testimony concerning Wellsâ own character traits.
On appeal, Wells challenges Dr. Meloyâs testimony as
improper âprofileâ evidence used as substantive evidence of
Wellsâ guilt. For the reasons explained herein, we find that
Dr. Meloyâs testimony was admitted without regard to
Federal Rule of Evidence 404(a)(1) or the sensitive
balancing required by Rule 403. Before we reach the merits,
however, we must first address the partiesâ dispute as to
3
We decline to address Dr. Meloyâs qualifications. At the outset of
the tender, defense counsel requested a sidebar, during which the
transcript clearly indicates that Mr. Offenbecher was confirming his
âcontinuing objectionâ; however, the transcript is âindiscernibleâ as to
the exact nature thereof. Nevertheless, the court clarified Wellsâ position
before proceeding with the tender: âYour objection is based on
relevance, not on his expertise, right?â Defense counsel then responded:
âRight.â It is thus clear that Wells waived any challenge to Dr. Meloyâs
expertise by accepting the tender without objection. See United States v.
Olano, 507 U.S. 725, 733 (1993) (defining waiver as âthe intentional
relinquishment or abandonment of a known rightâ) (internal quotation
marks omitted).
UNITED STATES V. WELLS 19
whether Wells properly preserved this claim for appeal. Our
analysis begins with the relevant timeline of objections.
Pretrial, Wells moved to exclude Dr. Meloyâs testimony
under Rules 401â403, 404(a), and 608, and requested a
Daubert hearing. At the hearing, Wells argued, in pertinent
part:
[T]his is in the realm of creating a profile, and
that could, I think, arguably only be applied
to Mr. Wells if this is workplace violence.
[T]his is a classic example of vague
generalizations that are too broad to be
admitted in this particular case under these
circumstances.
In response, the Government recognized that Wellsâ âattack
seems to be that you canât testify as to general
characteristics,â and then criticized the failure to cite any
case law addressing the use of profile evidence. The
Government also relied, then and now, on the advisory
committeeâs note to the 2000 amendments to Rule 702,
providing that it might âbe important in some cases for an
expert to educate the factfinder about general principles,
without ever attempting to apply these principles to the
specific facts of the case.â Fed. R. Evid. 702 advisory
committeeâs note to 2000 amendments.
Although the magistrate judge ultimately recognized the
potential dangers in Dr. Meloyâs testimony, his post-hearing
ruling only peripherally acknowledged Wellsâ profile
challenge, as follows:
The defense complains that Melroy [sic] is
creating a profile that can only be applied to
the defendant if the crime was workplace
20 UNITED STATES V. WELLS
violence. That observation is not a sufficient
reason to preclude the government from
calling an expert witness to testify about
workplace violence.
The magistrate judge further deemed it âappropriate in this
case for the government to offer the opinion of a forensic
psychologist as to whether certain characteristics present in
this case suggest workplace violence,â while recognizing
that Dr. Meloy had not examined Wells personally. Finally,
the magistrate judge concluded:
[T]he subject matter of [Dr. Meloyâs]
proposed testimony may but not necessarily
will assist the trier of fact depending on the
evidence presented at trial. The probative
value of Dr. Meloyâs proposed testimony
may or may not outweigh the danger of unfair
prejudice, confusion of the issues, or
misleading evidence that would be placed
before the jury. At this stage of the
proceedings Dr. Meloyâs analysis and
theories, based upon his experience and
training, are not sufficiently relevant to the
case at hand to be ruled admissible at trial.
...
The remaining issue is whether [Dr. Meloyâs]
proposed testimony passes the balancing test
of Federal Rules [sic] of Evidence 403. The
government should be given the opportunity
at trial to support the issue of admissibility of
Dr. Meloyâs testimony before it is presented
to the jury. Ruling on the Defendantâs Motion
UNITED STATES V. WELLS 21
in Limine to Exclude Testimony on Issues of
Violence and Psychological Characteristics
of Perpetrators of Violent Crimes, Docket
216 is held in abeyance pending further
consideration at trial.
(first emphases added, last italics supplied). There were no
objections to the magistrate judgeâs ruling.
In his trial brief, filed on March 17, 2014, Wells
reiterated his objections to Dr. Meloyâs testimony, arguing,
in part, that:
Incidents of workplace violence are so
common in our culture, that jurors will be
able to apply their own common sense to
understand this evidence without any need
for expert interpretation. . . . The government
has not cited a single case in support of
admitting an expert to testify about
workplace violence.
Although the trial brief seemed to focus on relevance and
reliability, the recently re-enrolled Peter Offenbecher
clarified his objection during the final pretrial conference, on
March 24, 2014, as follows:
The problem comes where the experts are
permitted to testify that a person who
commits workplace violence has these
characteristics, X, Y, and Z, and thenâ
although they donât ask the expert to connect
the dots, they thenâthe next witness testifies
that the defendant has these characteristics,
X, Y, and Z.
22 UNITED STATES V. WELLS
And what theyâre ending up doing is having
the expertâthey donât connect the dots in
court, but certainly the jury knows, and you
end up with impermissible character
evidence because theyâre saying the
characteristics of a person who commits this
crime, and there are theseâyou know, these
particular things, and then they just line them
up and they try to prove that the defendant
has those characteristics.
So itâs just a way around the rule that you
cannot permit the government to introduce
character evidence or make an opinion that
the defendant is the person who commits the
crime.
Substantively, this is the same argument presented on
appeal.
The Government countered by asserting: âItâs not
improper character evidence. The jury looks at it and they
say, does it fit, does it not fit? And what we do is we use him
to disabuse the jury of commonly held notions that basically
come from TV.â The Government confirmed that it intended
to have Dr. Meloy describe the characteristics of those who
commit âtargeted individual multiple homicide workplace
violences,â without discussing Wells personally, because
Dr. Meloy had not examined him.
The district court reflected that the Government was
likely correct on this issue, because â[i]tâs done all the time,â
but allowed Mr. Offenbecher to respond. Mr. Offenbecher
pointed out that the magistrate judge had not yet ruled on the
admissibility of Dr. Meloyâs testimony and further noted that
UNITED STATES V. WELLS 23
the testimony was particularly problematic because, in this
specific workplace, there are âonly seven people . . . and two
of them are deceased.â 4 Mr. Offenbecher concluded with:
So, in effect, youâre permitting Dr. Meloy to
testify that Jim Wells is the person who
committed the crime, even though thatâs
impermissible because it goes to the ultimate
fact in the case. And also itâs an attempt to get
around the rule prohibiting character
evidence. Weâre asking the Court just to
abide by [the magistrate judgeâs] ruling on
Dr. Meloy.
The district judge then acknowledged that the ultimate
decision was his to make, declared that he thought that Dr.
Meloyâs testimony was âprobably permissible,â and
instructed the Government to provide its questions in
advance so the court could âjust rule question by question.â
The Government agreed to do so, and the court concluded
the discussion with these remarks:
We do drug cases all the time, 5 and we ask
them, experts to testify about characteristics
4
Though defense counsel did not use the terms âprejudiceâ or
âunduly prejudicial,â those concerns, at the heart of Rule 403 balancing,
were clearly the basis for his statement. See United States v. Ward,
747 F.3d 1184, 1189 (9th Cir. 2014) (âAlthough defense counsel did not
use the term âFifth Amendment,â the substance of the objection was
patently clear.â).
5
Presumably the district courtâs reference was to the use of drug
courier profiles, as is the case in most of the jurisprudence relating to
criminal profile evidence, discussed infra. Any reference thereto is
particularly troubling given the narrow circumstances in which profile
testimony, even that of drug courier profiles, is admissible.
24 UNITED STATES V. WELLS
that areâyou know, this doesnât shock me
what youâre talking about, but Iâll look again
to make sure that I understand the concerns
of the defendant.
...
But again, no matter what weâve already
decided, we canât go to theânone of these
witnesses can testify as to the ultimate
question and ask, âDo you believe Mr. Wells
did this?â
Thus, the district court made two erroneous assumptions:
first, he presumed admissibility of this type of testimony,
generally; and, second, he mistakenly believed that Dr.
Meloyâs testimony was, at this point, admissible. To the
contrary, the magistrate judge had held his ruling in
abeyance, finding that the testimony was not yet admissible,
unless and until the district court determined that it survived
Rule 403âs balancing test.
Following the final pretrial conference, in response to the
courtâs request for advance questions, the Government
provided a summary outline of Dr. Meloyâs anticipated
testimony. This summary had previously been provided to
the defense several months earlier. Therein, the Government
generally advised that Dr. Meloy would âelaborate on
targeted and intended violence, workplace violence,
multiple murders and the personality and other
psychological characteristics of those who commit these
types of crimes,â and specified that âDr. Meloy will not be
asked to give an opinion about how these characteristics
apply to the known facts concerning Mr. Wells.â (Emphasis
in original). It further provided bulletpoints, categorically
UNITED STATES V. WELLS 25
grouped by the topics of his expertise, of â[s]ome of the
characteristicsâ that he would describe and explain. 6 The
district court issued no further ruling.
On the first morning of trial, the Government inquired as
to whether the court was going to permit Dr. Meloy to testify.
The district court indicated its belief that it had already ruled,
and neither party pressed the issue. Later, when Mr.
Offenbecher objected during Dr. Meloyâs tender, the district
court reiterated that the objections to Dr. Meloy had already
been addressed. At that time, Mr. Offenbecher expressed
concern surrounding Dr. Meloy being tendered as an expert,
suggesting that it would âgive [him] the imprimatur of the
[c]ourt.â The court confirmed that Mr. Offenbecherâs
objection was based on relevance rather than expertise and
allowed the Government to proceed with Dr. Meloyâs tender.
On review, it is regrettable that Wellsâ trial objections
failed to specifically re-urge his pretrial argument that Dr.
Meloyâs testimony was improper character evidence in the
form of a profile; however, the failure to do so is not fatal to
the preservation of this claim. Wellsâ pretrial objections
were clear and consistent. 7 The district court had the
6
The topics of his expertise were broken down into the following
categories, with outlined characteristics pertaining to each: (1) targeted
and intended violence; (2) workplace violence; (3) multiple murders;
(4) personality and other psychological characteristics.
7
The Government cites United States v. Gomez-Norena, 908 F.2d
497 (9th Cir. 1990), to argue that Wells forfeited his claim, because
objecting to expert testimony as improper character evidence is not the
same ground as alleging improper profile evidence. The Governmentâs
reliance is misplaced. Gomez-Norena involved drug courier profile
testimony admitted âfor the limited purpose of providing the jury with
background information.â 908 F.2d at 502. This Court clearly stated that
the facts therein did not implicate concerns regarding the potential for
26 UNITED STATES V. WELLS
opportunity to rule, mistakenly believed it had done so, and
led the parties to believe that further argument was both
unnecessary and unwelcome. Even in the absence of any trial
objection, an issue may be sufficiently preserved by a party
âobjecting and moving for its exclusion on [the specific]
basis before the commencement of trial.â United States v.
Palmer, 3 F.3d 300, 304 (9th Cir. 1993); see also Palmerin,
794 F.2d at 1413. Thus, this claim is properly before us, and
we turn now to the merits thereof. While our concern is
rooted in the Governmentâs use of Dr. Meloyâs testimony as
substantive evidence of guilt, we begin by presenting the
substance thereof.
At the outset of Dr. Meloyâs testimony, he explicitly
disclaimed any attempt to characterize Wells personally, yet
he advised the jury that his process began with a review of
materials and records specific to this case, and culminated
with the preparation of a report concerning his findings in
the four areas of targeted and intended violence; workplace
violence; multiple-homicide; and the personality and
psychological characteristics of those who commit such acts.
As his testimony continued, the specific criminal profile
emerged.
Dr. Meloy began by distinguishing two broad categories
of the types of violence in which human beings tend to
engage: targeted or intended violence, called âpredatory
violenceâ; and emotional or reactive violence, called
âaffective violence.â He described targeted or intended
violence as something that is planned and prepared for; is
unfair prejudice, as are involved in admitting profile testimony as
substantive evidence of guilt. See id. at 501. Thus, the objections in this
case were clearly presented in a different context and sufficed to preserve
the claim.
UNITED STATES V. WELLS 27
carried out in an intended fashion; involves tactical planning;
and is opportunistic rather than impulsive, meaning it
involves âfinding an opportunity where the act could be
carried out successfully.â On the other hand, affective
violence was described as emotional; responsive to a threat;
something that is not controlled; purely defensive; and
involves an immediate or impulsive reaction. The majority
of his testimony focused on the former category.
Dr. Meloy relied on 2012 data compiled from the
National Center for Victims of Crime and the Bureau of
Labor Statistics, which indicated that there were
463 homicides in the workplace during 2012. Of those
463 homicides, 375 involved intended violence with a
firearm, 10% of which were committed by a co-worker and
6% by a spouse. These statistics were used to explain the
rarity of such an event. He then tied these statistics back to
the two categories of violence, explaining that workplace
violence typically falls under the targeted or intended
category, involving âplanning and preparation.â He testified
that both workplace killings and multiple murders are
âvirtually alwaysâ committed by males.
Dr. Meloy described the typical pattern of âindividuals
who would perpetrate a workplace targeted homicide,â to
include: an attack, using a firearm; motivation from either a
real or delusional grievance in reaction to an accumulation
of losses or humiliations, a sense of rejection, or a felt
injustice; a determination to seek revenge; a decision to
intentionally act in violence; the existence of violent
ideations; and development into the violent act itself,
through research and planning. The planning stage was
presented as especially important if the individual has never
done this before. Dr. Meloy explained that planning would
typically be secretive and involve thinking about the targets,
28 UNITED STATES V. WELLS
the movements of the targets, what weapons would be used,
and how to approach and leave the situation. Later, Dr.
Meloy elaborated on the planning phase to include looking
âat the behavioral patterns of the victims, when are they in
that particular location, . . . [and whether] they [are] going to
be alone.â
Dr. Meloy then disparaged the popular concept of
âsnapping,â that is, the term commonly used by lay people
to describe a perpetrator of a violent crime as having âlost
their mindâ or being âout of control.â He explained that this
is a myth, unsupported by research of targeted violence or of
multiple murders. Instead, he referenced the descriptions
offered by survivors of âmultiple homicidesâ as having
described the perpetrator as âcalm, controlled, deliberate,
cool.â He contrasted psychotic and nonpsychotic
perpetrators, explaining that the former tended to kill
strangers, in mass numbers, while the latter tended to
specifically target âone or more people that have angered or
humiliated the individual.â
Dr. Meloy further explained that perpetrators of targeted
or intended violence are typically âpathologically
narcissistic,â with a âvery inflated view of themselves,â such
that what might objectively be perceived as slight criticism
would, in their mind, be âvery, very wounding.â Dr. Meloy
described this type of perpetrator as having a ânarcissistic
sensitivity that comes from the individualâs personality.â
The perpetrator might âbe a legend in their own mind,â and
âhave a strong sense of entitlement,â such that criticism in
the workplace âcuts deepâ and is âthen carried with themâ to
become the source of âthe formulation of the grievance.â
Dr. Meloy explained that approximately 80% of multiple
homicides have a âtriggering event,â but that âdirect
causalityâ may not always be established. On redirect, he
UNITED STATES V. WELLS 29
clarified that the perpetratorâs actions might seem âvery
illogical and irrational to the observer.â He explained that
the perpetrator will typically have a personality disorder,
which he described as having âover time created problems
. . . with other people who are close to them.â He testified
that 80% of people carrying out targeted violence do not
communicate a direct threat or âwarn the target beforehand.â
And, because employers typically screen people with a
history of violent criminality, he explained that perpetrators
instead tend to have âhistories of chronic conflict with those
in authority over the person in the workplace.â
Trial testimony purported to show that both Belisle and
Hopkins were generally well-liked, and that the two victims
had no connection to each other outside of their employment.
Wells, while highly regarded for his knowledge and
expertise in antenna maintenance, was described by two
higher-level supervisors as being difficult to control. Trial
testimony indicated that Wellsâ insubordination and
instances of workplace discord were occurring with
increasing frequency before the murders. Chief Reckner
testified that, in December 2011, he decided to move his
office from T1 to T2, because Hopkins was not being
respected as the rigger shop supervisor. Reckner testified
that Wells was having ongoing disciplinary issues during
this time, as well as health problems, causing him to be
absent from work. As a result, Reckner made the supervisory
decision not to allow Wells to attend an annual conference,
which sparked a âheatedâ discussion between Wells and
Reckner. The conference attendees were Reckner, and the
two victims, Hopkins and Belisle.
On appeal, Wells summarizes Dr. Meloyâs testimony as
having constructed the following profile of the perpetrator:
male; pathologically narcissistic, with a grandiose view of
30 UNITED STATES V. WELLS
himself and an unreasonable sense of entitlement; his
decision to carry out the murders would be triggered by one
or a series of humiliations in love or work; his narcissistic
sensitivity would cause him to be wounded deeply by the
criticism; although he may not show it, this wound would
serve to formulate a âgrievanceâ; this grievance would
convert into anger, which may or may not be expressed
openly, and he would begin to fantasize about solving his
problems through violence.
The Government attempts to distinguish Dr. Meloyâs
testimony from criticized profile evidence by arguing that
his actual testimony was much broader than Wellsâ portrayal
thereof; 8 his criminal profile was not âpersonalâ to, or based
on an examination of, Wells; and his testimony was not the
key evidence of Wellsâ guilt. We find each of these
arguments disingenuous. Dr. Meloyâs testimony was made
personal to Wells by the Governmentâs admitted use of Dr.
Meloyâs profile to âfitâ Wellsâ personal characteristics.
Indeed, the Government attempted to defend its use of the
testimony by explaining: âItâs not improper character
evidence. The jury looks at it and they say, does it fit, does
it not fit?â And, the Government twice stated, in its closing
rebuttal, that Dr. Meloyâs testimony about predatory
violence âfits Mr. Wells to a T.â See United States v.
Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (recognizing that
âclosing argument matters . . . a great dealâ).
8
During oral argument, the Government repeatedly directed this
Court to review Dr. Meloyâs powerpoint presentation, identified as
Governmentâs Exhibit 10, purportedly to refute Wellsâ characterization
of the testimony. Notably, Governmentâs Exhibit 10 was never admitted
at trial; it is not found in any excerpts or supplemental excerpts of record;
and it is not referenced in briefing before this Court.
UNITED STATES V. WELLS 31
The Government explains that proving its trial theory
required that it intertwine several separate but
interconnected strands of evidence to show:
[T]he only conclusion consistent with all the
evidence was that Wells carefully planned
and executed the murder of his colleagues,
motivated by his frustration and resentment
over disciplinary issues at work, his
increasing problems with COMMSTA
management, and his loss of a position of
respect and deference in the rigger shop. . . .
The evidence as a whole established that on
the morning of April 12, 2012, knowing
Belisle and Hopkins would be alone at work,
Wells drove to the airport in his white pickup
truck, and switched cars to his wifeâs 2001
blue Honda CRV, which had been left at the
airport earlier in the week. He then drove past
the entrance to the rigger shop, bypassing the
camera that he knew would capture the image
of any vehicle entering the normal parking
area, parked behind the building, walked
under the camera and entered the rigger shop
through the door that he knew would be
unlocked and open, bypassing the card reader
entrance that would otherwise record his
presence.
Wells then shot Belisle and Hopkins multiple
times and left the building, again bypassing
the rigger shop camera, drove back to the
airport where he parked his wifeâs car, got
back into his truck and drove home.
32 UNITED STATES V. WELLS
Immediately upon arriving at home he called
and left a message on Hopkinsâ and
Recknerâs voicemail, giving a previously-
planned false alibi, claiming that he had a flat
tire and would be late to work.
Regardless of how broad or narrow Dr. Meloyâs findings
might have been, the record reflects that his testimony was
improperly used by the Government, in conjunction with its
overbroad motive theory, to substantively connect the
strands of circumstantial evidence in such a way as to fit
Wells into the criminal profile.
As Chief Justice Roberts recently confirmed: âOur law
punishes people for what they do, not who they are.â Buck v.
Davis, 580 U.S. ____, 137 S. Ct. 759, 778 (2017). Rule
404(a)(1) provides that â[e]vidence of a personâs character
or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the
character or trait.â Fed. R. Evid. 404(a)(1). Again, there is
no question as to the Governmentâs purpose for offering this
testimony. It explicitly stated that Dr. Meloy would testify
as to the characteristics of those who commit âtargeted
individual multiple homicide workplace violencesâ in order
to determine, given the lay witnessesâ testimony concerning
Wells personally, âdoes it fit, does it not fit?â
This Court has âstated in dictum that testimony of
criminal profiles is highly undesirable as substantive
evidence because it is of low probativity and inherently
prejudicial.â United States v. Gillespie, 852 F.2d 475, 480
(9th Cir. 1988). âThe admission of drug courier profile
evidence is inherently prejudicial to the defendant because
the profile may suggest that innocuous events indicate
criminal activity.â United States v. Lim, 984 F.2d 331, 334â
UNITED STATES V. WELLS 33
35 (9th Cir. 1993). âEvery defendant has a right to be tried
based on the evidence against him or her, not on the
techniques utilized by law enforcement officials in
investigating criminal activity.â United States v. Lui,
941 F.2d 844, 847 (9th Cir. 1991) (quoting United States v.
Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989)).
Although âprofileâ evidence is not per se inadmissible,
it is only permitted in narrow and limited circumstances,
such as: (1) background evidence, Gomez-Norena, 908 F.2d
at 501 (â[A]dmitting drug courier profile testimony for [the]
limited purpose [of providing background material] greatly
reduces the potential for unfair prejudice and thus cannot
amount to plain error.â); (2) investigative tools, United
States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990) (drug
courier profiles are investigative tools, not to be admitted as
evidence of guilt); or (3) rebuttal evidence, when a party
âopens the doorâ by introducing potentially misleading
testimony, Beltran-Rios, 878 F.2d at 1211â12 (profile
evidence admissible in rebuttal where defendant initially
âopened the doorâ by emphasizing that he did not fit the
stereotype of a drug smuggler). 9
The Government attempts to place Dr. Meloyâs
testimony in the third category, arguing that Wells âopened
the doorâ and placed his character in issue, by relying on
Wellsâ history as a non-violent, non-threatening and
peaceful man. Presumably recognizing the inherent
9
â[T]he Eighth Circuit has held that such testimony may never be
introduced as substantive evidence of guilt.â Gomez-Norena, 908 F.2d
at 501 (emphasis added) (citing United States v. Carter, 901 F.2d 683,
684â85 (8th Cir. 1990) (âDrug courier profiles are investigative tools,
not evidence of guilt. . . . [They] are not to be admitted as substantive
evidence of guilt.â)).
34 UNITED STATES V. WELLS
weakness in making this argument given Dr. Meloyâs
placement in the Governmentâs case-in-chief, the
Government focuses on Wellsâ attempts to show his
âcharacter for non-violenceâ during his opening statement
and through questions posed during cross-examination of
prosecution witnesses. 10
This argument lacks merit. This Court has cautioned that
âthe âopening the doorâ doctrine is not so capacious as to
allow the admission of any evidence made relevant by the
opposing partyâs strategy, without regard to the Federal
Rules of Evidence.â United States v. Sine, 493 F.3d 1021,
1037 (9th Cir. 2007) (emphasis in original); see also Beltran-
Rios, 878 F.2d at 1213 n.2 (âThe Government may introduce
profile testimony of this sort only to rebut specific attempts
by the defense to suggest innocence based on the particular
characteristics described in the profile.â); Gillespie, 852 F.2d
at 480 (finding error in admitting testimony of clinical
psychologist on characteristics common to child molesters,
where defendant never put general character at issue or
offered testimony of specific character traits that rendered
him incapable of molesting a female child). We have found
10
The Government quotes Wellsâ opening statement, as follows:
So I think the first assumption that youâll see thatâs just
wrong is that there was a lot of conflict at the rigger
shop. Mr. Reckner had problems with Jim Wells youâll
hear, but the rest of the workers, they got along. There
was no arguments. There was no violence. There was
no threats. There was no fights. . . . The other thing I
should tell you about Jim Wells at 62 years old, he
doesnât have any â heâs never been charged with a
crime before. Heâs never been violent. There is nobody
who can say he ever raised a hand to anybody, ever got
in a fight. 62 years of raising a family and no violence,
nothing at all.
UNITED STATES V. WELLS 35
that a defendant did not âopen the doorâ to expert testimony
establishing his knowledge of a drug trafficking
organization, after the district court denied the defendantâs
motion to exclude said testimony and advised defense
counsel to âplan accordingly.â See United States v. Pineda-
Torres, 287 F.3d 860, 865â66 (9th Cir. 2002). Clearly, by
the time trial began, Wells knew that Dr. Meloy would be
permitted to testify, as extensive pretrial efforts to exclude
his testimony had ultimately failed.
The vast majority of relevant federal case law addresses
the use of profile evidence in the context of drug couriers.
Indeed, the district court presumably referenced this
jurisprudence when he mistakenly assumed admissibility.
However, we do also find persuasive the principles
discussed in the state and military jurisprudence, cited to us
by Wells, rejecting the use of other criminal profiles as
substantive evidence of guilt.
âThose jurisdictions that have considered profiles of
battering parents, pedophiles, rapists, and drug couriers
unanimously agree that the prosecution may not offer such
evidence in its case-in-chief as substantive evidence of
guilt.â Ryan v. State, 988 P.2d 46, 55 (Wyo. 1999)
(collecting cases). Ryan recognized that these cases
generally articulate three evidentiary bases for excluding
evidence tending to establish that the defendant fits a
particular profile: (1) relevancy, see, e.g., Commonwealth v.
Day, 409 Mass. 719, 723 (1991) (collecting cases to show
that â[t]estimony regarding a criminal profile is nothing
more than an expertâs opinion as to certain characteristics
which are common to some or most of the individuals who
36 UNITED STATES V. WELLS
commit particular crimesâ); 11 (2) the probative value of the
evidence is substantially outweighed by its prejudicial effect,
see, e.g., State v. Percy, 507 A.2d 955, 960 (Vt. 1986)
(explanations or excuses offered by other rapists not relevant
to what this particular defendant said in response to the
offense charged, and even if relevant, the evidence failed
Vermontâs state equivalent of Rule 403âs balancing test);
and (3) it is impermissible character evidence, see, e.g.,
Haakanson v. State, 760 P.2d 1030, 1036 (Alaska Ct. App.
1988) (âWe hold that the prosecution may not introduce a
profile to show that the defendant is more likely to have
committed an offense because the defendant fits within that
profile. To admit this testimony at the beginning of trial was
clearly erroneous.â). See 988 P.2d at 55â56.
As recognized in United States v. Banks, 36 M.J. 150
(C.M.A. 1992), which Wells cites as particularly instructive,
â[o]ur system of justice is a trial on the facts, not a litmus-
paper test for conformity with any set of characteristics,
factors, or circumstances.â 36 M.J. at 161. In Banks, the
prosecution presented a characteristic âprofileâ to present
appellantâs family situation as ripe for âchild sexual abuse.â
Id. at 162. Then, â[t]hroughout th[e] case, the prosecutor
orchestrated this âprofileâ evidence to persuade the members
that appellant fit the profile and was a child molester.â Id. As
the Government did at Wellsâ trial, the prosecutor revisited
the profile in closing argument, implicitly referencing the
11
In United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir.
1980), an illegal re-entry case, this Court recognized the inherent
problem with this type of testimony, albeit without labeling it as
âprofileâ testimony or even character evidence: âThis [affidavit of an
INS investigator] setting forth the conduct of others, in circumstances
which are unexplained, would not appear to have any bearing on what
this particular individual would have done in the particular
circumstances facing him.â
UNITED STATES V. WELLS 37
profile in explaining how the evidence had proven the
appellantâs guilt. Id. Although, in closing, the prosecutor
remarked that âweâre not trying to prove our case that way,â
the military appeals court found that statement
âdisingenuous.â Id. In Banks, the prosecutionâs closing
argument belied âany assertion that th[e] profile was offered
for any other purpose than to prove appellantâs guilt.â Id. at
163. Banks concluded that â[t]he prosecutionâs strategy of
presenting a âprofileâ and pursuing this deductive scheme of
reasoning and argument to prove that appellant is a child
sexual abuser was impermissible.â Id. Here, too, the manner
in which Dr. Meloyâs testimony was used by the prosecution
was similarly impermissible, and the prosecutionâs efforts to
distinguish his testimony from criticized profile evidence are
equally disingenuous.
The probative value of Dr. Meloyâs testimony is found
only in its ability to answer the impermissible question of
whether, based on his character profile, Wells acted in
accordance therewith on the morning of April 12, 2012. As
explained in Michelson v. United States, 335 U.S. 469
(1948):
Courts that follow the common-law tradition
almost unanimously have come to disallow
resort by the prosecution to any kind of
evidence of a defendantâs evil character to
establish a probability of his guilt. Not that
the law invests the defendant with a
presumption of good character, but it simply
closes the whole matter of character,
disposition and reputation on the
prosecutionâs case-in-chief. . . . The
overriding policy of excluding such
evidence, despite its admitted probative
38 UNITED STATES V. WELLS
value, is the practical experience that its
disallowance tends to prevent confusion of
issues, unfair surprise and undue prejudice.
Id. at 475â76 (citation and footnotes omitted). The
prosecution made no attempt to establish an ulterior basis for
the admission of this improper character profile in its case-
in-chief, and the district court erred in admitting it as such.
Generally, if we conclude that evidence has been
improperly admitted, âwe consider whether the error was
harmless.â United States v. Bailey, 696 F.3d 794, 802â03
(9th Cir. 2012). The erroneous admission of expert
testimony is subject to harmless error review, just like all
other evidentiary errors. See United States v. Rahm, 993 F.2d
1405, 1415 (9th Cir. 1993). 12 Reversal is required âonly if
the error affect[ed] a substantial right of the party,â Fed. R.
Evid. 103(a), meaning âwe require a finding of prejudice,â
Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005).
We begin with a presumption of prejudice, in reviewing
the effects of this erroneous admission. See Jules Jordan
Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1159 (9th
Cir. 2010). Given the uniquely and inherently prejudicial
nature of this evidence, the Government has failed to rebut
that presumption âby a showing that it is more probable than
not that the jury would have reached the same verdict even
12
We note that the Supreme Court recently recognized that an
expertâs prejudicial effect was âheightened due to the source of the
testimony[,]â given that the witness, as did Dr. Meloy, âtook the stand as
a medical expert bearing the courtâs imprimatur[;] the jury learned at the
outset of his testimony that he held [impressive credentials and
experience;] . . . [and] [r]easonable jurors might well have valued his
opinion concerning the central question before them.â Buck, 137 S. Ct.
at 777.
UNITED STATES V. WELLS 39
if the evidence had not been admitted.â Id. (internal
quotation marks omitted). The Government admits that
â[p]roving [its] theory of the crime depended on the
intertwining of multiple strands of evidence.â Dr. Meloyâs
testimony was undoubtedly instrumental in tying those
strands together, allowing the Government to argue that Dr.
Meloyâs profile âfit[] Mr. Wells to a T.â As we have
explained:
When the district court has erroneously
admitted or excluded prejudicial evidence,
we remand for a new trial. We do so even if
the district court errs by failing to answer a
threshold question of admissibility. We have
no precedent for treating the erroneous
admission of expert testimony any
differently.
Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 466
(9th Cir. 2014) (en banc) (citations omitted). We do not
hesitate in finding that the admission of Dr. Meloyâs
testimony constituted reversible error.
Although we find that Dr. Meloyâs testimony was clearly
inadmissible under Rule 404(a)(1), we write further to stress
the important role of Rule 403. âAs long as it appears from
the record as a whole that the trial judge adequately weighed
the probative value and prejudicial effect of proffered
evidence before its admission, we conclude that the demands
of Rule 403 have been met.â United States v. Sangrey,
586 F.2d 1312, 1315 (9th Cir. 1978). However, this is not a
case where we could easily find that the lower court
âimplicitly balanced the probative value against the
prejudicial effect,â see United States v. Johnson, 820 F.2d
40 UNITED STATES V. WELLS
1065, 1069 (9th Cir. 1987), 13 nor does âthe record make[]
clear that the question of prejudice figured crucially in the
courtâs mind,â see United States v. Verduzco, 373 F.3d 1022,
1029 n.2 (9th Cir. 2004). Instead, the magistrate judge
placed the question explicitly and squarely before the district
court, and from there, there is no indication that prejudice
was ever a consideration, much less a crucial one. Cf. United
States v. MacDonald, 688 F.2d 224, 228 (4th Cir. 1982)
(upholding exclusion of tendered expert psychiatric
character testimony where district judge âwas keenly aware
of the [Rule 403] factors . . . and painstakingly examined
eachâ). As we have explained, testimony of this nature is
âinherently prejudicial,â has no place as substantive
evidence of guilt, and would therefore fail Rule 403âs
balancing test. See Gillespie, 852 F.2d at 480; Lim, 984 F.2d
at 334â35; see also Michelson, 335 U.S. at 475â76.
C. The District Court Erred in Admitting âOther
Actâ Evidence
Wells challenges a significant amount of testimony as
impermissible character and other act evidence, under
Federal Rules of Evidence 404(a) and 404(b), respectively.
Generally, â[a] district courtâs evidentiary rulings should not
be reversed absent clear abuse of discretion and some
prejudice.â Grand Canyon Skywalk Dev., LLC v. âSaâ Nyu
Wa Inc., 715 F.3d 1196, 1202 (9th Cir. 2013) (internal
quotation marks omitted). âWhether evidence falls within
13
Even though Johnson ultimately affirmed the district courtâs
decision, this Court cautioned: âNonetheless, we remind the district court
that its duty to weigh the factors explicitly maintains the appearance of
justice by showing the parties that the court recognized and followed the
dictates of the law, and facilitates immeasurably the process of appellate
review.â 820 F.2d at 1069 n.2.
UNITED STATES V. WELLS 41
the scope of Rule 404(b) is a question we review de novo.â
United States v. Smith, 282 F.3d 758, 768 (9th Cir. 2002);
see also Durham, 464 F.3d at 981. Admission of evidence to
which there was no objection raised below is reviewed for
plain error. Sine, 493 F.3d at 1038.
For our purposes, all testimony challenged under Rule
404(a) is subject to plain error review. 14 As to the evidence
challenged under Rule 404(b), the Government provided
pretrial notice of various other act evidence, for which
Wellsâ pretrial objections were definitively overruled,
adequately preserving these claims for appeal. Palmer,
3 F.3d at 304; see also Palmerin, 794 F.2d at 1413. The
district court determined that this evidence was admissible
as inextricably intertwined, or alternatively, as other act
evidence, permissible to prove motive under Rule 404(b)(2).
Thus, we review de novo the district courtâs application of
the Federal Rules of Evidence to the other acts evidence.
Each of Wellsâ challenges under Rules 404(a) and 404(b)
are made against the backdrop of Dr. Meloyâs profile
testimony. Wells argues that this character and other acts
evidence was made relevant by Dr. Meloyâs criminal profile
of a narcissistically-sensitive individual for whom even
minor criticism or setbacks could trigger violence. He argues
that the same is true for the district courtâs alternative
finding, that certain other acts were admissible to prove
motive under Rule 404(b)(2), because this evidence was
only relevant if the Governmentâs motive theory was viewed
14
As set forth below, Wells challenges a wide variety of testimony
under Rule 404(a). Of the specific excerpts challenged, defense counsel
only objected to the comment about Wells âstrut[ing]â at professional
conferences, and the objection was made on the basis of relevance.
Accordingly, Wells failed to properly object to any of this testimony,
such that our review is for plain error.
42 UNITED STATES V. WELLS
in the context of Dr. Meloyâs profile. The motive theory is
thus pertinent to our analysis and is described by the
Government, as follows:
Wells for years had been allowed to operate
as his own boss. Throughout his work history
prior to 2011, Wells had been able to do what
he wanted when he wanted. He had a high
opinion of himself, and any time he ran afoul
of management he would just wait them out
and go back to his same practices. However,
things changed beginning in 2011 with the
change in command at COMMSTA. New
supervisors were tasked to try and get Wells
to âget with the program.â Pressure was put
on him to conform. As 2011 progressed, the
pressure increased. Then Wells became ill.
As he missed work, the Command realized
they could do the work without him. Belisle
had stepped up and could replace him. When
he returned, he was told he could not go to the
annual antenna conference, which made him
angry.
As an initial matter, we find that the Government crafted
this motive theory with much too broad a brushstroke,
paving the way for it to introduce evidence which was not
truly relevant to the charged crimes. More persuasive is the
Governmentâs argument that much of the other act testimony
concerned actions which were detailed in Wellsâ USCG
personnel folder, referred to during defense counselâs
opening statement and admitted without objection at trial.
Our analysis begins with Rule 402 of the Federal Rules
of Evidence, which declares that all â[r]elevant evidence is
UNITED STATES V. WELLS 43
admissible,â except as otherwise provided. Fed. R. Evid.
402. As we have explained:
Rule 404, which separately deals with
âcharacterâ evidence, and its subsection
404(b), which covers evidence of other
(1) crimes, (2) wrongs, or (3) acts, is not a
different pathway to the admission of
evidence-although it is frequently
misunderstood as such. Rule 404 is simply a
specific qualification of the general rule of
the admissibility of all relevant evidence.
United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007)
(en banc) (footnote omitted). Because â[c]haracter evidence
is of slight probative value and may be very prejudicial,â
Rule 404 curtails the use of such âbad manâ evidence. Id. at
944. Rule 404(a)(1) prohibits using â[e]vidence of a personâs
character or character trait . . . to prove that on a particular
occasion the person acted in accordance with the character
or trait.â Fed. R. Evid. 404(a)(1).
Wells challenges a laundry list of testimonial excerpts
under Rule 404(a)(1), by which lay witnesses were permitted
to describe him as: âhaving a poor attitudeâ; âquite conceited
at timesâ; âonly receptive to change if he had played a part
in coming up with the changeâ; not being âknown to be [the]
kind of personâ who did âas [he was] toldâ; âview[ing]
himself as extremely knowledgeableâ; taking âpride in his
roleâ in the tower community as shown by his âstrut[ting]â
at conferences; âjust set in the way he would do thingsâ;
âdifficult at timesâ; and ânot real good at sharing the
information he had.â In support of the alleged relationship
between this testimony and Dr. Meloyâs profile, Wells points
to the Governmentâs closing argument, during which it
44 UNITED STATES V. WELLS
repeatedly referenced excerpts of this testimony to
demonstrate Wellsâ ânarcissistic traits,â his âstrong sense of
self,â his âsense of entitlement,â âhis pride and his belief that
he was at the top of his profession,â in order to fit the profile.
Without explicitly explaining why it deemed this evidence
to be relevant, the Government argues that it is not
prohibited character evidence, as it was not offered to show
that Wells acted in conformity therewith. That is, it was not
offered to show that, at the time of the April 12, 2012
murders, Wells was being narcissistic, difficult, or set in his
ways.
While we are sensitive to the interconnected nature of
this testimony as used by the Government to fit Dr. Meloyâs
decidedly inadmissible profile, the improper admission of
Dr. Meloyâs testimony does not render otherwise relevant
evidence inadmissible. To the extent these witnesses had
personal knowledge of the topics on which they testified, this
testimony provided background information regarding
Wellsâ relationships with his co-workers, his working
environment and his work history, all of which is relevant in
a workplace homicide prosecution. Furthermore, it is also
true that Wells relied on favorable aspects of these same
evidentiary areas. Yet, he now takes the inconsistent position
that his commendable record of service to the United States
Navy and Coast Guard and his congenial relationships with
co-workers are relevant evidentiary points, while the
inconvenient, less commendable details thereof are not. See
Bowoto v. Chevron Corp., 621 F.3d 1116, 1130 (9th Cir.
2010) (where plaintiff opened the door to incident-specific
testimony, district court did not abuse its discretion in
allowing testimony as to defendantâs version of the
incident). The district court did not plainly err in admitting
this relevant evidence.
UNITED STATES V. WELLS 45
We turn now to Wellsâ challenges to the other act
evidence, which we have summarized as including: a 2003
incident in which Wells disobeyed an order to leave a
fiberglass hut on Attu Island for repairs; a 2012 letter of
caution, issued to Wells based on the consensus of USCG
command, despite an inconclusive investigation, that Wells
had used a USCG fuel card for personal use; an accusation
of having improperly âcollaredâ trees on USCG property, in
order to cause their early death, for use as personal firewood;
and other disagreements with co-workers. Although the
district courtâs rulings addressed this evidence as a whole,
we deem it necessary to describe the first of these incidents,
and the relevant trial proceedings, in further detail. As will
be explained below, our finding of error is limited to the
district courtâs admission of the 2003 incident, which
occurred nearly one decade before the charged crimes.
As to the 2003 incident, wherein Wells directly
disobeyed an order involving the transportation of a
fiberglass hut, the relevant testimony was given by Thomas
Eskew, one of Wellsâ former USCG supervisors. Though
Eskew did not directly supervise Wells, he testified that
Wells was under his supervision for six years, from 2001 to
2007. The incident at issue involved Wellsâ role in the
installation of a remote transceiver, on Attu Island, at the far
end of the Aleutian Chain. The transceiver had been installed
in a large fiberglass hut, and loaded onto a military transport
airplane, before being flown out to Attu Island, at which time
a technical problem arose. Despite being ordered to leave the
fiberglass hut on Attu Island, Wells disobeyed the direct
order and returned to Kodiak Island with the hut in tow.
Without objection, on direct examination, Eskew
testified that Wellsâ actions made him âfuriousâ and âquite
angry,â that Wells never expressed remorse or apologized,
46 UNITED STATES V. WELLS
and further described this incident as the most significant act
of disobedience he had experienced in his thirty years with
the USCG. Immediately thereafter, the following exchange
occurred:
Q. And I think you said before he was a very
knowledgeable person; is that fair?
A. Thatâs quite true.
Q. And did he have a view of his own
knowledge, in other words?
MR. CURTNER: Objection, Your
Honor. I donât see whereâ. . . I donât
think thatâs relevant.
MS. LOEFFLER: Your Honor, itâs
directly relevant to the character that
weâre going to be discussing throughout
this trial.
THE COURT: If you know, you can
answer.
BY MS. LOEFFLER:
Q. Did you have enough interaction with him
to see how he viewed his value and
knowledge?
A. Yes. I thought he was quite conceited at
times, actually.
UNITED STATES V. WELLS 47
Q. In terms of working with him, was he
receptive to changes or differences when
things were done not the way he wanted to do
it?
A. He was only receptive to change if he had
played a part in coming up with that change;
otherwise, he was resistant and would protest
it.
(emphasis added). During its closing argument, the
Government highlighted this incident, in the context of Dr.
Meloyâs profile, as the âbest exampleâ of Wellsâ
ânarcissistic traitsâ and âthe height of ego.â
As mentioned, during the final pretrial conference, the
district court assessed and ruled on the entire body of other
act evidence as a whole, finding:
In my view, itâs inextricably in[ter]twined
with the events such that those items are
admissible. Theyâre relevant to motive, help
paint a picture of the work environment, and
are truly admissible, especially in a situation
where you have two co-workers who are
killed and a third charged with murder. And I
think the events in question that are suggested
are not too remote and are relevant and
therefore are admissible.
We address the district courtâs alternative rulings in turn. For
the reasons that follow, we find that the district court erred
in admitting the 2003 incident, as it was neither inextricably
intertwined nor permissible motive evidence under Rule
48 UNITED STATES V. WELLS
404(b)(2). We uphold the admission of the remaining other
acts evidence under Rule 404(b)(2).
Rule 404(b)(1) prohibits using evidence of crimes,
wrongs, or other acts âto prove a personâs character in order
to show that on a particular occasion the person acted in
accordance with the character.â Fed. R. Evid. 404(b)(1).
Such evidence may be admissible for other purposes, âsuch
as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.â Fed. R. Evid. 404(b)(2). Thus, âRule 404(b) is a
rule of inclusion-not exclusion-which references at least
three categories of other âactsâ encompassing the inner
workings of the mind: motive, intent, and knowledge.â
Curtin, 489 F.3d at 944.
âEvidence of âother actsâ is not subject to Rule 404(b)
analysis if it is âinextricably intertwinedâ with the charged
offense.â United States v. Beckman, 298 F.3d 788, 793 (9th
Cir. 2002). âThis exception applies when (1) âparticular acts
of the defendant are part of . . . a single criminal transaction,â
or when (2) ââother actâ evidence . . . is necessary [to admit]
in order to permit the prosecutor to offer a coherent and
comprehensible story regarding the commission of the
crime.ââ Id. at 794 (citation omitted). Only the second of
these scenarios is relevant to our discussion, and we address
it first, as it was the primary basis for the district courtâs
finding of admissibility.
As we have acknowledged, â[the inextricably
intertwined] exception to Rule 404(b) is most often invoked
in cases in which the defendant is charged with being a felon
in possession of a firearm.â United States v. Vizcarra-
Martinez, 66 F.3d 1006, 1013 (9th Cir. 1995). One such case,
cited by the Government, is United States v. Dorsey,
677 F.3d 944 (9th Cir. 2012), which we find easily
UNITED STATES V. WELLS 49
distinguishable but illustrative to our finding that that this
evidence was not properly admitted as inextricably
intertwined.
Dorsey involved a defendant who had pled guilty to
offenses involved in motor vehicle trafficking and was then
found guilty, after a jury trial, of the related crimes of witness
tampering and discharging a firearm in relation to a crime of
violence. 677 F.3d at 948. In an effort to prove the discharge
of a firearm, the Government sought to introduce testimony
of two witnesses who had seen the defendant with a gun
before the relevant shooting. Id. at 951. This Court upheld
the admission of the testimony, as inextricably intertwined,
in pertinent part, â[b]ecause the testimony bore directly on
the commission of the charged crimes.â Id. at 952 (emphasis
added). â[E]vidence that Dorsey had a gun of the same or a
similar type as the gun used in the shooting . . . was relevant
because it tended to prove that Dorsey had the means to
commit the charged crimes and that he was in fact the
shooter.â Id.
Dorsey illuminates the difference between finding that
evidence is inextricably intertwined, and therefore not
subject to Rule 404(b) analysis, and finding that evidence
falls under one of Rule 404(b)âs permissible uses, namely to
prove motive. In determining whether particular evidence is
necessary to the prosecutionâs âcoherent and
comprehensible story,â we ask whether the evidence bears
directly on the charged crime. 677 F.3d at 952 (internal
quotation marks omitted). âThere must be a sufficient
contextual or substantive connection between the proffered
evidence and the alleged crime to justify exempting the
evidence from the strictures of Rule 404(b).â Vizcarra-
Martinez, 66 F.3d at 1013. Here, none of the other acts
evidence bears âdirectlyâ on the charged crimes, or has the
50 UNITED STATES V. WELLS
requisite âcontextual or substantive connectionâ to be
categorized as inextricably intertwined. It was error for the
district court to admit it as such, but the alternative
admission under Rule 404(b)(2) saves all but the 2003
incident.
In order to determine whether the challenged evidence
was properly admitted to prove motive, under Rule 404(b),
we must first address the foundation therefor. The
Governmentâs motive theory unfolded in the following basic
sequence: Wellsâ frustrations began with a 2011 change in
COMMSTA command, which placed unwelcome pressure
on him to conform to the chain of command. Due to personal
illness and his resulting absences from work, Wells became
increasingly frustrated by a loss of professional
independence and importance. His frustration turned to
anger and culminated in the murders of his co-workers,
whom he deemed threats to maintaining his station within
the rigger shop.
While it is reasonable to grant some flexibility to a
prosecution tasked with constructing a motive theory to
prove a double workplace homicide, we must also insure that
reasonable limits are employed. We accept the
Governmentâs motive theory if it begins with the 2011
investigation into the unauthorized use of the fuel card;
proceeds to the resultant letter of caution issued in 2012;
recognizes that, throughout that time, Wells suffers a
consistent loss of ârankâ within the rigger shop; builds to the
decision by USCG command to disallow Wellsâ attendance
at an annual conference; and finally culminates in Wellsâ
murder of his co-workers. There is, however, no logical basis
to explain how a 2003 incident, marked by a different
supervisor and bearing no connection to either victim, might
provide motive for a double homicide nearly one decade
UNITED STATES V. WELLS 51
later. It is an unexplainable outlier. The only possible
purpose of this testimony would be to show Wellsâ
propensity. Indeed, the Governmentâs response to Wellsâ
trial objectionâthat Eskewâs testimony was âdirectly
relevant to the character that weâre going to be discussing
throughout this trialââbelies the Governmentâs claim that
the evidence was offered to prove motive. Instead, it
convinces us that the Governmentâs motive theory was
couched in the broadest possible terms in order to sidestep
evidentiary hurdles. Doing so allowed the Government to
compound the erroneous admission of Dr. Meloyâs profile
by arguing in its closing that this incident was the âbest
exampleâ of Wellsâ ânarcissistic traits.â
As was the case with the admission of Dr. Meloyâs
testimony, the failure of the district court to engage in Rule
403 balancing solidified the erroneous admission of the 2003
incident. Of course, we find that that incident was neither
inextricably intertwined nor permissible motive evidence
under Rule 404(b)(2), and therefore, our analysis thereof
would not have reached Rule 403. Cf. Curtin, 489 F.3d at
944 (âOnce it has been established that the evidence offered
serves one of [the purposes authorized by Rule 404(b)(2)],
. . . the âonlyâ conditions justifying the exclusion of the
evidence are those described in Rule 403: unfair prejudice,
confusion of the issues, misleading the jury, undue delay,
waste of time, or needless presentation of cumulative
evidence.â). However, had the district court considered Rule
403, the evidence should not have survived. Though we find
that testimony surrounding this incident was wholly lacking
in probative value, it is difficult to avoid the conclusion that
a nine-year-old incident with no connection to the victims or
the relevant chain of command is unfairly prejudicial,
confuses the issues, and would be misleading to the jury. See
Fed. R. Evid. 403. Thus, we again emphasize the importance
52 UNITED STATES V. WELLS
of conducting Rule 403 balancing and stress, by way of Dr.
Meloyâs testimony and this example, the deleterious effects
of failing to do so.
Again, âwe consider whether the error was harmless.â
Bailey, 696 F.3d at 802â03. On its own, this question might
have given us pause; however, we consider it in light of the
erroneous admission of Dr. Meloyâs testimony, which by
itself constituted reversible error, and into which this
evidence was interwoven. We find that the district courtâs
erroneous admissions and failure to engage in Rule 403
balancing âso infected the trial with unfairness as to make
the resulting conviction a denial of due process.â Hein v.
Sullivan, 601 F.3d 897, 917 (9th Cir. 2010) (internal
quotation marks omitted).
With that important limitation on the Governmentâs
motive theory, we turn to the application of Rule 404(b)(2)
to the remaining âother actsâ evidence. âOther acts evidence
is admissible under Rule 404(b) if it (1) tends to prove a
material point in issue; (2) is not too remote in time; (3) is
proven with evidence sufficient to show that the act was
committed; and (4) if admitted to prove intent, is similar to
the offense charged.â Beckman, 298 F.3d at 794. âOf course,
the probative value of the evidence must not be
âsubstantially outweighed by the danger of unfair
prejudice.ââ United States v. Blitz, 151 F.3d 1002, 1008 (9th
Cir. 1998) (quoting Fed. R. Evid. 403).
Applying this four-part test to evidence surrounding the
2012 letter of caution, Wellsâ tree collaring instances, and
our catch-all category of Wellsâ disagreements with co-
workers, we are satisfied that the district court properly
admitted this evidence under Rule 404(b)(2). This evidence,
as a whole, was relevant to Wellsâ work environment,
including his relationships with relevant co-workers and
UNITED STATES V. WELLS 53
supervisors; was not too remote in time and fits within a
reasonably tailored version of the Governmentâs motive
theory; and was proven through both the admission, without
objection, of Wellsâ personnel file, as well as the testimony
of the co-workers and supervisors involved in the underlying
acts. On balance, the probative value of this evidence is
unique in a workplace homicide trial, and we do not find that
it is substantially outweighed by any danger of unfair
prejudice.
D. The District Court Did Not Abuse its
Discretion in Allowing Experts Gary Bolden
and Neil Schmidt to Testify
The parties disagree as to the appropriate standard of
review to be applied by this Court. Each of these experts was
challenged via a pretrial Daubert motion, on which the
magistrate judge held a hearing and issued a report and
recommendation, which was adopted by the district court.
Thereafter, during the final pretrial conference, the district
court revisited the Daubert issues and reaffirmed his rulings.
Thus, we reject the Governmentâs argument that review is
for plain error only and find instead that Wellsâ challenges
were thoroughly explored pretrial and preserved for appeal.
See Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th
Cir. 1986) (âreject[ing] an invariable requirement that an
objection that is the subject of an unsuccessful motion in
limine be renewed at trialâ). The district courtâs decisions to
admit the expert testimony are therefore reviewed for abuse
of discretion. Reed, 575 F.3d at 918.
1. Forensic Tire Expert
Gary Bolden is the Director of Forensics at Standards
Testing Labs, Inc., and testified as the Governmentâs
forensic tire expert. Accepting Mr. Boldenâs qualifications,
54 UNITED STATES V. WELLS
Wells argues that Mr. Boldenâs testimony should have been
precluded as a sanction for the Government subjecting
Wellsâ alibi evidence (flat tire) to âdestructiveâ testing.15
The appropriate rule, governing sanctions for destruction of
evidence, is found in Judge Anthony Kennedyâs 6â5
concurrence in United States v. Loud Hawk, 628 F.2d 1139
(9th Cir. 1979), an en banc decision with several opinions.
United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013).
âAccording to Judge Kennedyâs controlling concurrence,
â[o]ur principal concern is to provide the accused an
opportunity to produce and examine all relevant evidence, to
insure a fair trial.â Id. (quoting Loud Hawk, 628 F.2d at
1151) (Kennedy, J., concurring)). âCourts must balance the
quality of the Governmentâs conduct against the degree of
prejudice to the accused, where the government bears the
burden of justifying its conduct and the accused of
demonstrating prejudice.â Id. (internal quotation marks
omitted).
Six days after the shootings, law enforcement agents
obtained a tire, along with an embedded nail, from the bed
of Wellsâ truck. By this time, the FPD had been asked to
represent Wells, though he would not be arrested for ten
15
Although Wells argues that the Governmentâs destructive testing
of the tire violated his due process rights, we find that Wells has waived
this argument. In pretrial briefing, Wells stated: âThe governmentâs
arguments regarding a due process violation based on malicious
destruction of evidence are not on point since Mr. Wells is not raising a
due process violation.â (Emphasis added). A party forfeits a right when
it fails to make a timely assertion of that right and waives a right when it
is intentionally relinquished or abandoned. Olano, 507 U.S. at 733.
âForfeited rights are reviewable for plain error, while waived rights are
not.â United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
Furthermore, Wells acknowledges that he does not seek the due process
remedy of dismissal, but rather preclusion of Mr. Boldenâs testimony.
UNITED STATES V. WELLS 55
more months. The tire was seized in order to evaluate Wellsâ
alibi that he was late to work on the day of the shooting due
to a flat tire. Wells had left voicemail messages to that effect
on the phones of both Hopkins and Reckner on the morning
of the shootings, and he later repeated this alibi to
investigators. At this investigatory stage, the tire could have
been exculpatory, supporting Wellsâ alibi, or inculpatory,
proving the alibi to be a sham.
The Government sent the tire to Mr. Boldenâs lab,
without notifying the FPD of the tire seizure or testing. Upon
receipt of the tire, Mr. Bolden made a visual check and
measured the air pressure, which was at 20 psi. He then
inflated the tire to its operating pressure of 80 psi and
checked for leaks, finding what he called a âslow leakâ
around the nail. Mr. Bolden then carefully removed the tire
from the rim, examined it inside and out, and x-rayed the
tire, which simply confirmed that there was no structural
damage to the tire. The interior of the tire was then
photographed before it was remounted to perform both a
static air retention test and a dynamic air loss test, using a
dynamometer to simulate actual highway use. After running
the dynamic test for a 24-hour period, Mr. Bolden
determined that the rate of observable air leakage was so low
that a typical driver would not perceive any air loss for three
or four hundred miles. Mr. Bolden photographed the nail in
place; at no time did he remove the nail from the tire. Based
upon his tests and observations, Mr. Bolden opined that the
nail had been inserted manually, rather than having been
picked up on the road, and the tire had not been driven on
with the nail in it.
The tire was then sent to an FBI lab, where a tool-mark
examiner further analyzed the nail. The examiner first
photographed the position of the nail in the tire and then
56 UNITED STATES V. WELLS
removed it for further testing. The examiner agreed with Mr.
Boldenâs conclusion that the nail had been manually inserted
into the tire, via a nail gun. The tire and nail, as well as Mr.
Boldenâs report, were then sent to Wellsâ forensic tire expert,
Bruce Currie, for further examination.
Pretrial, in support of his Daubert challenge to Mr.
Boldenâs testimony, Wells submitted an affidavit from Mr.
Currie. Therein, Mr. Currie asserted that, as a result of Mr.
Boldenâs 24-hour dynamic air loss test, the condition of the
tire was âdefinitely altered,â making it âimpossible to further
evaluate the condition of the tire at the time of the incident.â
He further opined that the deflection of the tire, which
occurred approximately 937,440 times during the 1,488-
mile test, âwould have a significant effect on the condition
of the nail relative to the nail hole in the tire.â At trial, Mr.
Currie challenged Mr. Boldenâs tests and conclusions on
multiple fronts, and explained that his receipt of the tire, after
the nail had been removed, prevented him from being able
to independently evaluate the tireâs condition and air loss or
to effectively duplicate Mr. Boldenâs tests or analyses.
Instead, Mr. Currieâs own testing was limited to using a
paperclip to determine the angle at which the nail had
entered the tire, through the hole left by the removed nail.
He opined that the nail could have been picked up and
entered the tire on a road surface and that he believed such a
scenario was â[m]ore likely than not.â
Applying Loud Hawkâs balancing test, the Court must
first evaluate the quality of the Governmentâs conduct,
inquiring:
whether the evidence was lost or destroyed
while in its custody, whether the Government
acted in disregard for the interests of the
accused, whether it was negligent in failing
UNITED STATES V. WELLS 57
to adhere to established and reasonable
standards of care for police and prosecutorial
functions, and, if the acts were deliberate,
whether they were taken in good faith or with
reasonable justification. . . . It is relevant also
to inquire whether the government attorneys
prosecuting the case have participated in the
events leading to loss or destruction of the
evidence, for prosecutorial action may bear
upon existence of a motive to harm the
accused.
Sivilla, 714 F.3d at 1173 (quoting Loud Hawk, 628 F.2d at
1152). The quality of the Governmentâs conduct is then
balanced against the degree of prejudice, which is analyzed
by considering:
a wide number of factors including, without
limitation, the centrality of the evidence to
the case and its importance in establishing the
elements of the crime or the motive or intent
of the defendant; the probative value and
reliability of the secondary or substitute
evidence; the nature and probable weight of
factual inferences or other demonstrations
and kinds of proof allegedly lost to the
accused; the probable effect on the jury from
absence of the evidence, including dangers of
unfounded speculation and bias that might
result to the defendant if adequate
presentation of the case requires explanation
about the missing evidence.
Id. at 1173â74 (quoting Loud Hawk, 628 F.2d at 1152).
58 UNITED STATES V. WELLS
At the outset, we agree with the district courtâs finding
that the Governmentâs testing neither destroyed nor
substantially altered the tire or the nail. The Government
might have notified the FPD of the seizure and testing;
however, it was under no affirmative obligation to do so. It
is undisputed that the Government did not have probable
cause to arrest Wells at the time of the testing, indeed he was
not arrested for nearly ten more months, such that the results
of the tire testing could have ultimately proved inculpatory
or exculpatory. In an effort to identify an alleged perpetrator
for formal accusation, the Government took reasonable
actions in evaluating Wellsâ stated alibi, followed industry
standards, and documented all steps in Mr. Boldenâs report.
Mr. Currie then had full access to all photographs, testing,
methodology, and reports from the Governmentâs nail and
tire experts, in addition to the nail and tire themselves.
As to any degree of prejudice, Mr. Currie could have,
and indeed did, launch extensive challenges to Mr. Boldenâs
tests and conclusions. As Daubert confirmed, â[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.â Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993). Furthermore, as found in the district court,
Wells can only speculate as to whether his own expert would
have reached any different conclusions as to the condition,
location, or angle of the nail while still in the tire. On
balance, the quality of the Governmentâs conduct in this case
was far from âpoor,â see Sivilla, 714 F.3d at 1173; rather, it
was reasonable, in pursuing investigative avenues necessary
to narrow the focus on a particular suspect in a double
workplace homicide. Allowing Mr. Bolden to testify as to
his expert conclusion was not an abuse of discretion.
UNITED STATES V. WELLS 59
2. Honda Engineer
Neil Schmidt is an engineer and âtechnical specialist,â
with twenty yearsâ experience at Honda, including seven
years as an engineer responsible for the Honda CR-V, which
was the make and model of Nancy Wellsâ vehicle. At trial,
Schmidt was tendered as âan expert in Hondas, [with an]
associated knowledge of related vehicles.â Schmidtâs
expertise was used to identify what appeared to be a blurry
image of a small blue SUV, caught on surveillance footage
on April 12, 2012. His testimony was relevant, in order to
place Wells in Nancy Wellsâ 2001 blue Honda CR-V, on the
morning of the murders.
Schmidt testified that he was 70% certain that the
depicted vehicle was an early model Honda CR-V. On direct
examination, the Government inquired of Schmidt whether
he was able to identify other automobiles that could be
consistent with the vehicle in the surveillance image and
which might raise his level of certainty regarding his
identification. Schmidt testified that he had identified three
makes and models, other than the Honda CR-V but
significantly similar thereto. During the investigation, these
comparators were then used by photogrammetry comparison
experts and law enforcement agents, in ruling out other
vehicles with possible connections to the murders.
Wells did not renew his objection to Schmidtâs
qualifications at trial. On appeal, Wells accepts Schmidtâs
knowledge of the Honda CR-V but challenges his
qualifications to reliably testify to the likelihood that the car
was a Honda, due to his lack of specialized knowledge in
ruling out other vehicles. Federal Rule of Evidence 702âs
reliability requirement asks whether an expertâs testimony
has âa reliable basis in the knowledge and experience of the
relevant discipline.â Kumho Tire Co. v. Carmichael,
60 UNITED STATES V. WELLS
526 U.S. 137, 149 (1999) (alteration omitted). The inquiry is
âa flexible one.â Id. at 150 (quoting Daubert, 509 U.S. at
594). Courts have broad latitude in determining the
appropriate form of the inquiry. See United States v.
Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) (âNowhere
. . . does the Supreme Court mandate the form that the
inquiry into relevance and reliability must take.â).
Here, the magistrate judge conducted a pretrial Daubert
hearing and determined that Schmidtâs 20 yearsâ experience
as a Honda engineer qualified him to opine as to the
likelihood that the vehicle in the image was the same make
and model on which he had worked directly for seven years.
At the final pretrial conference, the district judge reaffirmed
that the blurry quality of the video might affect the weight of
the testimony, rather than its admissibility, and could be
explored on cross-examination. See Daubert, 509 U.S. at
596; see also United States v. Ford, 481 F.3d 215, 220 (3rd
Cir. 2007) (expert could testify that characteristics of shoe
print were similar to defendantâs shoe despite inability to
rule out other shoes due to lack of clarity in the print). We
find no abuse of discretion in allowing Schmidt to opine and
testify.
E. The District Court Was Not Required To
Declare a Mistrial Upon Elicitation of
Prejudicial Testimony
During the prosecutorâs direct examination of the USCG
commander responsible for notifying Nicola Belisle of her
husbandâs death, the prosecutor asked a question which
mischaracterized the widowed spouseâs verbal identification
of Wells. Wells immediately objected, but did so on the basis
of relevance, and moved to strike the testimony. Later, Wells
moved for a mistrial. On appeal, he argues prosecutorial
misconduct.
UNITED STATES V. WELLS 61
âTo obtain a reversal based on prosecutorial misconduct,
[the defendant] must establish both misconduct and
prejudice.â United States v. Wright, 625 F.3d 583, 609â10
(9th Cir. 2010), superseded by statute on other grounds as
recognized by United States v. Brown, 785 F.3d 1337, 1351
(9th Cir. 2015). âWhere defense counsel objects at trial to
acts of alleged prosecutorial misconduct, we review for
harmless error on defendantâs appeal; absent such an
objection, we review under the more deferential plain error
standard.â United States v. Hinton, 31 F.3d 817, 824 (9th Cir.
1994). Because Wells did not object on the basis of
prosecutorial misconduct below, our review now is for plain
error.
On the morning of the murders, COMMSTA
Commander Peter Van Ness and an Alaska State Trooper
visited Nicola Belisle, the wife of victim Richard Belisle, to
notify her of her husbandâs death. The trooper was wearing
a recording device. Both the audio recording and transcript
thereof were provided to Wells during pretrial discovery.
The transcript is twenty pages long and reflects a highly
emotional scene, with very little coherent conversation.
Once Ms. Belisle calmed down, the trooper asked her
whether her husband had any problems with anybody. Ms.
Belisle responded â[j]ust Jim,â clarified that she was
referring to the defendant, âJim Wells,â and then stated âJim
wouldnât hurt Rich.â
At trial, the Government called Commander Van Ness to
testify about the spousal notification:
Q. What was her reaction?
A. She was hysterical, very, very upset. In
fact, IâI donât know that we even had to say
anything. When we walked in in uniformâshe
62 UNITED STATES V. WELLS
had already heard. Kodiakâs a small town.
They were aware something was going on at
the communication station by that point. I
thinkâI donât remember the exact time, but I
believe it was around 10 oâclock in the
morning, so it had been, you know, two hours
or so. Word gets out. And so when we walked
in in uniformâ
Q. Did she blurt out a name?
A. Yes.
Q. What was that name?
A. Jim Wells.
Wells immediately objected on the basis of relevance and
moved to strike the testimony. The Government argued that
the statement was admissible as an excited utterance and was
not being offered for the truth thereof. The district court
deferred ruling, instructed the Government to move on with
questioning, and later revisited the issue outside the presence
of the jury.
During oral argument on this issue, the Government took
the inconsistent positions that the statement was admissible
as both an excited utterance and to show that there was some
discord between Richard Belisle and Wells. As to the latter,
the Governmentâs position was that Ms. Belisleâs statement
tended to rebut two defense themes: that Chief Scott
Recknerâs hostility toward Wells caused investigators to
focus on Wells to the exclusion of other suspects; and that
Wells and Belisle got along. These positions are of course
UNITED STATES V. WELLS 63
contradictory because the latter could only be valid if the
statement was indeed offered for the truth thereof.
Wells moved for a mistrial. The district court denied the
mistrial and instead gave the following limiting instruction:
I need a cautionaryâIâm concerned about a
comment that was made during the last
witness when a question was askedâor when
the commander and those with him conveyed
to Mrs. Belisle that her husband had been
killed, and her response wasâyou remember
what her response was. She said a name.
I have to make it clear to you that she had no
personal knowledge of that. And so that
statement cannot be used by you as evidence
of that event. It could be limited, very, very
limited. It explains possibly, and maybe not,
her relationshipâher imprâher personal
impression of the relationship between her
husband and Mr. Wells and the information
she conveyed at the time to the commander
and those there. But it is not evidence ofâ
against Mr. Wells as to who committed this
crime, because she didnât know. She simply
did not know. Itâs an emotional reaction. That
was it. And to give it more weight than that
would be highly inappropriate. Tells you her
reaction, and possibly limited to other ways.
But it is not, cannot, should not be used in any
way to suggest that the defendant committed
the crimes heâs charged with, because she
didnât know.
64 UNITED STATES V. WELLS
...
Anything else I can say beyond whatâIâm
trying to make it as clear as a bell. This is
very, very limited. Itâs what we call an
excited utterance. Itâs an emotional response.
But it has no evidentiary basis as to the issue
you have before you as to who committed
these crimes. Very, very limited as to her
emotional response at the moment and the
impression possibly that she had with regard
to her husbandâs relationship with the
defendant. And of course whatever
impressions might have been created in the
minds of those standing before her at the
moment.
The jury was released for the day, and the court then
addressed counsel, declaring that the juryâs body language
indicated that they âseemed to clearly understand that this
was not evidence as to who committed the crime.â
The next morning, outside the presence of the jury, the
district court heard further argument on the issue. At that
time, the court was initially inclined to instruct the jury to
disregard the testimony but was ultimately satisfied that the
above-described instruction âclearly limit[ed] any
prejudice.â Upon request, Wells was allowed to recall
Commander Van Ness in an attempt to clarify the context of
the statement introduced the day before. When Commander
Van Ness testified that he did not recall the conversation
with Ms. Belisle, the Government stipulated to the contents
of the transcript. At the time, Wells explicitly did not seek
reconsideration of the prior dayâs ruling that the statement
was an excited utterance, and the merits of that ruling are not
UNITED STATES V. WELLS 65
before us on appeal. Instead, we are asked to decide whether
prosecutorial misconduct required a mistrial, or now,
requires a reversal. As mentioned, such a finding requires
both misconduct and prejudice. Wright, 625 F.3d at 609â10.
âA prosecutor has a special duty commensurate with a
prosecutorâs unique power, to assure that defendants receive
fair trials.â United States v. LaPage, 231 F.3d 488, 492 (9th
Cir. 2000) (addressing a prosecutorâs duty when he knows
that his witness commits perjury). âIt is certainly within the
bounds of fair advocacy for a prosecutor, like any lawyer, to
ask the jury to draw inferences from the evidence that the
prosecutor believes in good faith might be true.â United
States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002).
Here, we find that the prosecutor committed misconduct
for several reasons. First, the prosecutorâs question
interrupted Commander Van Ness describing what
happened when the two officers âwalked in in uniform.â
This mischaracterized the timing of Ms. Belisleâs statement,
by giving the jury the false impression that it was
immediately uttered upon seeing the uniformed officers.
Second, the prosecutorâs phrasing, inquiring whether the
widow âblurt[ed] out a name,â again mischaracterizes the
statement as being made suddenly and without considered
thought. In reality, the statement was made approximately
ten minutes after the officers approached Ms. Belisle, and in
response to direct questions which required consideration of
possible suspects. The phrase âblurt outâ plainly ignores the
role played by the officers in eliciting Wellsâ name as a
possible suspect. Third, not only did the prosecutor choose
not to bring this sensitive issue to the district courtâs
attention prior to questioning Commander Van Ness, but
upon verbalizing the mischaracterization and being
confronted with the ramifications, the prosecutor failed to
66 UNITED STATES V. WELLS
assist in mitigation thereof. Although this constitutes
misconduct, we find no prejudice.
The district court adequately redressed the
Governmentâs action. In addition to instructing the jurors
that questions are not evidence, the district court gave a
lengthy limiting instruction. Wells neither objected to the
limiting instruction itself nor did he request any further
instructions. âGenerally, when evidence is heard by the jury
that is subsequently ruled inadmissible, or is applicable only
to limited defendants or in a limited manner, a cautionary
instruction from the judge is sufficient to cure any prejudice
to the defendant.â United States v. Escalante, 637 F.2d 1197,
1202â03 (9th Cir. 1980). âThis procedure is the preferred
alternative to declaring mistrial . . .; mistrial is appropriate
only where there has been so much prejudice that an
instruction is unlikely to cure it.â Id. at 1203. â[O]ur court
assumes that the jury listened to and followed the trial
judgeâs instructions.â Id. at 1202; see also United States v.
Gallenardo, 579 F.3d 1076, 1082 (9th Cir. 2009) (affirming
denial of motion for a mistrial because it is âpresume[d] that
the jury followed the district courtâs limiting instructionâ).
In addition to the limiting instruction, the district court
allowed Wells to recall Commander Van Ness, in an effort
to place the prejudicial statement in its proper context. See
United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.
1988) (opponent may introduce evidence âto rebut any false
impression that might have resulted from the earlier
admissionâ); Standard Oil Co. of Cal. v. Moore, 251 F.2d
188, 220 (9th Cir. 1957) (in the context of hypothetical
questions posed to experts, prejudicial error seldom results
where âthe objecting party can, through cross-examination,
expose to the jury the asserted deficiencies of the
hypothetical question as askedâ). Furthermore, the parties
UNITED STATES V. WELLS 67
ultimately stipulated to the contents of the transcript, such
that the jury was well aware of its proper context. The district
court did not plainly err.
F. The District Court Properly Excluded
Evidence of Third Party Culpability
âWe review for abuse of discretion a claim that the trial
court improperly excluded evidence of third-party
culpability.â Territory of Guam v. Ignacio, 10 F.3d 608, 611
(9th Cir. 1993).
âThere is no question that the defendant has the right to
introduce evidence of third-party culpability.â Ignacio,
10 F.3d at 615. The admission of third-party culpability
evidence is governed by â[f]undamental standards of
relevancy, subject to the discretion of the court to exclude
cumulative evidence and to insure orderly presentation of a
case.â United States v. Armstrong, 621 F.2d 951, 953 (9th
Cir. 1980). Wellsâ proffered testimony, however, was not
even minimally relevant.
At trial, Wells sought to introduce evidence of an
alternative perpetrator, Jason Barnum. The district court
allowed Wells to proffer the testimony of Mr. Barnum
himself, along with seven other witnesses, in an attempt to
show some logical connection to any of the facts in this case.
Despite multiple witness proffers, Wells was never able to
elicit any testimony that Barnum knew any of the victims or
the victimsâ families or that he had any connection to, or
familiarity with, the COMMSTA facility. The district court
applied the balancing test set forth in Miller v. Stagner,
68 UNITED STATES V. WELLS
757 F.2d 988 (9th Cir. 1985), 16 and found that Mr. Barnum
had ânothing meaningful, reliable, or relevant to offer.â
Having probed the proffered testimony ourselves, we agree
with the district court that it has no probative value. Far from
abusing its discretion, the district court granted Wells every
opportunity to show some logical connection, however weak
or remote, between Jason Barnum and this case, and he
failed to establish any relevancy.
G. We Reassign To Preserve the Appearance of
Justice
This Court will reassign a case on remand only under
âunusual circumstances or when required to preserve the
interests of justice.â United States v. Wolf Child, 699 F.3d
1082, 1102 (9th Cir. 2012). We need not find actual bias on
the part of the district court prior to reassignment. Krechman
v. Cty. of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013).
Rather, we consider:
(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously expressed views or
findings determined to be erroneous or based
on evidence that must be rejected,
16
In determining whether the exclusion of trial evidence violated a
defendantâs due process rights, the Miller factors seek to balance the
following considerations: âthe probative value of the evidence on the
central issue; its reliability; whether it is capable of evaluation by the
trier of fact; whether it is the sole evidence on the issue or merely
cumulative; and whether it constitutes a major part of the attempted
defense.â Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985). Due
weight should also be given to the governmental interests in âpreserving
orderly trials, in judicial efficiency, and in excluding unreliable or
prejudicial evidence.â Id. at 995.
UNITED STATES V. WELLS 69
(2) whether reassignment is advisable to
preserve the appearance of justice, and
(3) whether reassignment would entail waste
and duplication out of proportion to any gain
in preserving appearance of fairness.
Wolf Child, 699 F.3d at 1102 (quoting United States v.
Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)). âThe first two
factors are equally important and a finding of either is
sufficient to support reassignment on remand.â Krechman,
723 F.3d at 1112.
Wells requests reassignment based on the district courtâs
extensive comments, made at sentencing, in response to
Wellsâ insistence upon his own innocence. Having reviewed
those comments, in light of the above factors, we expect that
the original judge would have substantial difficulty in setting
aside his views of this case. 17 We therefore find that
reassignment is advisable to preserve the appearance of
justice and order that this case be reassigned on remand.
17
The dissent recognizes that âthe district court undoubtedly used
strong languageâ at sentencing and enumerates the statements that raise
the possibility or appearance that the original trial court might have
difficulty setting aside its views of this case. In particular, we note that
the district court relied on the very profile evidence we hold warrants a
new trial here, calling Wells âangry, selfish, jealous, narcissistic, and
envious.â Thus, this is not a case where the district court merely
âexpressed [its] opinion of the defendantâs guilt at sentencing,â but one
where at least some of the subject statements were founded on error.
70 UNITED STATES V. WELLS
IV. CONCLUSION
For the foregoing reasons, we find that Wells did not
receive a fair trial.
REVERSED AND REMANDED FOR A NEW
TRIAL AFTER BEING REASSIGNED.
NGUYEN, Circuit Judge, concurring in part:
While I otherwise concur, I am unable to fully join in
Part III.A of the opinion. I agree that the magistrate court
did not abuse its discretion by removing Mr. Offenbecher as
appointed counsel under the CJA, once the government was
no longer seeking a punishment of death. Given this
holding, I see no need to âoffer a cautionary noteâ on the
magistrate courtâs decision-making process. In doing so, the
opinion wrongly assumes that the magistrate judge failed to
consider the budgetary constraints faced by the Federal
Public Defenderâs Office because the majority âfind[s] no
indicationâ in the record that it did so. But a failure to
comment specifically on these concerns does not equate to a
failure to consider them. Indeed, the opinionâs discussion of
United States v. Kott, No. 3:07-CR-056-JWS-JDR, 2011 WL
2357508 (D. Alaska June 13, 2011), suggests that this
magistrate judge was well aware of the FPDâs budget
problems and had a practice of considering them. Here,
given FPD Curtnerâs express representations in connection
with his opposition to the governmentâs motion to relieve
Mr. Offenbecher, itâs highly unusual for an appellate court
to assume that the magistrate judge failed to consider these
relevant statements and then criticize the judge for not doing
so. This is especially so because we ultimately conclude that
the ruling was correct.
UNITED STATES V. WELLS 71
The opinion also harshly criticizes the conduct of the
government in this case, and rightly so. The motion to
remove Mr. Offenbecher was unusual and unbecoming. The
government occupies a powerful role in our justice system,
and it has vast resources to accomplish its prosecutorial
functions. The government bears a unique responsibility not
to tip the scales against a defendant, and it failed to
demonstrate sufficient sensitivity to that duty here. But,
however ill-advised and rare it is to do so, I have found no
clear prohibition to the government seeking removal of
counsel under these circumstances. Thus, itâs not entirely
obvious that the Assistant United States Attorneys âplaced
[themselves] in an ethically compromised positionâ by doing
so here. In fact, there is evidence that the government has
misstepped in the same fashion on other occasions. See, e.g.,
United States v. Rodriguez, No. 12-CR-83S, 2015 WL
1120157, at *3 n.3 (W.D.N.Y. Mar. 12, 2015); United States
v. Eldridge, No. 09-CR-329, 2014 WL 4640848, at *1
(W.D.N.Y. Sept. 16, 2014). This is an important issue on
which the Department of Justice could provide additional
training and guidance to its line AUSAs in order to avoid
prosecutorial overreach.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
Although I concur in the rest of the opinion, I
respectfully dissent from the majorityâs decision to reassign
the case on remand. As the majority acknowledges, we
reassign a case only in ârare and extraordinary
circumstances.â Krechman v. Cty. of Riverside, 723 F.3d
1104, 1112 (9th Cir. 2013) (quoting Air-Sea Forwarders,
72 UNITED STATES V. WELLS
Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 191 (9th Cir. 1989)).
The circumstances here were neither rare nor extraordinary.
At sentencing, the district judge undoubtedly used strong
language. For example, the judge said, â[T]hereâs one thing
thatâs absolutely clear to me beyond a reasonable doubt, and
that is that James Wells is a cold-blooded murdererâ; âYou
can fight for your innocence, but that wonât make you
innocent, because youâre guiltyâ ; and âTwo men cut down
in their prime by an angry, selfish, jealous, narcissistic, and
envious man.â
While the district judgeâs comments may not have been
âas restrained as we would wish them to be,â that alone does
not justify reassignment. California v. Montrose Chem.
Corp., 104 F.3d 1507, 1521 (9th Cir. 1997).
It is perfectly appropriate for a judge to express his
opinion of the defendantâs guilt at sentencing, after the jury
has returned its guilty verdict. After all, if the judge believes
that the verdict is a miscarriage of justice, he or she should
either grant an acquittal or a new trialânot sentence a
defendant he or she believes to be innocent. Moreover,
18 U.S.C. § 3553(a) obligates a sentencing judge, on the
record, to âconsider the nature and circumstances of the
offense and the history and characteristics of the defendant.â
United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc) (citing 18 U.S.C. § 3553(a)(1)). The district court
must also state its reasons for imposing the given sentence,
in order to permit meaningful appellate review. 18 U.S.C.
§ 3553(c). The majorityâs decision forces a sentencing judge
to justify her sentence without being too firm, or to risk
reassignment in the event of remand. That is an unenviable
position. When we reverse a conviction and remand for a
new trial (or resentencing), we routinely remand to the same
judge who presided over the first trial and sentencing. The
UNITED STATES V. WELLS 73
majorityâs decision to require reassignment in the
circumstances of this case calls that practice into question
and, indeed, opens the door to reassignment based on the
whim of the panel. I say âwhim,â because the majorityâs
decision to reassign here is standardless.
In the few other cases in which we have reassigned based
on comments the district court made at sentencing, judges
explicitly signaled their âsubstantial difficultyâ setting aside
previous views. See, e.g., United States v. Quach, 302 F.3d
1096, 1103â04 (9th Cir. 2002) (reassigning where the judge
stated he would have denied a sentencing motion that was
not brought initially, but could be filed on remand); Benvin
v. U.S. Dist. Court for the Dist. of Nev. (In re Benvin),
791 F.3d 1096, 1104 (9th Cir. 2015) (reassigning where the
court improperly inserted itself into plea negotiations and
had âexpressed explicit views on the appropriate termsâ of
an eventual agreement).
By contrast, nothing in the record here suggests that this
district judge will be unable to follow this courtâs mandate
on remand. See United States v. Johnson, 812 F.3d 757, 765
(9th Cir. 2016) (holding sentencing comments about
defendantâs credibility did not justify reassignment). All of
the judgeâs comments which form the basis of the
reassignment are based on the trial record, which includes
the presentence investigation report of the Probation Officer.
The majority, unable to point to any specific, articulable
reason why this case should be reassigned to a different
district judge on remand, attempts to justify its recusal of
the district judge because âat least some of the subject
statements [at sentencing] were founded on error,â
specifically noting âthat the district court relied on the very
profile evidence we hold warrants a new trial.â Maj. Op. at
2 n.17. But this focus is misdirected. By definition, when
74 UNITED STATES V. WELLS
we reverse for a prejudicial evidentiary ruling, the court will
have based its trial and sentencing decisions, at least in part,
on evidence that should not have been admitted. But we
donât routinely require reassignment in such cases. Instead,
we ask whether the record discloses any reason why the
district judge cannot set aside his erroneous view and follow
the mandate of this court. As we stated in United States v.
Wolf Child, 699 F.3d 1082 (9th Cir. 2012):
Although the district judge erred in making
remarks expressing the view that Wolf Child
categorically presented a danger to all
children, including his own daughters, we
believe our opinion gives sufficient guidance
that, should he determine that it is necessary
to impose new conditions relating to Wolf
Childâs being in the company of other
minors, he will impose only suitably narrow
conditions that will comply with the
applicable legal requirements set forth above.
Id. at 1102â03. See also Krechman, 723 F.3d at 1112
(âDespite his error of law in the prior hearing now under
appeal, we have no reason to believe that [the district judge]
would be unable fairly and correctly to apply the [correct]
standard on remand.â).
In sum, I do not believe that a judgeâs expression of
agreement with the verdict, however strong, itself can serve
as sufficient evidence that the judge will be unable to afford
the defendant a fair retrial.
I respectfully dissent from the order of reassignment.
Case Information
- Court
- 9th Cir.
- Decision Date
- January 11, 2018
- Status
- Precedential