United States v. James Wells

900 findings, on its 78-79, 7 P.3d 79. Based compre- ability perceive,

the defendant’s Id. sentence. hend, Poyson’s Id. After death upheld his actions.” court or control 82, abusive child- did so while considering the defendant’s 79. The court at 7 P.3d and impact on his behavior “independently its re duty hood and its performing conduct, Arizona conform his ability to mit aggravating reweigh the view and no error found there was Supreme Court every capital case circumstances igating child- evidence of determining that the 81, 7 P.3d 79. ....’’Id. “insufficiently mitigating abuse was hood Here, re- Supreme Arizona Court leniency.” Id. to call for Poyson’s mitigating and considered viewed Supreme Court’s light In Arizona evidence, against it the case’s and balanced weighing consideration reasoned Accordingly, circumstances. aggravating evidence, there was no basis mitigating concluding that our for basis there concluding this same evidence Eddings error any presumed correction a impact—let a alone have different impact on have had substantial “would court impact—on the same substantial permitted to capital sentencer who resentencing simply because federal weight to give appropriate evaluate Eddings provides court a reminder nonstatutory mitigating factor.” applying precludes a sentencer II, McKinney 813 F.3d at 823. We should II, McKinney causal nexus rule. any presumed conclude therefore permit “mere at 823-24. Brecht does prejudicial, nexus error was causal speculation” potential prejudice about relief. Poyson is not entitled to therefore Davis, at 2198 to a 135 S.Ct. defendant. McKinney II bound we are Because Calderon, 119 525 U.S. (quoting (at are unable being), for the time least not a there is reason S.Ct. Because As a re- correct conclusion. to reach legal presumed possibility able majority sult, reluctantly I concur Supreme error the Arizona influenced opinion. effect, Court, slight than a have more See Kotteakos

the sentence should stand. 750, 764, States, 328 U.S.

v. United (1946); Davis,

S.Ct. 90 L.Ed. McKinney II at 2198. erred S.Ct. ruling otherwise. America, UNITED STATES Plaintiff-Appellee,

Ill by McKinney are bound Because we Brecht, application

sIV erroneous WELLS, Defendant- Michael James In our appeal as well. error infects Appellant. case, Supreme Court consid the Arizona 14-30146, Nos. 15-30036 Poyson’s mitigating regard ered of Appeals, Court United States abusive child health and his mental Ninth Circuit. hood, merely that it stated accorded but weight.” Poy mitigating “no these factors July Argued and Submitted 81-82, son, P.3d On 198 Ariz. at Seattle, Washington hand, Supreme Court other the Arizona December Filed supported aggra that the evidence found 11, 2018 January Amended (1) gain, pecuniary vating circumstances (2) cruel, heinous, depraved especially (3)

murder, multiple homicide. Id. at

er, is may not absolute and ‘bow legitimate accommodate other inter ” process.’ ests the criminal trial Id. (quoting v. Mississippi, Chambers (1973)). type U.S. This of-evi dence is admissible “if it simply af a possible ground fords of suspicion against rather, such person; it must be with coupled substantial evidence tend directly person connect actual commission the. offense.” Rushen, Perry (internal quotation marks omitted) added). (emphasis following with the text: The admission culpability of third-party governed “[f|undamental by evidence is relevancy, subject standards of discretion of the court to exclude cumu- orderly lative insure presentation of case.” United States v. Armstrong, 621 F.2d proffered testimony, how- (argued); Glendale, TV'Chen Davina Cali- ever, minimally relevant. even fornia, for Defendant-Appellant. D. (argued), Elizabeth Collery United Judge Nguyen; Concurrence Justice, Department Washington, States D.C,; Wilson, E. Bryan Assistant United Partial Concurrence and Partial Dissent Schroder, Attorney; Bryan States by Judge Tashima Attorney; States Attorney’s United States Office, Alaska; for Anchorage, Plaintiff- OPINION Appellee. WALTER, Judge: District Before: A. Wallace Tashima Defendant-Appellant Michael James Jacqueline Nguyen, H. Judges, Circuit (“Wells”) jury trial appeals from Walter,** E. Judge. Donald District Degree for two of First convictions counts Murder, 1111(a), § violation of U.S.C. ORDER (b); two counts of of a Federal Murder 19, 2017, Opinion filed December Employee, in. 18 U.S.C. violation of slip opinion page amended as follows: 1114, 1111; §§ and two counts Use 66, 12-22, replace following lines text: to a Firearm Relation Crime of Violence Death, present

“The defendant’s to right Resulting evi of violation 18 him, may (c), § (j), dence which exonerate howev was U.S.C. sentenced Wells Walter, Louisiana, sitting by designation. **The Honorable Donald E. Judge States District the Western District 12, April concurrent, on consecutive, 7:09 a.m. approximately and two to four im- footage blurry showed a also to Relevant and ordered imprisonment, оf life terms SUV, been of a small blue which had restitution, age total amount of pay Hopkins, without head- traveling behind $1,488,475.00,to the victims’ estates. Wells a.m., a small approximately At 7:14 lights. challenges convictions and restitution his this time again captured, SUV was blue ap- over this jurisdiction order. We at al- traveling opposite in the direction § 1291. to 28 U.S.C. peal pursuant cap- car speed most blue twice Louis D. Brandéis warned As Justice earlier, traveling just tured a few minutes ago: greatest dangers “The to many years Hopkins. behind lurk in insidious encroachment liberty morning com- typical 8.8-mile zeal, well-meaning but without un men of Wells’ COMMSTA, mute, from his residence to States, derstanding.” Olmstead v. United 5.1 miles included 438, 479, approximately L.Ed. 277 U.S. S.Ct. gate, main then miles 1.7 USCG (1928) (Brandeis, J., dissenting). After finally 2 more miles airport, and Kodiak all, are bound to prosecutors United States route, Along T2. surveil- reach various appear in the name We are Justice. capture positioned are lance cameras over opinion the Government parking lots. traffic Wells passing and early pretrial in the stepped its bounds that, morning April on the claimed during continued overreach process and tire, noticing that he had a flat he upon actions, trial. The unchecked Government’s adja- parking in hotel lot turned around points, court at so by the district critical airport, drove back home cent and justice as to render tipped the scales change camera tire. surveillance fundamentally trial unfair. There Wells’ gate cap- main at the USCG’s entrance fore, remand for we reverse and a new Dodge pickup tured white truck trial. .Wells’ a.m., traveling away passing at 6:48 COMMSTA, residence' and towards I. BACKGROUND a.m., traveling in again then at 7:22 and Investigation A. The and Crime direction, opposite leaving an unac- At out of the for 34-minute 7:30 convictions arise deaths counted window. Wells’ Hop- a.m., message A. Richard W. Belisle and James left voicemail Wells kins, Hopkins’ phone, co- employees federal Wells’ then-deceased as well explaining at the Coast Guard phone, workers United States Chief Reckner’s Scott (“USCG”) facility, lo- be at antenna maintenance he a flat tire had change at the Station soon the tire. cated USCG Communication work as could (“COMMSTA”) Island, on Kodiak Alaska. wife, murders, At the time Wells’ buildings: main COMMSTA consists two Wells, Nancy away from Is- Kodiak center, Tl; large operations known as vehicle, a left her blue land had facility, or the antenna maintenance CR-V, parked at Kodiak air- Honda T2. “rigger shop,” known as Most April a law port. On the afternoon in the Tl members work COMMSTA agent, who was aware of enforcement only eight T2 building, maintains while SUV, image of the small blue surveillance included regular employees, which Wells airport Nancy car noticed of the victims. both subsequently investigation lot. The parking that, April the car captured Hopkins’ revealed cameras

Surveillance Nancy had left two parking parked T2 lot at where pulling truck into the trial, arrived, At the Government’s an Alaska days Trooper earlier. State cleared his theory facility, white the was Wells drove and secured now a crime Dodge airport, scene, pickup investigative truck to the where purposes. for Wells ar- Nancy and swapped a.m., vehicles drove at approximately rived at T2 8:23 Honda CR-V COMMSTA past well over an hour his blue normal start Wells’ commit the time, murders. immediately claiming to a have had flat tire. a.m., 12, April on approximately

At 7:30 2012, Cody Petty Third Class Officer murders, In the aftermath of the T2 discov- and Beauford arrived work truck, a search of consented to where Hopkins the and ered Belisle. bodies agents law enforcement found and seized multiple gunshot had Each victim suffered tire a nail it. The Government sent large weapon. caliber- wounds expert,' Gary the tire to tire n forensic entry of forced There was Bolden, 'testing. for The examination and nothing appeared in T2 robbery, else and lab, tire then to the FBI was returned an Elec- Hopkins, to have been disturbed. performed where tool mark examiner (ET1) Technician First and tronic Class testing on position further the nail and its found, rigger shop on supervisor, the was Both the tire. and the tool Bolden mark Belisle, a floor. retired break-room nail examiner concluded had been one of the Chief Boatswain’s Mate tire, manually inserted into the undermin- was shop’s employees, two civilian rigger ing alibi that he Wells’ foundation Wells, adjacent found in office. up a picked driving nail while work had employee civilian would have other who morning on the the murders. time, nоrmally present been at that was absent. B. The Indictment and Wells’ Representation morn- victim’s at T2 on the

Each arrival they time-stamped were murdered was ten months after Approximately footage, which monitored by surveillance murders, 19, 2013; February Wells was employee parking area situated the usual following six counts: bn indicted front of of their T2. The times degree, the first Counts and murder arrivals, respective with the last combined 7(3) §§ in violation 18 U.S.C. activity computer on Belisle’s recorded (b); 1111(a), Counts 3 and murder of an positions of the bodies relative States, in employee officer the United victim, morning rituals of each led known 1114, 1111; §§ of 18 arid violation U.S.C. investigators to the mur- conclude that possession- and use Counts a.m., 7:14 ders occurred between 7:10 and to a crime of firearm relation violence April crime window thus death, in violation of resulting 18 U.S.C. period of squarely fit within the 34-minute (c), (j). § to' Pursuant 18 U.S.C. not account. It time which Wells could 3006A, § Public Alaska’s Federal Defend- unexplained discrepancy Curtner, (“FPD”), appoint- F. Rich er interviewing captured attention represent Within three weeks ed Wells. agents upon which the Government FPD appearance, initial Curtner heavily at relied trial. to have a successfully moved second court- Offenbecher, bodies, attorney, as- Peter discovering appointed Beauford Upon case, signed then-capital pursuant re- officer and notified USCG watch § 3005. In a motion for reconsid- quested emergency services be dis- 18 U.S.C. thereof, responders the Government unsuc- Soon after the first eration patched. resources, all of alia, of which the ex imbalance challenged, inter unfair cessfully right jeopardized Sixth Amendment appoint- Wells’ Offenbecher’s nature Mr. parte ¡ counsel. ment. 11, 2013, magistrate thereafter, May September On beginning Soon motion, judge granted the Government’s through the conclu- continuing 2013 and leaving 25, 2014, excusing Mr. Offenbecher April the Govern- sion of trial on attorney, until FPD sole Curtner as Wells’ by no than represented fewer ment was re- when Mr. Offenbecher March including then-United attorneys,- three Alaska, to trial. prior counsel enrolled as retained District Attorney for the States 5, 2018, magis- objections FPD Curtner filed August Loeffler. On Karen n Therein, judge’s he stressed no trate order. that. it would declared Government being by the faced August unique burdens penalty. On longer -seek the death FPD, standing lack the Government’s filed a motion the Government appointment, court-appointed with counsel’s remove second interfere closing, In counsel, of resources. arguing that Mr. imbalance Offenbecher’s “[ujnder these longer appropriate, FPD Curtner stated that no appointment was this, circumstances; the trial of Mr. unique non-capital case. Be- had become ‘fair hardly be deemed a is based out of Wells could Mr. Offenbecher cause ” Seattle, objections ad- fight.’ The were never argued also the Government dressed, no action further was taken geographically dis- the-appointment judge on the justified. Al- the district issue Wells’ attorney could tant not be representation. though recognized the ..-Criminal that.- maintaining prohibit Act Justice does APPEAL II. ON ISSUES attorneys non-capi- court-appointed

two ' cases, that the tal the Government insisted ap following raises the issues Wells “extenuating circum- instant case lacked First, challenges the peal. district Wells stances,” might support otherwise which court-ap removal his second court’s' appointment, Mr. Offenbecher’s continued attorney following the pointed Govern Judiciary Policy pursuant the Guide to seek the death ment’s decision §§ 630.30.10 630.30.20. Second, challenges the penalty. ad Wells opposed expert mission three FPD Curtner the Govern- witnesses, motion, sepa “extenuating one of arguing that address ment’s Third, explained below. rately, exist because: Of- reasons did Mr. circumstances” n challenges attorney- an admission various had established Wells" fenbecher. relationship character and “other acts” evidence. with ‍​​‌​‌​​​​‌‌​​‌‌‌‌​‌​‌​​‌​‌‌​​​​​​​​​​‌​‌‌‌‌​‌‌‌‌‍-Wells client and invested Fourth, prosecutorial reviewing alleges mis time and effort Wells considerable prejudicial conduct the elicitation1 discovery; Mr. Offenbecher’s removal (cid:127) Fifth, . testimony. FPD at- claims that as the sole leave Wells Curtner pre its discretion in simultaneously managing an court abused torney, while party culpability. cluding cri- of third unprecedented an fiscal FPD office in Sixth, reassign sis; requests FPD at- that we staff there available Wells were Curtner; judge on this case to a different district torneys assist Govern- attorneys trial ment’s constituted three remand.1 days investigative, following of his interviews appeals the denial also motion challenge during suppress certain made the crime. We statements address ,-but do not challenge to

We discuss Wells’ error, Mr. Offenbecher reversible sufficiency evidence, we ex- accept can we neither without comment plicitly do not on vacate conviction the Government’s interference the sta insufficiency basis of of evidence and of Wells’representation. tus offending therefore do risk the Double Mr. appointed Offenbecher Jeopardy remanding Clause in .for new pursuant § to 18 U.S.C. 3005. In this cir States, trial. See Burks v. United 437 U.S. cuit, § 3005 does not require that two at 1, 15, 2141, (1978) 98 S.Ct. 57 1 L.Ed.2d be, be, torneys or continue to appointed (“[Rjeversal error, for trial distin- whenever the Government indicts defen guished from evidentiary insufficiency, punishable crime dant death but does not constitute a decision effect does not seek the death penalty. United government prove has failed' Waggoner, (9th States v. , 339 F.3d 919 case[;] it implies nothing respect -to 915 2003). Cir. Acknowledging this Court’s defendant.”). guilt or innocence precedent Waggoner, argues Wells Finally, because we reverse Wells’ convic- distinguishable, case is Wag because tions, we do not discuss the restitution goner fails impact address the of 18 order, necessarily pursu- is vacated U.S.C, § 3599(e), on which Wells relies opinion. ant to this

urge statutory right an enhanced conti III. DISCUSSION nuity of counsel. Because we find that failed to present Wells properly this statu A. The Overstepped Government below, tory argument we decline to enter in Moving To Excuse Second appeal. tain it on Highland See Peterson v. Defense Counsel Music, Inc., (9th 1313, 1321 Cir. A grant district court’s decision to 1998). Instead, we address Wells’ assertion or deny services under the Criminal Jus that Mr. Ofifenbecher’sremoval constituted (“CJA”), 3006A, § tice Act 18 U.S.C. is an abuse discretion under 18 U.S.C. .of for abuse of reviewed discretion. See Unit § Clair, 648, 3006A.See Martel v. 565 U.S. Smith, ed States v. 893 1580 F.2d 659, 132 1276, 182 (2012) 135 S.Ct. L.Ed.2d (9th 1990). Thus, Cir. question relevant (recognizing “Congress enacted the we, court, is'not reviewing whether as the legislation govern § now known as 3599 to reached same result. See cases, appointment of in capital counsel Hockey League Nat’l v. Hockey Metro. § displacing persons facing thus 3006Á for Club, Inc., 639, 642, 96 427 U.S. S.Ct. (but retaining execution that section for all (1976); S.E.C., 49 L.Ed.2d Krull 747 v. 248 Others)”). (9th 2001) (our 912 Cir. is F.3d task impose pi’ohibit “not revisit the The CJA .anew does not [issue] courts independent judgment our on appointing, maintaining, a the merits” appoint- dual thereof).. Applying Instead, ment non-capital this deferential- stan in a case. dard, 3006A(c) § we that the generally governs do find removal the duration 924(c)(3). disposition § concurrently memorandum filed lence” under U.S.C. Wells fur opinion. Additionally, with this has con binding’ precedent concedes ther fore appeal. light ceded two other In claims his claim closes that Counts One and Two are recent Circuit Ninth decisions in Arellano Four, multiplicitous with Three Counts (9th Lynch, v. Cir. F.3d 1127

Hernandez Jeopardy violation of the Double Unit Clause. Calvillo-Palacios, and United States v. Hairston, States ed 2017), 860 F.3d 1285 Wells has conceded that murder a "crime of vio any attorney-client to counsel appointments preserve of all CJA and substitution magistrate judge or the In relationship. upholding and directs excusal in ac- Offenbecher, court to make such determinations intentionally employ Mr. justice.” with the “interests of cordance emphasize adequately, the word the'lim- 3006A(c). § Section 630.30 U.S.C. review, placed itations our we offer (“the Guide”) Policy Judiciary Guide to cautionary note.2 Eligible “Death specifically governs Cases First, find problematically, we no indica Penalty Sought,” Is Not Death Where judge tion that magistrate considered determining whether a assists courts Curtner, FPD candid statements particular of a supports case continuation advising crippling of the of the effects dual appointment'. unprecedented as it fiscal crisis related by recognized magistrate As sole, ability to serve as counsel. § judge, directs court to con 630.30.10 statements, FPD Given Curtner’s the ab questions sider number counsel of any explicit sence consideration thereof compensation, and rate of once is deter to at least stark contrast one other sits penalty that not be mined the death will case, non-capital magis wherein the same Guide, 6, sought. The Ch. Vol. judge trate his denial of reconsidered dual- § that explains 630.30.10.Section 630.30.20 appointed counsel. See States “should, cir extenuating court absent Kott, 3:07-CR-056-JWS-JDR, No. 2011 WL cumstances, appropriate make an reduc (D. *1 June Alaska tion in number counsel.” Id. There, retried, being the defendant was 630.30.20(a) added). § (emphasis trial, 15-day involving after an initial two following Guide sets out the four fac then retained counsel. Id. In defense *3. de deciding tors to whether consider exten re-trial, nying for the. appointment dual exist: uating circumstances alia, magistrate judge, persua found inter (1) disruption the need to avoid of the attorneys that previously-retained sive (2) proceedings; whether the decision would be for consultation and available not penalty to seek the death occurred original transcripts that trial would .the (3) litigation; late in the whether provide knowledge appointed counsel with (4) unusually complex; case is first, Id. Noting, case. Government’s other factors that' would interfere with appointed counsel had been at her representa- need ensure effective request, magistrate own judge never tion of the defendant. attorney’s recognized express theless 630.30.20(b). Here, § Id. magistrate serving concerns as the about defendant’s judge adequately considered the Guide’s attorney. magistrate sole *4. The Id. at this and found that was directives case judge requested attorney “reas unusually parties complex, the were adher- her- im accordingly, sess role” and advise schedule, pretrial motion plying willingness that her relative penalty decision not to seek the death be capacity serve would taken into FPD delayed, and the continuation of opinion, In Court’s Id. representation conserve consideration. Curtner’s given budget the District of Alaska’s CJA careful the con while consideration right in Kott protecting appointed highly Wells’ Sixth cerns counsel is Amendment opinion merely 2. The criticizes the of a This no abuse concurrence inclusion finds of discre- note, cautionary part, ulti- "because we tion. mately ruling conclude that the was correct.” preferable to the lack ployees thereof afforded to agencies law enforcement FPD in this Curtner case. attorney U.S. offices should not participate completion in the of the Form CJA 23 Second, greater and much concern to (Financial Affidavit) or seek to in obtain Court, by the means which the formation from person requesting the question of Mr. continued Offenbecher’s appointment of counsel concerning the apрointment placed magis before the person’s 230.26.20(c) § eligibility.”); id. judge. contesting trate After the initial (“Case budgets should submitted ex appointment, again dual the Government parte and filed and maintained under placed ethically compromised itself in an seal.”); 3006A(e) § 18 U.S.C. (directing position by challenging the continuation of applications CJA for services other appointment Mr. Offenbecher’s once the than parte, counsel should be filed ex penalty was This death eliminated. strikes proceedings applications on such should be- Indeed, highly the Court as unusual. 'it parte); heard ex see also United States v. constitutes improper two insertions Feldman, exclusively into prosecution a matter with (declining to call on government to brief a province in judiciary. the of the Whijle novel CJA reimbursement claim because such a motion would be disfavored “the government [CJA] excludes the from setting, it particularly is so where suc participation compensation in the Act’s and challenge uniquely cessful would leave a arrangements”); reimbursement United beleaguered battling against FPD the un Gonzales, 1246, States v. 150 F.3d 1257 Government, limited resources (10th (the Cir. process CJA is non- liberty behalf of a client is at whose stake. adversarial and has “traditionally been Hartfield, See United States v. 513 F.2d prosecution”). closed (9th 254, 1975), abrogated 258 Cir. on oth grounds by Sneezer, er United States v. The Government’s exclusion from the (9th 1990) (“If 900 F.2d 177 Cir. fair the significant of the CJA is administration assured, system ness of our is to be contributing indi factor to the of fairness our gent mini system defendants must have access to redressing and the role in CJA’s mal advantage defense aids to the offset the of power imbalance between an indi- presented by prosecutorial gent the vast in the “A defendant and Government. vestigative resources available contrary position might Gov well result ernment.”). system The Government’s decision of wherein outcome criminal important insert itself into the by determina trials poverty determined tion representation of fair of integrity carries the accused rather than of it a reproachable stacking with fact-finding process.” Hartfield, air 513 deck, for which we cannot tacit ac offer F.2d

ceptance. we jury’s While find that that the fact- judi

The is a finding reversibly administration the CJA rоle was undermined case, for cial function Judicial Confer errors we do not that Mr. find approved ence of the United States has Offenbecher’s removal constituted Smith, guidelines. official In re Despite disapprov- abuse discretion. our (9th 1169, 2009). interference, prosecution Cir. The al of the Government’s precluded participating typically regardless might of whether we have de- eligibili determination of question differently, magis- a defendant’s cided the ty CJA-appointed for judge counsel. See trate was within his discretion Guide, 2, 210.40.20(e) (“Em § repre- Vol. Ch. that FPD find Curtner’s continued presented on the This “adequate repre- testimony case. afforded Wells

sentation trial, during the Government’s day sixth 18 U.S.C. sentation” under CJA. case-in-chief, jury to find a future, invited the 3006A(a). Nevertheless, in the § profile Meloy’s criminal “fit” Dr. between own should tend the Government lay testimony concern- and the witnesses’ knitting. Wells’, ing traits. own character Allowing Court B. The Erred District challenges Meloy’s Dr. appeal, On Wells Use Pro- To Criminal Government testimony improper “profile” evidence -ñle, Testimony Evi- :as Substantive of Wells’ evidence used substantive dence Guilt herein, explained For we guilt. the reasons admit- Meloy’s find Dr. a district generally review We. regard to Federal Rule ted without expert deny court’s decision admit 404(a)(1) or the balanc- Evidence sensitive United testimony for discretion. abusé required by 403. Before we reach Rule Reed, F.3d States however,- merits, first must we address 2009). However, de novo we review whether Wells parties’ dispute as-to ... interpretation of the- “construction appeal. preserved this claim properly Evidence, including Federal Rules analysis begins the relevant time- Our within particular' falls whethér objections. line States v. given of a scope rule.” Durham, 464 Pretrial, Dr. moved exclude engage 401-403, the district court fails Meloy’s Where Rules testimony under. balancing, likewise necessary Rulé 404(a), requested a Daubert Boulware, States v. novo. United in hearing. hearing, argued, review de At the Wells 794, n.6 F.3d 808 part: 384 pertinent per (where not court. did [] “[t]he creating pro- in the realm of is [T]his balancing analysis,” the form 403 think, Rule file, could, arguably I and that novo”); see also “review de [is] if to this is only applied be- Mr. Wells Moran, 1002, 493 States v. 1012 workplace is a classic [T]his violence. curiam). 2007) (per that example vague generalizations of to in this are too broad admitted be licensed, is Meloy Dr. J. board- Reid particular -circum- case under these psychologist, certified who forensic stances.. intend- “targeted, expert tendered as ah recognized In the Government response, workplace violence.”3 multiple-homicide ed you to be that portray the that Wells’ “attack seems parties substance While characteristics,” testify general differently, there is can’t as to Meloy’s testimony Dr. any role of then criticized the failure to cite to the dispute no real as intended profile testimony addressing case law the use evi- Government’s his within right?” re Meloy’s qualifi pertise, Defense counsel then decline Dr. 3. We to address tender, "Right,” sponded: defense is cations. At the outset It thus clear that sidebar, during which requested expertise counsel any challenge Meloy’s to Dr. waived Mr, transcript clearly Of- indicates objection. by accepting the tender Without “continuing confirming his fenbecher was Olano, 725, 733, See United States U.S. however, objection”; transcript is "indis (de (1993) 113 S.Ct. L.Ed.2d Nev exact to the thereof. cernible” nature fining relinquish "the waiver intentional ertheless, position court clarified Wells’ right”) of a known ment abandonment tender; "Your ob proceeding with the before omitted). (internal quotation marks relevance, ex jection on on based his is relied, dence. The Government- also then remaining The issue is whether [Dr. now, on advisory committee’s note Meloy’s].proposed testimony passes the pro- balancing 2000 amendments to Rule test Federal Rules [sic] n viding might it important “be government Evidence The some should expert given an to cases for educate the the opportunity factfin- sup- trial to general principles, port the issue der about of admissibility without ever of Dr. Meloy’s attempting to principles these apply presented before is specific jury. facts Ruling R. on case.”. Fed. Evid. Defendant’s advisory Motion Testimony note to Limine Exclude committee’s Issues amendments. Violence and Psychological Characteristics of Perpetrators Vio- Although magistrate judge ultimate- Crimes, lent abey- Docket 216 is held in ly recognized potential dangers in Dr. pending ance consideration at further Meloy’s testimony, post-hearing ruling trial. only peripherally acknowledged pro- (first emphases added, italics sup- last challenge, file as follows: plied). There were no objections The complains Melroy defense [sic] magistrate judge’s ruling. is creating a profile that can only be brief, In his trial filed March applied to if the defendant the crime was objections Wells reiterated his to Dr. workplace violence. observation That Meloy’s testimony, arguing, part, that: not a sufficient to preclude reason of workplace violence are so Incidents government calling an expert wit- culture, common in our jurors will testify workplace ness to about violence. able to apply their own common be. magistrate judge further deemed it sense understand this evidence .with- “appropriate for the govern- case expert interpreta- out need ment offer the opinion a forensic government tion .... The has cited a psychologist as to whether certain charac- single admitting support case present in suggest teristics this casé work- expert testify workplace vio- about violence,” place recognizing while that Dr. lence. Meloy had not personally. examined Wells Although the to trial brief seemed focus magistrate Finally, judge concluded: reliability, recently re- relevance and subject Meloy’s] [T]he matter of [Dr. enrolled Peter clarified Offenbecher his

proposed testimony may but neces- objection during pretrial the final confer- sarily will assist the depend- trier fact ence, 24, 2014, on March as follows: ing on the presented evidence at trial. problem experts The comes where the probative The Dr. pro- value of Meloy’s permitted testify person are to that a testimony posed may may or not out- workplace who violence has commits weigh danger prejudice, unfair characteristics, X, Y, Z, these and and issues, misleading confusion of then—although they ask the ex- don’t placed that evidence before the dots, pert they to connect the then—the jury. stage proceedings At this next witness testifies that the defendant theories, Meloy’s analysis Dr. based and X, Y, characteristics, has these Z. and upon experience training, are and they’re ending up doing what And not sufficiеntly to case at relevant having expert—they don’t connect hand to be ruled admissible trial. court, certainly jury ‘the dots but

knows, you up impermissi- and end with of them are deceased.”4 they’re pie ... two because evidence ble character concluded with: person of a Mr. Offenbecher characteristics saying the crime, there are commits this who So, effect, Dr. Me- you’re permitting know, particular these—you these testify per- is the to that Jim Wells loy they just up them things, line crime, and then even son who committed they try prove to that the defendant it though impermissible that’s because characteristics. has those in the case. And goes to the ultimate fact get around attempt it’s an also just way the rule it’s around So evidence. prohibiting character rule government you permit cannot just to abide asking the Court We’re make an character introduce ruling on Dr. judge’s] magistrate [the person is the opinion that the defendant Meloy. commits the crime. who acknowledged judge then argument The district Substantively, is the same this make, was his that the ultimate decision presented appeal. Meloy’s thought that Dr. that he declared by assert- The Government countered permissible,” and testimony “probably was ing: improper “It’s not character evidence. provide the Government instructed they say, jury looks it and does the court could questions advance so fit, And we do is we does it not fit? what by question.” The “just question Gov- rule commonly jury of him to disabuse the use so, court agreed to do and the ernment basically come from TV.” held notions re- the discussion these concluded that it intend- The Government confirmed marks: the charac- Meloy to have Dr. describe ed time,5 and we drug cases all the We do “targeted who commit teristics those them, testify char- experts to about ask multiple workplace vio- individual homicide know, are—you acteristics lences,” discussing personal- without talking you’re shock me what doesn’t ly, Meloy Dr. had not examined because about, again I’ll sure but look make him. I the concerns understand court that the Gov- The district reflected defendant. issue, likely on this correct ernment “[ijt’s time,” done all the but al- because already again, But matter what we’ve respond. Mr. Mr. Offenbecher lowed decided, go сan’t the—none pointed magis- out that Offenbecher testify as to the witnesses can these yet judge had not ruled on the ad- trate ask, “Do question you be- ultimate missibility Meloy’s testimony of Dr. . this?” lieve Mr. Wells did par- that the further noted Thus, because, errone- court made two ticularly spe- problematic first, presumed admis- “only peo- assumptions: there are ous he workplace, cific seven 5, Presumably reference Though use the the district court’s defense counsel did not "unduly prejudicial,” “prejudice” profiles, drug terms as is was to the use of courier concerns, those at the heart of Rule 403 bal- jurisprudence relating case in of the most the clearly ancing, basis for his were the state- evidence, profile criminal to discussed infra. Ward, ment. See United States v. 747 F.3d particularly troubling Any reference thereto is (9th ("Although Cir. defense pro- given the in which narrow circumstances use the term ‘Fifth counsel did not Amend- testimony, drug pro- even that of ’courier file ment,’ objection pat- the was substance files, is admissible. clear.”). ently testimony, of sibility type generally; already ruled, of this it had party neither and, second, mistakenly Later, pressed believed that the issue. when Mr. Offen- was, Meloy’s Dr. testimony point, objected tender, during Meloy’s Dr. becher To contrary, magistrate the admissible. the court district the objec- reiterated that judge ruling abeyance, had held his Meloy to Dr. tions had already been ad- finding time, yet that was not dressed. At that Mr. Offenbecher admissible, unless and until expressed concern surrounding Dr. Meloy that being court determined survived Rule expert, tendered as suggesting an balancing 403’s test. that it imprimatur would “give [him] The court that [c]ourt.” confirmed Mr. conference, Following pretrial the final objection Offenbecher’s was based rele- ‍​​‌​‌​​​​‌‌​​‌‌‌‌​‌​‌​​‌​‌‌​​​​​​​​​​‌​‌‌‌‌​‌‌‌‌‍response request to the court’s for ad- vance rather expertise than and allowed questions, provided vance the Government to proceed Government with Me- Dr. summary Meloy’s outline of Dr. antici- loy’s tender. pated testimony. summary This previ- had ously provided been to the defense several review, On regrettable it is that Therein, months earlier. the Government trial objections specifically failed to generally Meloy advised Dr. pretrial his re-urge argument that Dr. Me- targeted “elaborate on and intended viо- loy’s testimony improper character ev violence, lence, workplace multiple mur- however, form profile; idence of a. personality psycho- ders and the and other to do so is not failure fatal to the logical characteristics those commit who preservation pretrial of this claim. Wells’ .crimes,” types specified these objections were and consistent.7 clear will Meloy “Dr. give asked to be rule, opportunity district court had the opinion how ap- about these characteristics so, mistakenly believed it had done led ply concerning to the known facts Mr. parties argu believe that further (Emphasis original). It further Wells.” unnecessary both ment was and unweir provided bulletpoints, categorically come. Even in the absence trial by topics of his grouped expertise, of objection, an may sufficiently pre issue “[s]ome the characteristics” that he moving a party “objecting served explain.6 would describe and The district specific] exclusion [the its basis ruling. court further issued before the of trial.” commencement trial, Palmer, morning

On the first States v. Gov- 1993); Palmerin, inquired ernment as whether the court see also at 1413. Thus, us, permit Meloy testify. Dr. claim going properly before turn district court belief now the merits thereof. While indicated The. topics expertise misplaced. 6. The were broken ernment's reliance is Gomez-Nore following categories, with out- drug profile testimony down into na involved courier (1) pertaining characteristics to each: lined targeted provid purpose "for the limited admitted violence; (2) workplace information,” and intended jury background ing the murders; violence; (3) (4) multiple personality clearly 502. This stated that F.2d at Court psychological characteristics. and other implicate therein concerns did not facts regarding potential prejudice, for unfair 7. The v. Go Government cites United States admitting profile testimony as are involved in mez-Norena, 1990), 908 F.2d 497 guilt. id. at 501. substantive See claim, argue Wells forfeited his because Thus, objections clearly in this case were expert testimony improper as objecting to presented in a context and sufficed different ground is as not the same character preserve the claim. alleging imprоper profile evidence. The Gov an He rarity of such event. then plain rooted the Government’s the our is concern catego- these back two Meloy’s testimony as substan- tied statistics of use Dr. violence, workplace that begin by present- explaining of guilt, of ries tive evidence targeted the typically thereof. violence falls under substance the category, involving “planning or intended Meloy’s testimony, of Dr. At the outset that both preparation.” He testified and attempt explicitly disclaimed- killings multiple workplace and murders he ad personally, yet characterize Wells “virtually by always” are committed males. process began that his jury vised specific and records of materials a review Meloy typical pattern Dr. described case, prep culminated with this and perpetrate a of who would “individuals findings report concerning his of aration homicide,” to workplace targeted include: targeted of intended four and areas firearm; attack, using motivation from an violence; violence; workplace multiple- grievance in or either a real delusional homicide; personality psycho and and of losses or reaction to an accumulation of commit logical who characteristics those humiliations, rejection, or a felt sense continued, the testimony As such acts. his revenge; to seek injustice; a determination profile emerged. criminal specific violence; intentionally a decision to act ideations; of violent existence de began Me^y by distinguishing two Dr. itself, the violent act velopment into categories of of violence in types broad planning. The through research and beings tar- engage: plan which human tend ning presented especially as im stage was violence, “preda- or geted intended called portant if the has never done violence”; individual tory or reactive emotional plan that Meloy expláined Dr. violence, before. called “affective violence.” He de- ning typically and in would be secretive or targeted intended violence as scribed thinking targets, the move volve about something planned prepared is targets, weapons what for; fashion; ments out in is an carried intended used, and leave approach be and how opportun- tactical is planning; involves Later, Meloy Dr. situation. elaborated meaning it in- impulsive, istic rather than looking planning phase on the to include “finding opportunity an where the volves victims, patterns “at thé behavioral successfully.” act out On could carried location, they particular are in that hand, when the other affective violence was de- they- going to be ... emotional;, [and whether] [are] responsive to a scribed as ! alone.” threat; controlled; something defensive; purely and involves immedi- Meloy disparaged popular Dr. then majority impulsive ate reaction. is, concept “snapping,” the term on the former cate- focused commonly by lay people used to describe a gory. having violent as perpetrator crime Dr., being of control.” Meloy compiled on 2012 “lost their mind” or “out relied data myth, unsup- is a explained Center for Victims He National Statistics, ported by targeted research of violence and the Labor Crime Bureau Instead, he refer- multiple homi- of murders. that there were 463 which indicated during descriptions Of offered survivors workplace enced cides in homicides, having de- “multiple intended homicides” those 376 involved “calm, firearm, con- perpetrator with a 10% were scribed violence deliberate, trolled, by a cool.” He contrasted by' and 6% committed a co-worker psychotic nonpsychotic perpetrators; used ex- spouse. These statistics were explaining that the former tended to kill to connection each other outside of their numbers, strangers, Wells, mass employment. while lat- highly regarded while to specifically target ter “one or knowledge tended his expertise and in antenna people angered maintenance, that more humili- was higher- described two ated the supervisors being individual.” level as difficult to con trol. testimony Trial indicated that Wells’ Meloy explained Dr. further perpe- insubordination workplace and instances of targeted trators of or intended violence occurring discord were increasing with fre narcissistic,” typically are “pathologically quency before the murders. Chief Reckner “very themselves,” with a inflаted view n that, testified December he decid might per- such that objectively what be T2, ed to his from Ti move office to be would, slight ceived as criticism their Hopkins being cause not respected was as mind, “very, very wouriding.”'Dr.-Meloy be rigger shop supervisor. Reckner testi type this of perpetrator described as hav- fied that having ongoing Wells was disci ing sensitivity a “narcissistic that comes time, during issues plinary as well as from the' personality.” The individual’s problems, health him causing to be absent perpetrator might “be legend their from result',1 work. aAs Reckner made the mind,” own “have a sense strong supervisory decision not allow Wells entitlement,” such that in the criticism conference, attend an annual which deep” workplace “cuts and is “then carried :sparked a “heated” between discussion with them” to of “the become source Reckner. The conference atten grievance.” óf the formulation Reckner, victims, dees were the two Meloy explained' approximately Dr. Hopkins Belisle. multiple 80%-of “trigger- homicides have a On appeal, Wells summarizes Dr. Me- event,” causality” but that may “direct testimony having constructed always redirect, be On established. he lons following profile male; of the perpetrator: perpetrator’s clarified that actions narcissistic, pathologically a grandiose with might “very illogical seem and irrational to n view of him'self unreasonable sense explained the observer.” He entitlement; carry his decision out perpetrator typically personali- will have'a triggered by murders would be one or a disorder, ty having which he described work; his series humiliations love problems “over time ... with oth- created sensitivity cause him to narcissistic would people are close to er who them.” He criticism; deeply by al- wounded people carrying testified that 80% of out it, though may he not show this wound targeted violence do not communicate a “grievance”; would serve formulate target threat or direct “warn before- grievance, anger, convert into And, employers typically hand.” because may may open- or. expressed be. history people screen of violent ly, begin and he would about fantasize criminality, explained perpetrators solving problems through his violence. instead tend to have “histories of chronic iauthority conflict with those over the distinguish The Government attempts person workplace.” in the Meloy’s testimony pro- criticized Dr. ' testimony purported by arguing Trial that his show that file evidence actual Hopkins generally both Belisle and were much broader than Wells’ well-liked, thereof;8 profile and that the two victims had no criminal portrayal, During argument, peatedly oral Dr. re- directed this Court to review Government normal any entering of image vehicle to, on an examina- or based “personal”

not area, the build- parked behind of, Wells; testimony parking was not and his tion and en- ing, find under the camera guilt. of walked evidence Wells’ We key through Dr. shop door arguments disingenuous. rigger tered the each of these personal be unlocked Meloy’s testimony made that knew would was use of en- open, bypassing admitted the card by the Wells Government’s reader personal to “fit” record his Meloy’s profile Dr. Wells’ that otherwise trance would Indeed, the Government characteristics. presence. testimo- to defend its use attempted Hopkins shot Belisle and then Wells improper char-

ny by “It’s not explaining: buildfrg, multiple and left times at it and jury looks acter evidence. camera, again rigger shop bypassing And, fit, say, it it not fit?” they does does airport where .he back drove stated, closing in its twice Government car, parked got back into his his wife’s rebuttal, Meloy’s testimony about that Dr. Immediately and drove home. truck “fits Mr. to a T.” predatory Wells violence at and left upon arriving home he called Kojayan, See United States and Reckner’s message Hopkins’ a that (recognizing voicemail, previously-planned giving, ... great “closing argument matters alibi, a flat claiming that he had false deal”). tire would late to work. or Dr. Regardless how broad narrow explains The Government been, Meloy’s might have the rec- theory required findings it proving its trial testimony improp- ord reflects that his separate but intercon intertwine several Government, conjunc- in erly by the used nected of evidence show: strands theory, motive tion with its overbroad all only conclusion with consistent [T]he of cir- substantively connect the strands carefully evidence that Wells .the way in as to cumstantial evidenсe such a of his planned and the murder fit executed profile. into the criminal Wells by his colleagues, frustration motivated disciplinary issues resentment over recently con As Chief Justice Roberts work, increasing problems his with at punishes people for what firmed: “Our law Davis, management, and his loss are.” Buck v. do, COMMSTA they they who in position respect -, 759, 778, and deference 580 U.S. 137 S.Ct. rigger shop.... (2017). Rule.404(a)(1).provides L.Ed.2d “[ejvidence or person’s of a character The evidence as a whole established prove character trait is not admissible to morning April know- on the person Hopkins particular that on a would be alone occasion Belisle and or work, the character airport to the acted Wells drove accordance 404(a)(1). truck, Again, Fed. R. Evid. there pickup white and switched cars trait.” CRV, pur question is no as to the his wife’s 2001 Honda Government’s blue airport pose offering testimony. explicit It left at the had earlier been ly ikeloy testify that Dr. past He drove the entrance stated would as week. then who commit shop, bypassing the cam- the characteristics those rigger “targeted homicide capture multiple era that he knew individual trial; found in ex- Meloy’spoweipoint presentation, it is not admitted identified record; excerpts purportedly cerpts supplemental Government’s Exhibit to re- briefing testimony. before this and it referenced fute characterization Notably, Court. Government’s Exhibit 10 was never workplace (drug violences” order to deter profiles courier investigative are mine, given lay tools, witnesses’ not to be admitted fit, concerning personally, (3) “does guilt); evidence, rebuttal when does it not fit?” party “opens the door” introducing po tentially misleading testimony, Beltran- This Court has “stated dic Rios, 878 F.2d 1211-12 (profile evidence testimony tum that of criminal profiles is admissible rebuttal where ini defendant highly undesirable as substantive evidence tially “opened the by door” emphasizing probativity it is of low because and inhdr- that he did not fit the stereotype drug of a ently prejudicial.” United States v. Gilles smuggler).9 (9th 475, pie, 852 F.2d 480 Cir. “The drug admission of profile courier evidence attempts The place Government Dr. prejudicial is inherently to the defendant Meloy’s testimony in the category, third profile may suggest because that in arguing that “opened the door” and activity.” nocuous events indicate criminal placed issue, his character in by relying on Lim, 331, United States v. 984 F.2d 334-35 non-violent, history Wells’ as a non-threat- (9th 1993). “Every Cir. has defendant ening peaceful Presumably man. right tried based the evidence recognizing the inherent weakness mak- her, against techniques him or not on the argument given Dr. Meloy’s place- by utilized law enforcement officials in ment in the Government’s case-in-chief, vestigating activity.” criminal United the Government focuses on at- Wells’ Lui, (9th 844, v. 941 States F.2d 847 Cir. tempts to show his for non- “character 1991) (quoting v. United States Beltran- during violence” his opening statement and (9th Rios, 1208, 1989)). 878 F.2d 1210 Cir. through questions posed during cross-ex- Although “profile” is not evidence prosecution amination of witnesses.10 inadmissible, per only permitted se it is argument This lacks merit. This Court circumstances, narrow and such as: limited has ‘opening cautioned that “the door’ (1) evidence, Gomez-Norena, background capacious doctrine is not so to allow (“[Admitting drug 908 at 501 courier F.2d admission evidence made relevant profile testimony for purpose limited [the] opposing party’s strategy, without providing background greatly material] [of regard to the Rules of potential Evidence.” prejudice reduces the for unfair Federal Sine, 1021, plain error.”); cannot v. and thus amount to United States 493 1037 (2) (9th tools, 2007) investigative (emphasis in original); States v. Cir. see Carter, 683, 1990) Beltran-Rios, 901 F.2d 684 also at 1213 n.2 878 F.2d Eighth rigger shop. "[T]he 9. Circuit has held that such of conflict at the Mr. Reckner testimony may hear, sub- never be introduced as problems you’ll had with Jim Wells Gomez-Norena, guilt.” stantive evidence of workers, they got along. but the rest of the added) (emphasis (citing F.2d at 501 908 arguments. There was no There was no Carter, United States v. 684-85 There no violence. threats. There was 1990) (“Drug profiles courier are fights.... thing The other I should no tell tools, investigative guilt.... not evidence of old, you years Wells at about Jim 62 [They] are not to be admitted as substantive charged any—he’s doesn’t been never guilt.”)). evidence of before, vio- with a crime He’s never been nobody say he lent. There is who can ever quotes opening Government got anybody, raised a hand to ever statement, as follows: fight. raising family years you’ll assumption I think So the first violence, nothing at all. just wrong see that's is that there was a lot (“The may may not in its profile -introduce offer such case-in- Government evidence guilt.” only to chief as testimony of sort substantive evidence specific rebut State, Ryan v. (Wyo. 988 P.2d suggest attempts by the defense inno cases). (collecting Ryan recognized that particular on the cence based characteris generally these cases articulate evi- three profile.”); Gillespie, tics described dentiary excluding, bases for (finding admitting error in F.2d at 480 tending to fits establish defendant psychologist, on testimony of clinical char (1) see, particular relevancy, e.g., profile: molesters, common child acteristics Day, 409 Mass. Commonwealth put general where never charac defendant (1991) (collecting N.E.2d specific ter at issue offered “[testimony show that cases regarding incapa traits rendered him character than,an profile nothing more a criminal child). molesting a femalé ble We have expert’s opinidn to characteris as certain “open not the found that defendant did to or of tics which common are some most testimony establishing expert door” to his particular the who individuals commit knowledge drug trafficking organiza of a crimes”);11 (2) probative the value of the tion, court the district denied the after substantially outweighed is by evidence its to motion exclude testimo defendant’s said see, effect, prejudicial Percy, e.g., State ny “plan to and defense counsel advised (ex 955, (1986) 146 Vt. 960 507 A.2d accordingly.” United States See v. Pineda- by planations or offered ra excuses other Torres, F.3d 865-66 287 pists particular to' this relevant what by began, time Clearly, the trial response defendant in said offense Meloy Dr. be per Wells knew that relevant, charged, if the and even evidence testify, pretrial to as extensive ef mitted of equivalent failed state Vermont’s Rule forts testimony to exclude his had ulti (3) test); it is balancing 403’s imper and mately failed. see, evidence, e.g., missible character majority' of The federal vast relevant State, Haakanson v. 760 P.2d case of profile addresses the use evi- law (Alaska (‘We hold App. Ct. that the of drug in context dence the couriers. prosecution may profile introduce Indeed, presumably the district court more likely show defendant that-the jurisprudence referеnced when have an offense because the committed admissibility. mistakenly assumed Howev- profile. defendant fits within that To admit er, persuasive princi- also do find the of beginning at testimony the trial was ples military state and discussed the clearly erroneous.”). at See P.2d 55-56. Wells, by jurisprudence, to us cited re- As recognized in United States v. jecting profiles other use of criminal the Banks, (C.M.A. 1992), 36 M.J. 150 ‘ guilt. of evidence substantive instructive, particularly Wells cites *hs jurisdictions system “Those have “[o]ur of is a trial on the justice facts, profiles battering parents, of not a for considered litmus-paper test conformi characteristics, factors, pedophiles, rapists, drug ty any of couriers set unanimously agree that at prosecution circumstances.” 36 161. In M.J. Rangel-Gonzales, 11. In INS investigator] setting United States v. forth the of conduct 1980), others, illegal which are an re- unex- circumstances case, recognized any entry plained, have appear this Court inherent would not bear- problem type testimony, with this albeit particular what this individual would labeling "profile” particular without done circumstances him,” facing [affidavit even “This evidence: character Banks, a char prosecution presented prosecution resort any disallow “profile” appellant’s to present acteristic kind evidence evil defendant’s “child family ripe situation as sexual for to establish a probability character Then, “[throughout abuse.” Id. guilt. Not that the law invests the case, prosecutor th[e] orchestrated this with a presumption good defendant persuade ‘profile’evidence the members character, but it simply closes the whole fit appellant profile and was- character, disposition rep- matter Id. .molester.” did child Government As.the prosecution’s utation case-in- trial, the prosecutor at Wells’ revisited the ... The overriding chief. policy ex- argument, ref profile closing implicitly evidence, cluding despite such its- admit- erencing profile explaining how the value, probative practical is-the ted ex- proven guilt. appellant’s had perience-that disallowance tends Id. Although, closing, prosecutor prevent issues, confusion -sur- unfair prove trying that “we’re not remarked prise undue prejudice. way,” military appeals our case that 475-76, (citation Id. S.Ct. 213 “disingenuous.” -that found court statement omitted). prosecution footnotes made Banks, prosecution’s closing Id. In ar to establish an attempt ulterior basis gument “any belied assertion th[e] for of this improper charac- admission profile purpose other offered profile' case-in-chief, ter in its dis- Id. at 163. prove guilt.” appellant’s than to such, admitting trict erred in it as court Banks concluded that “[t]he prosecution’s of pur strategy presenting ‘profile’ a if we Generally, conclude that evi-. reasoning this deductive of suing scheme admitted, improperly dence has “we been argument prove is a appellant that error was consider whether the harmless.” Id. impermissible.” abuser child sexual was Bailey, v. 794, United States 696 802- F.3d Here, too, the manner Dr. Me in which (9th 2012). 03 The Cir. erroneous admis testimony by prosecu was the used lons testimony is subject sion of expert similarly impermissible, tion and the was review, just other harmless like all error efforts to his prosecution’s distinguish tes errors, See v. States evidentiary from are timony profile criticized 1405, (9th Cir. Rohm, 1415 993 F.2d disingenuous. equally 1993).12 required “only if the is Reversal Meloy’s probative value of Dr. testi- right of the substantial error affect[ed] only found mony ability is answer 103(a), meaning “we party,” R. Evid. Fed. whether, impermissible question the of Obrey v. of finding prejudice,” require a on his character Wells acted profile, based 2005). (9th Johnson, 691, 699 400 Cir. F.3d morning on the accordance therewith 12, in Michelson April explained 2012. As begin presumption awith We States, 469, 69 v. United 335 reviewing U.S. S.Ct. the effects of prejudice, (1948): 213, L.Ed. 168 See Jules Jordan 93 admission. erroneous Inc., Video, v. Canada 617 Inc. that follow the tra- Courts common-law 144942 2010). (9th the almost 1159 Cir. Given unanimously have come dition F.3d recently Supreme note that the Court the outset of 12. We learned at experience;] expert's prejudicial [impressive recognized that an effect credentials held “heightened jurors-might have well .... was due to source [and] [reasonable witness, concerning testimony[,]" given opinion central as did valued his Buck, Meloy, S.Ct. at question ex 137 “took the before them.’’ Dr. stand as medical bearing jury pert imprimatur^] court's 777. against value inherently prejudicial probative nature balanced the uniquely and effect,” evidence, v. prejudicial see United States has failеd Government , (9th 820 F.2d Cir. “by showing presumption rebut that Johnson 1987),13 make[ ] nor “the record clear does probable it more than not that the question figured prejudice that the cru jury have reached same verdict mind,” cially court’s see United had not even if the evidence been admit Verduzco, 1022, 1029 v. n.2 States 373 F.3d (internal quotation marks omit Id. ted.” (9th Instead, magistrate Cir. ted). “[p]rov admits that The Government judge placed question explicitly the crime theory depended ing [its] court, squarely before intertwining multiple of evi strands there, that prej there is no indication Meloy’s testimony dence.” Dr. un consideration, udice ever a much less doubtedly tying instrumental those a crucial United States Mac one. Cf. allowing together, strands Government Donald, argue Meloy’s profile Dr. “fit[ ] Mr. (upholding exclusion of tendered expert explained: to a T.” As we have testimony' psychiatric character where dis erroneously court has When the district judge keenly trict aware the [Rule “was prejudicial admitted excluded evi- painstakingly 403] factors ... and exam dence, for a we remand new trial. doWe each”). explained, As we testimo ined if the district court even errs so ny “inherently prejudi of this nature is failing question to answer threshold cial,” has place as substantive evidence have no admissibility. precedent We guilt, fail Rule and would therefore 403’s treating erroneous admission of ex- balancing Gillespie, 852 test. See F.2d at testimony any pert differently.' Lim, 480; 334-35; see also F.2d AstenJohnson, Inc., Barabin v. Estate of Michelson, 475-76, 69 335 U.S. at S.Ct. 2014) (en banc) (citations omitted). do not We hesitate finding of Meloy’s that the admission Dr. C. District Court Erred n testimony constituted reversible error. Act” Admitting “Other Evidence that Dr.

Although Meloy’s we find testi mony clearly inadmissible Rule under significant challenges a Wells 404(a)(1), write the we further stress impermissible amount of testimony as role of Rule 403. important long “As as evidence, character and other act under appears 404(a) record as a the whole of Federal Evidence and Rules judge adequately weighed trial 404(b), respectively. Generally, “[a] district probative prejudicial value and of effect evidentiary rulings court’s should not be admission, proffered its evidence before reversed of absent clear discretion abuse the demands of Rule 403 Canyon conclude some prejudiсe.” Sky Grand Dev., Inc., Sangrey, been met.” United States v. Nyu walk LLC v. ‘Sa’ Wa 715 (9th 2013) (internal 586 1315 Cir. F.2d F.3d How ever, omitted). this is not a case quotation where we could marks “Whether evi 404(b) falls easily “implicitly scope find that lower court dence of Rule within though showing recognized ultimately parties Even 13. Johnson affirmed that the court decision, law, the district court’s this Court cau- and followed the dictates of the "Nonetheless, we tioned: remind the district immeasurably process of appel- facilitates weigh duty explic- court that factors late at 1069 n.2. review.” 820 F.2d itly by appearance justice maintains the is question we review de novo.” United by Government, and is described as Smith, States v. 282 F.3d follows:

2002); Durham, also see 464 F.3d at 981. for years Wells had been allowed to Admission evidence which there was operate as his own Throughout boss. objection raised is for below reviewed history prior work Wells had Sine, plain error. at F.3d been able to do what he wanted when he wanted. He a high opinion had of him- purposes, testimony For our chal- all self, ran time he afoul man- 404(a) is lenged subject under Rule agement just he would wait them out plain error review.14 As to the evidence go back to his practices. same How- challenged 404(b), under Rule Govern- ever, things changed beginning in 2011 ment pretrial provided notice various change with at command evidence, other act pre- for which Wells’ supervisors COMMSTA. New were objections overruled, trial definitively were try get “get tasked and Wells to preserving for adequately ap- these claims program.” put Pressure was on him Palmer, 304; peal. see also to conform. As progressed, Palmerin, 1413. The district pressure increased. Then Wells became court determined work, ill. As he missed the Command intertwined, inextricably admissible they do realized could the work without evidence, alternatively, per- other act stepped Belisle up him. had and could missible to prove motive under Rule replace returned, him. he he was When 404(b)(2). Thus, we review de novo the told could not to the go annual anten- application court’s the Federal conference,, him angry. na made which Rules Evidence to the other acts evi- matter, initial As we find that dence. theory Government crafted motive challenges under Each Wells’ Rules brushstroke, too with much paving broad 404(a) 404(b) against are made for it to way introduce evidence which Meloy’s profile Dr. backdrop testimony. truly relevant charged was not ‘ that this character argues and other persuasive crimes. More the Govern- acts Dr. evidence was made relevant argument ment’s the other that much Meloy’s profile of criminal a narcissistical- act actions concerned ly-sensitive mi- individual whom even personnel were detailed Wells’ USCG nor vio- trigger criticism setbacks could folder, during to defense referred counsel’s argues same is lence. He true that opening statement and admitted without finding, the district court’s alternative objection at trial. prove other acts to certain were admissible 404(b)(2), motive Rule because this under analysis begins Our 402 with Rule only if Evidence, evidence was relevant the Govern- of of the Federal Rules which “[rjelevant theory motive ment’s was viewed that all is declares evidence admissible,” Meloy’s profile. context Dr. The except provided. motive as otherwise theory pertinent analysis thus explained: is to our R. Evid. 402. As we Fed. below, challenges objection 14. As forth Wells a wide on the basis of rele- set made 404(a). variety testimony under Rule Of the Accordingly, properly to vance. Wells failed specific excerpts challenged, defense counsel testimony, object to of this such our objected only to the comment about Wells plain is for error. review conferences, “strutting]”- professional at relevant, with to separately which deals this evidence .be Rule deemed evidence, not argues prohibit it is and its subsection “character” Government evidence, 404(b), it not of of other character as was covers ed which evidence (3) acts,, (2) is (1) crimes, not to that Wells acted in conformi wrongs, fered show is, That offered to ty it was not pathway admission therewith. a different that, it, frequently April mis- at the of the evidence—although is show time narcissistic, murders, simply being 4Ó4is dif such. Rule Wells was understood ficult, general ways. rule or set his specific.qualification of all relevant evi- of the admissibility intercon we are sensitive While dence. . by this testimony nature as used nected Cwrtin, F,3d 935, States v. Meloy’s to fit the Government Dr. decided 2007) banc) (footnote (en omit- ly profile, improper inadmissible ad ted). is of not Meloy’s testimony mission of Dr. “[Character Because does may very slight probative ‍​​‌​‌​​​​‌‌​​‌‌‌‌​‌​‌​​‌​‌‌​​​​​​​​​​‌​‌‌‌‌​‌‌‌‌‍value and otherwise evidence inad render relevant the use of Rule curtails prejudicial,” To the had missible. extent these witnesses evidence. Id. at 944. Rule “bad knowledge topics man” personal such of the which 404(a)(1) using testified, of a prohibits provided “[e]vidence they trait character background regarding character .... information person’s occasion the prove particular on a co-workers, his relationships with his the char- acted accordance with person history, working environment and his work 404(a)(1). or trait.” R. Evid. workplace acter Fed. all which á relevant Furthermore,1 prosecution. it is homicide challenges laundry list of Wells also true that Wells favorable relied Rule'‘404(a)(1), excerpts under testimonial aspects evidentiary of these areas. same by lay permitted which witnesses were Yet, position he takes now the inconsistent attitude”; “having him as: a poor describe that his commendable service record times”; receptive at “only conceited “quite Navy and Coast United States Guard in com change part if he had played and, co congenial relationships his with ing being change”; “known up evidentiary are points, workers relevant person” to be kind did [the] [he who “as inconvenient, while less commendable told”; “view[ing] extremely was] himself thereof are not. See Bowoto v. details knowledgeable”; role” taking “pride his Corp., Chevron tower in the community as 'shown (where plaintiff opened the door conferences; “just at set “strutting]” incident-specific .testimony, district way he things”; do “difficult not abuse in allow court did its discretion times”; and “not good sharing real ing testimony as to version defendant’s information support In had.” incident). court did alleged relationship between testimo plainly admitting err in this relevant evi ny Meloy’s profile, Dr. points dence. closing argument,, the Government’s dur repeatedly, challenges referenced ex turn now to Wells’ We to.the evidence, of cerpts this testimony other demonstrate act we have summa- which traits,” “strong “narcissistic including: Wells’ his a in 2003 incident which rized self,” entitlement,” of sense his disobeyed “sense of a an leave fiber- Wells order “his and‘his at the pride glass belief that he was hut on Attu a 2012 repairs; Island caution, of top profession,” his on in to fit of order letter Wells based issued command, profile. it explicitly explaining why despite Without consensus of USCG investigation, Q. inconclusive that I Wells And think you said he before was had used a fuel card for personal very, USCG knowledgeable person; a is. use; having improperly an accusation of fair? on property, trees “collared” USCG or- quite A. That’s true. death, early to cause der their for use as Q. And did he have a view his own firewood; personal . disagree- and other knowledge, in other words? with Although ments co-workers. dis- MR. CURTNER: Objection, Your rulings trict court’s addressed this evi- where—.,. I Honor. don’t see I don’t whole, dence as a we deem necessary think that’s relevant. incidents, describe these first Honor, MS. LOEFFLER: Your it!s the relevant trial proceedings, in further directly relevant to the character that below, As explained detail. will be our find- we’re going to be discussing through- of error limited court’s out this trial. incident, admission the 2003 oc- which know, THE you COURT: If you can nearly curred one decade before the answer. charged crimes. MS. LOEFFLER: BY to, incident, As wherein Wells you Did Q. enough interaction have directly disobeyed involving, an order him to with see how he viewed value transportation hut, of a the rel- fiberglass knowledge? given by evant was Thomas A, thought I quite Yes. was he conceit- Eskew, one of Wells’ former-USCG su- . times, actually. at ed pervisors. Though directly Eskew .not did Q. him, In of working terms with was Wells, supervise testified he Wells .that receptive he to changes or differences supervision years, under his for six things way were done not the when 2001 to The. at incident issue wanted do it? involved Wells’ role installation only receptive A. He change if transceiver, Island, remote Attu played part he had coming up with far end the Aleutian Chain. The trans- change; otherwise, he was resistant ceiver been large had installed fiber- ' : protest it. .hut, glass onto a military loaded

transport, airplane, added). being before flown out (emphasis During closing ar- Island, to Attu time a gument, technical highlighted Government problem Despite being incident, arose. ordered to Meloy’s the context Dr. fiberglass Island, hut on leave Attu profile, example” the “best disobeyed the direct order and re- height “narcissistic traits” and “the to Kodiak Island with the hut ego.” turned

tow. mentioned, during As pretrial the final conference, the district court assessed and objection, on direct examina-

Without body tion, ruled the entire act evi- other Eskew testified Wells’ actions whole, finding: dence aas angry,” him “quite made “furious” and expressed Wells never or apolo- view, remorse inextricably In it’s my in[ter]t- gized, and further described incident wined the events such that with those significant as-the most act of They’re disobedience items are relevant admissible. experienced years motive, he had in his thirty help picture, paint of the work Immediately thereafter, environment, admissible, the USCG. truly and are following exchange-occurred: especially you in a situation where finding and for the district court’s co-workers are killed a basis

two who admissibility. I think charged murder. And third with suggest- question in that the events are acknowledged, As we have inextri- “[the not too relevant ed are remote and are 404(b) cably exception to Rule intertwined] and therefore are admissible. in most often in cases which is invoked in charged being a felon is defendant court’s alternative address We a v. possession of firearm.” United States fol- that rulings turn. For the reasons Vizcarra-Martinez, 1006, 1013 low, erred in that the district court we find 1995). case, (9th One such cited Cir. admitting incident, as it was nei- Government, Dorsey, is United States inextricably permissi- nor ther intertwined 2012), which we find F.3d 944 404(b)(2). Rule ble motive evidence under distinguishable illustrative to easily but remaining of the uphold We admission that finding that evidence was our 404(b)(2). acts Rule other evidence under inextricably inter- properly admitted as 404(b)(1) using ev prohibits Rule twined. crimes, or other wrongs, acts idence Dorsey a who had involved defendant person’s prove “to character order in motor guilty to involved pled offenses particular to show that occasion the trafficking then found vehicle and acted with the person accordance trial, jury after a of thé related guilty, 404(b)(1). Fed. character.” R. Such Evid. discharg- tampering crimes of witness may be for other evidence admissible. a crime of ing a firearm relation motive, oppor purposes, proving “such as F.3d In an violence. at 948. effort .677 intent, plan, knowl tunity, preparation, firearm, discharge the Gov- prove the mistake, identity, or edge, absence testimony of sought to ernment introduce 404(b)(2). lack of accident.” R. Evid. Fed. two who seen the defendant witnesses had Thus, 404(b) “Rule is a rule of inclu shooting. gun with a before the relevant references at sion—not exclusion—which upheld at 951. This admis- Id. Court categories three of other ‘acts’ en least testimony, inter- inextricably sion of the compassing workings inner twined, pertinent part, “[b]ecause motive, intent, knowledge.” mind: directly bore on the commission Curtin, 489 F.3d charged (empha- crimes.” Id. at added). Dorsey sis had “[E]vidence acts’ is not “Evidence of ‘other gun type of the same a similar as the 404(b) if subject analysis to Rule it is ,.. in the gun shooting used was relevant charged ‘inextricably with the intertwined’ prove Dorsey because it tended to had Beckman, 298 offense.” United States v. charged the means commit crimes excep “This that he was fact the shooter.” Id. (1) applies tion acts of the ‘particular when part single defendant are of ... a criminal Dorsey the difference illuminates ‘ transaction,’ (2) act” finding when “other evi between is inextrica evidence intertwined, necessary subject ... in order bly admit] dence is and therefore [to 404(b) permit prosecutor analysis, finding to offer a coher Rule 404(b)’s comprehensible story regarding ent and falls under one of Rule ” uses, motive. namely prove the commission crime.’ Id. at 794 permissible omitted). (citation determining particular these In evi Only the second of whether discussion, necessary prosecution’s scenarios relevant to our dence is first, comprehensible story,” we primary we address it it was the “coherent and directly ask whether the evidence by bears the decision USCG to disal- command (inter charged crime. 677 F.3d low Wells’ attendance at an annual confer- omitted). quotation ence; nal marks “There must finally in culminates Wells’ mur- a or be sufficient contextual substantive is, der of however, his co-workers. There proffered connection between the no logical evidence basis to explain a how 2003 incident, alleged justify and the to exempting by crime marked supervisor different from the evidence the strictures of bearing Rule victim, connection to either 404(b).” Vizcarra-Martinez, at might F.3d provide motive homi- double Here, 1013. nearly none the other acts evidence cide decade It one later. is an unex- crimes, “directly” bears charged plainable only possible pur- outlier. requisite has pose “contextual or substan testimony of this would be to show to categorized Indeed, tive connection” propensity. be as inex Wells’ the Govern- tricably It error for response' intertwined. was the ment’s to objection— Wells’ trial such, district court to it as admit but the that Eskew’s was “directly rele- 404(b)(2) alternative admission under Rule vant to the going character that we’re to all saves but the 2003’incident. discussing throughout this trial”—belies Government’s claim the evidence In to order determine whether the chal- prove Instead, it offered motive. lenged evidence properly admitted to us the Government’s convinces motive motive, 404(b), prove we under Rule must theory was possi- couched in the broadest first address the foundation therefor. The ble in order sidestep evidentiary terms theory Government’s motive unfolded in Doing hurdles. so allowed Government following sequence: basic Wells’ frus- compound the erroneous admission began change trations with a 2011 profile Dr. Meloy’s by arguing its clos- command, placed COMMSTA un- was the “best exam- incident pressure welcome on him to conform to ple” of “narcissistic traits.” the chain of to personal command. Due illness resulting and his absences As was case the admis work, increasingly Wells became frustrat- Meloy’s testimony, sion of Dr. the failure by a of professional independence ed loss engage the district court Rule 403 importance. His frustration turned to balancing1 solidified the erroneous admis anger and culminated the murders of course, sion of the 2003 incident. Of co-workers, whom he deemed threats find that that incident was neither inextri maintaining rigger his station within the cably permissible intertwined nor motive shop. 404(b)(2), Rule under and there fore, it is grant analysis

While reasonable to some our thereof not have Curtin, flexibility to prosecution con- tasked with Rule reached Cf. structing (“Once theory prove a motive dou- 944 it has been established that the homicide, workplace ble we must also in- pur evidence offered serves one [the 404(b)(2)], employed. sure that reasonable are poses limits authorized Rule ... accept the theory ‘only’ We Government’s motive the exclu justifying conditions if begins investigation with the 2011 into sion of the evidence 'are those described card; the unauthorized pro- use the fuel prejudice, Rule 403: unfair confusion of the issues, ceeds to the misleading delay, resultant letter caution jury, undue 2012; that, time, recognizes throughout issued presentation waste of needless time, evidence.”). However, Wells suffers a loss of consistent cumulative had the “rank” rigger shop; within the builds court Rule the evi considered four-part to evi- Though Applying this should- not have survived. test dence surrounding of dence'surrounding this' cau- testimony find that 2012 letter we the instances, tion, wholly lacking probative collaring was tree and incident Wells’ value, disagree- it is the difficult to conclusion category avoid our catch-all of Wells’ no con nine-year-old co-workers, that a with ments are satisfied incident with we to nection the victims or the chain properly relevant the district court admitted unfairly 404(b)(2). confus prejudicial, of command is This this evidence under Rule issues, misleading to and be evidence, whole, es the relevant to would .as a was Thus, Fed. 403. we jury. See R. environment, including the Evid. his.re- Wells’ work again importance of con emphasize -the lationships and with co-workers relevant stress, .balancing by ducting 403 Rule and time supervisors; not remote in was too this way Moby’s testimony of and Dr.. reasonably ver- and fits within tailored a deleterious, failing of example, the effects theory; sion of the motive Government’s to do so. proven the admis- through and was both sion, objection, personnel of without the Agáin, “we consider whether file, testimony of the co- well as the- Bailey, at harmless.” 696 F.3d error was supervisors workers and the involved own, might question On 802-03. its this balance, underlying probative acts. On the however, given pause; consider us we havé' of in a unique is work- evidence value light of the of it in erroneous admission trial, do place homicide we find and con Meloy’s by Dr. testimony, which itself outweighed that it substantially by is error, into which reversible' stituted danger prejudice. of unfair find that this evidence interwoven. We the district court’s erroneous admissions D. The District Court Did Not Abuse engage 403 to in Rule balanc

and failure Experts Gary in Allowing Discretion ing the “so infected trial unfairness with Testify Neil to Bolden and Schmidt resulting conviction a to make the denial Sullivan, 601 F.3d process.” Hein v. due parties ap to the disagree as (9th 2010) (internal quotation Cir. applied standard of to be propriate review omitted). marks by this experts Court. Each of these motion', on challenged pretrial Daubert important limitation via With magistrate theory, judge held a hear we turn Government’s motive 404(b)(2) report recommenda to and issued application Rule tion, by remaining adopted “other “Other which was acts” evidence. Thereafter, during final pretrial is Rule court. admissible under acts (1) conference, 404(b) if it tends material the district court revisited prove time; issue; (2) rulings. is not too Daubert and reaffirmed his point remote issues , (3) argu reject proven is Government’s evidence sufficient Thus (4) committed; plain only if ment that review is for that the act was show .error intent, challenges prove find admitted is similar-to instead that Wells’ Beckman, thoroughly explored pre at charged.” pretrial F.3d were offense course, City for v. probative appeal. “Of served See 794. Palmerin value Riverside, ‘substantially out F.2d evidence must 1986) (“rejeet[ing] preju weighed danger invariable require unfair ” dice,’ objection Blitz, subject that an United States ment ¡he. 1002, 1008 (quoting Fed. R. an unsuccessful motion limine trial”). at court’s de renewed The district Evid. time,- admit the are expert cisions Wells’ truck. By FPD had Wells, reviewed for been asked represent though therefore abuse discretion. Reed, not be more arrested ten

months. was seized The tire order evaluate Wells’ alibi that he Expert 1. Forensic was late to Tire work on shooting day due Gary is the Bolden Director flat messages tire. had left voicemail Labs, Testing Forensics Standards to that Hop- effect on phones both Inc,, and testified as fo the Government’s kins and on morning Reckner the tire expert. Accepting Mr. rensic Bolden’s shootings, repeated and he later this alibi qualifications, argues Wells Mr. Bol- to investigators, investigatory At preclud den’s been should have stage, have been exculpato- the tire could for ed a sanction as the sub Government alibi, , ry, supporting inculpatory, or Wells’ (flat tire) jecting alibi to proving the alibi to be a sham. testing.15 appropriate The “destructive” Mr, The sent the Government tire rule, governing for destruction sanctions lab, notifying Bolden’s the FPD without evidence, is Judge Anthony found in testing. Upon the or receipt tire seizure Kennedy’s 6-5 concurrence tire, the a Bolden made check Mr. visual Hawk, (9th States v. Loud 628 F.2d 1139 and pressure, air the which measured was 1979), an en Cir. with sever decision banc psi. at 20 He the tire to its then inflated Sivilla, v. United States opinions. al operating' pressure psi 80of and checked 1168, 1173 “Accord leaks, finding for what he called a “slow Judge controlling con Kennedy’s leak” Mr. the nail. Bolden then around currence, concern principal ‘[o]ur is to rim, carefully the tire the removed provide the accused an opportunity pro out,- it and x-rayed examined inside evidence, examine all duce and relevant tire, the simply confirmed that there Id. Loud (quoting a fair trial.” insure no damage was the tire. The structural Hawk, J., (Kennedy, 628 F.2d at photographed interior of the tire then concurring). “Courts must balance the to perform it both a before was remounted the Government’s quality conduct air dynamic air a static retention test and degree the against prejudice ac the test, using loss a dynamometer simulate cused, government where the bears the dy- After highway running actual use. of justifying conduct and burden namic for Bol- period, test 24-hour Mr. a of demonstrating prejudice.” Id. accufeed rate of den determined that the observable (internal omitted). quotation marks leakage typical air that a low driver so days shootings, after en- Six law for or perceive loss three air tire, agents along photo- a forcement obtained four Mr. hundred miles. Bolden nail, graphed from the the nail in time did place; with an embedded bed of right Although argues right 15. Wells assertion of and waives a Govern testing relinquished intentionally of the tire it aban destructive violated when or ment's Olano, process rights, find that 113 S.Ct. his Wells has doned. due U.S. pretrial argument. briefing, rights for In are waived "Forfeited reviewable error, rights government’s arguments plain not.” Wells stated: "The while waived are Perez, regarding process a due violation on based United States 1997) (en Furthermore, banc). ac malicious destruction of evidence are not on due point raising knowledges he does seek the Mr. Wells is not due since dismissal, added). pre process party process remedy A but (Emphasis rather violation.” testimony. right timely clusion when it to make a of Mr. Bolden’s forfeits fails upon likely than “[m]ore remove nail from the Based such scenario was tire. observations, Bolden not.” tests and Mr. nail inserted opined that had been Applying Loud Hawk’s balancing manually, having picked rather than been test, must first Court evaluate road, not been up tire had conduct, in quality the Government’s nail driven with the it. quiring: lab, FBI The tire was then sent to an was lost de- whether the evidence ana- where tool-mark examiner further stroyed custody, while in its whether lyzed photo- the nail. The examiner first disregard acted for Government graphed' position of in the tire the nail accused, interests whether was testing. then it for removed further failing negligent in to-adhere to estab- agreed The examiner with Mr. Bolden’s of care lished reasonable standards manually conclusion that nail had been functions, police prosecutorial tire, gun. via inserted into the a nail and, deliberate, if the acts were whether nail, re- tire and well Mr. Bolden’s they good were taken faith to port, then sent forensic tire were It is- rele- justification.... reasonable Currie, for expert, Bruce further examina- to inquire govern- also whether the vant tion. attorneys prosecuting ment the case leading in the participated events Pretrial, his Daubert chal- support in evidence, or to loss of the destruction lenge testimony, to Bolden’s Mr. may prosecutorial upon action bear exis- submitted an from Currie. affidavit Mr. of a to harm tence the accused. motive that, Therein, Mr. Currie asserted Sivilla, Loud (quoting at F.3d dynamic result of air Bolden’s 24-hour Mr. Hawk, 1152). quality 628 F.2d at test, loss the condition of the tire was is the conduct then balanced Government’s altered,” “definitely “impossible making against degree prejudice, the is which to further of the tire evaluate condition analyzed by considering: at the of the He further time incident.” including, a wide of factors with- tire, number opined that the deflection of which limitation, centrality out of the evi- 937,440 approximately occurred times dur- in importance the case and 1,488-mile test, dence sig- ing the “would have establishing the elements the crime nificant the nail effect on condition defendant; the motive or intent nail At relative hole the tire.” probative reliability of the value and trial, challenged Mr. Currie Mr. Bolden’s evidence; secondary or substitute fronts, multiple on tests and conclusions weight and probable nature of factual tire, explained that receipt and of the inferences-or other demоnstrations and removed, prevented after the nail had been proof allegedly lost to the ac- .kinds him from being independently able to eval- cused; probable jury effect on the uate the or to tire’s condition air loss and evidence, including of the absence effectively duplicate Mr. Bolden’s tests speculation dangers unfounded and Instead, testing analyses. Mr. own Currie’s if might bias that result defendant using was to deter- paperclip limited adequate presentation of re- the case the angle mine at which nail en- had explanation quires about the missing evi- tire, through tered the the hole left dence. opined nail could removed nail. He that the Hawk, Loud Id. up have been the tire picked (quoting and entered at 1173-74 on a road surface and that believed outset, agree

At the with the to-.testify district Mr. Bolden expert to his finding court’s that the Government’s test- was not conclusion an abuse of discretion. nor destroyed substantially neither al- Engineer Honda the tire or nail. tered The Government might FPD of have notified the the seizure Neil Schmidt is an engineer and “techni- however, testing; it was under no affir- specialist,” cal with twenty years’ experi- obligation mative It undisputed Honda, to do so. ence including years seven as an probable the Government not have engineer responsible-for did CR-V, the Honda cause arrest Wells at the time of the was the Nancy make model of trial, testing, Wells’ vehicle. indeed he not arrested for At was Schmidt was ten- months, nearly Hondas, as “an expert more such ten [with dered an] testing knowledge results ‍​​‌​‌​​​​‌‌​​‌‌‌‌​‌​‌​​‌​‌‌​​​​​​​​​​‌​‌‌‌‌​‌‌‌‌‍tire associated could have ulti- related vehicles.” mately expertise Schmidt’s proved inculpatory or was exculpatory. identify used appeared In an identify alleged blurry what be a perpe- image effort aof SUV, accusation, caught blue on trator for formal small surveillance Govern- footage April 12, 2012. ment took His evaluating reasonable actions relevant, alibi, place order to Wells in industry Wells’ stated followed stan- dards, Nancy CR-V, Wells’ 2001 blue all Honda steps documented Mr. morning of the murders. report. Bolden’s Mr. then full Currie had to all testing, access photographs, method- Schmidt testified he was 70% cer- ology, reports from the Government’s tain depicted that the vehicle an early experts, nail tire addition to the nail Honda On model CR-V. direct examina- themselves, and tire Government, tion, inquired the of Schmidt whether he was to identify able other auto- any degree prejudice, As to of Mr. mobiles could be consistent with the have, did, Currie could and indeed launch in the image surveillance vehicle and which challenges extensive to Mr. Bolden’s tests might his certainty raise level of regarding confirmed, As conclusions. Daubert his identification. Schmidt testified that he “[vigorous cross-examination, presenta models, had identified three makes and evidence, contrary tion of in and careful than signifi- other the Honda CR-V but struction on proof burden of are the cantly similar During thereto. the- investi- appropriate traditional and means of at gation, comparators these were then used tacking shaky but admissible evidence.” by photogrammetry comparison experts Pharm., Inc., Daubert v. Merrell Dow 509 agents, and law enforcement in ruling out 579, 596, 2786, U.S. 113 125 S.Ct. L.Ed.2d possible other vehicles connections to (1993). Furthermore, 469 as found in the the murders. court, only district speculate Wells .can expert his whether. would have objection own Wells did not renew conclusions qualifications reached different as to the to Schmidt’s at trial. On ap condition, location, angle peal, accepts knowledge the nail Schmidt’s Wells balance, while still in challenges the tire. On his quali the Honda CR-V but quality reliably the Government’s in this testify fications to the conduct likelihood Sivilla, Honda,- “poor,” case see was far 714 that the ear was a due to his lack rather, 1173; reasonable, specialized ruling F.3d it was in of out oth knowledge at pursuing investigative necessary avenues er vehicles. Federal Rule of Evidence 702’s on particular suspect reliability the focus requirement narrow asks whether an in a workplace Allowing double expert’s testimony homicide. has “a reliable basis

CTi co relevance, to strike and moved of the rele the basis knowledge experience Later, for testimony. moved Co. Carmi Kumho Tire v. discipline.” vant 1167, 137, 149, appeal, argues prosecutori- chael, 119 mistrial. On 526 S.Ct. U.S. (1999) (alteration omit al misconduct.' 238 143 L.Ed.2d Id. at ted). is “a flexible one.” inquiry on reversal based Daubert, “To obtain a

150, (quoting 509 1167 119 S.Ct. misconduct, 2786). prosecutorial defendant] 594, [the 113 Cоurts S.Ct. U.S. preju determining appro establish must both-misconduct broad latitude - Wright, v. F.3d dice.” United States inquiry. See United priate form 2010), (9th (9th 1098, 1102 superseded by 583, 609-10 Cir. Alatorre, 222 F.3d States (“Nowhere recognized by grounds ... on does Su statute other Cir. Brown, the form that States v. Court mandate United preme 2015). reliability must coun into relevance Cir. “Where inquiry defense take.”). of alleged prose- objects sel at trial acts misconduct, for harm review cutorial Here, magistrate judge con appeal; error on defendant’s absent less hearing pretrial Daubert and de ducted objection, we review under such experi years’ that Schmidt’s ' termined standard;” plain more deferential error engineer qualified him a Honda ence as Hinton, 31 States v. F.3d United vehicle opine as likelihood did ob Because Wells image was the same make and mod miscon ject prosecutorial the basis for directly he had worked el below, plain our review now is duct pretrial At the confer years. seven final error. ence, judge reaffirmed that might affect the blurry quality the video murders, morning On the testimony, than its weight of the rather Peter COMMSTA Commander Van Ness explored on admissibility, and could be Trooper visited Nicola Alaska and an State Daubert, See 509 U.S. cross-examination. Belisle, Belisle, the of victim Riehard -wife 2786; see also 113 S.Ct. notify death.- The her her husband’s Ford, (3rd States v. recording trooper wearing a device. n testify could characteris (expert that recording transcript Both the audio and print defen tics of were similar to shoe during pre- to provided thereof Wells were despite to out inability shoe rule dant’s transcript twenty discovery. trial The clarity due to lack of the shoes other pages long highly reflects a emotional and no print). find discretion We abuse scene, very with little coherent conversa- testify. to allowing'Schmidt opine and down, tion. Ms. Belisle the Once calmed trooper her her husband asked whether Required E. The District Not Court Was Beli- any problems anybody.-Ms. had Upon To a Elicitation Declare Mistrial Jim,” responded “[j]ust sle clarified Prejudicial Testimony defendant, to “Jim referring she was During prosecutor’s Wells,” examina- direct then “Jim hurt stated wouldn’t responsible USCG tion of the commander Rich.” notifying Nicola of her Belisle hus- Government, trial, called At Com- death, prоsecutor ques- a band’s asked to about testify mander Ness Van tion which mischaracterized the widowed notification; spousal spouse’s verbal identification Wells. Q. her reaction? immediately objected, so on was but did What

Wells hysterical, very, I very up cautionary—I’m A. She was need concerned fact, In I—I don’t set. know about comment that was during made say anything. question even had When we last- witness when a. was in in uniform—she asked—or already walked had when the commander and conveyed those with him heard. Kodiak’s a small town. were Mrs. Belisle They killed, that her going1on had something was husband been aware and. her response was—you point. station I remember what communication .response her time, said a name. was. She think—I don’t remember the exact I it but believe was around o’clockin I you have to it clear to make that she been, know, morning, you it had so no-personal knowledge had of that. And gets two hours or so. And so Word out. so that by you statement cannot be used inin uniform— when we walked as evidence of that event. It be could limited, limited, very, very explains it Q. Did she out name? blurt possibly, maybe not, her relation- A. Yes. ship—her impr—her personal impres- Q. that name? What was sion of the relationship between her-hus- band Mr. and Wells and the information A. Jim Wells. conveyed she at the time to the com- immediately objected on basis mander and those But it is there. not relevance and moved to strike the testimo- of—against Mr. Wells ’as ny. argued that the state- Government crime, who committed this because she as an ment was excited utter- admissible didn’t She'simply know. did know. being ance for the and was offered an It’s emotional reaction. That was it. The district deferred truth thereof. court give weight And to it more than that ruling, instructed Government to move highly would be inappropriate. you Tells questioning, on with later .revisited reaction, her possibly to oth- limited presence issue of the jury. outside the not, cannot, er ways. it is But should not issue,

During argument oral any way suggest used that the positions took the inconsistent Government defendant committed crimes he’s that the statement admissible as both with, charged she because know. didn’t and to excited utterance show there some between Richard discord Anything say beyond I else can what— latter, Belisle Wells. As trying I’m it make as clear as bеll. position was that Government’s Ms. Beli- very, very This is limited. It’s what we sle’s statement rebut two de- tended call an It’s an excited utterance. emo- fense themes: that Chief Scott Reckner’s response. tional But has evidentia- hostility investigators toward caused Wells ry you as to the have before basis issue to focus Wells to exclusion other the you to who committed these crimes. suspects; got and that Belisle Wells Very, very to her emotional limited as along. These are of con- course positions response impres- at the moment and the latter tradictory only because could be the possibly regard sion that to she had valid if the statement indeed offered relationship with her husband’s the de- for the truth thereof. And of impres- course whatever fendant. might moved for a mistrial. The district sions

Wells have been created the gave standing court the mistrial and instead minds those before her denied following limiting the instruction: .the moment. First, interrupt- prosecutor’s question the day, the and the jury was released for

The counsel, declaring describing what then ed Commander Van Ness court addressed language indicated jury’s body happened when the officers “walked that the two clearly understand the tim- “seemed to This they that in uniform.” mischaracterized com- statement, not as to who by giving that this was evidence Belisle’s ing Ms. the crime.” mitted that was jury impression the false the immediately seeing the uni- upon uttered presence the morning, next outside The Second, prosecutor’s the formed officers. further jury, the district heard court the widow inquiring time, phrasing, whether that the on the At argument issue. name,” a miseharac- again out “blurt[ed] the initially to instruct court was inclined being made the statement as sud- terizes disregard but was jury to thought. In denly and without considered the above-de- ultimately satisfied that reality, approxi- the statement made any “clearly limit[ed] instruction scribed ap- mately minutes the officers Upon al- ten after prejudice.” request, Wells was Belisle, to response proached to Ness Ms. lowed recall Commander Van questions consider- attempt required context of the direct clarify an phrase day possible suspects. before. The ation statement introduced played that plainly ignores Ness out” the role Commander Van testified “blurt When Ms. a by eliсiting he not recall conversation with officers name as did Belisle, stipulated Third, suspect. only the Government not did the possible time, At the transcript. bring contents of prosecutor choose not to sensi- explicitly reconsidera- did seek to the court’s attention tive issue ruling that prior day’s tion of the questioning Van prior Commander utterance, Ness, statement was excited upon but the mischarac- verbalizing ruling not before us the merits of are with the being terization and confronted Instead, to decide appeal. we are asked ramifications, prosecutor as- failed required prosecutorial whether misconduct mitigation Although sist thereof. now, mistrial, or a As requires a reversal. misconduct, preju- constitutes we find mentioned, finding requires such both dice. Wright, 625 misconduct and prejudice. adequately re district court F.3d at 609-10. action. In dressed Government’s addi special “A prosecutor has instructing ques jurors tion to duty prosecutor’s with a commensurate evidence, court tions are the district power, to assure that defendants unique gave lengthy limiting instruction. Wells La- fair trials.” States v. receive United objected limiting instruction neither Page, 231 F.3d in any nor further request itself did prosecutor’s duty (addressing a when he is “Generally, structions. evidence when perjury). that his commits knows witness jury subsequently heard is certainly bounds of fair “It is within the inadmissible, only to applicable or is ruled lawyer, advocacy prosecutor, any for a like manner, or in a limited limited defendants jury to ask the inferences draw cautionary judge instruction from the prosecutor believes in prejudice sufficient cure de might v. good faith true.” United States Escalante, fendant.” States (9th 2002). 962,

Blueford, 312 F.3d 968 Cir. 1980). 1197, (9th 1202-03 Cir. “This F.2d Here, procedure preferred is the alternative prosecutor we that the find .,.; declaring appropri- mistrial mistrial is committed misconduct for several reasons.

937 only ate where there has ty.” been so much Territory Ignacio, Guam v. 10 F.3d- prejudice 608, (9th that an unlikely 1993). instruction is 611 Cir.

cure it.” Id. at 1203. court “[0]ur assumes jury that the is no question listened to followed the “There that the judge’s 1202; trial right instructions.” Id. at defendant has the see to introduce evi Gallenardo, also v. third-party United States dence culpability.” 579 F.3d Ignacio, (9th 2009) (affirming 1082 Cir. 10 F.3d at 615. denial The admission third- of motion for a “pre- mistrial it is party culpability because governed by evidence is jury that the sume[d] the district “[fundamental followed relevancy, standards of instruction”). limiting court’s subject to the discretion of the court to exclude cumulative evidence and to insure In addition to limiting instruction, orderly presentation, of a case.” United the district court allowed Wells to recall States v. 621 Armstrong, F.2d Ness, Commander in an Van effort (9th 1980). Cir. proffered testimony, place prejudicial statement in its prop however, was not minimally even relevant. er context. See States v. Whit worth, (9th 856 F.2d Cir. trial, At sought Wells to introduce (opponent may introduce evidence “to re evidence an alternative perpetrator, Ja any impression might but false son Barnum. The district court allowed admission”); from the resulted earlier Wells to proffer of Mr. Bar Moore, Oil Co. Standard Cal. himself, num along, with seven other wit (9th 1957) (in 188, 220 F.2d Cir. the con nesses, in attempt logical show some hypothetical text of questions posed to ex any connection to of the facts this case. perts, prejudicial error seldom results Despite multiple proffers, witness Wells can, where objecting party through “the any was never able to elicit testimony that cross-examination, expose jury Barnum knew or the- victims hypothetical asserted deficiencibs of the victims’ or families he had any connec question asked”). Furthermore, par to, with, familiarity tion the COMMSTA ultimately ties stipulated to the contents facility. The district court applied the bal transcript, jury such that the was well ancing Stagner, test set forth Miller v. proper aware of its context. The district 1985),16 and found plainly court did not err. “nothing meaningful, Barnum Mr. had reliable, or Having relevant offer.”

F. District Properly Court ourselves, probed proffered testirnony Excluded Evidence of Third 'agree'with court that it has Party Culpability probative abusing value. Far from its discretion, review for “We abuse discretion granted the district court a, claim that the trial improperly court every opportunity logical to show some connection, excluded of third-party eulpabili- remote, evidence however weak be determining In whether major the exclusion of part whether constitutes pro- trial violated a defendant’s due attempted Stagner, defense.” Miller v. rights, cess seek Miller factors to balance weight Due following probativе considerations: "the governmental given should also in- issue; value of the evidence on the central trials, "preserving judi- terests in orderly reliability; capable whether it is of evaluation excluding cial efficiency, and in unreliable or fact; trier of whether it is the sole prejudicial evidence.” Id. at 995. cumulative; merely evidence on the issue or innocence'. case, upon own insistence and he Wells’ Bamum this Jason tween comments, light in- Having reviewed those relevancy.' to failed establish factors, the expect of above that the the Reassign To Preserve diffi- judge substantial original G. We would have of of Appearance setting Justice his views this culty aside reassign- find that therefore case.17 We reassign a case This will Court appear- to the preserve ment advisable only circum “unusual on remand under be that this case justice ance order to the preserve required or when stances reassigned on remand. v. United States interests justice." Wolf (9th Child, 1082, 1102 Cir. 699 F.3d CONCLUSION IV. part on the need not find bias We actual reassignment. to court'prior the district reasons, that we find fordgoing For the Riverside, Cty. v. ! Krechman trial. not receive fair Wells did 2013). Rather, we cón- FOR AND REMANDED REVERSED sider: AFTER BEING REAS- A TRIAL NEW ' (1) judge the would whether original SIGNED. to upon reasonably expected remand be putting difficulty out have substantial NGUYEN, concurring in Judge, Circuit expressed of his her previously or mind part: to erro- findings views or determined concur, to I I unable am While otherwise 'must be on that neous based I opinion. fully join in Part III.A rejected, magistrate court agree did not (2) reassignment is advisable whether removing Of- Mr. abuse its discretion justice, preserve appearance counsel, under appointed fenbecher once, ‍​​‌​‌​​​​‌‌​​‌‌‌‌​‌​‌​​‌​‌‌​​​​​​​​​​‌​‌‌‌‌​‌‌‌‌‍CJA, longer government was reassignment entail (3) whether seeking a of death. Given punishment duplication proportion out waste holding, I nó “offer a caution- see need appearance of preserving any gain ary on, magistrate court’s deci- note” fairness. so, doing opin- sion-making In process. (quoting Child, F.3d at 1102 Wolf magistrate that the wrongly ion assumes Quach, United States con- budgetary to consider the judge failed 2002)). “The first two factors De- by the straints Federal Public faced finding important are equally majority Office because fender’s reassignment to support either is sufficient nо indication” in the record “find[s] Krechman, F.3d at 1112. on remand.” specifical- But a failure comment so. did equate on ly these concerns does requests reassignment Wells Indeed, opin- them. consider failure court’s extensive com district based Kott, States v. discussion ments,'made sentencing, response ion’s at selfish, here, “angry, calling new trial recognizes "the district The dissent Thus, narcissistic, language” undoubtedly strong jealous, and envious.” used court merely sentencing and enumerates statements is not case where the district court appearance possibility that raise of the "expressed opinion defendant's [its] might difficulty original court trial sentencing,” guilt one where at least but case, particu- In setting its views of this aside subject statements were founded some lar, court relied we note that on error. very profile hold warrants a evidence we

939 3:07-CR-056-JWS-JDR, TASHIMA, Judge, 2011 No. WL concurring Circuit in (D. 13, 2011), sug- part: 2357508 Alaska June dissenting and in part judge gests magistrate that this well was in Although I concur the rest of the budget problems of the FPD’s aware and opinion, respectfully I dissent from the Here, considering a practice them. had majority’s reassign to decision the case on express given representa- FPD Curtner’s remand. As majority acknowledges, the we opposition tions connection with his to reassign a only case “rare and extraor- government’s to relieve Mr. motion dinary circumstances.” Krechman Cty. v. Offenbecher, ap- it’s for highly unusual an Riverside, 1104, (9th 723 F.3d 1112 Cir. pellate magistrate court to assume that the Forwarders, (quoting Air-Sea Inc. v. judge failed to these consider relevant Co., Ltd., 176, (9th Air Asia 191 for judge statements and then criticize the 1989)). Cir. The circumstances here were doing so. This especially not is so because extraordinary. neither rare nor ultimately ruling conclude that the sentencing, At district judge un- correct. used, doubtedly strong language. For ex- opinion harshly The also criticizes the said, ample, judge thing “[T]here’s one case, government in this conduct absolutely that’s clear to me beyond a Mr, rightly to so. The motion remove and doubt, reasonable and is that James unbecoming. and Offenbecher unusual' murderer”; isWells a cold-blooded ‘You government powerful a occupies The role innocence, fight your can for but that won’t justice system, has re- our it vast innocent, you yоu’re make because n accomplish prosecutorial to its sources ; guilty” and men- cut down their “Two government unique The bears a functions. selfish, prime by angry, .jealous, an narcis- not to responsibility tip against scales - sistic, man.” and envious defendant, a failed demonstrate judge’s may While the comments district But, sensitivity duty to that here. sufficient been “as restrained we would so, it is to however ill-advised and rare do be,” them to wish alone does I have found clear prohibition reassignment. justify v. Mont California government seeking removal counsel 1507, rose Corp., 104 Chem. F.3d Thus, these it’s not under circumstances. . 1997) entirely obvious that the Assistant United Attorneys' “placed It for perfectly States is a appropriate judge [themselves] ethically position” by express an compromised opinion do- defendant’s guilt fact, ing' sentencing, jury here. In has so there evidence that returned after all, government misstepped guilty if judge has in the its verdict. After See, e.g., fashion on other is miscarriage same occasions. believes that the verdict Rodriguez, grant States v. No. he or either an justice, United 12-CR- should she 83S, 1120157, acquittal 2015 WL *3 trial—not sentence n.3 new (W.D.N.Y. 2015); inno Mar. v. or she States defendant he believes 09-CR-329, Moreover, 3553(a) § Eldridge, obli No. cent. 18 U.S.C. WL (W.D.N.Y. record, Sept. judge, gates at *1 sentencing important “consider the This is issue -nature circumstances history Department provide of Justice and character could addi- offense training to its istics of United States guidance tional line defendant.” 2008) (en Carty, prosecutorial ov- AUSAs order avoid banc) § 3553(a)(1)). The (citing U.S.C. erreach. «o o in- presentence record, which includes the must also state reasons court Probation Officer. sentence, report of the vestigation in order given imposing meaningful appellate review. permit point to majority, The unable 3553(c). majority’s § decision U.S.C. why this case reason specific, articulable justify her sentencing judge to forces to a different district reassigned be should firm, or to risk being too sentence without remand, its justify attempts judge on That event of remand.

reassignment judge “at of the because district recusal position. we reverse When is an unenviable subject [at of the statements some least (or for a new trial and remand a conviction error,” on spe- sentencing] werе founded routinely remand to the resentencing), we re- noting “that the district court cifically the first presided over judge who same hold very profile we on the evidence lied sentencing. majority’s deci trial Maj. Op. at 938 n.17. a new trial.” warrants cir reassignment require sion to definition, By this focus is misdirected. But practice calls that of this case cumstances prejudicial for eviden- reverse when we and, indeed, opens door question into ruling, will have based tiary the court on the reassignment based whim decisions, least in sentencing at trial and “whim,” majori say I because the panel. not have that should part, on evidence ty’s reassign here routinely re- decision standard- But don’t admitted. we been Instead, less. reassignment in such cases. quire discloses the record we ask whether in which we have In cases the few other judge cannot set why the. district reason on comments the district reassigned based follow the his erroneous view and aside sentencing, judges explicitly court made As of this court. we stated mandate difficulty” set their “substantial signaled Child, 1082 699 F.3d States v. Wolf views. See, e.g., United ting previous aside 2012): (9th Cir. Quach, F.3d 1103-04 v. States judge .Although the district erred 2002) (9th (reassigning where Cir. making expressing remarks view denied a sen judge stated he would have categorically presented that Wolf -Child brought ini tencing not motion children, including his danger to all remand); on Benvin tially, could be filed but opinion daughters, believe our own we the Dist. Dist. Court v. U.S. of Nev. that, guidance he gives sufficient should (In Benvin), re necessary impose that it is determine 2015) (reassigning where court conditions, relating to Child’s new Wolf plea negoti itself into improperly inserted minors, of other being, company explicit views “expressed had ations and suitably con- only narrow impose will of an appropriate terms” eventual applica- comply will with ditions agreement). forth above. legal requirements set ble Krechman, at 1102-03. See also Id. contrast, nothing the record here By of law in (“Despite error F.3d judge be suggests that this district will hearing appeal, prior, now under this court’s mandate unable follow [the reason believe Johnson, 812 remand. See United States fairly correctly be judge] would unable (holding sen- on re- apply [correct] standard tencing comments about defendant’s credi- mand.”). justify reassignment). All bility did sum, judge’s I that a In do believe form the basis judge’s comments which verdict, agreement expression on the trial reassignment are based strong, however can itself serve as suffi-

cient judge will un- to afford the

able defendant a fair retrial.

I respectfully dissent the order of

reassignment. VILLAVICENCIO,

Julio Cesar

Petitioner, III, Attorney

Jefferson B. SESSIONS

General, Respondent.

No. 13-74324 Appeals, Court of States

Ninth Circuit. 20, 2017,

Argued April and Submitted Francisco, California

San January

Filed

Case Details

Case Name: United States v. James Wells

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 19, 2017

Citation: 877 F.3d 1099

Docket Number: 14-30146, 15-30036

Court Abbreviation: 9th Cir.