Lead Opinion
The Opinion filed on December 19, 2017, is amended as follows: on slip opinion page 66, lines 12-22, replace the following text:
“The defendant’s right to present evidence which may exonerate him, however, is not absolute and may have to ‘bow to accommodate other legitimate interests in the criminal trial process.’ ” Id. (quoting Chambers v. Mississippi,410 U.S. 284 , 296 (1973)). This type of-evidence is not admissible “if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the. actual commission of the offense.” Perry v. Rushen,713 F.2d 1447 , 1449 (9th Cir. 1983) (internal quotation marks omitted) (emphasis added).
with the following text:
The admission of third-party culpability evidence is governed by “[f|undamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case.” United States v. Armstrong,621 F.2d 951 , 953 (9th Cir. 1980). Wells’ proffered testimony, however, was not even minimally relevant.
Concurrence by Judge Nguyen;
Partial Concurrence and Partial Dissent by Judge Tashima
OPINION
Defendant-Appellant James Michael Wells (“Wells”) appeals from his jury trial convictions for two counts of First Degree Murder, in violation of 18 U.S.C. § 1111(a), (b); two counts of Murder of a Federal Employee, in. violation of 18 U.S.C. §§ 1114, 1111; and two counts of Use of a Firearm in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. § 924 (c), (j), Wells was sentenced
As Justice Louis D. Brandéis warned many years ago: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States,
I. BACKGROUND
A. The Crime and Investigation
Wells’ convictions arise out of the deaths of Richard W. Belisle and James A. Hopkins, federal employees and Wells’ coworkers at the United States Coast Guard (“USCG”) antenna maintenance facility, located at the USCG Communication Station (“COMMSTA”) on Kodiak Island, Alaska. COMMSTA consists of two main buildings: a large operations center, known as Tl; and the antenna maintenance facility, or “rigger shop,” known as T2. Most COMMSTA members work in the Tl building, while T2 maintains only eight regular employees, which included Wells and both of the victims.
Surveillance cameras captured Hopkins’ truck pulling into the T2 parking lot at approximately 7:09 a.m. on April 12, 2012. Relevant footage also showed a blurry image of a small blue SUV, which had been traveling behind Hopkins, without headlights. At approximately 7:14 a.m., a small blue SUV was again captured, this time traveling in the opposite direction at almost twice the speed of the blue car captured just a few minutes earlier, traveling behind Hopkins.
Wells’ typical 8.8-mile morning commute, from his residence to COMMSTA, included approximately 5.1 miles to the USCG main gate, then 1.7 miles to the Kodiak airport, and finally 2 more miles to reach T2. Along that route, various surveillance cameras are positioned to capture passing traffic and parking lots. Wells claimed that, on the morning of April 12, upon noticing that he had a flat tire, he turned around in a hotel parking lot adjacent to the airport, and drove back home to change the tire. The surveillance camera at the USCG’s main entrance gate captured .Wells’ white Dodge pickup truck passing at 6:48 a.m., traveling away from his residence' and towards COMMSTA, and then again at 7:22 a.m., traveling in the opposite direction, leaving an unaccounted for 34-minute window. At 7:30 a.m., Wells left a voicemail message on then-deceased Hopkins’ phone, as well as Chief Scott Reckner’s phone, explaining that he had a flat tire and would be at work as soon as he could change the tire.
At the time of the murders, Wells’ wife, Nancy Wells, was away from Kodiak Island and had left her vehicle, a blue 2001 Honda CR-V, parked at the Kodiak airport. On the afternoon of April 12, a law enforcement agent, who was aware of the surveillance image of the small blue SUV, noticed Nancy Wells’ car in the airport parking lot. The investigation subsequently revealed that, on April 12, the car was not parked where Nancy Wells had left it two
At approximately 7:30 a.m., on April 12, 2012, Petty Officer Third Class Cody Beauford arrived to work at T2 and discovered the bodies of Hopkins and Belisle. Each victim had suffered multiple gunshot wounds from a large caliber- weapon. There was no evidence of forced entry or robbery, and nothing else in T2 appeared to have been disturbed. Hopkins, an Electronic Technician First Class (ET1) and the rigger shop supervisor, was found, on the break-room floor. Belisle, a retired Chief Boatswain’s Mate and one of the rigger shop’s two civilian employees, was found in the adjacent office. Wells, the other civilian employee who would have normally been present at that time, was absent.
Each victim’s arrival at T2 on the morning they were murdered was time-stamped by surveillance footage, which monitored the usual employee parking area situated at the front of T2. The times of their respective arrivals, combined with the last recorded activity on Belisle’s computer and the positions of the bodies relative to the known morning rituals of each victim, led the investigators to conclude that the murders occurred between 7:10 and 7:14 a.m., on April 12, 2012. The crime window thus fit squarely within the 34-minute period of time for which Wells could not account. It was this unexplained discrepancy which captured the attention of the interviewing agents and upon which the Government relied heavily at trial.
Upon discovering the bodies, Beauford notified the USCG watch officer and requested that emergency services be dispatched. Soon after the first responders arrived, an Alaska State Trooper cleared and secured the facility, now a crime scene, for investigative purposes. Wells arrived at T2 at approximately 8:23 a.m., well over an hour past his normal start time, immediately claiming to have had a flat tire.
In the aftermath of the murders, Wells consented to a search of his truck, where law enforcement agents found and seized a tire with a nail in it. The Government sent the tire to its forensic tire expert,' Gary Bolden, for examination ■ and 'testing. The tire was then returned to the FBI lab, where a tool mark examiner performed further testing on the nail and its position in the tire. Both Bolden and the tool mark examiner concluded that the nail had been manually inserted into the tire, undermining the foundation of Wells’ alibi that he had picked up a nail while driving to work on the morning of the murders.
B. The Indictment and Wells’ Representation
Approximately ten months after the murders, on February 19, 2013; Wells was indicted bn the following six counts: Counts 1 and 2, murder in the first degree, in violation of 18 U.S.C. §§ 7(3) and 1111(a), (b); Counts 3 and 4, murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 1114, 1111; arid Counts 5 and 6, possession- and use of a firearm in relation to a crime of violence resulting in death, in violation of 18 U.S.C. § 924 (c), (j). Pursuant to' 18 U.S.C. § 3006A, Alaska’s Federal Public Defender (“FPD”), F. Rich Curtner, was appointed to represent Wells. Within three weeks of Wells’ initial appearance, FPD Curtner successfully moved to have a second court-appointed attorney, Peter Offenbecher, assigned to the then-capital case, pursuant to 18 U.S.C. § 3005. In a motion for reconsideration thereof, the Government unsuccessfully
Soon thereafter, beginning on May 7, 2013 and continuing through the conclusion of trial on April 25, 2014, the Government was represented by no fewer than three attorneys,- including then-United States Attorney for the District of Alaska, Karen Loeffler. On August 5, 2018, the Government declared ■ that. it would no longer -seek the death penalty. On August 21, 2013, the Government filed a motion to remove Wells’ second court-appointed counsel, arguing that Mr. Offenbecher’s appointment was no longer appropriate, as this, had become a non-capital case. Because Mr. Offenbecher is based out of Seattle, the Government also argued that the-appointment of a geographically distant attorney could not be justified. Although it recognized that.- the ..-Criminal Justice Act does not prohibit maintaining two court-appointed attorneys in non-capital cases, the Government insisted that the instant case lacked “extenuating circumstances,” which might otherwise support Mr. Offenbecher’s continued appointment, pursuant to the Guide to Judiciary Policy §§ 630.30.10 and 630.30.20.
FPD Curtner opposed the Government’s motion, arguing that “extenuating circumstances” did exist because: Mr. Of-fenbecher. had established ■ an attorney-client relationship with -Wells and invested considerable time аnd effort in reviewing discovery; Mr. Offenbecher’s removal would leave FPD Curtner as the sole attorney, while simultaneously managing an FPD office in an unprecedented fiscal crisis; there were no available FPD staff attorneys to assist Curtner; and the Government’s three trial attorneys constituted an unfair imbalance of resources, all of which jeopardized Wells’ Sixth Amendment right to counsel. ¡
On September 11, 2013, the magistrate judge granted the Government’s motion, excusing Mr. Offenbecher and leaving FPD Curtner as Wells’ sole attorney, until March 2014, when Mr. Offenbecher re-enrolled as retained counsel prior to trial. FPD Curtner filed objections to the magistrate judge’s order. Therein, he stressed the unique burdens being faced by the FPD, the Government’s lack of standing to interfere with counsel’s appointment, and the imbalance of resources. In closing, FPD Curtner stated that “[ujnder these unique circumstances; the trial of Mr. Wells could hardly be deemed a ‘fair fight.’ ” The objections were never addressed, and no further action was taken by the district judge on the issue of Wells’ representation.
II. ISSUES ON APPEAL
' Wells raises the following issues on appeal. First, Wells challenges the district court’s' removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty. Second, Wells challenges the admission of expert testimony from three witnesses, one of which we address separately, for reasons explained below. Third, Wells" challenges the admission of various character and “other acts” evidence. Fourth, Wells alleges prosecutorial misconduct in the elicitation1 of prejudicial testimony. . Fifth, Wells claims that • the district court abused its discretion in precluding evidence of third party culpability. Sixth, Wells requests that we reassign this case to a different district judge on remand.
III. DISCUSSION
A. The Government Overstepped in Moving To Excuse Second Defense Counsel
A district court’s decision to grant or deny services under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, is reviewed for abuse of discretion. See United States v. Smith,
Mr. Offenbecher was appointed pursuant to 18 U.S.C. § 3005. In this circuit, § 3005 does not require that two attorneys be, or continue to be, appointed whenever the Government indicts a defendant for a crime punishable by death but does not seek the death penalty. United States v. Waggoner,
The CJA does not pi’ohibit courts from appointing, or maintaining, a dual appointment in a non-capital case. Instead, § 3006A(c) generally governs the duration
As recognized by the magistrate judge, § 630.30.10 directs a court to consider the questions of number of counsel and rate of compensation, once it is determined that the death penalty will not be sought. The Guide, Vol. 7, Ch. 6, § 630.30.10. Section 630.30.20 explains that a court “should, absent extenuating circumstances, make an appropriate reduction in the number of counsel.” Id. § 630.30.20(a) (emphasis added). The Guide then sets out the following four factors to consider in deciding whether extenuating circumstances exist:
(1) the need to avoid disruption of the proceedings; (2) whether the decision not to seek the death penalty occurred late in the litigation; (3) whether the case is unusually complex; and (4) any other factors that' would interfere with the need to ensure effective representation of the defendant.
Id. § 630.30.20(b). Here, the magistrate judge adequately considered the Guide’s directives and found that this case was not unusually complex, the parties were adhering to the pretrial motion schedule, the decision not to seek the death penalty was not delayed, and the continuation of FPD Curtner’s representation would conserve the District of Alaska’s CJA budget while protecting Wells’ Sixth Amendment right to counsel and preserve any attorney-client relationship. In upholding the excusal of Mr. Offenbecher, we intentionally employ the word adequately, to emphasize the'limitations placed on our review, and we offer a cautionary note.
First, problematically, we find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole, counsel. Given FPD Curtner’s statements, the absence of any explicit consideration thereof sits in stark contrast to at least one other non-capital case, wherein the same magistrate judge reconsidered his denial of dual-appointed counsel. See United States v. Kott, No. 3:07-CR-056-JWS-JDR,
Second, and of much greater concern to this Court, is the means by which the question of Mr. Offenbecher’s continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of Mr. Offenbecher’s appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, 'it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. Whijle such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. See United States v. Hartfield,
The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. In re Smith,
The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the Government. “A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the fact-finding process.” Hartfield,
While we find that that the jury’s fact-finding role was reversibly undermined by errors in this case, we do not find that Mr. Offenbecher’s removal constituted an abuse of discretion. Despite our disapproval of the Government’s interference, and regardless of whether we might have decided the question differently, the magistrate judge was within his discretion to find that FPD Curtner’s continued representation
B. The District Court Erred in Allowing the Government To Use Criminal Pro--ñle, Testimony :as Substantive Evidence of Guilt
We. generally review a district court’s decision to admit or deny expert testimony for abusé of discretion. United States v. Reed,
Dr. J. Reid Meloy is a licensed, board-certified forensic psychologist, who was tendered as ah expert in “targeted, intended workplace multiple-homicide violence.”
On appeal, Wells challenges Dr. Meloy’s testimony as improper “profile” evidence used as substantive evidence of Wells’ guilt. For the reasons explained herein, we find that Dr. Meloy’s testimony was admitted without regard to Federal Rule of Evidence 404(a)(1) or the sensitive balancing required by Rule 403. Before we reach the merits, however,- we must first address the parties’ dispute as-to whether Wells properly preserved this claim for appeal. Our analysis begins with the relevant time-line of objections.
Pretrial, Wells moved to exclude Dr. Meloy’s testimony under. Rules 401-403, 404(a), and 608, and requested a Daubert hearing. At the hearing, Wells argued, in pertinent part:
[T]his is in the realm of creating a profile, and that could, I think, arguably only be- applied to Mr. Wells if this is workplace violence. [T]his is a classic example of vague generalizations that are too broad to be admitted in this particular case under these -circumstances..
In response, the Government recognized that Wells’ “attack seems to be that you can’t testify as to general characteristics,” and then criticized the failure to cite any case law addressing the use of profile evidence.
Although the magistrate judge ultimately recognized the potential dangers in Dr. Meloy’s testimony, his post-hearing ruling only peripherally acknowledged Wells’ profile challenge, as follows:
The defense complains that Melroy [sic] is creating a profile that can only be applied to the defendant if the crime was workplace violence. That observation is not a sufficient reason to preclude the government from calling an expert witness to testify about workplace violence.
The magistrate judge further deemed it “appropriate in this case for the government to offer the opinion of a forensic psychologist as to whether certain characteristics present in this casé suggest workplace violence,” while recognizing that Dr. Meloy had not examined Wells personally. Finally, the magistrate judge concluded:
[T]he subject matter of [Dr. Meloy’s] proposed testimony may but not necessarily will assist the trier of fact depending on the evidence presented at trial. The probative value of Dr. Meloy’s proposed testimony may or may not outweigh the danger of unfair prejudice, confusion of the issues, or misleading evidence that would be placed before the jury. At this stage of the proceedings Dr. Meloy’s analysis and theories, based upon his experience and training, are not sufficiently relevant to the case at hand to be ruled admissible at trial.
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The remaining issue is whether [Dr. Meloy’s].proposed testimony passes the balancing test of Federal Rules [sic] of Evidence ⅛03. The government should be given the opportunity at trial to support the issue of admissibility of Dr. Meloy’s testimony before it is presented to the jury. Ruling on the Defendant’s Motion in Limine to Exclude Testimony on Issues of Violence and Psychological Characteristics of Perpetrators of Violent Crimes, Docket 216 is held in abeyance pending further consideration at trial.
(first emphases added, last italics supplied). There were no objections to the magistrate judge’s ruling.
In his trial brief, filed on March 17, 2014, Wells reiterated his objections to Dr. Meloy’s testimony, arguing, in part, that:
Incidents of workplace violence are so common in our culture, that jurors will be. able to apply their own common sense to understand this evidence .without any need for expert interpretation .... The government has not cited a single case in support of admitting an expert to testify about workplace violence.
Although the trial brief seemed to focus on relevance and reliability, the recently re-enrolled Peter Offenbecher clarified his objection during the final pretrial conference, on March 24, 2014, as follows:
The problem comes where the experts are permitted to testify that a person who commits workplace violence has these characteristics, X, Y, and Z, and then—although they don’t ask the expert to connect the dots, they then—the next witness testifies that the defendant has these characteristics, X, Y, and Z. And what they’re ending up doing is having the expert—they don’t connect ‘the dots in court, but certainly the jury knows, and you end up with impermissiblecharacter evidence because they’re saying the characteristics of a person who commits this crime, and there are these—you know, these particular things, and then they just line them up and they try to prove that the defendant has those characteristics.
So it’s just a way around the rule that you cannot permit the government to introduce character evidence or make an opinion that the defendant is the person who commits the crime.
Substantively, this is the same argument presented on appeal.
The Government countered by asserting: “It’s not improper character evidence. The jury looks at it and they say, does it fit, does it not fit? And what we do is we use him to disabuse the jury of commonly held notions that basically come from TV.” The Government confirmed that it intended to have Dr. Meloy describe the characteristics of those who commit “targeted individual multiple homicide workplace vio-lences,” without discussing Wells personally, because Dr. Meloy had not examined him.
The district court reflected that the Government was likely correct on this issue, because “[ijt’s done all the time,” but allowed Mr. Offenbecher to respond. Mr. Offenbecher pointed out that the magistrate judge had not yet ruled on the admissibility of Dr. Meloy’s testimony and further noted that the testimony was particularly problematic because, in this specific workplace, there are “only seven peo-pie ... and two of them are deceased.”
So, in effect, you’re permitting Dr. Me-loy to testify that Jim Wells is the person who committed the crime, even though that’s impermissible because it goes to the ultimate fact in the case. And also it’s an attempt to get around the rule prohibiting character evidence. We’re asking the Court just to abide by [the magistrate judge’s] ruling on Dr. Meloy.
The district judge then acknowledged that the ultimate decision was his to make, declared that he thought that Dr. Meloy’s testimony was “probably permissible,” and instructed the Government to provide its questions in advance so the court could “just rule question by question.” The Government agreed to do so, and the court concluded the discussion with these remarks:
We do drug cases all the time,5 and we ask them, experts to testify about characteristics that are—you know, this doesn’t shock me what you’re talking about, but I’ll look again to make sure that I understand the concerns of the defendant.
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But again, no matter what we’ve already decided, we can’t go to the—none of these witnesses can testify as to the ultimate question and ask, “Do you believe Mr. Wells did this?” .
Thus, the district court made two erroneous assumptions: first, he presumed admissibility
Following the final pretrial conference, in response to the court’s request for advance questions, the Government provided a summary outline of Dr. Meloy’s anticipated testimony. This summary had previously been provided to the defense several months earlier. Therein, the Government generally advised that Dr. Meloy would “elaborate on targeted and intended violence, workplace violence, multiple murders and the personality and other psychological characteristics of those who commit these types of .crimes,” and specified that “Dr. Meloy will not be asked to give an opinion about how these characteristics apply to the known facts concerning Mr. Wells.” (Emphasis in original). It further provided bulletpoints, categorically grouped by the topics of his expertise, of “[s]ome of the charаcteristics” that he would describe and explain.
On the first morning of trial, the Government inquired as to whether the court was going to permit Dr. Meloy to testify. The. district court indicated its belief that it had already ruled, and neither party pressed the issue. Later, when Mr. Offen-becher objected during Dr. Meloy’s tender, the district court reiterated that the objections to Dr. Meloy had already been addressed. At that time, Mr. Offenbecher expressed concern surrounding Dr. Meloy being tendered as an expert, suggesting that it would “give [him] the imprimatur of the [c]ourt.” The court confirmed that Mr. Offenbecher’s objection was based on relevance rather than expertise and allowed the Government to proceed with Dr. Me-loy’s tender.
On review, it is regrettable that Wells’ trial objections failed to specifically re-urge his pretrial argument that Dr. Me-loy’s testimony was improper character evidence in the form of a. profile; however, the failure to do so is not fatal to the preservation of this claim. Wells’ pretrial objections were clear and consistent.
At the outset of Dr. Meloy’s testimony, he explicitly disclaimed- any attempt to characterize Wells personally, yet he advised the jury that his process began with a review of materials and records specific to this case, and culminated with the preparation of a report concerning his findings in the four areas of targeted and intended violence; workplace violence; multiple-homicide; and the personality and psychological characteristics of those who commit such acts. As his testimony continued, the specific criminal profile emerged.
Dr. Me^y began by distinguishing two broad categories of thе types of violence in which human beings tend to engage: targeted or intended violence, called “predatory violence”; and emotional or reactive violence, called “affective violence.” He described targeted or intended violence as something that is planned and prepared for; is carried out in an intended fashion; involves tactical planning; and is opportunistic rather than impulsive, meaning it involves “finding an opportunity where the act could be carried out successfully.” On the other hand, affective violence was described as emotional;, responsive to a threat; something that is not controlled; purely defensive; and involves an immediate or impulsive reaction. The majority of his testimony focused on the former category.
Dr., Meloy relied on 2012 data compiled from the National Center for Victims of Crime and the Bureau of Labor Statistics, which indicated that there were 463 homicides in the workplace during 2012. Of those 463 homicides, 376 involved intended violence with a firearm, 10% of which were committed by' a co-worker and 6% by a spouse. These statistics were used to explain the rarity of such an event. He then tied these statistics back to the two categories of violence, explaining that workplace violence typically falls under the targeted or intended category, involving “planning and preparation.” He testified that both workplace killings and multiple murders are “virtually always” committed by males.
Dr. Meloy described the typical pattern of “individuals who would perpetrate a workplace targeted homicide,” to include: an attack, using a firearm; motivation from either a real or delusional grievance in reaction to an accumulation of losses or humiliations, a sense of rejection, or a felt injustice; a determination to seek revenge; a decision to intentionally act in violence; the existence of violent ideations; and development into the violent act itself, through research and planning. The planning stage was presented as especially important if the individual has never done this before. Dr. Meloy expláined that planning would typically be secretive and involve thinking about the targets, the movements of the targets, what weapons would bе used, and how to approach and leave the situation. Later, Dr. Meloy elaborated on the planning phase to include looking “at thé behavioral patterns of the victims, when are they in that particular location, ... [and whether] they- [are] going to be alone.” !
Dr. Meloy then disparaged the popular concept of “snapping,” that is, the term commonly used by lay people to describe a perpetrator of a violent crime as having “lost their mind” or being “out of control.” He explained that this is a myth, unsupported by research of targeted violence or of multiple murders. Instead, he referenced the descriptions offered by survivors of “multiple homicides” as having described the perpetrator as “calm, controlled, deliberate, cool.” He contrasted psychotic and nonpsychotic perpetrators;
Dr. Meloy further explained that perpetrators of targeted or intended violence are typically “pathologically narcissistic,” with a “very inflated view of themselves,” such that what might objectively be ■ perceived as slight criticism would, in their mind, be “very, very wouriding.”'Dr.- Meloy described this type of perpetrator as having a “narcissistic sensitivity that comes from the' individual’s personality.” The perpetrator might “be a legend in their own mind,” and “have a strong sense of entitlement,” such that criticism in the workplace “cuts deep” and is “then carried with them” to become the source of “the formulation óf the grievance.”
Dr. Meloy explained' that approximately 80%- of multiple homicides have a “triggering event,” but that “direct causality” may not always be established. On redirect, he clarified that the perpetrator’s actions might seem “very illogical and irrational to the observer.” ■ He explained that the perpetrator will typically have'a personality disorder, which he described as having “over time created problems ... with other people who are close to them.” He testified that 80% of people carrying out targeted violence do not communicate a direct threat or “warn the target befоrehand.” And, because employers typically screen people with a history of violent criminality, he explained that perpetrators instead tend to have “histories of chronic conflict with those in i authority over the person in the workplace.”
' Trial testimony purported to show that both Belisle and Hopkins were generally well-liked, and that the two victims had no connection to each other outside of their employment. Wells, while highly regarded for his knowledge and expertise in antenna maintenance, was described by two higher-level supervisors as being difficult to control. Trial testimony indicated that Wells’ insubordination and instances of workplace discord were occurring with increasing frequency before the murders. Chief Reckner testified that, in December 2011, he decided to move his office from Ti to T2, because Hopkins was not being respected as the rigger shop supervisor. Reckner testified that Wells was having ongoing disciplinary issues during this time, as well as health problems, causing him to be absent from work. As a result',1 Reckner made the supervisory decision not to allow Wells to attend an annual conference, which :sparked a “heated” discussion between Wells and Reckner. The conference attendees were Reckner, and the two victims, Hopkins and Belisle.
On appeal, Wells summarizes Dr. Melons testimony as having constructed the following profile of the perpetrator: male; pathologically narcissistic, with a grandiose view of him'self and an unreasonable sense of entitlement; his decision to carry out the murders would be triggered by one or a series of humiliations in love or work; his narcissistic sensitivity would cause him to be wounded deeply by the criticism; although he may not show it, this wound would serve to formulate a “grievance”; this grievance, would convert into anger, which may or. may not be. expressed openly, and he would begin to fantasize about solving his problems through violence.
The Government attempts to distinguish Dr. Meloy’s testimony from criticized profile evidence by arguing that his actual testimony was much broader than Wells’ portrayal, thereof;
The Government explains that proving its trial theory required that it intertwine several separate but interconnected strands of evidence to show:
[T]he only conclusion consistent with all .the evidence was that Wells carefully planned and executed the murder of his colleagues, motivated by his frustration and resentment over disciplinary issues at work, his increasing problems with COMMSTA management, and his loss of a position of respect and deference in the rigger shop....
The evidence as a whole established that on the morning of April 12, 2012, knowing Belisle and Hopkins would be alone at work, Wells drove to the airport in his white pickup truck, and switched cars to his wife’s 2001 blue Honda CRV, which had been left at the airport earlier in the week. He then drove past the entrance to the rigger shop, bypassing the camera that he knew would capture the image of any vehicle entering the normal parking area, parked behind the building, walked under the camera and entered the rigger shop through the door that he knew would be unlocked and open, bypassing the card reader entrance that would otherwise record his presence.
Wells then shot Belisle and Hopkins multiple times and left the buildfrg, again bypassing the rigger shop camera, drove back to the airport where .he parked his wife’s car, got back into his truck and drove home. Immediately upon arriving at home he called and left a message on Hopkins’ and Reckner’s voicemail, giving, a previously-planned false alibi, claiming that he had a flat tire and would be late to work.
Regardless of how broad or narrow Dr. Meloy’s findings might have been, the record reflects that his testimony was improperly used by the Government, in conjunction with its overbroad motive theory, to substantively connect the strands of circumstantial evidence in such a way as to fit Wells into thе criminal profile.
As Chief Justice Roberts recently confirmed: “Our law punishes people for what they do, not who they are.” Buck v. Davis, 580 U.S. -,
This Court has “stated in dictum that testimony of criminal profiles is highly undesirable as substantive evidence because it is of low probativity and inhdr-ently prejudicial.” United States v. Gillespie,
Although “profile” evidence is not per se inadmissible, it is only permitted in narrow and limited circumstances, such as: (1) background evidence, Gomez-Norena,
The Government attempts to place Dr. Meloy’s testimony in the third category, arguing that Wells “opened the door” and placed his character in issue, by relying on Wells’ history as a non-violent, non-threatening and peaceful man. Presumably recognizing the inherent weakness in making this argument given Dr. Meloy’s placement in the Government’s case-in-chief, the Government focuses on Wells’ attempts to show his “character for nonviolence” during his opening statement and through questions posed during cross-examination of prosecution witnesses.
This argument lacks merit. This Court has cautioned that “the ‘opening the door’ doctrine is not so capacious as to allow the admission of any evidence made relevant by the opposing party’s strategy, without regard to the Federal Rules of Evidence.” United States v. Sine,
The vast majority' of relevant federal case law addresses the use of profile evidence in the context of drug couriers. Indeed, the district court presumably referenced this jurisprudence when he mistakenly assumed admissibility. However, we do also find persuasive the principles discussed in the state and military jurisprudence, cited to us by Wells, rejecting the use of other criminal profiles as substantive evidence of guilt. ‘
“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.” Ryan v. State,
As recognized in United States v. Banks,
The probative value of Dr. Meloy’s testimony is found only in its ability to answer the impermissible question of whether, based on his character profile, Wells acted in accordance therewith on the morning of April 12, 2012. As explained in Michelson v. United States,
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. ... The overriding policy of excluding such evidence, despite its- admitted probative value, is-the practical experience-that its disallowance tends to prevent confusion of issues, unfair -surprise and undue prejudice.
Id. at 475-76,
Generally, if we conclude that evi-. dence has been improperly admitted, “we consider whether the error was harmless.” United States v. Bailey,
We begin with a presumption of prejudice, in reviewing the effects of this erroneous admission. See Jules Jordan Video, Inc. v. 144942 Canada Inc.,
When the district court has erroneously admitted or excluded prejudicial evidence, we remand for a new trial. We do so even if the district court errs by failing to answer a threshold question of admissibility. We have no precedent for treating the erroneous admission of expert testimony any differently.'
Estate of Barabin v. AstenJohnson, Inc.,
Although we find that Dr. Meloy’s testimony was clearly inadmissible under Rule 404(a)(1), we write further to stress the important role of Rule 403. “As long as it appears from the record as a whole that the trial judge adequately weighed the probative value and prejudicial effect of proffered evidence before its admission, we conclude that the demands of Rule 403 have been met.” United States v. Sangrey,
C. The District Court Erred ■ in Admitting “Other Act” Evidence
Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. Generally, “[a] district court’s evidentiary rulings should not be reversed absent clear abuse of discretion аnd some prejudice.” Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc.,
For our purposes, all testimony challenged under Rule 404(a) is subject to plain error review.
Each of Wells’ challenges under Rules 404(a) and 404(b) are made against the backdrop of Dr. Meloy’s profile testimony. Wells argues that this character and other acts evidence was made relevant by Dr. Meloy’s criminal profile of a narcissistically-sensitive individual for whom even minor criticism or setbacks could trigger violence. He argues that the same is true for the district court’s alternative finding, that certain other acts were admissible to prove motive under Rule 404(b)(2), because this evidence was only relevant if the Government’s motive theory was viewed in the context of Dr. Meloy’s profile. The motive theory is thus pertinent to our analysis and is described by the Government, as follows:
Wells for years had been allowed to operate as his own boss. Throughout his work history prior to 2011, Wells had been able to do what he wanted when he wanted. He had a high opinion of himself, and any time he ran afoul of management he would just wait them out and go back to his same practices. However, things changed beginning in 2011 with the change in command at COMMSTA. New supervisors were tasked to try and get Wells to “get with the program.” Pressure was put on him to conform. As 2011 progressed, the pressure increased. Then Wells became ill. As he missed work, the Command realized they could do the work without him. Belisle had stepped up and could replace him. When he returned, he was told he could not go to the annual antenna conference,, which made him angry.
As an initial matter, we find that the Government crafted this motive theory with much too broad a brushstroke, paving the way for it to introduce evidence which was not truly relevant to the charged crimes. More persuasive is the ‘ Government’s argument that much of the other act testimony concerned actions which were detailed in Wells’ USCG personnel folder, referred to during defense counsel’s opening statement and admitted without objection at trial.
Our analysis begins with Rule 402 of the Federal Rules of Evidence, which declares that all “[rjelevant evidence is admissible,” except as otherwise provided. Fed. R. Evid. 402. As we have explained:
Rule 404, which separately deals with “character” evidence, and its subsection 404(b), which covers evidence of other (1) crimes, (2) wrongs, or (3) acts,, is not a different pathway to the admission of evidence—although it, is frequently misunderstood as such. Rule 4Ó4 is simply a specific.qualification of the general rule of the admissibility of all relevant evi- . dence.
United States v. Cwrtin, 489 F,3d 935, 943 (9th Cir. 2007) (en banc) (footnote omitted). Because “[Character evidence is of slight probative value and may be very prejudicial,” Rule 404 curtails the use of such “bad man” evidence. Id. at 944. Rule 404(a)(1) prohibits using “[e]vidence of a person’s character or character trait .... to prove that on a particular occasion the person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1).
Wells challenges a laundry list of testimonial excerpts under Rule'‘404(a)(1), by which lay witnesses were permitted to describe him as: “having a poor attitude”; “quite conceited at times”; “only receptive to change if he had played a part in coming up with the change”; not being “known to be [the] kind of person” who did “as [he was] told”; “view[ing] himself as extremely knowledgeable”; taking “pride in his role” in the tower community as 'shown by his “strutting]” at conferences; “just set in the way he would do things”; “difficult at times”; and “not real good at sharing the information he had.” In support of the alleged relationship between this testimony and Dr. Meloy’s profile, Wells points to the Government’s closing argument,, during which it repeatedly, referenced excerpts of this testimony to demonstrate Wells’ “narcissistic traits,” his “strong sense of self,” his “sense of entitlement,” “his pride and‘his belief that he was at the tоp of his profession,” in order to fit the profile. Without explicitly explaining why it deemed this evidence to .be relevant, the Government argues that it is not prohibited character evidence, as it was not offered to show that Wells acted in conformity therewith. That is, it was not offered to show that, at the time of the April 12, 2012 murders, Wells was being narcissistic, difficult, or set in his ways.
While we are sensitive to the interconnected nature of this testimony as used by the Government to fit Dr. Meloy’s decidedly inadmissible profile, the improper admission of Dr. Meloy’s testimony does not render otherwise relevant evidence inadmissible. To the extent these witnesses had personal knowledge of the topics on which they testified, this testimony provided background information regarding Wells’ relationships with his co-workers, his working environment and his work history, all of which is relevant in á workplace homicide prosecution. Furthermore,1 it is also true that Wells relied on favorable aspects of these same evidentiary areas. Yet, he now takes the inconsistent position that his commendable record of service to the United States Navy and Coast Guard and, his congenial relationships with coworkers are relevant evidentiary points, while the inconvenient, less commendable details thereof are not. See Bowoto v. Chevron Corp.,
We turn now to Wells’ challenges to.the other act evidence, which we have summarized as including: a 2003 incident in which Wells disobeyed an order to leave a fiberglass hut on Attu Island for repairs; a 2012 letter of caution, issued to Wells based on the consensus of USCG command, despite
As to, the 2003 incident, wherein Wells directly disobeyed an order involving, the transportation of a fiberglass hut, the relevant testimony was given by Thomas Eskew, one of Wells’ former-USCG supervisors. Though Eskew did .not directly supervise Wells, he testified .that Wells was under his supervision for six years, from 2001 to 2007. The. incident at issue involved Wells’ role in the installation of a remote transceiver, on Attu Island, at the far end of the Aleutian Chain. The transceiver had been installed in a large fiberglass .hut, and loaded onto a military transport, airplane, before being flown out to Attu Island, at which time a technical problem arose. Despite being ordered to leave the fiberglass hut on Attu Island, Wells disobeyed the direct order and returned to Kodiak Island with the hut in tow.
Without objection, on direct examination, Eskew testified that Wells’ actions made him “furious” and “quite angry,” that Wells never expressed remorse or apologized, and further described this incident as-the most significant act of disobedience he had experienced in his thirty years with the USCG. Immediately thereafter, the following exchange-occurred:
Q. And I think you said before he was a very, knowledgeable person; is. that fair?
A. That’s quite true.
Q. And did he have a view of his own knowledge, in other words?
MR. CURTNER: Objection, Your Honor. I don’t see where—.,. I don’t think that’s relevant.
MS. LOEFFLER: Your Honor, it!s directly relevant to the character that we’re going to be discussing throughout this trial.
THE COURT: If you know, you can answer.
BY MS. LOEFFLER:
Q. Did you have enough interaction with him to see how he viewed his value and knowledge?
A, Yes. I thought he was quite conceited at times, actually. .
Q. In terms of working with him, was he receptive to changes or differences when things were done not the way he wanted to do it?
A. He was only receptive to change if he had played a part in coming up with that change; otherwise, he was resistant and would protest it. ' :
(emphasis added). During its closing argument, the Government highlighted this incident, in the context of Dr. Meloy’s profile, as the “best example” of Wells’ “narcissistic traits” and “the height of ego.”
As mentioned, during the final pretrial conference, the district court assessed and ruled on the entire body of other act evidence as a whole, finding:
In my view, it’s inextricably in[ter]t-wined with the events such that those items are admissible. They’re relevant to motive, help paint a picture, of the work environment, and are truly admissible, especially in a situation where you havetwo co-workers who are killed and a third charged with murder. And I think the events in question that are suggested are not too remote and are relevant and therefore are admissible.
We address the district court’s alternative rulings in turn. For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2). We uphold the admission of the remaining other acts evidence under Rule 404(b)(2).
Rule 404(b)(1) prohibits using evidence of crimes, wrongs, or other acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence may be admissible. for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Thus, “Rule 404(b) is a rule of inclusion—not exclusion—which references at least three categories of other ‘acts’ encompassing the inner workings of the mind: motive, intent, and knowledge.” Curtin,
“Evidence of ‘other acts’ is not subject to Rule 404(b) analysis if it is ‘inextricably intertwined’ with the charged offense.” United States v. Beckman,
As we have acknowledged, “[the inextricably intertwined] exception to Rule 404(b) is most often invoked in cases in which the defendant is charged with being a felon in possession of a firearm.” United States v. Vizcarra-Martinez,
Dorsey involved a defendant who had pled guilty to offenses involved in motor vehicle trafficking and was then found guilty, after a jury trial, of thé related crimes of witness tampering and discharging a firearm in relation to a crime of violence. .
Dorsey illuminates the difference between finding that evidence is inextricably intertwined, and therefore not subject to Rule 404(b) analysis, and finding that evidence falls under one of Rule 404(b)’s permissible uses, namely to prove motive. In determining whether particular evidence is necessary to the prosecution’s “coherent and comprehensible story,” we
In order to determine whether the challenged evidence was properly admitted to prove motive, under Rule 404(b), we must first address the foundation therefor. The Government’s motive theory unfolded in the following basic sequence: Wells’ frustrations began with a 2011 change in COMMSTA command, which placed unwelcome pressure on him to conform to the chain of command. Due to personal illness and his resulting absences from work, Wells became increasingly frustrated by a loss of professional independence and importance. His frustration turned to anger and culminated in the murders of his co-workers, whom he deemed threats to maintaining his station within the rigger shop.
While it is reasonable to grant some flexibility to a prosecution tasked with constructing a motive theory to prove a double workplace homicide, we must also insure that reasonable limits are employed. We accept the Government’s motive theory if it begins with the 2011 investigation into the unauthorized use of the fuel card; proceeds to the resultant letter of caution issued in 2012; recognizes that, throughout that time, Wells suffers a consistent loss of “rank” within the rigger shop; builds to the decision by USCG command to disallow Wells’ attendance at an annual conference; and finally culminates in Wells’ murder of his co-workers. There is, however, no logical basis to explain how a 2003 incident, marked by a different supervisor and bearing no connection to either victim, might provide motive for a double homicide nearly one decade later. It is an unexplainable outlier. The only possible purpose of this testimony would be to show Wells’ propensity. Indeed, the Government’s response' to Wells’ trial objection— that Eskew’s testimony was “directly relevant to the character that we’re going to be discussing throughout this trial”—belies the Government’s claim that the evidence was offered to prove motive. Instead, it convinces us that the Government’s motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles. Doing so allowed the Government to compound the erroneous admission of Dr. Meloy’s profile by arguing in its closing that this incident was the “best example” of Wells’ “narcissistic traits.”
As was the case with the admission of Dr. Meloy’s testimony, the failure of the district court to engage in Rule 403 balancing1 solidified the erroneous admission of the 2003 incident. Of course, we find that that incident was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2), and therefore, our analysis thereof would not have reached Rule 403. Cf. Curtin,
Agáin, “we consider whether the error was harmless.” Bailey,
With that important limitation on the Government’s motive theory, we turn to the application of Rule 404(b)(2) to the remaining “other acts” evidence. “Other acts evidence is admissible under Rule 404(b) if it (1) tends to prove a material point in issue; (2) is not too remote in time; (3) is proven with evidence sufficient to show that the act was committed; and (4) if admitted to prove intent, is similar-to the offense charged.” Beckman,
Applying this four-part test to evidence'surrounding the 2012 letter of caution, Wells’ tree collaring instances, and our catch-all category of Wells’ disagreements with co-workers, we are satisfied that the district court properly admitted this evidence under Rule 404(b)(2). This evidence, .as a whole, was relevant to Wells’ work environment, including his.relationships with relevant co-workers and supervisors; was not too remote in time and fits within a reasonably tailored version of the Government’s motive theory; and was proven through both the admission, without objection, of Wells’ personnel file, as well as the- testimony of the coworkers and supervisors involved in the underlying acts. On balance, the probative value of this evidence is unique in a workplace homicide trial, and we do not find that it is substantially outweighed by any danger of unfair prejudice.
D. The District Court Did Not Abuse its Discretion in Allowing Experts Gary Bolden and Neil Schmidt to Testify
The parties disagree as to the appropriate standard of review to be applied by this Court. Each of these experts was challenged via a pretrial Daubert motion', on which the magistrate judge held a hearing and issued a report and recommendation, which was adopted by the district court. Thereafter, during the final pretrial conference, the district court revisited the Daubert issues and reaffirmed his rulings. Thus, we reject the Government’s argument that review is for plain .error only and find instead that Wells’ challenges were thoroughly explored pretrial and preserved for appeal. See Palmerin v. City of Riverside,
1. Forensic Tire Expert
Gary Bolden is the Director of Forensics at Standards Testing Labs, Inc,, and testified as the Government’s forensic tire expert. Accepting Mr. Bolden’s qualifications, Wells argues that Mr. Bol-den’s testimony should have been precluded as a sanction for the Government subjecting Wells’ alibi evidence (flat tire) to “destructive” testing.
Six days after the shootings, law enforcement agents obtained a tire, along with an embedded nail, from the bed of Wells’ truck. By this time,- the FPD had been asked to represent Wells, though he would not be arrested for ten more months. The tire was seized in order to evaluate Wells’ alibi that he was late to work on the day of the shooting due to a flat tire. Wells had left voicemail messages to that effect on the phones of both Hopkins and Reckner on the morning of the shootings, and he later repeated this alibi to investigators, At this investigatory stage, the tire could have been exculpatory, supporting Wells’ alibi, or , inculpatory, proving the alibi to be a sham.
The Government sent the tire to Mr, Bolden’s lab, without notifying the FPD of the tire seizure or testing. Upon receipt of the tire, Mr. Bolden made a visual check and measured the air pressure, which was at 20 psi. He then inflated the tire to its operating' pressure of 80 psi and checked for leaks, finding what he called a “slow leak” around the nail. Mr. Bolden then carefully removed the tire from the rim, examined it inside and out,- and x-rayed the tire, which simply confirmed that there was no structural damage to the tire. The interior of the tire was then photographed before it was remounted to perform both a static air retention test and a dynamic air loss test, using a dynamometer to simulate actual highway use. After running the dynamic test for a 24-hour period, Mr. Bol-den determined that the rate of observable air leakage was so low that a typical driver would not perceive any air loss for three or four hundred miles. Mr. Bolden photographed the nail in place; at no time did he
The tire was then sent to an FBI lab, where a tool-mark examiner further analyzed the nail. The examiner first photographed' the position of the nail in the tire and then removed it for further testing. The examiner agreed with Mr. Bolden’s conclusion that the nail had been manually inserted into the tire, via a nail gun. The tire and nail, as well as Mr. Bolden’s report, were then sent to Wells’ forensic tire expert, Bruce Currie, for further examination.
Pretrial, in support of his Daubert challenge to Mr. Bolden’s testimony, Wells submitted an affidavit from Mr. Currie. Therein, Mr. Currie asserted that, as a result of Mr. Bolden’s 24-hour dynamic air loss test, the condition of the tire was “definitely altered,” making it “impossible to further evaluate the condition of the tire at the time of the incident.” He further opined that the deflection of the tire, which occurred approximately 937,440 times during the 1,488-mile test, “would have a significant effect on the condition of the nail relative to the nail hole in the tire.” At trial, Mr. Currie challenged Mr. Bolden’s tests and conclusions on multiple fronts, and explained that his receipt of the tire, after the nail had been removed, prevented him from being able to independently evaluate the tire’s condition and air loss or to effectively duplicate Mr. Bolden’s tests or analyses. Instead, Mr. Currie’s own testing was limited to using a paperclip to determine the angle at which the nail had entered the tire, through the hole left by the removed nail. He opined that the nail could have been picked up and entered the tire on a road surface and that he believed such a scenario was “[m]ore likely than not.”
Applying Loud Hawk’s balancing test, the Court must first evaluate the quality of the Government’s conduct, inquiring:
whether the evidence was lost or destroyed while in its custody, whether the Government acted in disregard for the interests of the accused, whether it was negligent in failing to-adhere to established and reasonable standards of care for police and prosecutorial functions, and, if the acts were deliberate, whether they were taken in good faith or with reasonable justification.... It is- relevant also to inquire whether the government attorneys prosecuting the case have participated in the events leading to loss or destruction of the evidence, for prosecutorial action may bear upon existence of a motive to harm the accused.
Sivilla,
a wide number of factors including, without limitation, the centrality of the evidence to the case and its importance in establishing the elements of the crime or the motive or intent of the defendant; the probative value and reliability of the secondary or substitute evidence; the nature and probable weight of factual inferences-or other demonstrations and .kinds of proof allegedly lost to the accused; the probable effect on the jury from absence of the evidence, including dangers of unfounded speculation and bias that might result to the defendant if adequate presentation of the case requires explanation about the missing evidence.
Id. at 1173-74 (quoting Loud Hawk,
As to any degree of prejudice, Mr. Currie could have, and indeed did, launch extensive challenges to Mr. Bolden’s tests and conclusions. As Daubert confirmed, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm., Inc.,
2. Honda Engineer
Neil Schmidt is an engineer and “technical specialist,” with twenty years’ experience at Honda, including seven years as an engineer responsible-for the Honda CR-V, which was the make and model of Nancy Wells’ vehicle. At trial, Schmidt was tendered as “an expert in Hondas, [with an] associated knowledge of related vehicles.” Schmidt’s expertise was used to identify what appeared to be a blurry image of a small blue SUV, caught on surveillance footage on April 12, 2012. His testimony was relevant, in order to place Wells in Nancy Wells’ 2001 blue Honda CR-V, on the morning of the murders.
Schmidt testified that he was 70% certain that the depicted vehicle was an early model Honda CR-V. On direct examination, the Government, inquired of Schmidt whether he was able to identify other automobiles that could be consistent with the vehicle in the surveillance image and which might raise his level of certainty regarding his identification. Schmidt testified that he had identified three makes and models, other than the Honda CR-V but significantly similar thereto. During the- investigation, these comparators were then used by photogrammetry comparison experts and law enforcement agents, in ruling out other vehicles with possible connections to the murders.
Wells did not renew his objection to Schmidt’s qualifications at trial. On appeal, Wells accepts Schmidt’s knowledge of the Honda CR-V but challenges his qualifications to reliably testify to the likelihood that the ear was a Honda,- due to his lack of specialized knowledge in ruling out other vehicles. Federal Rule of Evidence 702’s reliability requirement asks whether an expert’s testimony has “a reliable basis in
Here, the magistrate judge conducted a pretrial Daubert hearing and determined that Schmidt’s 20 years’ experience as a Honda engineer qualified him to opine as to the likelihood that the vehicle in the image was the same make and model on which he had worked directly for seven years. At the final pretrial conference, the district judge reaffirmed that the blurry quality of the video might affect the weight of the testimony, rather than its admissibility, and could be explored on cross-examination. See Daubert,
E. The District Court Was Not Required To Declare a Mistrial Upon Elicitation of Prejudicial Testimony
During the prosecutor’s direct examination of the USCG commander responsible for notifying Nicola Belisle of her husband’s death, the prosecutor asked a question which mischaracterized the widowed spouse’s verbal identification of Wells. Wells immediately objected, but did so on the basis of relevance, and moved to strike the testimony. Later, Wells moved for a mistrial. On appeal, he argues prosecutorial misconduct.'
“To obtain a reversal based on prosecutorial misconduct, [the defendant] must establish both-misconduct and prejudice.” United States v. Wright,
On the morning of the murders, COMMSTA Commander Peter Van Ness and an Alaska State Trooper visited Nicola Belisle, the -wife of victim Riehard Belisle, to notify her of her husband’s death.- The trooper was wearing a recording device. Both the ■ audio recording and transcript thereof were provided to Wells during pretrial discovery. The transcript is twenty pages long and reflects a highly emotional scene, with very little coherent conversation. Once Ms. Belisle calmed down, the trooper asked her whether her husband had any problems with anybody.-Ms. Beli-sle responded “[j]ust Jim,” clarified that she was referring to the defendant, “Jim Wells,” and then stated “Jim wouldn’t hurt Rich.”
At trial, the Government, called Commander Van Ness to testify about the spousal notification;
Q. What was her reaction?
A. She was hysterical, very, very upset. In fact, I—I don’t know that we even had to say anything. When we walked in in uniform—she had already heard. Kodiak’s a small town. They were aware something was going1 on at the communication station by that point. I think—I don’t remember the exact time, but I believe it was around 10 o’clock in the morning, so it had been, you know, two hours or so. Word gets out. And so when we walked in in uniform—
Q. Did she blurt out a name?
A. Yes.
Q. What was that name?
A. Jim Wells.
Wеlls immediately objected on the basis of relevance and moved to strike the testimony. The Government argued that the statement was admissible as an excited utterance and was not being offered for the truth thereof. The district court deferred ruling, instructed the Government to move on with questioning, and later .revisited the issue outside the presence of the jury.
During oral argument on this issue, the Government took the inconsistent positions that the statement was admissible as both an excited utterance and to show that there was some discord between Richard Belisle and Wells. As to the latter, the Government’s position was that Ms. Beli-sle’s statement tended to rebut two defense themes: that Chief Scott Reckner’s hostility toward Wells caused investigators to focus on Wells to the exclusion of other suspects; and that Wells and Belisle got along. These positions are of course contradictory because the latter could only be valid if the statement was indeed offered for the truth thereof.
Wells moved for a mistrial. The district court denied the mistrial and instead gave the following limiting instruction:
I need a cautionary—I’m concerned about a comment that was made during the last- witness when a. question was asked—or when the commander and those with him conveyed to Mrs. Belisle that her husband had been killed, and. her response was—you remember what her .response was. She said a name.
I have to make it clear to you that she had no-personal knowledge of that. And so that statement cannot be used by you as evidence of that event. It could be limited, very, very limited, it explains possibly, and maybe not, her relationship—her impr—her personal impression of the relationship between her-husband and Mr. Wells and the information she conveyed at the time to the commander and those there. But it is not evidence of—against Mr. Wells ’as to who committed this crime, because she didn’t know. She'simply did not know. It’s an emotional reaction. That was it. And to give it more weight than that would be highly inappropriate. Tells you her reaction, and possibly limited to other ways. But it is not, cannot, should not be used in any way to suggest that the defendant committed the crimes he’s charged with, because she didn’t know.
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Anything else I can say beyond what— I’m trying to make it as clear as a bell. This is very, very limited. It’s what we call an excited utterance. It’s an emotional response. But it has no evidentia-ry basis as to the issue you have before you as to who committed these crimes. Very, very limited as to her emotional response at the moment and the impression possibly that she had with regard to her husband’s relationship with the defendant. And of course whatever impressions might have been created in the minds of those standing before her at .the moment.
The next morning, outside the presence of the jury, the district court heard further argument on the issue. At that time, the court was initially inclined to instruct the jury to disregard the testimony but was ultimately satisfied that the above-described instruction “clearly limit[ed] any prejudice.” Upon request, Wells was allowed to recall Commander Van Ness in an attempt to clarify the context of the statement introduced the day before. When Commander Van Ness testified that he did not recall the conversation with Ms. Belisle, the Government stipulated to the contents of the transcript. At the time, Wells explicitly did not seek reconsideration of the prior day’s ruling that the statement was an excited utterance, and the merits of that ruling are not before us on appeal. Instead, we are asked to decide whether prosecutorial misconduct required a mistrial, or now, requires a reversal. As mentioned, such a finding requires both misconduct and prejudice. Wright,
“A prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” United States v. La-Page,
Here, we find that the prosecutor committed misconduct for several reasons. First, the prosecutor’s question interrupted Commander Van Ness describing what happened when the two officers “walked in in uniform.” This mischaracterized the timing of Ms. Belisle’s statement, by giving the jury the false impression that it was immediately uttеred upon seeing the uniformed officers. Second, the prosecutor’s phrasing, inquiring whether the widow “blurt[ed] out a name,” again miseharac-terizes the statement as being made suddenly and without considered thought. In reality, the statement was made approximately ten minutes after the officers approached Ms. Belisle, and in response to direct questions which required consideration of possible suspects. The phrase “blurt out” plainly ignores the role played by the officers in eliciting Wells’ name as a possible suspect. Third, not only did the prosecutor choose not to bring this sensitive issue to the district court’s attention prior to questioning Commander Van Ness, but upon verbalizing the mischarac-terization and being confronted with the ramifications, the prosecutor failed to assist in mitigation thereof. Although this constitutes misconduct, we find no prejudice.
The district court adequately redressed the Government’s action. In addition to instructing the jurors that questions are not evidence, the district court gave a lengthy limiting instruction. Wells neither objected to the limiting instruction itself nor did he request any further instructions. “Generally, when evidence is heard by the jury that is subsequently ruled inadmissible, or is applicable only to limited defendants or in a limited manner, a cautionary instruction from the judge is sufficient to cure any prejudice to the defendant.” United States v. Escalante,
In addition to the limiting instruction, the district court allowed Wells to recall Commander Van Ness, in an effort to place the prejudicial statement in its proper context. See United States v. Whitworth,
F. The District Court Properly Excluded Evidence of Third Party Culpability
“We review for abuse of discretion a, claim that the trial court improperly excluded evidence of third-party eulpability.” Territory of Guam v. Ignacio, 10 F.3d-608, 611 (9th Cir. 1993).
“There is no question that the defendant has the right to introduce evidence of third-party culpability.” Ignacio,
At trial, Wells sought to introduce evidence of an alternative perpetrator, Jason Barnum. The district court allowed Wells to proffer the testimony of Mr. Barnum himself, along, with seven other witnesses, in an attempt to show some logical connection to any of the facts in this case. Despite multiple witness proffers, Wells was never able to elicit any testimony that Barnum knew any of the- victims or the victims’ families or that he had any connection to, or familiarity with, the COMMSTA facility. The district court applied the balancing test set forth in Miller v. Stagner,
G. We Reassign To Preserve the Appearance of Justice
This Court will reassign a case on remand only under “unusual circumstances or when required to preserve the interests of justice." United States v. Wolf Child,
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that 'must be rеjected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving appearance of fairness.
Wolf Child,
Wells requests reassignment based on the district court’s extensive comments,'made at sentencing, in response to Wells’ insistence upon his own innocence'. Having reviewed those comments, in- light of the above factors, we expect that the original judge would have substantial difficulty in setting aside his views of this case.
IV. CONCLUSION
For the fordgoing reasons, we find that Wells did not receive a fair trial. !
REVERSED AND REMANDED FOR A NEW TRIAL AFTER BEING REASSIGNED. '
Notes
. Wells also appeals the denial of his motion to suppress certain statements made during investigative, interviews in the days following the crime. We address this challenge in a memorandum disposition filed concurrently with this opinion. Additionally, Wells has conceded two other claims on appeal. In light of recent Ninth Circuit decisions in Arellano Hernandez v. Lynch,
. The concurrence criticizes the inclusion of a cautionary note, in part, "because we ultimately conclude that the ruling was correct.” This opinion merely finds no abuse of discretion.
. We decline to address Dr. Meloy’s qualifications. At the outset of the tender, defense counsel requested a sidebar, during which the transcript clearly indicates that Mr, Of-fenbecher was confirming his “continuing objection”; however, the transcript is "indiscernible” as to the exact nature thereof. Nevertheless, the court clarified Wells’ position before proceeding with the tender; "Your objection is based on relevance, not on his expertise, right?” Defense counsel then responded: "Right,” It is thus clear that Wells waived any challenge to Dr. Meloy’s expertisе by accepting the tender Without objection. See United States v. Olano,
. Though defense counsel did not use the terms “prejudice” or "unduly prejudicial,” those concerns, at the heart of Rule 403 balancing, were clearly the basis for his statement. See United States v. Ward,
, Presumably the district court’s reference was to the use of drug courier profiles, as is the case in most of the jurisprudence relating to criminal profile evidence, discussed infra. Any reference thereto is particularly troubling given the narrow circumstances in which profile testimony, even that of drug ’courier profiles, is admissible.
. The topics of his expertise were broken down into the following categories, with outlined characteristics pertaining to each: (1) targeted and intended violence; (2) workplace violence; (3) multiple murders; (4) personality and other psychological characteristics.
. The Government cites United States v. Gomez-Norena,
. During oral argument, the Government repeatedly directed this Court to review Dr. Meloy’s poweipoint presentation, identified as Government’s Exhibit 10, purportedly to refute Wells’ characterization of the testimony. Notably, Government’s Exhibit 10 was never admitted at trial; it is not found in any excerpts or supplemental excerpts of record; and it is not referenced in briefing before this Court.
. "[T]he Eighth Circuit has held that such testimony may never be introduced as substantive evidence of guilt.” Gomez-Norena,
. The Government quotes Wells’ opening statement, as follows:
So I think the first assumption that you’ll see that's just wrong is that there was a lot of conflict at the rigger shop. Mr. Reckner had problems with Jim Wells you’ll hear, but the rest of the workers, they got along. There was no arguments. There was no violence. There was no threats. There was no fights.... The other thing I should tell you about Jim Wells at 62 years old, he doesn’t have any—he’s never been charged with a crime before, He’s never been violent. There is nobody who can say he ever raised a hand to anybody, ever got in a fight. 62 years of raising a family and no violence, nothing at all.
. In United States v. Rangel-Gonzales,
. We note that the Supreme Court recently recognized that an expert's prejudicial effect was “heightened due to the source of the testimony[,]" given that the witness, as did Dr. Meloy, “took the stand as a medical expert bearing the court's imprimatur^] the jury learned at the outset of his testimony that he held [impressive credentials and experience;] .... [and] [reasonable jurors-might well have valued his opinion concerning the central question before them.’’ Buck,
. Even though Johnson ultimately affirmed the district court’s decision, this Court cautioned: "Nonetheless, we remind the district court that its duty to weigh the factors explicitly maintains the appearance of justice by showing the parties that the court recognized and followed the dictates of the law, and facilitates immeasurably the process of appellate review.”
. As set forth below, Wells challenges a wide variety of testimony under Rule 404(a). Of the specific excerpts challenged, defense counsel only objected to the comment about Wells “strutting]”- at professional conferences, and the objection was made on the basis of rеlevance. Accordingly, Wells failed to properly object to any of this testimony, such that our review is for plain error.
. Although Wells argues that the Government's destructive testing of the tire violated his due process rights, we find that Wells has waived this argument. In pretrial briefing, Wells stated: "The government’s arguments regarding a due process violation based on malicious destruction of evidence are not on point since Mr. Wells is not raising a due process violation.” (Emphasis added). A party forfeits a right when it fails to make a timely assertion of that right and waives a right when it is intentionally relinquished or abandoned. Olano,
. In determining whether the exclusion of trial evidence violated a defendant’s due process rights, the Miller factors seek to balance the following considerations: "the probative value of the evidence on the central issue; its reliability; whether it is capable of evaluation by the trier of fact; whether it is the sole evidence on the issue or merely cumulative; and whether it constitutes a major part of the attempted defense.” Miller v. Stagner,
. The dissent recognizes that "the district court undoubtedly used strong language” at sentencing and enumerates the statements that raise the possibility or appearance that the original trial court might have difficulty setting aside its views of this case, In particular, we note that the district court relied on the very profile evidence we hold warrants a new trial here, calling Wells “angry, selfish, jealous, narcissistic, and envious.” Thus, this is not a case where the district court merely "expressed [its] opinion of the defendant's guilt at sentencing,” but one where at least some of the subject statements were founded on error.
Concurrence Opinion
concurring in part:
While I otherwise concur, I am unable to fully join in Part III.A of the opinion. I agree that the magistrate court did not abuse its discretion by removing Mr. Of-fenbecher as appointed counsel, under the CJA, once, the government wаs no longer seeking a punishment of death. Given this holding, I see nó need to “offer a cautionary note” on, the magistrate court’s decision-making process. In doing so, the opinion wrongly assumes that the magistrate judge failed to consider the budgetary constraints faced by the Federal Public Defender’s Office because the majority “find[s] no indication” in the record that it did so. But a failure to comment specifically on these concerns does not equate to a failure to consider them. Indeed, the opinion’s discussion of United States v. Kott,
The opinion also harshly criticizes the conduct of the government in this case, and rightly so. The motion to remove Mr, Offenbecher was unusual' and unbecoming. The government occupies a powerful role in our justice system, and it has vast resources to accomplish its prosecutorial functions. The government bears a unique responsibility not to tip the scales against a defendant, and it failed to demonstrate sufficient sensitivity to that duty here. But, however ill-advised and rare it is to do so, I have found no clear prohibition to the government seeking removal of counsel under these circumstances. Thus, it’s not entirely obvious that the Assistant United States Attorneys' “placed [themselves] in an ethically compromised position” by doing' so here. In fact, there is evidence that the government has misstepped in the same fashion on other occasions. See, e.g., United States v. Rodriguez, No. 12-CR-83S,
Concurrence Opinion
concurring in part and dissenting in part:
Although I concur in the rest of the opinion, I respectfully dissent from the majority’s decision to reassign the case on remand. As the mаjority acknowledges, we reassign a case only in “rare and extraordinary circumstances.” Krechman v. Cty. of Riverside,
At sentencing, the district judge undoubtedly used, strong language. For example, the judge said, “[T]here’s one thing that’s absolutely clear to me beyond a reasonable doubt, and that is that James Wells is a cold-blooded murderer”; ‘You can fight for your innocence, but that won’t make you innocent, because you’re guilty” ; ■ and “Two men- cut down in their prime by an angry, selfish, .jealous, narcissistic, and envious man.” -
While the district judge’s comments may not have been “as restrained as we would wish them to be,” that alone does not justify reassignment. California v. Montrose Chem. Corp.,
It is perfectly appropriate for a judge to express his opinion of the defendant’s guilt at sentencing, after the jury has returned its guilty verdict. After all, if the judge believes that the verdict is a miscarriage of justice, he or she should either grant an acquittal or a new trial—not sentence a defendant he or she believes to be innocent. Moreover, 18 U.S.C. § 3553(a) obligates a sentencing judge, on the record, to “consider the -nature and circumstances of the offense and the history and characteristics of the defendant.” United States v. Carty,
In the few other cases in which we have reassigned based on comments the district court made at sentencing, judges explicitly signaled their “substantial difficulty” setting aside previous views. See, e.g., United States v. Quach,
By contrast, nothing in the record here suggests that this district judge will be unable to follow this court’s mandate on remand. See United States v. Johnson,
The majority, unable to point to any specific, articulable reason why this case should be reassigned to a different district judge on remand, attempts to justify its recusal of the district judge because “at least some of the subject statements [at sentencing] were founded on error,” specifically noting “that the district court relied on the very profile evidence we hold warrants a new trial.” Maj. Op. at 938 n.17. But this focus is misdirected. By definition, when we reverse for a prejudicial eviden-tiary ruling, the court will have based its trial and sentencing decisions, at least in part, on evidence that should not have been admitted. But we don’t routinely require reassignment in such cases. Instead, we ask whether the record discloses any reason why the. district judge cannot set aside his erroneous view and follow the mandate of this court. As we stated in United States v. Wolf Child,
.Although the district judge erred in making remarks expressing the view that Wolf -Child categorically presented a danger to all children, including his own daughters, we believe our opinion gives sufficient guidance that, should he determine that it is necessary to impose new conditions, relating to Wolf Child’s being, in the company of other minors, he will impose only suitably narrow conditions that will comply with the applicable legal requirements set forth above.
Id. at 1102-03. See also Krechman,
In sum, I do not believe that a judge’s expression of agreement with the verdict,
I respectfully dissent from the order of reassignment.