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United States v. Wells

United States Court of Appeals, Ninth Circuit

December 19, 2017

United States of America, Plaintiff-Appellee,
James Michael Wells, Defendant-Appellant.

          Argued and Submitted July 10, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding D.C. No. 3:13-cr-00008-RRB-1 (JDR)

          Davina T. Chen (argued), Glendale, California, for Defendant-Appellant.

          Elizabeth D. Collery (argued), United States Department of Justice, Washington, D.C.; E. Bryan Wilson, Assistant United States Attorney; Bryan Schroder, United States Attorney; United States Attorney's Office, Anchorage, Alaska; for Plaintiff-Appellee.

          Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit Judges, and Donald E. Walter, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel reversed convictions for two counts of First Degree Murder, two counts of Murder of a Federal Employee, and two counts of Use of a Firearm in Relation to a Crime of Violence Resulting in Death; and remanded for a new trial.

         The panel disapproved of the Government's interference in the status of the defendant's representation, but held that the magistrate judge's removal of the defendant's second court-appointed attorney following the Government's decision not to seek the death penalty did not constitute an abuse of discretion. The panel wrote that the magistrate judge was within his discretion to find that the federal public defender's continued representation afforded the defendant adequate representation under the Criminal Justice Act.

         The panel held that the district court erred in allowing the Government to use criminal profile testimony as substantive evidence of guilt, and that the error is reversible.

         The panel rejected the defendant's contention that testimonial excerpts admitted by the district court were improper character evidence under Fed.R.Evid. 404(a)(1). The panel held that the district court erred in admitting a 2003 incident that was neither inextricably intertwined nor permissible motive evidence under Fed.R.Evid. 404(b)(2).

          The panel upheld the admission of remaining other-acts evidence under Rule 404(b)(2).

         The panel held that the district court did not abuse its discretion by allowing a forensic tire expert and a Honda expert to testify.

         The panel found that the prosecutor committed misconduct in connection with the direct examination of a witness, but held that there was no prejudice, and that the district court did not plainly err in failing to declare a mistrial.

         The panel held that the district court properly excluded evidence of third-party culpability.

         The panel concluded that the Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render the trial fundamentally unfair.

         The panel instructed that the case be reassigned on remand in order to preserve the appearance of justice.

         Judge Nguyen concurred in part. She did not join fully in Part III.A of the opinion because, although she agrees that the magistrate judge did not abuse its discretion by removing CJA-appointed counsel, she sees no need to "offer a cautionary note" on the magistrate judge's decision-making process, once the government was no longer seeking a punishment of death.

         Judge Tashima concurred in part and dissented in part. He dissented from the majority's decision to reassign the case on remand because the circumstances here were neither rare nor extraordinary.


          WALTER, District Judge:

         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 to four consecutive, and two concurrent, terms of life imprisonment, and ordered to pay restitution, in the total amount of $1, 483, 475.00, to the victims' estates. Wells challenges his convictions and restitution order. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

         As Justice Louis D. Brandeis warned many years ago: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells' trial fundamentally unfair. Therefore, we reverse and remand for a new trial.

         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' co-workers 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 T1; and the antenna maintenance facility, or "rigger shop, " known as T2. Most COMMSTA members work in the T1 building, while T2 maintains only eight regular employees, which included Wells and both of the victims.

         Surveillance cameras captured 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 days earlier. At trial, the Government's theory was that Wells drove his white Dodge pickup truck to the airport, where he swapped vehicles and drove Nancy Wells' blue Honda CR-V to COMMSTA to commit the murders.

         At approximately 7:30 a.m., on April 12, 2012, Petty Officer Third Class Cody Beauford arrived to work at T2 and discovered the bodies of Hopkins and Belisle. Each victim 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 on the following six counts: Counts 1 and 2, murder in the first degree, in violation of 18 U.S.C. §§ 7(3) and 1111(a), (b); Counts 3 and 4, murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 1114, 1111; and Counts 5 and 6, possession and use of a firearm in relation to a crime of violence resulting in death, in violation of 18 U.S.C. § 924 (c), (j). Pursuant to 18 U.S.C. § 3006A, 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 challenged, inter alia, the ex parte nature of Mr. Offenbecher's appointment.

         Soon thereafter, beginning on May 7, 2013 and continuing through the conclusion of trial on April 25, 2014, the Government was represented by no fewer than three attorneys, including then-United States Attorney for the District of Alaska, Karen Loeffler. On August 5, 2013, the Government declared that it would no longer seek the death penalty. On August 21, 2013, the Government filed a motion 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. Offenbecher had established an attorney-client relationship with Wells and invested considerable time and 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 "[u]nder 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.


         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 elicitation of prejudicial testimony. Fifth, Wells claims that the district court abused its discretion in precluding evidence of third party culpability. Sixth, Wells requests that we reassign this case to a different district judge on remand.[1]

         We do not discuss Wells' challenge to the sufficiency of the evidence, as we explicitly do not vacate the conviction on the basis of insufficiency of evidence and therefore do not risk offending the Double Jeopardy Clause in remanding for a new trial. See Burks v. United States, 437 U.S. 1, 15 (1978) ("[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case[;] it implies nothing with respect to the guilt or innocence of the defendant."). Finally, because we reverse Wells' convictions, we do not discuss the restitution order, which is necessarily vacated pursuant to this opinion.


         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, 893 F.2d 1573, 1580 (9th Cir. 1990). Thus, the relevant question is not whether we, as the reviewing court, would have reached the same result. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); Krull v. S.E.C., 248 F.3d 907, 912 (9th Cir. 2001) (our task is "not to revisit the [issue] anew or impose our independent judgment on the merits" thereof). Applying this deferential standard, we do not find that the removal of Mr. Offenbecher was reversible error, but neither can we accept without comment the Government's interference in the status of Wells' representation.

         Mr. Offenbecher was appointed pursuant to 18 U.S.C. § 3005. In this circuit, § 3005 does not require that two attorneys be, or continue to be, appointed whenever the Government indicts a defendant for a crime punishable by death but does not seek the death penalty. United States v. Waggoner, 339 F.3d 915, 919 (9th Cir. 2003). Acknowledging this Court's precedent in Waggoner, Wells argues that this case is distinguishable, because Waggoner fails to address the impact of 18 U.S.C. § 3599(e), on which Wells relies to urge an enhanced statutory right to continuity of counsel. Because we find that Wells failed to properly present this statutory argument below, we decline to entertain it on appeal. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998). Instead, we address Wells' assertion that Mr. Offenbecher's removal constituted an abuse of discretion under 18 U.S.C. § 3006A. See Martel v. Clair, 565 U.S. 648, 659 (2012) (recognizing that "Congress enacted the legislation now known as § 3599 to govern appointment of counsel in capital cases, thus displacing § 3006A for persons facing execution (but retaining that section for all others)").

         The CJA does not prohibit courts from appointing, or maintaining, a dual appointment in a non-capital case. Instead, § 3006A(c) generally governs the duration and substitution of all CJA appointments and directs the magistrate judge or the court to make such determinations in accordance with the "interests of justice." 18 U.S.C. § 3006A(c). Section 630.30 of the Guide to Judiciary Policy ("the Guide") specifically governs "Death Eligible Cases Where Death Penalty Is Not Sought, " and assists courts in determining whether a particular case supports continuation of a dual appointment.

         As recognized by the magistrate judge, § 630.30.10 directs a court to consider the questions of number of counsel and rate of compensation, once it is determined that the death penalty will not be sought. The Guide, Vol. 7, Ch. 6, § 630.30.10. Section 630.30.20 explains that a court "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.[2]

         First, problematically, we find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as 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, 2011 WL 2357508, at *1 (D. Alaska June 13, 2011). There, the defendant was being retried, after an initial 15-day trial, involving two retained defense counsel. Id. at *3. In denying dual appointment for the re-trial, the magistrate judge, inter alia, found persuasive that the previously-retained attorneys would be available for consultation and that the original trial transcripts would provide appointed counsel with knowledge of the Government's case. Id. Noting, first, that counsel had been appointed at her own request, the magistrate judge nevertheless recognized the attorney's express concerns about serving as the defendant's sole attorney. Id. at *4. The magistrate judge requested that the attorney "reassess her role" and advise accordingly, implying that her relative willingness to serve in that capacity would be taken into consideration. Id. In this Court's opinion, the careful consideration given to the concerns of appointed counsel in Kott is highly preferable to the lack thereof afforded to FPD Curtner in this case.

         Second, and of much greater concern to this Court, is the means by which the question of Mr. 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. While such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. See United States v. Hartfield, 513 F.2d 254, 258 (9th Cir. 1975), abrogated on other grounds by United States v. Sneezer, 900 F.2d 177 (9th Cir. 1990) ("If the fairness of our system is to be assured, indigent defendants must have access to minimal defense aids to offset the advantage presented by the vast prosecutorial and investigative resources available to the Government."). The Government's decision to insert itself into the important determination of Wells' fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.

         The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. In re Smith, 586 F.3d 1169, 1172 (9th Cir. 2009). The prosecution is typically precluded from participating in the determination of a defendant's eligibility for CJA-appointed counsel. See The Guide, Vol. 7, Ch. 2, § 210.40.20(e) ("Employees of law enforcement agencies or U.S. attorney offices should not participate in the completion of the Form CJA 23 (Financial Affidavit) or seek to obtain information from a person requesting the appointment of counsel concerning the person's eligibility."); id. § 230.26.20(c) ("Case budgets should be submitted ex parte and filed and maintained under seal."); 18 U.S.C. § 3006A(e) (directing that CJA applications for services other than counsel should be filed ex parte, and proceedings on such applications should be heard ex parte); see also United States v. Feldman, 788 F.2d 625, 626 (9th Cir. 1986) (declining to call on government to brief a novel CJA reimbursement claim because "the [C]A] excludes the government from participation in the Act's compensation and reimbursement arrangements"); United States v. Gonzales, 150 F.3d 1246, 1257 (10th Cir. 1998) (the CJA process is non-adversarial and has "traditionally been closed to the prosecution").

         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, 513 F.2d at 258.

         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 afforded Wells "adequate representation" under the CJA. 18 U.S.C. § 3006A(a). Nevertheless, in the future, the Government should tend to its own knitting.

         B. The District Court Erred in Allowing the Government To Use Criminal Profile Testimony as Substantive Evidence of Guilt

         We generally review a district court's decision to admit or deny expert testimony for abuse of discretion. United States v. Reed, 575 F.3d 900, 918 (9th Cir. 2009). However, we review de novo the "construction or interpretation of . . . the Federal Rules of Evidence, including whether particular evidence falls within the scope of a given rule." United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006). Where the district court fails to engage in necessary Rule 403 balancing, we likewise review de novo. United States v. Boulware, 384 F.3d 794, 808 n.6 (9th Cir. 2004) (where "[t]he district court [] did not perform a Rule 403 balancing analysis, " the "review [is] de novo"); see also United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007) (per curiam).

         Dr. J. Reid Meloy is a licensed, board-certified forensic psychologist, who was tendered as an expert in "targeted, intended workplace multiple-homicide violence."[3] While the parties portray the substance of Dr. Meloy's testimony differently, there is no real dispute as to the intended role of his testimony within the Government's case. This testimony was presented on the sixth day of trial, during the Government's case-in-chief, and invited the jury to find a "fit" between Dr. Meloy's criminal profile and the lay witnesses' testimony concerning Wells' own character traits.

         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 timeline 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. The Government also relied, then and now, on the advisory committee's note to the 2000 amendments to Rule 702, providing that it might "be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case." Fed.R.Evid. 702 advisory committee's note to 2000 amendments.

         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 case 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.

. . .

The remaining issue is whether [Dr. Meloy's] proposed testimony passes the balancing test of Federal Rules [sic] of Evidence 403. The government should be given the opportunity at trial to support the issue of admissibility of Dr. 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 impermissible character 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 ...

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