and Submitted July 10, 2017 Seattle, Washington
from the United States District Court for the District of
Alaska Ralph R. Beistline, District Judge, Presiding D.C. No.
T. Chen (argued), Glendale, California, for
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
Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit
Judges, and Donald E. Walter, [*] District Judge.
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.
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.
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.
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).
panel upheld the admission of remaining other-acts evidence
under Rule 404(b)(2).
panel held that the district court did not abuse its
discretion by allowing a forensic tire expert and a Honda
expert to testify.
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.
panel held that the district court properly excluded evidence
of third-party culpability.
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
panel instructed that the case be reassigned on remand in
order to preserve the appearance of justice.
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.
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
WALTER, District Judge:
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.
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.
Crime and Investigation
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
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.
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.
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.
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.
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.
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.
Indictment and Wells' Representation
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
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.
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.
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'
ISSUES ON APPEAL
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
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
Government Overstepped in Moving To Excuse Second Defense
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'
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
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.
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.
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.
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.
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
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
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.
District Court Erred in Allowing the Government To Use
Criminal Profile Testimony as Substantive Evidence of Guilt
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).
Reid Meloy is a licensed, board-certified forensic
psychologist, who was tendered as an expert in
"targeted, intended workplace multiple-homicide
violence." 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
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
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.
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.
the magistrate judge ultimately recognized the potential
dangers in Dr. Meloy's testimony, his post-hearing ruling
only peripherally acknowledged Wells' profile challenge,
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.
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.
trial brief, filed on March 17, 2014, Wells reiterated his
objections to Dr. Meloy's testimony, arguing, in part,
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
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
this is the same argument presented on appeal.
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