United States v. James Wells

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 14-30146
Plaintiff-Appellee, 15-30036

v. D.C. No.
3:13-cr-00008-
JAMES MICHAEL WELLS, RRB-1 (JDR)
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding

Argued and Submitted July 10, 2017
Seattle, Washington

Filed December 19, 2017

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

Opinion by Judge Walter;
Concurrence by Judge Nguyen;
Partial Concurrence and Partial Dissent by Judge Tashima

*
The Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
2 UNITED STATES V. WELLS

SUMMARY **

Criminal Law

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

The panel disapproved of the 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).

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. WELLS 3

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

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

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

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

The panel concluded that the 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
4 UNITED STATES V. WELLS

case on remand because the circumstances here were neither
rare nor extraordinary.

COUNSEL

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

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

OPINION

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
 UNITED STATES V. WELLS 5

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.
6 UNITED STATES V. WELLS

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
 UNITED STATES V. WELLS 7

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
8 UNITED STATES V. WELLS

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
 UNITED STATES V. WELLS 9

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
10 UNITED STATES V. WELLS

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 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

1
Wells also appeals the denial of his motion to suppress certain
statements made during investigative interviews in the days following
the crime. We address this challenge in a memorandum disposition filed
concurrently with this opinion. Additionally, Wells has conceded two
other claims on appeal. In light of recent Ninth Circuit decisions in
Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016) and United
States v. Calvillo-Palacios, 860 F.3d 1285 (9th Cir. 2017), Wells has
conceded that murder is a “crime of violence” under 18 U.S.C.
§ 924(c)(3). Wells further concedes that binding precedent forecloses his
claim that Counts One and Two are multiplicitous with Counts Three
and Four, in violation of the Double Jeopardy Clause. United States v.
Hairston, 64 F.3d 491, 496 (9th Cir. 1995).
 UNITED STATES V. WELLS 11

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.

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,
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
12 UNITED STATES V. 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
 UNITED STATES V. WELLS 13

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

2
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.
14 UNITED STATES V. WELLS

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
 UNITED STATES V. WELLS 15

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 [CJA] 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
16 UNITED STATES V. WELLS

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.
 UNITED STATES V. WELLS 17

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

3
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. Offenbecher 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
expertise by accepting the tender without objection. See United States v.
Olano, 507 U.S. 725, 733 (1993) (defining waiver as “the intentional
relinquishment or abandonment of a known right”) (internal quotation
marks omitted).
18 UNITED STATES V. WELLS

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
 UNITED STATES V. WELLS 19

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
20 UNITED STATES V. WELLS

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.
 UNITED STATES V. WELLS 21

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 workplace
violences,” 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 “[i]t’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
22 UNITED STATES V. WELLS

the testimony was particularly problematic because, in this
specific workplace, there are “only seven people . . . and two
of them are deceased.” 4 Mr. Offenbecher concluded with:

So, in effect, you’re permitting Dr. Meloy 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
4
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,
747 F.3d 1184, 1189 (9th Cir. 2014) (“Although defense counsel did not
use the term ‘Fifth Amendment,’ the substance of the objection was
patently clear.”).

5
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.
 UNITED STATES V. WELLS 23

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.

...

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 of this type of testimony,
generally; and, second, he mistakenly believed that Dr.
Meloy’s testimony was, at this point, admissible. To the
contrary, the magistrate judge had held his ruling in
abeyance, finding that the testimony was not yet admissible,
unless and until the district court determined that it survived
Rule 403’s balancing test.

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
24 UNITED STATES V. WELLS

grouped by the topics of his expertise, of “[s]ome of the
characteristics” that he would describe and explain. 6 The
district court issued no further ruling.

On the first morning of trial, the Government inquired as
to whether the court was going to permit Dr. Meloy to testify.
The district court indicated its belief that it had already ruled,
and neither party pressed the issue. Later, when Mr.
Offenbecher objected during Dr. 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. Meloy’s tender.

On review, it is regrettable that Wells’ trial objections
failed to specifically re-urge his pretrial argument that Dr.
Meloy’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. 7 The district court had the

6
The topics of his expertise were broken down into the following
categories, with outlined characteristics pertaining to each: (1) targeted
and intended violence; (2) workplace violence; (3) multiple murders;
(4) personality and other psychological characteristics.

7
The Government cites United States v. Gomez-Norena, 908 F.2d
497 (9th Cir. 1990), to argue that Wells forfeited his claim, because
objecting to expert testimony as improper character evidence is not the
same ground as alleging improper profile evidence. The Government’s
reliance is misplaced. Gomez-Norena involved drug courier profile
testimony admitted “for the limited purpose of providing the jury with
background information.” 908 F.2d at 502. This Court clearly stated that
the facts therein did not implicate concerns regarding the potential for
 UNITED STATES V. WELLS 25

opportunity to rule, mistakenly believed it had done so, and
led the parties to believe that further argument was both
unnecessary and unwelcome. Even in the absence of any trial
objection, an issue may be sufficiently preserved by a party
“objecting and moving for its exclusion on [the specific]
basis before the commencement of trial.” United States v.
Palmer, 3 F.3d 300, 304 (9th Cir. 1993); see also Palmerin,
794 F.2d at 1413. Thus, this claim is properly before us, and
we turn now to the merits thereof. While our concern is
rooted in the Government’s use of Dr. Meloy’s testimony as
substantive evidence of guilt, we begin by presenting the
substance thereof.

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. Meloy began by distinguishing two broad categories
of the 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

unfair prejudice, as are involved in admitting profile testimony as
substantive evidence of guilt. See id. at 501. Thus, the objections in this
case were clearly presented in a different context and sufficed to preserve
the claim.
26 UNITED STATES V. WELLS

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, 375 involved intended violence with a
firearm, 10% of which were committed by a co-worker and
6% by a spouse. These statistics were used to explain the
rarity of such an event. He then tied these statistics back to
the two categories of violence, explaining that workplace
violence typically falls under the targeted or intended
category, involving “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 explained that planning would
typically be secretive and involve thinking about the targets,
 UNITED STATES V. WELLS 27

the movements of the targets, what weapons would be used,
and how to approach and leave the situation. Later, Dr.
Meloy elaborated on the planning phase to include looking
“at the 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, explaining that the former tended to kill
strangers, in mass numbers, while the latter tended to
specifically target “one or more people that have angered or
humiliated the individual.”

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 wounding.” 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 of 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
28 UNITED STATES V. WELLS

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 beforehand.”
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 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 T1 to T2, because Hopkins was not being
respected as the rigger shop supervisor. Reckner testified
that Wells was having ongoing disciplinary issues during
this time, as well as health problems, causing him to be
absent from work. As a result, Reckner made the supervisory
decision not to allow Wells to attend an annual conference,
which sparked a “heated” discussion between Wells and
Reckner. The conference attendees were Reckner, and the
two victims, Hopkins and Belisle.

On appeal, Wells summarizes Dr. Meloy’s testimony as
having constructed the following profile of the perpetrator:
male; pathologically narcissistic, with a grandiose view of
 UNITED STATES V. WELLS 29

himself and an unreasonable sense of entitlement; his
decision to carry out the murders would be triggered by one
or a series of humiliations in love or work; his narcissistic
sensitivity would cause him to be wounded deeply by the
criticism; although he may not show it, this wound would
serve to formulate a “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; 8 his criminal profile was not “personal” to, or based
on an examination of, Wells; and his testimony was not the
key evidence of Wells’ guilt. We find each of these
arguments disingenuous. Dr. Meloy’s testimony was made
personal to Wells by the Government’s admitted use of Dr.
Meloy’s profile to “fit” Wells’ personal characteristics.
Indeed, the Government attempted to defend its use of the
testimony by explaining: “It’s not improper character
evidence. The jury looks at it and they say, does it fit, does
it not fit?” And, the Government twice stated, in its closing
rebuttal, that Dr. Meloy’s testimony about predatory
violence “fits Mr. Wells to a T.” See United States v.
Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (recognizing that
“closing argument matters . . . a great deal”).

8
During oral argument, the Government repeatedly directed this
Court to review Dr. Meloy’s powerpoint 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.
30 UNITED STATES V. WELLS

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 building, 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.
 UNITED STATES V. WELLS 31

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 the 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. ____, 137 S. Ct. 759, 778 (2017). Rule
404(a)(1) provides that “[e]vidence of a person’s character
or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the
character or trait.” Fed. R. Evid. 404(a)(1). Again, there is
no question as to the Government’s purpose for offering this
testimony. It explicitly stated that Dr. Meloy would testify
as to the characteristics of those who commit “targeted
individual multiple homicide workplace violences” in order
to determine, given the lay witnesses’ testimony concerning
Wells personally, “does it fit, does it not fit?”

This Court has “stated in dictum that testimony of
criminal profiles is highly undesirable as substantive
evidence because it is of low probativity and inherently
prejudicial.” United States v. Gillespie, 852 F.2d 475, 480
(9th Cir. 1988). “The admission of drug courier profile
evidence is inherently prejudicial to the defendant because
the profile may suggest that innocuous events indicate
criminal activity.” United States v. Lim, 984 F.2d 331, 334–
32 UNITED STATES V. WELLS

35 (9th Cir. 1993). “Every defendant has a right to be tried
based on the evidence against him or her, not on the
techniques utilized by law enforcement officials in
investigating criminal activity.” United States v. Lui,
941 F.2d 844, 847 (9th Cir. 1991) (quoting United States v.
Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989)).

Although “profile” evidence is not per se inadmissible,
it is only permitted in narrow and limited circumstances,
such as: (1) background evidence, Gomez-Norena, 908 F.2d
at 501 (“[A]dmitting drug courier profile testimony for [the]
limited purpose [of providing background material] greatly
reduces the potential for unfair prejudice and thus cannot
amount to plain error.”); (2) investigative tools, United
States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990) (drug
courier profiles are investigative tools, not to be admitted as
evidence of guilt); or (3) rebuttal evidence, when a party
“opens the door” by introducing potentially misleading
testimony, Beltran-Rios, 878 F.2d at 1211–12 (profile
evidence admissible in rebuttal where defendant initially
“opened the door” by emphasizing that he did not fit the
stereotype of a drug smuggler). 9

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

9
“[T]he Eighth Circuit has held that such testimony may never be
introduced as substantive evidence of guilt.” Gomez-Norena, 908 F.2d
at 501 (emphasis added) (citing United States v. Carter, 901 F.2d 683,
684–85 (8th Cir. 1990) (“Drug courier profiles are investigative tools,
not evidence of guilt. . . . [They] are not to be admitted as substantive
evidence of guilt.”)).
 UNITED STATES V. WELLS 33

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 non-violence” during his opening statement
and through questions posed during cross-examination of
prosecution witnesses. 10

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, 493 F.3d 1021,
1037 (9th Cir. 2007) (emphasis in original); see also Beltran-
Rios, 878 F.2d at 1213 n.2 (“The Government may introduce
profile testimony of this sort only to rebut specific attempts
by the defense to suggest innocence based on the particular
characteristics described in the profile.”); Gillespie, 852 F.2d
at 480 (finding error in admitting testimony of clinical
psychologist on characteristics common to child molesters,
where defendant never put general character at issue or
offered testimony of specific character traits that rendered
him incapable of molesting a female child). We have found

10
The Government quotes 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.
34 UNITED STATES V. WELLS

that a defendant did not “open the door” to expert testimony
establishing his knowledge of a drug trafficking
organization, after the district court denied the defendant’s
motion to exclude said testimony and advised defense
counsel to “plan accordingly.” See United States v. Pineda-
Torres, 287 F.3d 860, 865–66 (9th Cir. 2002). Clearly, by
the time trial began, Wells knew that Dr. Meloy would be
permitted to testify, as extensive pretrial efforts to exclude
his testimony had ultimately failed.

The vast majority of relevant federal case law addresses
the use of profile evidence in the context of drug couriers.
Indeed, the district court presumably referenced this
jurisprudence when he mistakenly assumed admissibility.
However, we do also find persuasive the principles
discussed in the state and military jurisprudence, cited to us
by Wells, rejecting the use of other criminal profiles as
substantive evidence of guilt.

“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, 988 P.2d 46, 55 (Wyo. 1999)
(collecting cases). Ryan recognized that these cases
generally articulate three evidentiary bases for excluding
evidence tending to establish that the defendant fits a
particular profile: (1) relevancy, see, e.g., Commonwealth v.
Day, 409 Mass. 719, 723 (1991) (collecting cases to show
that “[t]estimony regarding a criminal profile is nothing
more than an expert’s opinion as to certain characteristics
which are common to some or most of the individuals who
 UNITED STATES V. WELLS 35

commit particular crimes”); 11 (2) the probative value of the
evidence is substantially outweighed by its prejudicial effect,
see, e.g., State v. Percy, 507 A.2d 955, 960 (Vt. 1986)
(explanations or excuses offered by other rapists not relevant
to what this particular defendant said in response to the
offense charged, and even if relevant, the evidence failed
Vermont’s state equivalent of Rule 403’s balancing test);
and (3) it is impermissible character evidence, see, e.g.,
Haakanson v. State, 760 P.2d 1030, 1036 (Alaska Ct. App.
1988) (“We hold that the prosecution may not introduce a
profile to show that the defendant is more likely to have
committed an offense because the defendant fits within that
profile. To admit this testimony at the beginning of trial was
clearly erroneous.”). See 988 P.2d at 55–56.

As recognized in United States v. Banks, 36 M.J. 150
(C.M.A. 1992), which Wells cites as particularly instructive,
“[o]ur system of justice is a trial on the facts, not a litmus-
paper test for conformity with any set of characteristics,
factors, or circumstances.” 36 M.J. at 161. In Banks, the
prosecution presented a characteristic “profile” to present
appellant’s family situation as ripe for “child sexual abuse.”
Id. at 162. Then, “[t]hroughout th[e] case, the prosecutor
orchestrated this ‘profile’ evidence to persuade the members
that appellant fit the profile and was a child molester.” Id. As
the Government did at Wells’ trial, the prosecutor revisited
the profile in closing argument, implicitly referencing the

11
In United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir.
1980), an illegal re-entry case, this Court recognized the inherent
problem with this type of testimony, albeit without labeling it as
“profile” testimony or even character evidence: “This [affidavit of an
INS investigator] setting forth the conduct of others, in circumstances
which are unexplained, would not appear to have any bearing on what
this particular individual would have done in the particular
circumstances facing him.”
36 UNITED STATES V. WELLS

profile in explaining how the evidence had proven the
appellant’s guilt. Id. Although, in closing, the prosecutor
remarked that “we’re not trying to prove our case that way,”
the military appeals court found that statement
“disingenuous.” Id. In Banks, the prosecution’s closing
argument belied “any assertion that th[e] profile was offered
for any other purpose than to prove appellant’s guilt.” Id. at
163. Banks concluded that “[t]he prosecution’s strategy of
presenting a ‘profile’ and pursuing this deductive scheme of
reasoning and argument to prove that appellant is a child
sexual abuser was impermissible.” Id. Here, too, the manner
in which Dr. Meloy’s testimony was used by the prosecution
was similarly impermissible, and the prosecution’s efforts to
distinguish his testimony from criticized profile evidence are
equally disingenuous.

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, 335 U.S. 469
(1948):

Courts that follow the common-law tradition
almost unanimously have come to disallow
resort by the prosecution to any kind of
evidence of a 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
 UNITED STATES V. WELLS 37

value, is the practical experience that its
disallowance tends to prevent confusion of
issues, unfair surprise and undue prejudice.

Id. at 475–76 (citation and footnotes omitted). The
prosecution made no attempt to establish an ulterior basis for
the admission of this improper character profile in its case-
in-chief, and the district court erred in admitting it as such.

Generally, if we conclude that evidence has been
improperly admitted, “we consider whether the error was
harmless.” United States v. Bailey, 696 F.3d 794, 802–03
(9th Cir. 2012). The erroneous admission of expert
testimony is subject to harmless error review, just like all
other evidentiary errors. See United States v. Rahm, 993 F.2d
1405, 1415 (9th Cir. 1993). 12 Reversal is required “only if
the error affect[ed] a substantial right of the party,” Fed. R.
Evid. 103(a), meaning “we require a finding of prejudice,”
Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005).

We begin with a presumption of prejudice, in reviewing
the effects of this erroneous admission. See Jules Jordan
Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1159 (9th
Cir. 2010). Given the uniquely and inherently prejudicial
nature of this evidence, the Government has failed to rebut
that presumption “by a showing that it is more probable than
not that the jury would have reached the same verdict even

12
We note that the Supreme Court recently recognized that an
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] [r]easonable jurors might well have valued his
opinion concerning the central question before them.” Buck, 137 S. Ct.
at 777.
38 UNITED STATES V. WELLS

if the evidence had not been admitted.” Id. (internal
quotation marks omitted). The Government admits that
“[p]roving [its] theory of the crime depended on the
intertwining of multiple strands of evidence.” Dr. Meloy’s
testimony was undoubtedly instrumental in tying those
strands together, allowing the Government to argue that Dr.
Meloy’s profile “fit[] Mr. Wells to a T.” As we have
explained:

When the district court has erroneously
admitted or excluded prejudicial evidence,
we remand for a new trial. We do so even if
the district court errs by failing to answer a
threshold question of admissibility. We have
no precedent for treating the erroneous
admission of expert testimony any
differently.

Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 466
(9th Cir. 2014) (en banc) (citations omitted). We do not
hesitate in finding that the admission of Dr. Meloy’s
testimony constituted reversible error.

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,
586 F.2d 1312, 1315 (9th Cir. 1978). However, this is not a
case where we could easily find that the lower court
“implicitly balanced the probative value against the
prejudicial effect,” see United States v. Johnson, 820 F.2d
 UNITED STATES V. WELLS 39

1065, 1069 (9th Cir. 1987), 13 nor does “the record make[]
clear that the question of prejudice figured crucially in the
court’s mind,” see United States v. Verduzco, 373 F.3d 1022,
1029 n.2 (9th Cir. 2004). Instead, the magistrate judge
placed the question explicitly and squarely before the district
court, and from there, there is no indication that prejudice
was ever a consideration, much less a crucial one. Cf. United
States v. MacDonald, 688 F.2d 224, 228 (4th Cir. 1982)
(upholding exclusion of tendered expert psychiatric
character testimony where district judge “was keenly aware
of the [Rule 403] factors . . . and painstakingly examined
each”). As we have explained, testimony of this nature is
“inherently prejudicial,” has no place as substantive
evidence of guilt, and would therefore fail Rule 403’s
balancing test. See Gillespie, 852 F.2d at 480; Lim, 984 F.2d
at 334–35; see also Michelson, 335 U.S. at 475–76.

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 and some
prejudice.” Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu
Wa Inc., 715 F.3d 1196, 1202 (9th Cir. 2013) (internal
quotation marks omitted). “Whether evidence falls within

13
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.” 820 F.2d at 1069 n.2.
40 UNITED STATES V. WELLS

the scope of Rule 404(b) is a question we review de novo.”
United States v. Smith, 282 F.3d 758, 768 (9th Cir. 2002);
see also Durham, 464 F.3d at 981. Admission of evidence to
which there was no objection raised below is reviewed for
plain error. Sine, 493 F.3d at 1038.

For our purposes, all testimony challenged under Rule
404(a) is subject to plain error review. 14 As to the evidence
challenged under Rule 404(b), the Government provided
pretrial notice of various other act evidence, for which
Wells’ pretrial objections were definitively overruled,
adequately preserving these claims for appeal. Palmer,
3 F.3d at 304; see also Palmerin, 794 F.2d at 1413. The
district court determined that this evidence was admissible
as inextricably intertwined, or alternatively, as other act
evidence, permissible to prove motive under Rule 404(b)(2).
Thus, we review de novo the district court’s application of
the Federal Rules of Evidence to the other acts evidence.

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

14
As set forth below, Wells challenges a wide variety of testimony
under Rule 404(a). Of the specific excerpts challenged, defense counsel
only objected to the comment about Wells “strut[ing]” at professional
conferences, and the objection was made on the basis of relevance.
Accordingly, Wells failed to properly object to any of this testimony,
such that our review is for plain error.
 UNITED STATES V. WELLS 41

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 “[r]elevant evidence is
42 UNITED STATES V. WELLS

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 404 is simply a
specific qualification of the general rule of
the admissibility of all relevant evidence.

United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007)
(en banc) (footnote omitted). Because “[c]haracter 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 “strut[ting]”
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
 UNITED STATES V. WELLS 43

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 top 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
a workplace homicide prosecution. Furthermore, it is also
true that Wells relied on favorable aspects of these same
evidentiary areas. Yet, he now takes the inconsistent position
that his commendable record of service to the United States
Navy and Coast Guard and his congenial relationships with
co-workers are relevant evidentiary points, while the
inconvenient, less commendable details thereof are not. See
Bowoto v. Chevron Corp., 621 F.3d 1116, 1130 (9th Cir.
2010) (where plaintiff opened the door to incident-specific
testimony, district court did not abuse its discretion in
allowing testimony as to defendant’s version of the
incident). The district court did not plainly err in admitting
this relevant evidence.
44 UNITED STATES V. WELLS

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 an inconclusive investigation, that Wells
had used a USCG fuel card for personal use; an accusation
of having improperly “collared” trees on USCG property, in
order to cause their early death, for use as personal firewood;
and other disagreements with co-workers. Although the
district court’s rulings addressed this evidence as a whole,
we deem it necessary to describe the first of these incidents,
and the relevant trial proceedings, in further detail. As will
be explained below, our finding of error is limited to the
district court’s admission of the 2003 incident, which
occurred nearly one decade before the charged crimes.

As to the 2003 incident, wherein Wells directly
disobeyed an order involving the transportation of a
fiberglass hut, the relevant testimony was given by Thomas
Eskew, one of 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,
 UNITED STATES V. WELLS 45

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.
46 UNITED STATES V. WELLS

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]twined
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 have two co-workers who are
killed and a third charged with murder. And I
think the events in question that are suggested
are not too remote and are relevant and
therefore are admissible.

We address the district 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
 UNITED STATES V. WELLS 47

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, 489 F.3d at 944.

“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, 298 F.3d 788, 793 (9th
Cir. 2002). “This exception applies when (1) ‘particular acts
of the defendant are part of . . . a single criminal transaction,’
or when (2) ‘“other act” evidence . . . is necessary [to admit]
in order to permit the prosecutor to offer a coherent and
comprehensible story regarding the commission of the
crime.’” Id. at 794 (citation omitted). Only the second of
these scenarios is relevant to our discussion, and we address
it first, as it was the primary basis for the district court’s
finding of admissibility.

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, 66 F.3d 1006, 1013 (9th Cir. 1995). One such case,
cited by the Government, is United States v. Dorsey,
677 F.3d 944 (9th Cir. 2012), which we find easily
48 UNITED STATES V. WELLS

distinguishable but illustrative to our finding that that this
evidence was not properly admitted as inextricably
intertwined.

Dorsey involved a defendant who had pled guilty to
offenses involved in motor vehicle trafficking and was then
found guilty, after a jury trial, of the related crimes of witness
tampering and discharging a firearm in relation to a crime of
violence. 677 F.3d at 948. In an effort to prove the discharge
of a firearm, the Government sought to introduce testimony
of two witnesses who had seen the defendant with a gun
before the relevant shooting. Id. at 951. This Court upheld
the admission of the testimony, as inextricably intertwined,
in pertinent part, “[b]ecause the testimony bore directly on
the commission of the charged crimes.” Id. at 952 (emphasis
added). “[E]vidence that Dorsey had a gun of the same or a
similar type as the gun used in the shooting . . . was relevant
because it tended to prove that Dorsey had the means to
commit the charged crimes and that he was in fact the
shooter.” Id.

Dorsey illuminates the difference between finding that
evidence is inextricably intertwined, and therefore not
subject to Rule 404(b) analysis, and finding that evidence
falls under one of Rule 404(b)’s permissible uses, namely to
prove motive. In determining whether particular evidence is
necessary to the prosecution’s “coherent and
comprehensible story,” we ask whether the evidence bears
directly on the charged crime. 677 F.3d at 952 (internal
quotation marks omitted). “There must be a sufficient
contextual or substantive connection between the proffered
evidence and the alleged crime to justify exempting the
evidence from the strictures of Rule 404(b).” Vizcarra-
Martinez, 66 F.3d at 1013. Here, none of the other acts
evidence bears “directly” on the charged crimes, or has the
 UNITED STATES V. WELLS 49

requisite “contextual or substantive connection” to be
categorized as inextricably intertwined. It was error for the
district court to admit it as such, but the alternative
admission under Rule 404(b)(2) saves all but the 2003
incident.

In order to determine whether the challenged evidence
was properly admitted to prove motive, under Rule 404(b),
we must first address the foundation therefor. The
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
50 UNITED STATES V. WELLS

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 balancing solidified the erroneous admission of the 2003
incident. Of course, we find that that incident was neither
inextricably intertwined nor permissible motive evidence
under Rule 404(b)(2), and therefore, our analysis thereof
would not have reached Rule 403. Cf. Curtin, 489 F.3d at
944 (“Once it has been established that the evidence offered
serves one of [the purposes authorized by Rule 404(b)(2)],
. . . the ‘only’ conditions justifying the exclusion of the
evidence are those described in Rule 403: unfair prejudice,
confusion of the issues, misleading the jury, undue delay,
waste of time, or needless presentation of cumulative
evidence.”). However, had the district court considered Rule
403, the evidence should not have survived. Though we find
that testimony surrounding this incident was wholly lacking
in probative value, it is difficult to avoid the conclusion that
a nine-year-old incident with no connection to the victims or
the relevant chain of command is unfairly prejudicial,
confuses the issues, and would be misleading to the jury. See
Fed. R. Evid. 403. Thus, we again emphasize the importance
 UNITED STATES V. WELLS 51

of conducting Rule 403 balancing and stress, by way of Dr.
Meloy’s testimony and this example, the deleterious effects
of failing to do so.

Again, “we consider whether the error was harmless.”
Bailey, 696 F.3d at 802–03. On its own, this question might
have given us pause; however, we consider it in light of the
erroneous admission of Dr. Meloy’s testimony, which by
itself constituted reversible error, and into which this
evidence was interwoven. We find that the district court’s
erroneous admissions and failure to engage in Rule 403
balancing “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Hein v.
Sullivan, 601 F.3d 897, 917 (9th Cir. 2010) (internal
quotation marks omitted).

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, 298 F.3d at 794. “Of course,
the probative value of the evidence must not be
‘substantially outweighed by the danger of unfair
prejudice.’” United States v. Blitz, 151 F.3d 1002, 1008 (9th
Cir. 1998) (quoting Fed. R. Evid. 403).

Applying this four-part test to evidence surrounding the
2012 letter of caution, 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
52 UNITED STATES V. WELLS

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 co-workers and supervisors involved in the underlying
acts. On balance, the probative value of this evidence is
unique in a workplace homicide trial, and we do not find that
it is substantially outweighed by any danger of unfair
prejudice.

D. The District Court Did Not Abuse its
Discretion in Allowing Experts Gary Bolden
and Neil Schmidt to Testify

The parties disagree as to the appropriate standard of
review to be applied by this Court. Each of these experts was
challenged via a pretrial Daubert motion, on which the
magistrate judge held a hearing and issued a report and
recommendation, which was adopted by the district court.
Thereafter, during the final pretrial conference, the district
court revisited the Daubert issues and reaffirmed his rulings.
Thus, we reject the 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, 794 F.2d 1409, 1413 (9th
Cir. 1986) (“reject[ing] an invariable requirement that an
objection that is the subject of an unsuccessful motion in
limine be renewed at trial”). The district court’s decisions to
admit the expert testimony are therefore reviewed for abuse
of discretion. Reed, 575 F.3d at 918.

1. Forensic Tire Expert

Gary Bolden is the Director of Forensics at Standards
Testing Labs, Inc., and testified as the Government’s
forensic tire expert. Accepting Mr. Bolden’s qualifications,
 UNITED STATES V. WELLS 53

Wells argues that Mr. Bolden’s testimony should have been
precluded as a sanction for the Government subjecting
Wells’ alibi evidence (flat tire) to “destructive” testing.15
The appropriate rule, governing sanctions for destruction of
evidence, is found in Judge Anthony Kennedy’s 6–5
concurrence in United States v. Loud Hawk, 628 F.2d 1139
(9th Cir. 1979), an en banc decision with several opinions.
United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013).
“According to Judge Kennedy’s controlling concurrence,
‘[o]ur principal concern is to provide the accused an
opportunity to produce and examine all relevant evidence, to
insure a fair trial.” Id. (quoting Loud Hawk, 628 F.2d at
1151) (Kennedy, J., concurring)). “Courts must balance the
quality of the Government’s conduct against the degree of
prejudice to the accused, where the government bears the
burden of justifying its conduct and the accused of
demonstrating prejudice.” Id. (internal quotation marks
omitted).

Six days after the shootings, law enforcement agents
obtained a tire, along with an embedded nail, from the bed
of Wells’ truck. By this time, the FPD had been asked to
represent Wells, though he would not be arrested for ten

15
Although Wells argues that the 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, 507 U.S. at 733.
“Forfeited rights are reviewable for plain error, while waived rights are
not.” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
Furthermore, Wells acknowledges that he does not seek the due process
remedy of dismissal, but rather preclusion of Mr. Bolden’s testimony.
54 UNITED STATES V. WELLS

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. Bolden
determined that the rate of observable air leakage was so low
that a typical driver would not perceive any air loss for three
or four hundred miles. Mr. Bolden photographed the nail in
place; at no time did he remove the nail from the tire. Based
upon his tests and observations, Mr. Bolden opined that the
nail had been inserted manually, rather than having been
picked up on the road, and the tire had not been driven on
with the nail in it.

The tire was then sent to an FBI lab, where a tool-mark
examiner further analyzed the nail. The examiner first
photographed the position of the nail in the tire and then
 UNITED STATES V. WELLS 55

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
56 UNITED STATES V. WELLS

to adhere to established and reasonable
standards of care for police and prosecutorial
functions, and, if the acts were deliberate,
whether they were taken in good faith or with
reasonable justification. . . . It is relevant also
to inquire whether the government attorneys
prosecuting the case have participated in the
events leading to loss or destruction of the
evidence, for prosecutorial action may bear
upon existence of a motive to harm the
accused.

Sivilla, 714 F.3d at 1173 (quoting Loud Hawk, 628 F.2d at
1152). The quality of the Government’s conduct is then
balanced against the degree of prejudice, which is analyzed
by considering:

a wide number of factors including, without
limitation, the centrality of the evidence to
the case and its importance in establishing the
elements of the crime or the motive or intent
of the defendant; the probative value and
reliability of the secondary or substitute
evidence; the nature and probable weight of
factual inferences or other demonstrations
and kinds of proof allegedly lost to the
accused; the probable effect on the jury from
absence of the evidence, including dangers of
unfounded speculation and bias that might
result to the defendant if adequate
presentation of the case requires explanation
about the missing evidence.

Id. at 1173–74 (quoting Loud Hawk, 628 F.2d at 1152).
 UNITED STATES V. WELLS 57

At the outset, we agree with the district court’s finding
that the Government’s testing neither destroyed nor
substantially altered the tire or the nail. The Government
might have notified the FPD of the seizure and testing;
however, it was under no affirmative obligation to do so. It
is undisputed that the Government did not have probable
cause to arrest Wells at the time of the testing, indeed he was
not arrested for nearly ten more months, such that the results
of the tire testing could have ultimately proved inculpatory
or exculpatory. In an effort to identify an alleged perpetrator
for formal accusation, the Government took reasonable
actions in evaluating Wells’ stated alibi, followed industry
standards, and documented all steps in Mr. Bolden’s report.
Mr. Currie then had full access to all photographs, testing,
methodology, and reports from the Government’s nail and
tire experts, in addition to the nail and tire themselves.

As to any degree of prejudice, Mr. Currie could have,
and indeed did, launch extensive challenges to Mr. Bolden’s
tests and conclusions. As Daubert confirmed, “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993). Furthermore, as found in the district court,
Wells can only speculate as to whether his own expert would
have reached any different conclusions as to the condition,
location, or angle of the nail while still in the tire. On
balance, the quality of the Government’s conduct in this case
was far from “poor,” see Sivilla, 714 F.3d at 1173; rather, it
was reasonable, in pursuing investigative avenues necessary
to narrow the focus on a particular suspect in a double
workplace homicide. Allowing Mr. Bolden to testify as to
his expert conclusion was not an abuse of discretion.
58 UNITED STATES V. WELLS

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 car
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 the knowledge and experience of the
relevant discipline.” Kumho Tire Co. v. Carmichael,
 UNITED STATES V. WELLS 59

526 U.S. 137, 149 (1999) (alteration omitted). The inquiry is
“a flexible one.” Id. at 150 (quoting Daubert, 509 U.S. at
594). Courts have broad latitude in determining the
appropriate form of the inquiry. See United States v.
Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) (“Nowhere
. . . does the Supreme Court mandate the form that the
inquiry into relevance and reliability must take.”).

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, 509 U.S. at
596; see also United States v. Ford, 481 F.3d 215, 220 (3rd
Cir. 2007) (expert could testify that characteristics of shoe
print were similar to defendant’s shoe despite inability to
rule out other shoes due to lack of clarity in the print). We
find no abuse of discretion in allowing Schmidt to opine and
testify.

E. The District Court Was Not Required To
Declare a Mistrial Upon Elicitation of
Prejudicial Testimony

During the 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.
60 UNITED STATES V. WELLS

“To obtain a reversal based on prosecutorial misconduct,
[the defendant] must establish both misconduct and
prejudice.” United States v. Wright, 625 F.3d 583, 609–10
(9th Cir. 2010), superseded by statute on other grounds as
recognized by United States v. Brown, 785 F.3d 1337, 1351
(9th Cir. 2015). “Where defense counsel objects at trial to
acts of alleged prosecutorial misconduct, we review for
harmless error on defendant’s appeal; absent such an
objection, we review under the more deferential plain error
standard.” United States v. Hinton, 31 F.3d 817, 824 (9th Cir.
1994). Because Wells did not object on the basis of
prosecutorial misconduct below, our review now is for plain
error.

On the morning of the murders, COMMSTA
Commander Peter Van Ness and an Alaska State Trooper
visited Nicola Belisle, the wife of victim Richard Belisle, to
notify her of her 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.
Belisle 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
 UNITED STATES V. WELLS 61

had already heard. Kodiak’s a small town.
They were aware something was going 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.

Wells immediately objected on the basis of relevance and
moved to strike the testimony. The Government argued that
the statement was admissible as an excited utterance and was
not being offered for the truth thereof. The district court
deferred ruling, instructed the Government to move on with
questioning, and later revisited the issue outside the presence
of the jury.

During oral argument on this issue, the Government took
the inconsistent positions that the statement was admissible
as both an excited utterance and to show that there was some
discord between Richard Belisle and Wells. As to the latter,
the Government’s position was that Ms. Belisle’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
62 UNITED STATES V. WELLS

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.
 UNITED STATES V. WELLS 63

...

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 evidentiary basis as to the issue
you have before you as to who committed
these crimes. Very, very limited as to her
emotional response at the moment and the
impression possibly that she had with regard
to her 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 jury was released for the day, and the court then
addressed counsel, declaring that the jury’s body language
indicated that they “seemed to clearly understand that this
was not evidence as to who committed the crime.”

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
64 UNITED STATES V. WELLS

before us on appeal. Instead, we are asked to decide whether
prosecutorial misconduct required a mistrial, or now,
requires a reversal. As mentioned, such a finding requires
both misconduct and prejudice. Wright, 625 F.3d at 609–10.

“A prosecutor has a special duty commensurate with a
prosecutor’s unique power, to assure that defendants receive
fair trials.” United States v. LaPage, 231 F.3d 488, 492 (9th
Cir. 2000) (addressing a prosecutor’s duty when he knows
that his witness commits perjury). “It is certainly within the
bounds of fair advocacy for a prosecutor, like any lawyer, to
ask the jury to draw inferences from the evidence that the
prosecutor believes in good faith might be true.” United
States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002).

Here, we find that the prosecutor committed misconduct
for several reasons. First, the 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 uttered upon seeing the uniformed officers.
Second, the prosecutor’s phrasing, inquiring whether the
widow “blurt[ed] out a name,” again mischaracterizes the
statement as being made suddenly and without considered
thought. In reality, the statement was made approximately
ten minutes after the officers approached Ms. Belisle, and in
response to direct questions which required consideration of
possible suspects. The phrase “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 mischaracterization and being
confronted with the ramifications, the prosecutor failed to
 UNITED STATES V. WELLS 65

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, 637 F.2d 1197,
1202–03 (9th Cir. 1980). “This procedure is the preferred
alternative to declaring mistrial . . .; mistrial is appropriate
only where there has been so much prejudice that an
instruction is unlikely to cure it.” Id. at 1203. “[O]ur court
assumes that the jury listened to and followed the trial
judge’s instructions.” Id. at 1202; see also United States v.
Gallenardo, 579 F.3d 1076, 1082 (9th Cir. 2009) (affirming
denial of motion for a mistrial because it is “presume[d] that
the jury followed the district court’s limiting instruction”).

In addition to the limiting instruction, the district court
allowed Wells to recall Commander Van Ness, in an effort
to place the prejudicial statement in its proper context. See
United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.
1988) (opponent may introduce evidence “to rebut any false
impression that might have resulted from the earlier
admission”); Standard Oil Co. of Cal. v. Moore, 251 F.2d
188, 220 (9th Cir. 1957) (in the context of hypothetical
questions posed to experts, prejudicial error seldom results
where “the objecting party can, through cross-examination,
expose to the jury the asserted deficiencies of the
hypothetical question as asked”). Furthermore, the parties
66 UNITED STATES V. WELLS

ultimately stipulated to the contents of the transcript, such
that the jury was well aware of its proper context. The district
court did not plainly err.

F. The District Court Properly Excluded
Evidence of Third Party Culpability

“We review for abuse of discretion a claim that the trial
court improperly excluded evidence of third-party
culpability.” 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,
10 F.3d at 615. “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, 295 (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).

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,
 UNITED STATES V. WELLS 67

757 F.2d 988 (9th Cir. 1985), 16 and found that Mr. Barnum
had “nothing meaningful, reliable, or relevant to offer.”
Having probed the proffered testimony ourselves, we agree
with the district court that it has no probative value. Far from
abusing its discretion, the district court granted Wells every
opportunity to show some logical connection, however weak
or remote, between Jason Barnum and this case, and he
failed to establish any relevancy.

G. We Reassign To Preserve the Appearance of
Justice

This Court will reassign a case on remand only under
“unusual circumstances or when required to preserve the
interests of justice.” United States v. Wolf Child, 699 F.3d
1082, 1102 (9th Cir. 2012). We need not find actual bias on
the part of the district court prior to reassignment. Krechman
v. Cty. of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013).
Rather, we consider:

(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously expressed views or
findings determined to be erroneous or based
on evidence that must be rejected,

16
In determining whether the exclusion of trial evidence violated a
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, 757 F.2d 988, 994 (9th Cir. 1985). Due
weight should also be given to the governmental interests in “preserving
orderly trials, in judicial efficiency, and in excluding unreliable or
prejudicial evidence.” Id. at 995.
68 UNITED STATES V. WELLS

(2) whether reassignment is advisable to
preserve the appearance of justice, and
(3) whether reassignment would entail waste
and duplication out of proportion to any gain
in preserving appearance of fairness.

Wolf Child, 699 F.3d at 1102 (quoting United States v.
Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)). “The first two
factors are equally important and a finding of either is
sufficient to support reassignment on remand.” Krechman,
723 F.3d at 1112.

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. 17 We therefore find that
reassignment is advisable to preserve the appearance of
justice and order that this case be reassigned on remand.

17
The dissent recognizes that “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.
 UNITED STATES V. WELLS 69

IV. CONCLUSION

For the foregoing reasons, we find that Wells did not
receive a fair trial.

REVERSED AND REMANDED FOR A NEW
TRIAL AFTER BEING REASSIGNED.

NGUYEN, Circuit Judge, concurring in part:

While I otherwise concur, I am unable to fully join in
Part III.A of the opinion. I agree that the magistrate court
did not abuse its discretion by removing Mr. Offenbecher as
appointed counsel under the CJA, once the government was
no longer seeking a punishment of death. Given this
holding, I see no need to “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, No. 3:07-CR-056-JWS-JDR, 2011 WL
2357508 (D. Alaska June 13, 2011), suggests that this
magistrate judge was well aware of the FPD’s budget
problems and had a practice of considering them. Here,
given FPD Curtner’s express representations in connection
with his opposition to the government’s motion to relieve
Mr. Offenbecher, it’s highly unusual for an appellate court
to assume that the magistrate judge failed to consider these
relevant statements and then criticize the judge for not doing
so. This is especially so because we ultimately conclude that
the ruling was correct.
70 UNITED STATES V. WELLS

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, 2015 WL
1120157, at *3 n.3 (W.D.N.Y. Mar. 12, 2015); United States
v. Eldridge, No. 09-CR-329, 2014 WL 4640848, at *1
(W.D.N.Y. Sept. 16, 2014). This is an important issue on
which the Department of Justice could provide additional
training and guidance to its line AUSAs in order to avoid
prosecutorial overreach.

TASHIMA, Circuit Judge, concurring in part and dissenting
in part:

Although I concur in the rest of the opinion, I
respectfully dissent from the majority’s decision to reassign
the case on remand. As the majority acknowledges, we
reassign a case only in “rare and extraordinary
circumstances.” Krechman v. Cty. of Riverside, 723 F.3d
1104, 1112 (9th Cir. 2013) (quoting Air-Sea Forwarders,
 UNITED STATES V. WELLS 71

Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 191 (9th Cir. 1989)).
The circumstances here were neither rare nor extraordinary.

At sentencing, the district judge undoubtedly used strong
language. For example, the judge said, “[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., 104 F.3d 1507, 1521 (9th Cir. 1997).

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, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc) (citing 18 U.S.C. § 3553(a)(1)). The district court
must also state its reasons for imposing the given sentence,
in order to permit meaningful appellate review. 18 U.S.C.
§ 3553(c). The majority’s decision forces a sentencing judge
to justify her sentence without being too firm, or to risk
reassignment in the event of remand. That is an unenviable
position. When we reverse a conviction and remand for a
new trial (or resentencing), we routinely remand to the same
judge who presided over the first trial and sentencing. The
72 UNITED STATES V. WELLS

majority’s decision to require reassignment in the
circumstances of this case calls that practice into question
and, indeed, opens the door to reassignment based on the
whim of the panel. I say “whim,” because the majority’s
decision to reassign here is standardless.

In the few other cases in which we have reassigned based
on comments the district court made at sentencing, judges
explicitly signaled their “substantial difficulty” setting aside
previous views. See, e.g., United States v. Quach, 302 F.3d
1096, 1103–04 (9th Cir. 2002) (reassigning where the judge
stated he would have denied a sentencing motion that was
not brought initially, but could be filed on remand); Benvin
v. U.S. Dist. Court for the Dist. of Nev. (In re Benvin),
791 F.3d 1096, 1104 (9th Cir. 2015) (reassigning where the
court improperly inserted itself into plea negotiations and
had “expressed explicit views on the appropriate terms” of
an eventual agreement).

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, 812 F.3d 757, 765
(9th Cir. 2016) (holding sentencing comments about
defendant’s credibility did not justify reassignment). All of
the judge’s comments which form the basis of the
reassignment are based on the trial record, which includes
the presentence investigation report of the Probation Officer.

The majority, unable to point to any specific, articulable
reason why this case should be reassigned to a different
district judge on remand, attempts to justify its recusal of
the district judge because “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
2 n.17. But this focus is misdirected. By definition, when
 UNITED STATES V. WELLS 73

we reverse for a prejudicial evidentiary ruling, the court will
have based its trial and sentencing decisions, at least in part,
on evidence that should not have been admitted. But we
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, 699 F.3d 1082 (9th Cir. 2012):

Although the district judge erred in making
remarks expressing the view that Wolf Child
categorically presented a danger to all
children, including his own daughters, we
believe our opinion gives sufficient guidance
that, should he determine that it is necessary
to impose new conditions relating to Wolf
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, 723 F.3d at 1112
(“Despite his error of law in the prior hearing now under
appeal, we have no reason to believe that [the district judge]
would be unable fairly and correctly to apply the [correct]
standard on remand.”).

In sum, I do not believe that a judge’s expression of
agreement with the verdict, however strong, itself can serve
as sufficient evidence that the judge will be unable to afford
the defendant a fair retrial.

I respectfully dissent from the order of reassignment.