US v. Wells, No. 14-30146 (12-19-17)(Walter w/concurrence by Nguyen and partial dissent by Tashima).  

This is a significant opinion, reversing double first degree murder convictions for improper admission of prejudicial profiling evidence. Along the way, the opinion disapproves of the government’s interference in appointment of counsel (although the removal of second counsel by the magistrate court was not an abuse of discretion); and reassigns the case on remand to a different judge. All the panel agrees the government should “tend to its own knitting” when it comes to representation, the concurrence would not have chided the magistrate judge with a “cautionary note”. The dissent would not have reassigned to a different judge.

The significance of the reversal goes to the improper use of a “profile” for workplace multiple-homicide violence. The expert’s profile was substantive evidence of guilt that the prosecutor argued “fit like a t” to the defendant.  The opinion discusses at length the use of profile evidence (cautiously allowed with strict limits in drug courier cases) and the dangers involved. The court failed to preclude under 401-403, 404, and 608. 

This opinion is essential reading for challenges to profile evidence.

In assessing challenges to other evidence under 404(a) and 404(b), the 9th also found error in the admission of other Act evidence dating years before the start of the government’s chain of workplace discipline that supposedly provided a motive.

The 9th permitted the admission of various government forensic experts as to a tire puncture and the type of car.

Prosecutorial misconduct occurred with questioning and with presentation of evidence that gave a false impression.  It was wrong but was not prejudicial.

Lastly, as indicated, the strong opinions of the court at sentencing led the panel to reassign the case on remand for the appearance of justice.

Of note too is the issue of second counsel in a nondeath case. This case was being considered for the death penalty and second counsel was appointed. When DOJ decided not to seek death, the government moved to remove the second counsel.  And the court let them!  This was during sequestration, when the FPD was strapped and begged for second counsel.  The magistrate court found this case, a double homicide with circumstantial evidence, was not sufficiently extraordinary.  

Congrats to Davina Chen, CJA counsel, for this significant win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/19/14-30146.pdf