Sunday, January 07, 2018

Case o' The Week: Ninth Tuts Hut Scuttlebutt - Wells and FRE 404(b) Evidence

What happens on Attu, stays on Attu . . .
United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Attu Island, Alaska

Ed. note: A slow week for decisions is a good opportunity to revisit the Ninth's recent Wells decision, for its analysis of FRE 404(b). 

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and dissent by Judge Tashima. 
  Impressive victory for former CD Cal AFPD Davina Chen.

Facts: Wells worked at an Alaskan Coast Guard facility on Kodiak Island. Id. at *2. In April 2012, two of Wells’ co-workers were found, murdered, at the facility.
  On the morning of the murders, Wells had left voicemails on the victims’ phones, explaining he’d had tire problems. Id. Surveillance footage, a history of workplace disputes, and suspicions about the damaged tire and alibi eventually lead to Wells’ indictment for the murders.
  At trial, the government introduced testimony that Wells had disobeyed a direct order from a supervisor in 2003, and had hauled back a fiberglass hut that was having problems, from Attu, a remote island on the Aleutian Chain. Id. at *20.
  The government argued that this 2003 “hut” episode was the best example of Wells’ “narcissistic traits” and was “the height of ego” – consistent with personality-profile testimony the government’s “expert” had offered. Id. The court found this “hut” episode was “inextricably intertwined” with the charged events, “relevant to motive,” and “help paint a picture of the work environment.” Id.
  Wells was convicted.

Issue(s): “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. . . .” Id. at *17.

Held: For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2).” Id. at *20.
  “[United States v.] Dorsey, [677 F.3d 944 (9th Cir. 2012)], 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).” . . . Here, none of the other acts evidence bears ‘directly’ on the charged crimes, or has the requisite “contextual or substantive connection” to be categorized as inextricably intertwined. It was error for the district court to admit it as such . . . (second citation omitted).” Id. at *21.

Of Note: As noted in an earlier COTW, this is a dense decision with many valuable nuggets to mine. Not discussed here is another great holding, finding a government shrink’s testimony about Wells’ personality “profile” was erroneous. Id. at *16. That expert error, combined with this FRE 404(b) error, earned a reversal on a double-homicide conviction.
  An important decision well worth a close read, on many fronts.

How to Use: Wells is a welcome limitation on that dangerously mushy “inextricably intertwined” FRE 404(b) theory used to smuggle in a defendant’s prior bad acts.
  The decision also rejects the government’s reliance on this workplace dispute to show Wells’ motive (another 404(b) theory of admission). There was “no logical basis,” the Ninth observes, to explain how a beef with a different supervisor, bearing no relation to either victim, from a decade before the murders, showed Wells’ intent for these homicides. Id. at *21. Instead, the government’s “motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles.” Id.
  Turn to the great language in Wells to fight the government’s inevitable blunderbuss barrage of FRE 404(b) theories.

For Further Reading: Ten Ninth judges appointed by Democrats (out of 29 authorized judgeships), are currently eligible for senior status.
  For a fascinating (albeit slightly right-leaning) analysis of President Trump’s potential impact on the Ninth (and other federal courts of appeal), see the National Review article here

Steven Kalar, Federal Public Defender, Northern District of California. Website at



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