United States v. Wells

          ORDER RE MOTION TO EXCLUDE OTHER ACTS EVIDENCE

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 943 is defendant James Michael Wells' Motion to Exclude Other Act Evidence.^[1] The government filed an opposition.^[2] Mr. Wells filed a reply.^[3] The motion was addressed at oral argument on April 22, 2019.^[4] Thereafter, at the request of the Court, both parties filed supplemental briefing.^[5]

         Mr. Wells seeks an order prohibiting “the introduction of inadmissible other act evidence pursuant to F.R.E. 404(b), 403, and the defendant's constitutional right to a fair trial.”^[6] The defense challenges specific allegations of employment misconduct by Mr. Wells, set forth below in chronological order:

1. Being upset about the decision to install bird diverters

2. Not participating in the creation of an antenna manual

3. Allegedly misusing a fuel card

4. Participating in tree collaring

5. Failing to notify superiors of his absences and whereabouts

6. Losing the opportunity to attend a professional conference

7. Not participating in a warehouse cleanout

8. Determining how to install an antenna cable^[7]

         Four Federal Rules of Evidence govern the admissibility of these prior acts. Evidence Rules 401 and 402 require that the evidence be relevant. Evidence Rule 404(b) prohibits introduction of prior act evidence “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character” but allows this evidence to prove motive. Evidence Rule 403 requires that the probative value of prior acts not be substantially outweighed by unfair prejudice, confusion of the issues, a risk of misleading the jury, undue delay, wasting time, or result in cumulative evidence. Accordingly, if the prior acts are relevant under Rules 401 and 402, comply with Rule 404(b), and pass the Rule 403 balancing test, then they are admissible.

         I. Relevancy

         On appeal after his first trial, Mr. Wells challenged the same prior acts he challenges in this current motion.^[8] The Ninth Circuit held that the prior acts evidence, “as a whole, was relevant to Wells' work environment, including his relationships with relevant co-workers and supervisors . . . .”^[9] The government now pursues essentially the same theory as to Mr. Wells' motive that it presented during the first trial: That the “discontent he suffered in his professional life and deterioration in professional status preced[ed] the murder of his two colleagues who stood in his way.”^[10] This motive theory makes testimony about prior acts related to Mr. Wells' workplace relevant.

         However, after reviewing the motive theory presented by the government in the first trial, the Ninth Circuit found “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.”^[11] Instead, the Ninth Circuit accepted 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 the USCG command to disallow Wells' attendance at an annual conference; and finally culminates in Wells' murder of his co-workers.”^[12] Thus, the chronological starting point for the government's motive theory begins with the investigation into the use of the fuel card, which occurred in the fall of 2011.^[13]Accordingly, the prior acts that predated the fuel card investigation are not relevant to the government's motive theory and do not have any independent relevance that would justify admissibility. These prior acts are the June 2011 disagreement about whether to install bird diverters^[14] and Mr. Wells' lack of participation in creating an “antenna book, ” which began no later than 2010.^[15] The Ninth Circuit did not address either of these events in its opinion, and Mr. Wells did not present them with any detail in his briefing to the Ninth Circuit.^[16]

         The Court finds that the remainder of the prior acts listed above are relevant to show Mr. Wells' motive.

         II. Application of Evidence Rule 404(b).

         Evidence Rule 404(b) expressly permits evidence of prior acts to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”^[17] The government maintains that evidence of prior acts is permitted here to prove Mr. Wells' motive for the homicides.^[18] As discussed supra, the prior acts are “relevant to Wells' work environment, including his relationships with relevant co-workers and supervisors . . . .”^[19] Because Mr. Wells' work environment is directly tied to the government's motive theory, the prior acts are relevant to show motive. The defense's primary argument is that the remaining prior acts do not involve either of the two victims, and thus “there was no logical argument that Wells would kill two individuals uninvolved in the [prior acts] for this reason.”^[20] This focuses only on Mr. Wells' feelings towards the two victims and ignores the government's theory of Mr. Wells' diminishing professional importance and independence: that the overall “discontent he suffered in his professional life and deterioration in professional status preced[ed] the murder of his two colleagues who stood in his way.”^[21] This motive theory makes testimony about prior acts related to Mr. Wells' workplace relevant even if the acts did not involve either of the victims.

         Even if other act evidence is relevant to prove a Rule 404(b) category, it is not admissible unless it also “(1) tends to prove a material point in issue; (2) is not too remote in time; [and] (3) is proven with evidence sufficient to show that the act was committed[.]”^[22] Because the Court has already found that the prior acts are relevant-and thus tend to prove a material point in issue-the Court reviews the second and third elements for each challenged prior act.^[23]

         A. September 2011 fuel card investigation and February 2012 letter of caution

          Evidence of this act consists of testimony that Mr. Wells may have taken a government fuel card to purchase several hundred dollars' worth of fuel for his private use and that he was given a reprimand after an investigation into the use of the fuel card. This incident it is not too remote in time-it marks the beginning of the timeline for an acceptable motive theory set out by the Ninth Circuit: “if it begins with the 2011 investigation into the unauthorized use of the fuel card . . . and finally culminates in Wells' murder of his co-workers.”^[24]

         The government should focus its presentation of the fuel card incident on Mr. Wells' reaction to the letter of caution and not dwell on the actual underlying incident of the use of the fuel card being or minute details of the investigation. Mr. Wells' alleged misuse of the fuel card and the details of the investigation, standing alone, are not relevant to support the government's motive theory.^[25] The misuse of the fuel card and the result of the investigation are only relevant to the motive theory because of how Mr. Wells allegedly reacted or responded to being given a letter of caution from his superior.

         The defense contends that there is insufficient evidence that Mr. Wells was the person who misused the fuel card.^[26] The Court recognizes that the Coast Guard investigation into the misuse of the fuel card was inconclusive as to who had used the fuel card.^[27] However, the investigation produced circumstantial evidence that indicated Mr. Wells had used the fuel card.^[28] The Court finds that there is sufficient evidence to allow a jury to find that Mr. Wells used the fuel card, and that there is undisputed evidence that he was reprimanded for use of the fuel card. Therefore, the fuel card incident meets Rule 404(b)'s requirement.^[29] However, due to the lack of conclusive evidence about who used the fuel card, the government shall not argue that Mr. Wells definitively stole or misused the fuel card.

         B. 2011 tree collaring

          Evidence of this act consists of testimony that in the summer of 2011, Mr. Wells had collared trees that did not need to be cut down in order to collect firewood for personal use. In a meeting in August of 2011, he was directed that tree collaring must stop immediately.^[30] In November of 2011, he was given a follow-up memorandum outlining the tree-removal policies.^[31]

         The Ninth Circuit expressly found that the tree collaring incident was properly admitted at the first trial under Evidence Rule 404(b)(2) because it fit “within a reasonably tailored version of the Government's motive theory . . . .”^[32] The Court agrees as to Mr. Reckner's discovery of the tree collaring that immediately preceded the August 2011 meeting, the August 2011 meeting itself, and the subsequent ...