United States District Court, D. Alaska
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 ...