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United States v. Wells

United States District Court, D. Alaska

July 17, 2019




         Before the Court are three motions in limine filed by the defendant James Michael Wells seeking exclusion of proposed government expert witnesses.[1] The motions relate to Neil Schmidt, Rick Wyant, and Robert Morton. The government filed an opposition to each motion.[2] With leave of the Court, Mr. Wells filed a reply regarding Robert Morton.[3]On July 2, 2019, the Court heard argument from the parties as to Robert Morton.[4]

         The Court has previously set forth the rules governing the standards of admissibility for expert witnesses in its Order Re: Motions In Limine to Exclude Defense Expert Witnesses. The Court applies the same standards here.

         I. Analysis

         A. Neil Schmidt (Docket 1006; opposition at Docket 1022)

         The government seeks to have Neil Schmidt, an engineer and technical specialist at Honda, [5] opine that the vehicle seen in the T-1 video was an early model Honda CR-V that matches the vehicle owned by Mr. Wells at the time of the homicides. The defense objects to Mr. Schmidt's testimony on the grounds that he is not qualified to provide this testimony and that his testimony is not reliable.[6]

         During the first trial of this case, Mr. Schmidt testified that he believed there was a 70% chance that the vehicle in the T-1 video was the same make and model as Mr. Wells' vehicle.[7] The admissibility of Mr. Schmidt's testimony was challenged prior to the first trial based on qualification and reliability. Magistrate Judge John Roberts reviewed Mr. Schmidt's professional background and the methodology Mr. Schmidt used to formulate his opinion about whether the vehicle on the T-1 video was the same make and model as Mr. Wells' Honda.[8] The Magistrate Judge found that Mr. Schmidt's testimony was “admissible regarding the unique shape of the [Honda] CRV body panels, the CRV's unique roof line, the unique placement of tail lights on the CRV, the unique location of the CRV's spare time, and methods for excluding other makes and models similar the Honda CRV.”[9] The district judge adopted this finding at a pretrial conference, and Mr. Wells did not object to Mr. Schmidt's testimony at trial.[10]

         After his conviction, Mr. Wells appealed and challenged among other issues the trial court's ruling that Mr. Schmidt had the “qualifications to reliably testify” that the vehicle was a Honda.[11] Reviewing for an abuse of discretion, the Ninth Circuit summarily concluded that the trial court did not abuse its discretion in allowing Mr. Schmidt to testify.[12]

         i. Law of the case

         As a preliminary matter, the government maintains that the law of the case doctrine requires this Court to admit Mr. Schmidt's expert testimony.[13] “Under the ‘law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case. For the doctrine to apply, the issue in question must have been ‘decided explicitly or by necessary implication in [the] previous disposition.”[14] “The legal effect of the doctrine of the law of the case depends upon whether the earlier ruling was made by a trial court or an appellate court. All rulings of a trial court are subject to revision at any time before the entry of judgment. A trial court may not, however, reconsider a question decided by an appellate court.”[15]

         In Pepper v. United States, the Supreme Court considered the applicability of the law of the case doctrine after a review for an abuse of discretion in the context of resentencing.[16] In Pepper, the Eighth Circuit had held that the sentencing court's decision to give the defendant a 40-percent downward departure was not an abuse of discretion, but for other reasons remanded the entire case for resentencing.[17] At resentencing before a different district court judge, the defendant argued that the original 40-percent departure was the law of the case; however, the resentencing judge only granted a 20-percent departure.[18] On review, the Supreme Court held that the Eighth Circuit's remand for a de novo resentencing-which the defendant did not challenge-“effectively wiped the slate clean” even if the 40-percent departure had at one point been the law of the case.[19] In dicta, the Supreme Court noted that the Eighth Circuit did not hold “that the forty-percent departure was the only reasonable departure that a sentencing court could grant . . .; rather, the only issue [the Eighth Circuit] actually decided was that a 40-percent downward departure was not an abuse of discretion.”[20]

         Although sentencing determinations are not analogous to the evidentiary ruling at issue here, [21] the Pepper dicta indicates that circuit court decisions based on an abuse of discretion standard have less force as the law of the case. This may be particularly true when the appellate court remands for an entirely new trial. Applying the Pepper dicta here, the only issue the Ninth Circuit actually decided was that it was not an abuse of discretion to allow Mr. Schmidt to testify as an expert. Therefore, the Court will determine de novo whether to allow Mr. Schmidt to testify.

         ii. Qualifications

         The defense asserts that Mr. Schmidt is not qualified to give expert testimony because “[h]is work never involves trying to determine the make and model of a vehicle and especially never involves trying to do so from a low-resolution surveillance video.”[22]The defense contends that Mr. Schmidt has no education or training in identifying a vehicle from a surveillance video and has not researched or published in this area.[23]

         Mr. Schmidt is a “technical specialist” at Honda, where he has worked for more than 20 years. During that time he has worked in service engineering (dealing with repairs, writing service bulletins, and analyzing broken parts) and has worked with the Honda legal department investigating lawsuits against the company.[24] For seven years he worked as an engineer on the Honda CR-V, the type of vehicle at issue here.[25]Although Mr. Schmidt has no formal education or training in identifying Honda CR-Vs, Rule 702 provides that a person may be qualified as an expert based on their knowledge, skill, or experience so long as they have specialized knowledge. Mr. Schmidt's work at Honda, particularly his years as an engineer working on the CR-V, the exact model of Honda at issue here, gives him specialized familiarity with the characteristics of a Honda CR-V. This familiarity qualifies him to give an expert opinion as to whether he believes the vehicle in the T-1 video is a Honda CR-V.

         iii. Reliability

         The defense contends that Mr. Schmidt's “testimony contains no explanation of the principles or methodology that allows him to reach the opinion[]” that he is 70% certain the vehicle in the video is a Honda CR-V.[26] The defense also maintains that Mr. Schmidt's conclusion was based on “purely subjective” principles and methods.[27] However, review of the FBI interviews of Mr. Schmidt shows that he compared discrete and unique characteristics of Honda CR-Vs to the image in the T-1 video. For example, Mr. Schmidt maintained “that the vehicle's headlights and the position of the vehicle's tail lights and off-center, rear mounted spare tire were also consistent with the first generation of Honda CRVs.”[28] Mr. Schmidt later referred to the tail light assembly and reflector location, the “wheel overhang, the light positioning, the distance between the wheels, and the greenhouse, meaning the glass area of the car” on the Honda CR-V as factors he considered.[29] Mr. Schmidt was also able to explain how he ruled out other possible makes and models of vehicles.[30]

         The defense's focus on Mr. Schmidt assigning a “70%” to his level of confidence as to his identification is misguided. This is not a statistical evaluation in the sense that testing and scientific calculations equated to 70% as a mathematical value. Instead, it was simply the level of confidence that Mr. Schmidt assigned to his own conclusion, which he reached using the objective factors discussed above. The task Mr. Schmidt was asked to perform-comparing the vehicle seen in the T-1 video to Honda CR-V characteristics- inherently requires some subjective analysis. Based on the quality of the video and the task at hand, it is unlikely that Mr. Schmidt could have delivered any opinion with certainty. However, “[l]ack of certainty is not, for a qualified expert, the same thing as guesswork.”[31]Mr. Schmidt's expert opinion is based on sufficient data and he reliably applied his specialized knowledge to the facts of this case. Thus, he was able to establish a reliable basis for his opinion and explain his methodology.

         iv. Relevance

         The parties do not dispute that Mr. Schmidt's proposed testimony is relevant. The Ninth Circuit found that “[h]is testimony was relevant, in order to place Wells in Nancy Wells' 2001 blue Honda CR-V, on the morning of the murders.”[32] The Court agrees that Mr. Schmidt's testimony is relevant to and fits with the issues in this case.

         The Court finds that Mr. Schmidt's proposed testimony has sufficient probative value that is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or the presentation of cumulative evidence.

         In summary, Mr. Schmidt may give expert testimony as to his methodology and opinion as to why the vehicle seen in the T-1 video is, to a 70% probability, a Honda CR-V and not some other make and model of vehicle.

         B. Rick Wyant (Docket 1007; opposition at Docket 1023)

         The government seeks to introduce the expert testimony of Rick Wyant, a firearm and toolmark expert who created and narrated a short video showing the loading, firing, and unloading of two handguns-one revolver and one semi-automatic. The government initially provided the defense with Mr. Wyant's curriculum vitae, his contract with the government, and the two-and-a-half minute narrated video.[33] The government later supplemented its disclosure with a list of items Mr. Wyant reviewed, including specific discovery.[34] Mr. Wyant does not appear to have been involved in the first trial of this case.

         The defense contends that Mr. Wyant's testimony should be precluded because the government has not complied with Federal Rule of Criminal Procedure 16. Rule 16 provides that “the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.”[35] It does not appear that Mr. Wyant has provided a written summary of his testimony. Therefore, the government must provide the defense a transcript of Mr. Wyant's statements on the video.[36] Mr. Wyant's CV has already provided the defense with the required written summary of his qualifications.

         Mr. Wyant's testimony assumes a fact that cannot be proven-that a revolver or semi-automatic handgun of the type depicted in his video was the type of firearm used in the homicides. The Court finds that Mr. Wyant's proposed testimony has sufficient probative value that is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or the presentation of cumulative evidence.

         However, the Court is prepared to give a limiting instruction if requested by the defense to the effect that simply because an expert makes an assumption of a fact does not mean that the fact has been proven or that the jury has to presume that same fact.

         In summary, Mr. Wyant will be permitted to give expert testimony consistent with the video so long as he can first authenticate the video and a transcript of the audio of the video and list of information and materials is promptly provided to the defense. The Court expects the direct examination of Mr. Wyant to be brief, as he may not testify beyond what is shown and discussed in the video.

         C. Robert Morton (Docket 1004; opposition at Docket 1008; ...

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