USA v. Wells

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES MICHAEL WELLS,
Defendant.
Case No. 3:13-cr-00008-SLG
ORDER RE: MOTIONS IN LIMINE TO EXCLUDE GOVERNMENT EXPERT
WITNESSES
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.
1 Dockets 1004, 1006, and 1007.
2 Docket 1008 (opposing Docket 1004); Docket 1022 (opposing Docket 1006); and Docket 1023
(opposing Docket 1007).
3 Docket 1035.
4 Docket 1058 at 2 (minutes of July 2, 2019 status conference).
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 1 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 2 of 14
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
5 United States v. Wells, 879 F.3d 900, 933 (9th Cir. 2018).
6 Docket 1006 at 2. Although the defense does not challenge the relevance or fit of Mr.
Schmidt’s testimony, the Court finds that his proposed testimony fits the facts at issue in this
case. See Order Re: Motions in Limine to Exclude Defense Expert Witnesses at § (B)(i) as to
why testimony about the vehicle in the T-1 video is relevant.
7 Wells, 879 F.3d at 933.
8 Docket 303 at 32–34
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 2 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 3 of 14
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
9 Docket 303 at 34.
10 Wells, 879 F.3d at 933.
11 Id. (emphasis in original).
12 Id. at 934.
13 Docket 1022 at 4–13.
14 United States v. Jingles, 702 F.3d 494, 499–500 (9th Cir. 2012) (internal citations omitted).
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 3 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 4 of 14
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
15 City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888–89 (9th Cir. 2011).
16 562 U.S. 476, 505–08 (2011).
17 562 U.S. 476, 506 (2011).
18 Pepper v. United States, 562 U.S. 476, 505–06 (2011).
19 Id. at 507.
20 Id. at 506 n. 18.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 4 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 5 of 14
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
21 Cf. United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982) (“Although the law of the case
ordinarily governs, special considerations come into play when the admissibility of evidence is
involved. The judge who actually presides at trial must be accorded wide discretion in deciding
either to admit or exclude evidence, since it is he who determines the course which the trial is to
take. *** Thus in deciding whether to admit the proffered evidence the trial record to that point
should be the decisive factor, not a pre-trial order of another judge.”).
22 Docket 1006 at 8.
23 Docket 1006 at 9.
24 Docket 1006 at 2–3.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 5 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 6 of 14
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
25 Wells, 879 F.3d at 933.
26 Docket 1006 at 6.
27 Docket 1006 at 6.
28 Docket 228-11 at 1 (FBI interview of Neil Schmidt on Nov. 20, 2012).
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 6 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 7 of 14
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.
29 Docket 228-11 at 3, 4 (FBI interviews of Neil Schmidt on Nov. 26, 2012, and Dec. 17, 2012).
30 Docket 228-11 at 3, 5 (FBI interviews of Neil Schmidt on Nov. 26, 2012, and Dec. 17, 2012).
Mr. Schmidt purportedly “provided a detailed comparison of each listed vehicle with the vehicle
depicted in the video. A detailed spreadsheet of differences between these vehicles and the
vehicle in the video can be found in the 1A attached to this document.” Docket 228-11 at 6.
Neither party has directed the Court to where, if anywhere, this 1A spreadsheet is located in the
record.
31 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), as amended Apr. 27, 2010.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 7 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 8 of 14
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
32 Wells, 879 F.3d at 933.
33 Docket 1007 at 2.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 8 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 9 of 14
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.
34 Docket 1023 at 3.
35 Fed. R. Cr. P. 16(a)(1)(G) (emphasis added).
36 The government’s response in opposition notes that the government provided the defense
with “the list of previously discovered items Wyant was provided for his review.” Docket 1023 at
3.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 9 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 10 of 14
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; reply at Docket
1035)
The government seeks to introduce the expert testimony of Robert Morton, a
former FBI behavioral analyst and crime scene analyst. The defense seeks to limit Mr.
Morton’s testimony so that it does not include any “profile-like conclusions, opinions,
assessments, motives, or characteristics.”37 	The defense does not challenge Mr.
Morton’s qualifications.38 The Court agrees with the parties that Mr. Morton is qualified—
as relevant here—to testify as to crime-scene analysis. 	The Court also finds that Mr.
Morton’s 	proposed 	testimony 	is 	relevant 	to 	assist 	the 	jury 	in 	understanding 	the
government’s theory of what events unfolded at the crime scene. 	The Court has
undertaken a Rule 403 analysis and finds that, except as set forth below, Mr. Morton’s
testimony has sufficient probative value that outweighs any unfair prejudice associated
with this testimony.
37 Docket 1004 at 18.
38 Docket 1035 at 3.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 10 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 11 of 14
In the first trial of this case, Mr. Morton testified as to his crime scene analysis and
opined that “the offender targeted Mr. Hopkins and Mr. Belisle for a personal cause.”39
He also testified about the lifestyles of the victims and how their lifestyles supported the
conclusion that there was a personal cause for the homicides.40 	He testified as to his
reasoning and conclusions regarding the sequence of events that occurred in the T-2
building at the time of the homicides and why the perpetrator chose to use the weapon
that was used.41 The government asserts that Mr. Morton’s testimony during the retrial
“will not be a carbon copy” of his first testimony and that it will be asking Mr. Morton a
different set of questions.42
The parties’ dispute about Mr. Morton can be distilled to one point: Whether Mr.
Morton is proposing to give inadmissible “profiling” testimony or whether he is proposing
to give relevant and admissible “crime scene analysis” testimony.43 	Mr. Morton has
submitted two reports: 	A report dated October 11, 2013, and a report dated November
39 Docket 1004-3 at 8.
40 Docket 1004-3 at 9.
41 Docket 1004-3 at 11–14, 43.
42 Docket 1008 at 2. Although the government criticizes the defense for prematurely speculating
as to Mr. Morton’s testimony by referencing his testimony in the first trial of this case, the Court
does not find it unreasonable for a party to look at a witness’s prior testimony in the same case
when preparing motions and argument for the second trial. See Docket 1008 at 2, 3. The Court
finds that the defense motion is ripe.
43 There is no dispute that profiling testimony is not admissible in this case. United States v.
Wells, 879 F.3d 900, 922 (9th Cir. 2018) (“The probative value of Dr. Meloy’s [profiling] testimony is
found only in its ability to answer the impermissible question of whether, based on his character
profile, Wells acted in accordance therewith on the morning of April 12, 2012.”). The Ninth Circuit
reversed and remanded this case for a new trial based on the improper and prejudicial
introduction of profiling testimony, reasoning that it had “no place as substantive evidence of
guilt” and was improper character evidence pursuant to Rule 404(a)(1). Id. at 924.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 11 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 12 of 14
30, 2018.44 	The Court has reviewed both reports and Mr. Morton’s testimony from the
first trial. 	The reports generally focus on crime scene analysis such as the locations of
the bodies, the trajectory of bullets and the victims’ wounds and the physical layout of the
T-2 building. Except as set forth below, the Court will allow Mr. Morton to testify as to this
crime scene analysis. The reports also include Mr. Morton’s “victimology” analysis. The
Court will allow Mr. Morton to testify as to objective information he learned about the
victims (e.g., their routines and their lifestyles).
However, the Court will not allow Mr. Morton to testify to the following:
• 	Materials presented in Mr. Morton’s October 11, 2013 report that are not
included in his November 30, 2018 report. The Court will hold the government
to its assertion that Mr. Morton is only going to testify as to facts, conclusions,
and opinions that are found in his supplemental (November 30, 2018) report.45
If the government seeks to elicit testimony from Mr. Morton that is not contained
in that supplemental report, as further limited below, it must first make
application to the Court outside the presence of the jury.
• 	As to the supplemental report, the conclusions that the offender “drove to the
building.”46 The Court is aware of no eyewitness who will testify or video that
shows that the vehicle seen in the T-1 video stopped at the T-2 building (or
correspondingly ever left the T-2 building). 	Mr. Morton may refer to the T-1
44 Docket 1004-1 (2013 report); Docket 1004-2 (2018 supplemental report).
45 Docket 1008 at 5.
46 Docket 1004-2 at 1.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 12 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 13 of 14
video but may not definitively state that the relevant vehicle is being driven to
or leaving the T-2 building.
• 	The conclusion “Mr. Belisle was not concerned about the person who entered”
the T-2 building.47 	This conclusion is too speculative and unreliable to be
admissible. 	This conclusion is based on the victim having his back to the
perpetrator, which could have been caused by the victim attempting to run
away, simply turning away from an armed threat, or not hearing the perpetrator
enter the T-2 building. 	Mr. Morton has not sufficiently explained how he
concluded that the victim was not alarmed.
• 	The conclusion that the offender’s use of a large-caliber weapon was “to ensure
the death of the victims.”48 Mr. Morton has provided almost no justification for
this conclusion. 	This conclusion also improperly implies that Mr. Morton has
special insight into the mind of the perpetrator.
Prior to Mr. Morton opining to the jury that the homicides were “personal cause
homicides,” the government must make application to the Court outside the presence of
the jury to establish that Mr. Morton can reach this opinion in light of the restrictions on
his testimony.49
II. 	Conclusion
In light of the foregoing, IT IS ORDERED that:
47 Docket 1004-2 at 1.
48 Docket 1004-1 at 8; Docket 1004-2 at 2; Docket 1004-3 at 16, 43.
49 Similarly, counsel shall not refer to potential testimony on “personal cause homicides” by Mr.
Morton during opening statements, unless otherwise ordered.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 13 of 14

Case No. 3:13-cr-00008-SLG , United States v. Wells
Order Re: Motions in Limine to Exclude Government Expert Witnesses
Page 14 of 14
• 	The motion regarding Mr. Schmidt at Docket 1006 is DENIED.
• 	The motion regarding Mr. Wyant at Docket 1007 is DENIED so long as the
government provides a transcript of the audio on the video to the defense within
seven days of the date of this order.
• 	The motion regarding Mr. Morton at Docket 1004 is GRANTED IN PART and
DENIED IN PART as set forth above.
Both parties should seek to elicit testimony from their experts that can reasonably
be found within the four corners of the testifying expert’s report. 	If an expert begins
testifying to matters that cannot be fairly derived from the report, the Court will entertain
objections based on unfair extrapolation.
Both parties must comply with this order, and any application to modify the terms
of this order shall be made outside the presence of the jury.50
DATED this 17th day of July, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
50 Although the Court has addressed its Evidence Rule 403 findings in this order, the Court does
not intend these findings to preclude objections to specific questions or testimony at trial based
on Evidence Rule 403, or on any other applicable basis.
Case 3:13-cr-00008-SLG Document 1071 Filed 07/17/19 Page 14 of 14