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 REGARDING APRIL 19, 2012 GOVERNMENT DRIVING EXPERIMENT
VIDEO
Before the Court at Docket 1012 is Defendant James Michael Wells’ Motion to
Exclude the April 19, 2012 Government Driving Experiment Video. The government filed
a response in opposition.1 With leave of the Court, Mr. Wells filed a reply.2 The Court
held an evidentiary hearing and heard oral argument on the motion on July 30 and 31,
2019. 	The parties then filed supplemental briefing on the issue of the conditional
relevance of the April 19, 2010 video.3 	At the Court’s request, the parties then filed
relevant citations to the record from the first trial identifying when witnesses testified about
the CR-V having been moved from one parking area to another close in time to the
homicides.4 	Finally, the government filed Objections of the United States to Defense
1 Docket 1047.
2 Docket 1052.
3 Docket 1096 (government’s supplemental brief); Docket 1097 (defendant’s supplemental
brief).
4 Docket 1106 (Court’s text order requesting information from the parties); Docket 1122
(defendant’s response to Court’s text order); Docket 1123 (government’s response to Court’s
text order).
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Evidence In Re Evidentiary Hearing of July 30, 2019 and Other Issues,5 and Mr. Wells
filed a response to the government’s objections.6
I. 	Background
After the homicides that occurred at the Coast Guard Communication Station
(COMMSTA) T-2 building on April 12, 2012, investigators reviewed footage captured by
a surveillance camera mounted on a pole outside of the COMMSTA T-1 building. 	That
footage shows a vehicle driving north on Anton Larsen Bay Road and then driving south
on the same road approximately five minutes later (the “April 12 video”).7 Anton Larsen
Bay Road passes by the entrance to COMMSTA and is used to access the parking area
outside of the T-2 building.
Due to the vehicle appearing near the T-2 building close in time to the homicides,
investigators set out to identify the vehicle. 	An Alaska Wildlife Trooper had viewed the
April 12 video and went to the Kodiak Airport to “document what [he] could find as far as,
you know, blue, dark-colored SUV or a—or a van” because the perpetrator of the
homicides “might want to get off the island, so the airport would be a logical place to go if
you’re trying to out of there real quick.”8 He located a blue Honda CR-V owned by Nancy
Wells, the wife of the defendant, parked in the two-hour parking area at the Kodiak
Airport.9 	The government theorizes that Mr. Wells drove his own truck to the Kodiak
5 Docket 1124.
6 Docket 1134.
7 Defense exhibit A at 7:09:21 (northbound); Defense exhibit A at 7:14:32 (southbound).
8 Docket 744 at 31, 37–38, 40 (trial testimony of Lieutenant Willard Ellis).
9 Docket 744 at 44.
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Airport where he switched to Ms. Wells’ CR-V (which was parked at the airport while she
was traveling), drove the CR-V to the T-2 building where he committed the homicides,
and then reversed those actions and returned the CR-V to the Kodiak Airport.10
One week after the homicides, on April 19, 2012, four Coast Guard special agents
filmed Ms. Wells’ CR-V driving back and forth multiple times in front of the same camera
mounted outside of the T-1 building.11 	Their goal was to determine whether the CR-V
could have been the vehicle seen in the surveillance footage from the morning of the
homicides.12 Coast Guard Investigative Service Special Agent Joe Sturgis was in charge
of the T-1 camera. Because COMMSTA employees had used the T-1 camera during the
prior week, its settings (i.e., the angle, zoom, and focus) had been changed from the
settings in place on April 12.13 He used the camera controls to maneuver the camera in
an attempt to match the camera angle and view to that seen on the April 12 video.14
Another agent then drove the CR-V on Anton Larsen Bay Road in front of the T-1 camera.
The CR-V made “14 passes, seven one way, seven the other.”15 The CR-V’s speed was
increased by five miles an hour after each back-and-forth pass, resulting in video of the
CR-V driving back and forth near the T-2 building at speeds ranging from five to 35 miles
10 Docket 1047 at 31; Docket 1097 at 1.
11 Docket 1092 at 10.
12 Docket 1092 at 8–10, 21.
13 Docket 1092 at 20, 29.
14 Docket 1092 at 11, 28.
15 Docket 1092 at 12.
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per hour.16 	The defense motion challenges the admissibility of this video (the “April 19
video”) at trial.
II. 	The Court will permit the government to introduce evidence at trial to attempt
to establish that the April 19 video is conditionally relevant.
Evidence Rule 104(b) provides that “[w]hen the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist.” As stated by the government, “[i]n this instance the conditional admission is
that if the jury concluded the vehicle depicted on April 12th is in fact Wells’ blue Honda
CRV then they may further examine and/or consider the April 19th video and the
accompanying [screen] captures and give it the weight they feel it deserves or does not
deserve.”17 In determining whether proposed evidence is conditionally relevant, a district
court does not determine whether the proponent of the evidence “has proved the
conditional fact by a preponderance of the evidence” but instead “simply examines all the
evidence in the case and decides whether the jury could reasonably find the conditional
fact . . . by a preponderance of the evidence.”18
A district court “is not required to make any preliminary finding that the government
has proved the conditional fact,”19 and the Court declines to do so here. The Court simply
notes that there is not such a paucity of evidence that the vehicle seen on the April 12
video is Ms. Wells’ CR-V that it would be appropriate to prohibit the government from
16 Docket 1092 at 13.
17 Docket 1096 at 2.
18 Huddleston v. United States, 485 U.S. 681, 690 (1988).
19 United States v. Norris, 428 F.3d 907, 914 (9th Cir. 2005) (citing Huddleston, 485 U.S. at 690).
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attempting to introduce evidence at trial to meet the conditional relevancy standard set
forth in Huddleston v. United States.20
Although Evidence Rule 104 permits the Court to allow the proponent of the
evidence “to introduce the evidence and ‘connect it up’ later,” the Court finds that order
of proof is not appropriate in this case.21 Because of the potential prejudice of the April
19 video, the significant number of witnesses that the parties intend to call to testify about
the video, and any risk of confirmation bias, the Court is disinclined to “admit the [video]
on the condition that the proof be introduced later.” 	There is a risk of wasting time with
witnesses whose testimony may later become moot, and there is a risk that the Court
would need to instruct the jury to disregard the video—after the jury has viewed it—if
insufficient evidence is presented at trial that would allow the jury to “reasonably conclude
that fulfillment of the condition” is established.22 Accordingly, before playing the April 19
video or showing the jury still images from that video, the government must introduce
other evidence that is sufficient to support a finding that the jury could reasonably find by
a preponderance of the evidence that the vehicle seen in the April 12 video is Ms. Wells’
20 See, e.g., Docket 747 at 41–43 (testimony of Amanda Sanford explaining the location in the
Kodiak Airport parking lot where Ms. Wells had left the CR-V); Docket 1097 at 2 (explaining that
other Coast Guard base cameras at a different location captured Mr. Wells’ truck driving toward
the airport the morning of the homicides and then later returning and driving towards his
residence).
21 Huddleston v. United States, 485 U.S. 681, 690 n. 7 (1988).
22 Fed. R. Evid. 104(b); Notes of the Advisory Committee on Proposed Rules (“The order of
proof here, as generally, is subject to the control of the judge.”); United States v. Black, 767 F.2d
1334, 1342 n. 6 (9th Cir. 1985) (“Under Rule 104(b), the order of proof is committed to the
discretion of the trial judge.”).
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CR-V and seek a ruling from the Court outside the presence of the jury that it has done
so.23
III. 	The April 19 video is substantially similar to the April 12 T-1 surveillance
video.
Mr. Wells asserts that the April 19 video is so dissimilar from the April 12 video
“that it makes the April 19 driving experiment video unfairly misleading and unfairly
prejudicial.”24 Specifically, Mr. Wells contends that April 19 video was filmed late in the
afternoon on an overcast and rainy day when there was less snow cover than on April 12,
and “the resultant disparate distortion of the vehicle outlines, colors, and other attributes
make a scientifically meaningful comparison between these vehicles impossible.”25 The
defense also maintains that the April 19 video differs from the April 12 video as to the
number of other vehicles in the parking lots (some of which obscure the view of Anton
Larsen Bay Road in the April 12 video) and as to the lights both inside and outside of the
T-2 building.26 	Finally, the defense asserts that the “repositioning, refocusing, and
realignment of the T-1 camera” at the beginning of the driving experiment on April 19
resulted in the April 19 video capturing a different view, angle, and focus than the April 12
video.27
23 Huddleston, 485 U.S. at 690; Fed. R. Evid. 104(b).
24 Docket 1012 at 9.
25 Docket 1012 at 9–11.
26 Docket 1012 at 12–15.
27 Docket 1012 at 15–18. At the evidentiary hearing and in its post-hearing brief, the defense
asserted that the difference in the number of frames per second captured by the April 12 video
and the April 19 video constituted another variance between the videos. Docket 1134 at 18–22.
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The government first responds that because the defense objected to the April 19
video at the prior trial, the trial court overruled the objection, and Mr. Wells did not raise
the issue before the Ninth Circuit, this Court is bound by the law-of-the-case doctrine and
must comport with the previous trial court’s admission of the video.28 “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.”29 	“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.”30 Here, the prior trial court’s ruling is not binding on
this Court after the Ninth Circuit’s remand for a new trial, particularly in light of the
government’s assertion that “a new trial is forthcoming, and certainly will not be a carbon
copy of the one that went before.”31 	Even if the law-of-the-case doctrine did apply,
“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.”32
28 Docket 1047 at 2, 19–21.
29 United States v. Jingles, 702 F.3d 494, 499–500 (9th Cir. 2012) (internal citations omitted).
30 City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888–89 (9th Cir. 2011).
31 Docket 1008 at 2.
32 United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982).
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The government also maintains that the defense “significantly exaggerates the
minor variables between the two video recordings . . . .” and that “any discrepancies which
might exist go to weight, not admissibility.”33 	The parties have not cited, and the Court
has 	not 	found, 	published 	Ninth 	Circuit 	precedent 	addressing 	the 	standards 	for
presentation of a reenactment video.34 However, both parties cite to the Seventh Circuit
standard set forth in United States v. Jackson:35
Because [experiment evidence] can be quite persuasive, in order to
avoid 	unfair 	prejudice, 	the 	conditions 	under 	which 	an 	experiment 	is
performed 	must 	be 	“substantially 	similar” 	to 	those 	surrounding 	the
simulated event. This is a flexible requirement: “substantially similar” does
not 	mean 	“identical,” 	and 	dissimilarities 	can 	be 	explored 	on 	cross-
examination. 	In other words, as a general matter, dissimilarities between
experimental and actual conditions affect the weight, not the admissibility of
the evidence.
***
Whether in a criminal case or a civil one, however, the requirement’s
application always depends on the purpose for which the experiment is
introduced. So if the purpose is to recreate an event, the timing and physics
of which are critical, courts will only admit evidence of experiments that are
conducted under nearly identical conditions as the actual event.
***
By contrast, where the purpose of the experiment is not to recreate
events 	but 	simply 	to 	rebut 	or 	falsify 	the 	opposing 	party’s 	sweeping
hypothesis, the substantial similarity requirement is relaxed.36
33 Docket 1047 at 2.
34 Espinoza v. Dunn, an unpublished Ninth Circuit opinion, cites the Eighth Circuit standard that
a court “‘may properly admit experimental evidence if the tests were conducted under conditions
substantially similar to the actual conditions.’ [But] ‘perfect identity between actual and
experimental conditions’ is not required.” 48 F.3d 1227 at *3 (9th Cir. 1995) (unpublished)
(quoting Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir. 1987)).
35 Docket 1012 at 24; Docket 1047 at 24–25.
36 479 F.3d 485, 489 (7th Cir. 2007). The Ninth Circuit has cited Jackson for its holding
regarding unanimity instructions. United States v. Ruiz, 710 F.3d 1077, 1081 (9th Cir. 2013).
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Other circuits have announced similar standards for the presentation of reenactment or
experimental evidence.37 	Although the parties’ briefing discuss the different standards
applied depending on whether the contested evidence is a “reenactment,” “illustration,”
“demonstration,” or an “experiment,” the parties both urge the Court to apply a “substantial
similarity” standard when evaluating the April 12 and April 19 videos.38 The Court elects
to adopt the standard set forth by multiple circuits and agreed to by the parties and thus
evaluates the April 19 video to determine whether it is “substantially similar” to the April
12 video.
The Court has reviewed both videos and the exhibits showing still images from the
videos side by side. 	The defense is correct that there are differences between the two
videos, including things such as the exact camera angle, the field of vision, and vehicles
obstructing the view of Anton Larsen Bay Road. An ideal reenactment would have parked
37 See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 425 (4th Cir. 1996) (“[W]e established a
requirement that videotaped evidence purporting to recreate events at issue must be
substantially similar to the actual events to be admissible.”); Glick v. White Motor Co., 458 F.2d
1287, 1294–95 (3d Cir. 1972) (“Experimental evidence is admissible so long as it is relevant and
probative, and such evidence has probative value if the conditions of the experiment are
identical with or similar to the conditions of the transactions in litigation.”); United States v.
Baldwin, 418 F.3d 575, 579 (6th Cir. 2005) (conditions of a video reenactment “must be
‘substantially similar’ to those of the events at issue, but ‘[a]dmissibility . . . does not depend on
perfect identity between actual and experimental conditions’”) (alterations in original).
Although some courts discuss reenactment evidence being “admissible,” it appears they are
using this term to mean the presentation of demonstrative exhibits to a jury, not the admission of
substantive evidence for the jury’s deliberations. See, e.g., Bradshaw v. FFE Transp. Services,
Inc., 715 F.3d 1104, 1109 (8th Cir. 2013) (discussing the “admissibility of demonstrative medical
illustrations” while also noting that the medical “exhibits were visual aids and not substantive
evidence”).
38 Docket 1012 at 22, 24; Docket 1047 at 21–29. The government’s response states that the
“video re-enactment/demonstration [was] prepared by investigators for trial.” Docket 1047 at 2.
However, testimony at the hearing disclosed that the video was not originally made for use as a
trial exhibit but instead was simply intended to further the homicide investigation. Docket 1092
at 67–69.
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cars in the parking lot to better mimic the cars parked there on April 12, which partially
blocked the view of the vehicle at issue. 	The videos are not made under identical
conditions. 	However, taken as a whole the April 19 video was made under conditions
substantially similar to those on April 12. Assuming the conditional relevancy standard is
established and the video is shown to the jury, the defense may point out any differences
between the videos on cross-examination or through its own witnesses, and the jury may
give the April 19 video the weight it sees fit.
IV. 	Federal Rule of Evidence 403 analysis.
Evidence Rule 403 allows a court to “exclude relevant evidence if its probative
value is substantially outweighed” by the danger of unfair prejudice. The parties have not
cited, and the Court has not found, any case law addressing a situation such as the one
here, where the reenactment video purports to depict an event that itself was captured on
video. However, the Court finds that the probative value of the April 19 video is reduced
by the fact that the jury will be able to view the actual surveillance footage from the
morning of the homicides. 	The Court also finds that the probative value of the April 19
video is reduced by the fact that the video was not created with expert input but instead
was created by investigators with no formal training in the area of video reenactments.
Nonetheless, assuming its conditional releance is established, the Court finds that the
April 19 video could aid the jury in understanding the evidence and is, on balance,
helpful.39
39 See Roland v. Langlois, 945 F.2d 956, 963 (7th Cir. 1991) (finding that the benefit of
admission of a life-size model of an amusement park ride—which could help the jury understand
the scene of an amusement park accident—was not substantially outweighed by the danger of
unfair prejudice).
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Regarding unfair prejudice, the April 19 video contains repeated depictions of Ms.
Wells’ CR-V traveling at various speeds; this is prejudicial and unnecessarily repetitive as
it does not accurately reflect that there were only two passes of the relevant vehicle on
the April 12 video. Additionally, there are “unique problems presented by the introduction
of videotapes purporting to recreate events at the focus of trial. 	[There is a] potential
prejudicial effect of such evidence because the jury viewing a recreation might be so
persuaded by its life-like nature that it becomes unable to visualize an opposing viewpoint
of those events.”40 	Although some theories of a case, “when demonstrated in a fairly
abstract way, are quite unlikely to be confused with the events on trial[, t]he more
troublesome cases, however, are ones like this one where some principles of some kind
may be demonstrated but in a fashion that looks very much like a recreation of the event
that gave rise to the trial.”41 	As presented in government exhibit 14, the April 19 video
“may come dangerously close to usurping the jury’s function” of interpreting the April 12
video.42
However, the Court also finds that the unfair prejudice can be abated through
certain restrictions on the use of the April 19 video. 	Assuming that the conditional
relevance of the April 19 video is established, in order to reduce the risk of unfair prejudice
the Court will order the following:
40 Hinkle, 81 F.3d at 424–25.
41 Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 2006).
42 United States v. Freeman, 498 F.3d 893, 903 (9th Cir. 2007).
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• 	The government may elect one northbound and one southbound pass shown
in the April 19 video to play at trial, although it may use still images from any
portion of the video, subject to the following conditions.
• 	The government must include on the April 19 video an on-screen label clearly
indicating that the video is an “experiment that does not depict actual events
and only depicts an opinion of what may have happened” or similar language.43
This same label must appear on any still images extracted from the April 19
video that are shown to the jury, whether as stand-alone image or as part of a
larger display created by or used by a government expert.
• 	The government shall not play the April 19 video or show still images from that
video until after the jury has seen the April 12 video.
• 	Before the government plays any portion of the April 19 video or shows the jury
still images from that video, a witness must authenticate and lay foundation for
the April 19 video. 	Accordingly, the April 19 video and still images from that
video shall not be shown during the government’s opening statement.
• 	The government shall not refer to the CR-V in the April 19 video as being
related to the homicides, only that it is Ms. Wells’ CR-V.
• 	The Court will give a limiting instruction to the jury regarding the nature of the
April 19 video and the limited purpose for which it is being shown to the jury.
43 See Hinkle, 81 F.3d at 425 (“Although there is a fine line between a recreation and an
illustration, the practical distinction is the difference between a jury believing that they are
seeing a repeat of the actual event and a jury understanding that they are seeing an illustration
of someone else’s opinion of what happened.”) (quotations and citation omitted).
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• 	The designated portion of the April 19 video and the stills from that video may
be used as demonstrative exhibits. They may be helpful to the jury to explain
the experts’ opinions and to demonstrate the government’s theory of Mr. Wells’
use of his wife’s CR-V. 	However, the April 19 video shall not be admitted as
evidence and it will not accompany the jury into the jury room during its
deliberations.44
• 	Still images taken from the April 19 video—including the PowerPoint slides
created by experts that include still images from the April 19 video45—may also
be used as demonstrative exhibits but shall not be received into evidence and
shall also not accompany the jury into the jury room.
V. 	The scope of the evidentiary hearing
The parties have filed briefings addressing whether the scope of the evidentiary
hearing properly included Daubert challenges, whether the defense properly raised a
Daubert claim, and whether the defense properly raised an objection to the admission of
the April 12 surveillance video.46 Since the Court will be allowing the April 19 video and
still images to be used solely as demonstrative exhibits, it appears that the defense does
44 Cf. United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991) (“[P]edagogical devices
should be used only as a testimonial aid, and should not be admitted into evidence or otherwise
be used by the jury during deliberations.”). See also United States v. Chadwell, 798 F.3d 910,
914 (9th Cir. 2015) ("Jurors generally may examine all or part of any exhibit received into
evidence and determine the weight to give that evidence during deliberations in the privacy of
the jury room.") (emphasis added).
45 See also Fed. R. Evid. 703 (“But if the facts or data [relied on by an expert to form their
opinion] would otherwise be inadmissible, the proponent of the opinion may disclose them to the
jury only if their probative value in helping the jury evaluate the opinion substantially outweighs
their prejudicial effect.”). Assuming conditional relevance is established, the Court finds that
with the ordered limitations, the wholescale exclusion of the stills is not warranted by Rule 403.
46 Docket 1124; Docket 1134.
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not have a Daubert objection.47 	The “substantial similarity” test urged by both parties
applies when a court is considering allowing demonstrative exhibits to be presented to a
jury. 	Assuming that the conditional relevance of the April 19 video is established, the
April 19 video and related still images may be shown to the jury at trial as demonstrative
exhibits, subject to the restrictions set forth herein.
The Court is not considering any defense challenge to the April 12 video, as it was
not raised by the defense motion.48
The government encourages the Court to disregard or exclude the testimony of
Mr. Hoerrick and Dr. Reisberg.49 The Court finds the testimony of each expert was helpful
to the extent it fell within the proper scope of the hearing and does not find a basis to
exclude their testimony. The Court has considered Mr. Hoerrick’s testimony to the extent
it addressed the technical reasons why the April 19 video was or was not substantially
similar to the April 12 video, which inherently involved some explanation of the April 12
video. The Court has also considered Dr. Reisberg’s testimony and his recommendations
for reducing the risk of prejudice.
At this time, the Court will again defer ruling on whether Dr. Reisberg may testify
regarding the risk of jurors being influenced by confirmation bias. 	The Court will revisit
this issue after the government’s case-in-chief, at which time the Court should be in a
better 	position 	to 	undertake 	an 	Evidence 	Rule 	403 	analysis 	of 	such 	testimony.
47 Docket 1134 at 6, 10.
48 Docket 1134 at 14, 28–29 (defense filing confirming that “[a]dmissibility of the April 19 video
and still frame pictures taken from it, are the only materials raised by the defense motion.”).
49 Docket 1124 at 8 n. 6, 9, 12–16.
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Accordingly, the parties shall not reference this portion of Dr. Reisberg’s proposed
testimony in their opening statements, and the defense shall not elicit any such testimony
from Dr. Reisberg unless application has first been made outside the presence of the jury.
In light of the foregoing, IT IS ORDERED that the motion at Docket 1012 is
DENIED. 	The 	April 	19, 	2012 	video 	and 	the 	associated 	stills 	may 	be 	used 	as
demonstrative exhibits at trial subject to the above conditions.
DATED this 3rd day of September, 2019, at Anchorage, Alaska.
Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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