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 MOTION TO EXCLUDE OTHER ACTS EVIDENCE
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
1 The memorandum in support of the motion is at Docket 944.
2 Docket 957.
3 Docket 962.
4 Docket 970 (minute entry).
5 Docket 973 (government’s supplemental brief); Docket 983 (defendant’s supplemental brief).
6 Docket 943 at 2.
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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 cable7
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
7 The government has indicated that it will not be introducing evidence of the 2003 Attu Island
incident (which the Ninth Circuit had held inadmissible, Wells, 879 F.3d 900, 928 (9th Cir.
2018)), evidence of Mr. Wells’ purported engagement with prostitutes, or evidence of allegedly
stolen Coast Guard property. Docket 956 at 5; Docket 957 at 6.
8 Compare Docket 944 (outlining challenged prior acts) with Wells, 879 F.3d 900, 926–27 (9th
Cir. 2018) (listing prior acts challenged on appeal). At the first trial, the defense objected to the
admission of the prior acts, and those “pretrial objections were definitively overruled, adequately
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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
preserving these claims for appeal.” Wells, 879 F.3d at 925. The Ninth Circuit reviewed the
prior acts evidence de novo. Id. See also 2016 WL 929803 at *53–54 (Appellant’s Opening
Brief listing prior acts).
9 Wells, 879 F.3d at 930.
10 Docket 958 at 3. At oral argument, the government described its motive theory as: “Wells had
frustrations beginning in 2011 with the change in the COMMSTA command, which placed
unwelcomed pressure on him to conform to the change of command. Due to those absences
from work, he becomes increasingly frustrated by a loss of both professional independence and
importance. His frustrations turn to anger and culminate in the murder of his co-workers, one of
whom is his direct supervisor and the of whom is the individual who appears to be taking over
his job.” Docket 1073 (partial transcript of oral argument on motions in limine, Apr. 22, 2019).
11 Wells, 879 F.3d at 925.
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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 diverters14 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
12 Wells, 879 F.3d at 929 (emphasis added).
13 Docket 973-1 (“Letter of Caution-Misuse of COMMSTA Kodiak’s General Fuel Card”).
14 The Court, after its own review, also finds that the bird-diverter evidence has no relevance to
the government’s motive theory. The testimony was that Mr. Wells was “upset” by the decision
to install the bird diverters and that he did not participate in installing them, although he was
never asked to participate in installing them. Docket 732 at 197; Docket 741 at 30 (testimony of
Chief Scott Reckner). Even when viewed in conjunction with the other prior acts, trying to
connect this evidence to Mr. Wells’ purported motive to commit homicide requires too much
speculation to be relevant. This evidence does not show Mr. Wells’ “diminished position in the
Rigger Shop and his frustrations with Command.” Docket 973 at 16. This evidence also carries
a risk of unfair prejudice because it characterizes Mr. Wells as a bad employee and
demonstrates his willingness to ignore federal law. Docket 732 at 195–96 (testimony of Chief
Scott Reckner that the EPA and “the law” require installation of bird diverters). Due to its de
minimus probative value and the risk of unfair prejudice, it is also prohibited by Evidence Rule
403.
15 The Court, after its own review, also finds that the antenna book evidence has no relevance to
the government’s motive theory. The testimony was that at some time no later than 2010 Mr.
Wells was asked to produce a reference manual for all of the antennae in the inventory. Docket
732 at 221 (testimony of Chief Scott Reckner). However, Mr. Wells did not appear to begin work
on the book, so the task was instead completed by the two victims and a third employee.
Docket 732 at 222–23 (testimony of Chief Scott Reckner). When the third employee sought
information from Mr. Wells to put in the book, “[s]ometimes he was very forthcoming and gave
information or he’d reference me to a manual to look at. Other times he didn’t want to talk about
it. It was frustrating. I don’t think he--he didn’t like--he thought it was pointless that we were
doing it.” Docket 741 at 85 (testimony of Seaman Leah Henry). Review of the totality of the
testimony regarding the antenna book reveals that it is at best neutral as to Mr. Wells’ attitude
towards the creation of the book. In the Court’s view, the evidence does not show that “Wells
was not helpful in providing her the information” or that “Wells was feeling marginalized.”
Docket 973 at 13. Due to its de minimus probative value and the risk of unfair prejudice, it is
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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
also prohibited by Evidence Rule 403.
16 See 2016 WL 929803 at *53–54 (Appellant’s Opening Brief) (“The government was also
permitted to elicit an array of prior act evidence to show Wells’s narcissism and motive to kill . . .
. Other incidents included an accusation of having improperly collared trees on Coast Guard
property to cause their early death so he could use them as firewood, having disagreements
regarding bird diverters on an antenna tower, having a difference of opinion about how to wire a
particular antenna, failing to participate in a project to clean out a warehouse, and a perception
of resisting collaborating in a project to prepare an antenna book.”); 2017 WL 1093480
(Appellant’s Reply Brief) (internal citations to the record omitted).
17 Fed. R. Evid. 404(b)(2).
18 Docket 957 at 8.
19 Wells, 879 F.3d at 930.
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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
20 Docket 944 at 5.
21 Docket 958 at 3.
22 United States v. Wells, 879 F.3d at 930 (citing United States v. Beckman, 298 F.3d 788, 794
(9th Cir. 2002)). Because the Court is not admitting the prior acts to show intent, there is no
requirement that the prior acts be similar to the charged offense. Id.
23 Some of these prior acts do not fit neatly into an Evidence Rule 404(b) analysis because the
acts themselves are not being used “to prove a person’s character.” Instead, Mr. Wells’ reaction
to being reprimanded for the act is being used to support the government’s motive theory.
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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
24 Wells, 879 F.3d at 929 (emphasis added).
25 The only facts about the investigation relevant to the motive theory introduced at the first trial
are that the two victims reported the fuel card missing (Docket 732 at 201 (testimony of Chief
Scott Reckner)), and that the two victims provided statements to the investigator (Docket 732 at
89 (testimony of Chief Stephen Cartier).
26 Docket 983 at 7.
27 Docket 732 at 97–98 (testimony of Chief Stephen Cartier); Docket 741 at 31 (testimony of
Chief Scott Reckner).
28 Docket 971-1.
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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 memorandum. 	These
events are not too remote in time, were proven by sufficient evidence, and meet Rule
404(b)’s requirements.
29 The defense maintains that Mr. Wells was not “disciplined” for use of the fuel card. Docket
983 at 5. Although the letter states that it is “non-disciplinary,” the tone of the letter is
indisputably one of chastisement as it states that Mr. Wells “did not fulfill [his] basic
responsibilities” and that his “conduct was unacceptable and will not be tolerated.” Docket 973-
1.
30 Docket 973-2.
31 Docket 973-2.
32 Wells, 879 F.3d at 930.
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However, in the first trial of this case, the government also elicited testimony about
a previous disagreement Mr. Wells had with a co-worker regarding taking firewood and
an old memorandum “from several commands ago” that had previously been issued to
Mr. Wells stating that he could not collar trees.33 These instances lack relevance, are too
remote in time, and thus are not admissible in the government’s case-in-chief.
C. November 2011 letter of expectation
Evidence of this event consists of testimony that in November of 2011, Senior
Chief William Reed gave Mr. Wells a letter of expectation outlining the proper use of sick
leave and vacation leave.34 	The letter was written in response to Mr. Wells not advising
his superiors about when he would be away from work or his whereabouts. There is no
evidence that Mr. Wells became angry or argued about the issues or about the reprimand.
This does not appear to be a prior act subject to Evidence Rule 404(b).35 However, it is
relevant in that it is an example of Mr. Wells’ superiors applying pressure on him to comply
with Coast Guard employee regulations.
D. January 2012 limitation placed on Wells’ work travel
Evidence of this event consists of testimony that Mr. Wells’ superiors decided that
Mr. Wells would not attend the National Association of Tower Erectors annual conference
in early 2012, and that the two victims would attend instead.36 This decision was made
33 Docket 741 at 207–12 (testimony of Lieutenant David Pizzurro).
34 The letter is dated April of 2011 but was signed by Mr. Wells in November of 2011. Docket
973-3. The letter indicates that the points in the letter were discussed with Mr. Wells in April of
2011. Docket 973-3 at 1.
35 To the extent it may include prior acts subject to Rule 404, it is relevant, it is not too remote in
time, and it is proven by testimony sufficient to prove that it occurred.
36 Docket 944 at 8; Docket 732 at 213 (testimony of Chief Scott Reckner); Docket 742 at 31
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due to Mr. Wells’ disciplinary problems and excessive absences. When informed of this
decision, Mr. Wells became upset and questioned why one of the victims—Mr. Belisle—
was allowed to attend the conference.37 	Notably, Mr. Wells then asked his superior—
Chief Reckner—what role the chief felt Mr. Wells played in the rigger shop. This led to a
“heated” discussion between Chief Reckner and Mr. Wells, during which the chief
expressed that Mr. Belisle had done great work in Mr. Wells’ absence, and that “in my
opinion, [Mr. Belisle] wasn’t that far away knowledge wise from Mr. Wells.”38
This event occurred a few months prior to the homicides, it can be proven with
testimony that shows the act was committed, and it meets the requirements of Rule
404(b).
E. March 2012 warehouse cleanout
Evidence of this event consists of testimony that Mr. Wells did not participate in
cleaning out or organizing the warehouse in March of 2012. 	Specifically, Mr. Wells
“walked in, he saw all of his equipment going into this box, and then he said something,
and then he walked out.”39 	Mr. Wells did not participate in the cleanout even though a
superior asked him to help; however, due to illness Mr. Wells “was gone for a good part
of it.”40 	There was no testimony in the prior trial that Mr. Wells became angry or
(testimony of Senior Chief William Reed).
37 Docket 732 at 214 (TR 923).
38 Docket 732 at 214–15 (TR 923–24) (testimony of Chief Scott Reckner).
39 Docket 732 at 148 (testimony of Petty Officer James Encinas).
40 Docket 732 at 226 (testimony of Chief Scott Reckner); Docket 731 at 29 (testimony of Petty
Officer Cody Beauford).
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argumentative. This does not appear to be a prior act subject to Evidence Rule 404(b).41
However, it is relevant in that it demonstrates Mr. Wells’ purported diminishing role or
authority in the rigger shop, as some of the items being discarded were items he had
collected and wanted to keep.
F. April 2012 satellite antenna cable placement disagreement
Evidence of this event consists of testimony that on the day before the homicides,
Mr. Wells and one of the victims—Mr. Belisle—were determining the best way to run an
antenna cable to the roof of a building. Mr. Wells and Mr. Belisle had differing ideas on
how to run the wire, and Chief Reckner elected to implement Mr. Belisle’s idea. Mr. Wells
was calm and did not argue about this decision.42 	This is not a prior act subject to
Evidence Rule 404(b).43 However, it is relevant in that it involved one of the victim’s ideas
being chosen instead of Mr. Wells’ idea, supports the government’s motive theory, and
occurred the day before the homicides.
III. 	The prior acts do not violate Evidence Rule 403.
The Ninth Circuit held that “[o]n balance, the probative value of this evidence is
unique in a workplace homicide trial, and we do not find that it is substantially outweighed
by any danger of unfair prejudice.”44 	The Court has undertaken its own Rule 403
41 To the extent it may be subject to Rule 404, it is relevant, it is not too remote in time, and it is
proven by testimony sufficient to prove that it occurred.
42 Docket 731 at 44 (testimony of Petty Officer Cody Beauford); Docket 732 at 230 (testimony of
Chief Scott Reckner).
43 To the extent it may be subject to Rule 404(b), it is relevant, it is not too remote in time, and it
is proven by testimony sufficient to prove that it occurred.
44 Wells, 879 F.3d at 930.
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evaluation of the prior acts in part because the defense maintains that, unlike in the first
trial, it will not be seeking to introduce any or Mr. Wells’ personnel records.45 	Having
weighed the probative value of the prior acts, the Court finds that their probative value,
taken individually and cumulatively, is not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or
presentation of cumulative evidence.
The defense has transcripts of the witnesses’ previous testimony that can be used
for impeachment should a witness deviate materially from their prior testimony. 	The
government has indicated that it will propose a limiting instruction to inform the jury that
the evidence is admitted only for the limited purpose of proving motive and that the jury
can only consider it for that limited purpose.46 Finally, as to the fuel card incident, because
the government should focus its evidence on Mr. Wells’ reactions to the reprimands and
not the minute details of the alleged misconduct, the presentation of this evidence is
unlikely to be confusing or misleading or to take substantial time.
In light of the foregoing, IT IS ORDERED that the motion at Docket 943 is
GRANTED IN PART and DENIED IN PART as outlined above.
DATED this 29th day of July, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
45 Docket 962 at 4–5; Docket 983 at 3; see also Wells, 879 F.3d at 925 (“More persuasive is the
Government’s argument that much of the other act testimony concerned actions which were
detailed in Wells’ USCG personnel folder, referred to during defense counsel’s opening
statement and admitted without objection at trial.”).
46 Docket 956 at 9 (government’s Notice of Intent to Introduce Other Acts Pursuant to Federal
Rule of Evidence 404(b)).
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