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United States v. Davis

United States District Court, D. Arizona

February 2, 2018

United States of America, Plaintiff,
Jonathan Frank Davis, Defendant.


          David G. Campbell United States District Judge.

         The Court held a final pretrial conference on January 31, 2018. This order will reflect rulings made during the conference.

         1. Defendant agreed that his motion to suppress statements made in California is moot. Doc. 47. The government has stated that it will not seek to use those statements during its case in chief.

         2. For reasons to be stated in a separate order, the Court concludes that Counts Two and Three of the superseding indictment are multiplicitous. The government has indicated it will seek a superseding indictment that combines the allegations in Counts Two and Three into one count. For reasons to be stated in a separate order, the Court indicated that it will also deny Defendant's motion to sever Count One.

         3. Defendant has filed a motion to preclude the government from using his prior criminal convictions for impeachment under Rule 609(a). The Court reviewed the five-factor test set forth in United States v. Martinez-Martinez, 369 F.3d 1076, 1088 (9th Cir. 2004), and concluded that a decision on this issue must await trial. During trial, the Court will be better equipped to evaluate several of the factors set forth in Martinez, including the impeachment value of the prior crimes, the importance of the Defendant's testimony, and the centrality of the credibility issue. Defense counsel may raise this issue with the Court before Defendant's decision on whether he will testify. The government agreed that if impeachment by prior convictions is permitted, the only information shared with the jury will be the fact of the prior felony conviction (without identifying the crime), the date of the conviction, and that Defendant was represented by counsel. The Court will decide at trial whether some or all of Defendant's four prior felony convictions should be admitted under Rule 609(a). The Court therefore will deny Defendant's motion in limine. Doc. 65.

         4. Defendant filed a motion to preclude Detective Christi Decoufle from testifying on certain subjects. During the final pretrial conference, Defendant agreed that a Daubert hearing is not necessary, but identified a recent case, United States v. Wells, 879 F.3d 900 (9th Cir. 2017), and argued that it applies to several subjects Detective Decoufle will address. Following the conference, the Court read Wells and found it relevant to issues that may arise in this case. Because Wells was decided by the Ninth Circuit less than two months ago, the Westlaw version lacks page numbers and the Court therefore will cite to the preceding headnote.

         The prosecution in Wells presented an expert witness on “targeted, intended workplace multiple-homicide violence.” Id., Headnote 5. The government explained that the expert was called to “educate” the jury on general principles relevant to the case, as permitted by the 2000 Advisory Committee Note to Rule 702. Id. The expert testified about persons who commit multiple murders in the workplace, identifying characteristics of such persons:

On appeal, Wells summarizes Dr. Meloy's testimony as having constructed the following profile of the perpetrator: male; pathologically narcissistic, with a grandiose view of himself and an unreasonable sense of entitlement; his decision to carry out the murders would be triggered by one or a series of humiliations in love or work; his narcissistic sensitivity would cause him to be wounded deeply by the criticism; although he may not show it, this wound would serve to formulate a “grievance”; this grievance would convert into anger, which may or may not be expressed openly, and he would begin to fantasize about solving his problems through violence.

Id., Headnote 7. Although it disclaimed any intent to use profile evidence, the government argued during trial that the defendant met these characteristics. In closing argument, the prosecutor asserted that the expert's description “fits Mr. Wells to a T.” Id.

         The Ninth Circuit held that the trial court erred in admitting this profile evidence: “Regardless of how broad or narrow Dr. Meloy's findings might have been, the record reflects that his testimony was improperly used by the Government, in conjunction with its overbroad motive theory, to substantively connect the strands of circumstantial evidence in such a way as to fit Wells into the criminal profile.” Id., Headnote 8. “The probative value of Dr. Meloy's 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.” Id., Headnote 12.

         The evidence was inadmissible because “Rule 404(a)(1) provides that ‘[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.'” Id., Headnote 8 (quoting Fed.R.Evid. 404(a)(1)). The Ninth Circuit also noted that other jurisdictions have found such profile evidence inadmissible as on grounds of irrelevancy and Rule 403. Id., Headnote 12. The court held that such evidence is inadmissible as substantive evidence of guilt, but might be permitted as rebuttal evidence if the defendant opens the door by arguing that he does not fit the profile of a person who would commit the charged crime. Id., Headnote 11.

         At the final pretrial conference in this case, counsel for the government stated that they have no intention of eliciting profile testimony from Detective Decoufle. They noted that she will give no opinions about Defendant, but counsel for the government made the same point in Wells. Id., Headnote 5 (“The Government confirmed that it intended to have Dr. Meloy describe the characteristics of those who commit ‘targeted individual multiple homicide workplace violences, ' without discussing Wells personally, because Dr. Meloy had not examined him.”). The government also asserted that her testimony will help the jury understand issues related to prostitution beyond the knowledge or experience of the average juror.

         The Court cannot rule on the admissibility of Detective Decoufle's testimony now; it must hear the questions asked of her and the context in which they are asked. Wells teaches, however, that the government may not use her to identify characteristics of persons who prostitute others, with the actual or implied suggestion that Defendant must be guilty because he shares those characteristics. Clearly, however, there is a limit to what Wells establishes. There are cases where a particular characteristic of a defendant matches a characteristic of the perpetrator of the crime, and the government may present that evidence and argument to the jury. What the government cannot do under Wells is create a profile of a pimp and make the actual or implied suggestion to the jury that Defendant is guilty because he fits the profile.

         Because the Court cannot determine at this point that Detective Decoufle's testimony should be excluded, it will deny ...

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