United States District Court, D. Arizona
G. Campbell United States District Judge.
Court held a final pretrial conference on January 31, 2018.
This order will reflect rulings made during the conference.
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
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.
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.
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.
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.
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.
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
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
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.
the Court cannot determine at this point that Detective
Decoufle's testimony should be excluded, it will