United States v. Wells

Citation879 F.3d 900
Decision Date19 December 2017
Docket NumberNos. 14-30146,15-30036,s. 14-30146
Parties UNITED STATES of America, Plaintiff–Appellee, v. James Michael WELLS, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Davina T. Chen (argued), Glendale, California, for DefendantAppellant.

Elizabeth D. Collery (argued), United States Department of Justice, Washington, D.C.; E. Bryan Wilson, Assistant United States Attorney; Bryan Schroder, United States Attorney; United States Attorney’s Office, Anchorage, Alaska; for PlaintiffAppellee.

Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit Judges, and Donald E. Walter,** District Judge.


The Opinion filed on December 19, 2017, is amended as follows: on slip opinion page 66, lines 12–22, replace the following text:

"The defendant’s right to present evidence which may exonerate him, however, is not absolute and may have to ‘bow to accommodate other legitimate interests in the criminal trial process.’ " Id. (quoting Chambers v. Mississippi , 410 U.S. 284, 295 (1973) ). This type of evidence is not admissible "if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense ." Perry v. Rushen , 713 F.2d 1447, 1449 (9th Cir. 1983) (internal quotation marks omitted) (emphasis added).

with the following text:

The admission of third-party culpability evidence is governed by "[f]undamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case." United States v. Armstrong , 621 F.2d 951, 953 (9th Cir. 1980). Wells’ proffered testimony, however, was not even minimally relevant.

Concurrence by Judge Nguyen ;

Partial Concurrence and Partial Dissent by Judge Tashima

DefendantAppellant James Michael Wells ("Wells") appeals from his jury trial convictions for two counts of First Degree Murder, in violation of 18 U.S.C. § 1111(a), (b) ; two counts of Murder of a Federal Employee, in violation of 18 U.S.C. §§ 1114, 1111 ; and two counts of Use of a Firearm in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. § 924 (c), (j). Wells was sentenced to four consecutive, and two concurrent, terms of life imprisonment, and ordered to pay restitution, in the total amount of $1,483,475.00, to the victims’ estates. Wells challenges his convictions and restitution order. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

As Justice Louis D. Brandeis warned many years ago: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States , 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government’s actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells’ trial fundamentally unfair. Therefore, we reverse and remand for a new trial.


A. The Crime and Investigation

Wells’ convictions arise out of the deaths of Richard W. Belisle and James A. Hopkins, federal employees and Wells’ co-workers at the United States Coast Guard ("USCG") antenna maintenance facility, located at the USCG Communication Station ("COMMSTA") on Kodiak Island, Alaska. COMMSTA consists of two main buildings: a large operations center, known as T1; and the antenna maintenance facility, or "rigger shop," known as T2. Most COMMSTA members work in the T1 building, while T2 maintains only eight regular employees, which included Wells and both of the victims.

Surveillance cameras captured Hopkins’ truck pulling into the T2 parking lot at approximately 7:09 a.m. on April 12, 2012. Relevant footage also showed a blurry image of a small blue SUV, which had been traveling behind Hopkins, without headlights. At approximately 7:14 a.m., a small blue SUV was again captured, this time traveling in the opposite direction at almost twice the speed of the blue car captured just a few minutes earlier, traveling behind Hopkins.

Wells’ typical 8.8–mile morning commute, from his residence to COMMSTA, included approximately 5.1 miles to the USCG main gate, then 1.7 miles to the Kodiak airport, and finally 2 more miles to reach T2. Along that route, various surveillance cameras are positioned to capture passing traffic and parking lots. Wells claimed that, on the morning of April 12, upon noticing that he had a flat tire, he turned around in a hotel parking lot adjacent to the airport, and drove back home to change the tire. The surveillance camera at the USCG’s main entrance gate captured Wells’ white Dodge pickup truck passing at 6:48 a.m., traveling away from his residence and towards COMMSTA, and then again at 7:22 a.m., traveling in the opposite direction, leaving an unaccounted for 34–minute window. At 7:30 a.m., Wells left a voicemail message on then-deceased Hopkins’ phone, as well as Chief Scott Reckner’s phone, explaining that he had a flat tire and would be at work as soon as he could change the tire.

At the time of the murders, Wells’ wife, Nancy Wells, was away from Kodiak Island and had left her vehicle, a blue 2001 Honda CR–V, parked at the Kodiak airport. On the afternoon of April 12, a law enforcement agent, who was aware of the surveillance image of the small blue SUV, noticed Nancy Wells’ car in the airport parking lot. The investigation subsequently revealed that, on April 12, the car was not parked where Nancy Wells had left it two days earlier. At trial, the Government’s theory was that Wells drove his white Dodge pickup truck to the airport, where he swapped vehicles and drove Nancy Wells’ blue Honda CR–V to COMMSTA to commit the murders.

At approximately 7:30 a.m., on April 12, 2012, Petty Officer Third Class Cody Beauford arrived to work at T2 and discovered the bodies of Hopkins and Belisle. Each victim had suffered multiple gunshot wounds

from a large caliber weapon. There was no evidence of forced entry or robbery, and nothing else in T2 appeared to have been disturbed. Hopkins, an Electronic Technician First Class (ET1) and the rigger shop supervisor, was found on the break-room floor. Belisle, a retired Chief Boatswain’s Mate and one of the rigger shop’s two civilian employees, was found in the adjacent office. Wells, the other civilian employee who would have normally been present at that time, was absent.

Each victim’s arrival at T2 on the morning they were murdered was time-stamped by surveillance footage, which monitored the usual employee parking area situated at the front of T2. The times of their respective arrivals, combined with the last recorded activity on Belisle’s computer and the positions of the bodies relative to the known morning rituals of each victim, led the investigators to conclude that the murders occurred between 7:10 and 7:14 a.m., on April 12, 2012. The crime window thus fit squarely within the 34-minute period of time for which Wells could not account. It was this unexplained discrepancy which captured the attention of the interviewing agents and upon which the Government relied heavily at trial.

Upon discovering the bodies, Beauford notified the USCG watch officer and requested that emergency services be dispatched. Soon after the first responders arrived, an Alaska State Trooper cleared and secured the facility, now a crime scene, for investigative purposes. Wells arrived at T2 at approximately 8:23 a.m., well over an hour past his normal start time, immediately claiming to have had a flat tire.

In the aftermath of the murders, Wells consented to a search of his truck, where law enforcement agents found and seized a tire with a nail in it. The Government sent the tire to its forensic tire expert, Gary Bolden, for examination and testing. The tire was then returned to the FBI lab, where a tool mark examiner performed further testing on the nail and its position in the tire. Both Bolden and the tool mark examiner concluded that the nail had been manually inserted into the tire, undermining the foundation of Wells’ alibi that he had picked up a nail while driving to work on the morning of the murders.

B. The Indictment and Wells’ Representation

Approximately ten months after the murders, on February 19, 2013, Wells was indicted on the following six counts: Counts 1 and 2, murder in the first degree, in violation of 18 U.S.C. §§ 7(3) and 1111(a), (b) ; Counts 3 and 4, murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 1114, 1111 ; and Counts 5 and 6, possession and use of a firearm in relation to a crime of violence resulting in death, in violation of 18 U.S.C. § 924 (c), (j). Pursuant to 18 U.S.C. § 3006A, Alaska’s Federal Public Defender ("FPD"), F. Rich Curtner, was appointed to represent Wells. Within three weeks of Wells’ initial appearance, FPD Curtner successfully moved to have a second court-appointed attorney, Peter Offenbecher, assigned to the then-capital case, pursuant to 18 U.S.C. § 3005. In a motion for reconsideration thereof, the Government unsuccessfully challenged, inter alia , the ex parte nature of Mr. Offenbecher’s appointment.

Soon thereafter, beginning on May 7, 2013 and continuing through the conclusion of trial on April 25, 2014, the Government was represented by no fewer than three attorneys, including then-United States Attorney for the District of Alaska, Karen Loeffler. On August 5, 2013, the Government declared that it would no longer seek the death penalty. On August 21, 2013, the Government filed a motion to remove Wells’ second court-appointed counsel, arguing that Mr. Offenbecher’s appointment was no longer...

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