Full opinion text
ORDER 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, 296 (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 OPINION WALTER, District Judge: Defendant-Appellant 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 $1,488,475.00, 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. Brandéis 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. I. BACKGROUND A. The Crime and Investigation Wells’ convictions arise out of the deaths of Richard W. Belisle and James A. Hopkins, federal employees and Wells’ coworkers 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 Tl; and the antenna maintenance facility, or “rigger shop,” known as T2. Most COMMSTA members work in the Tl 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 bn 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; arid 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, 2018, 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 appropriate, as this, had become a non-capital case. Because Mr. Offenbecher is based out of Seattle, the Government also argued that the-appointment of a geographically distant attorney could not be justified. Although it recognized that.- the ..-Criminal Justice Act does not prohibit maintaining two court-appointed attorneys in non-capital cases, the Government insisted that the instant case lacked “extenuating circumstances,” which might otherwise support Mr. Offenbecher’s continued appointment, pursuant to the Guide to Judiciary Policy §§ 630.30.10 and 630.30.20. FPD Curtner opposed the Government’s motion, arguing that “extenuating circumstances” did exist because: Mr. Of-fenbecher. had established ■ an attorney-client relationship with -Wells and invested considerable time and effort in reviewing discovery; Mr. Offenbecher’s removal would leave FPD Curtner as the sole attorney, while simultaneously managing an FPD office in an unprecedented fiscal crisis; there were no available FPD staff attorneys to assist Curtner; and the Government’s three trial attorneys constituted an unfair imbalance of resources, all of which jeopardized Wells’ Sixth Amendment right to counsel. ¡ On September 11, 2013, the magistrate judge granted the Government’s motion, excusing Mr. Offenbecher and leaving FPD Curtner as Wells’ sole attorney, until March 2014, when Mr. Offenbecher re-enrolled as retained counsel prior to trial. FPD Curtner filed objections to the magistrate judge’s order. Therein, he stressed the unique burdens being faced by the FPD, the Government’s lack of standing to interfere with counsel’s appointment, and the imbalance of resources. In closing, FPD Curtner stated that “[ujnder these unique circumstances; the trial of Mr. Wells could hardly be deemed a ‘fair fight.’ ” The objections were never addressed, and no further action was taken by the district judge on the issue of Wells’ representation. II. ISSUES ON APPEAL ' Wells raises the following issues on appeal. First, Wells challenges the district court’s' removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty. Second, Wells challenges the admission of expert testimony from three witnesses, one of which we address separately, for reasons explained below. Third, Wells" challenges the admission of various character and “other acts” evidence. Fourth, Wells alleges prosecutorial misconduct in the elicitation1 of prejudicial testimony. . Fifth, Wells claims that • the district court abused its discretion in precluding evidence of third party culpability. Sixth, Wells requests that we reassign this case to a different district judge on remand. We do not discuss Wells’ challenge to the sufficiency of the evidence, as we explicitly do not vacate the conviction on the basis of insufficiency of evidence and therefore do not risk offending the Double Jeopardy Clause in remanding .for a new trial. See Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (“[Rjeversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed' to prove its case[;] it implies nothing with respect -to the guilt or innocence of the defendant.”). Finally, because we reverse Wells’ convictions, we do not discuss the restitution order, which is necessarily vacated pursuant to this opinion. III. DISCUSSION A. The Government Overstepped in Moving To Excuse Second Defense Counsel A district court’s decision to grant or deny services under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, is reviewed for abuse of discretion. See United States v. Smith, 893 F.2d 1573, 1580 (9th Cir. 1990). Thus, the relevant question is'not whether we, as the reviewing court, would have reached the same result. See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Krull v. S.E.C., 248 F.3d 907, 912 (9th Cir. 2001) (our task is “not to revisit the [issue] .anew or impose our independent judgment on the merits” thereof).. Applying this deferential- standard, we do not find that the removal of Mr. Offenbecher was reversible error, ,-but neither can we accept without comment the Government’s interference in the status of Wells’representation. Mr. Offenbecher was appointed pursuant to 18 U.S.C. § 3005. In this circuit, § 3005 does not require that two attorneys be, or continue to be, appointed whenever the Government indicts a defendant for a crime punishable by death but does not seek the death penalty. United States v. Waggoner, 339 F.3d 915, 919 (9th Cir. 2003). Acknowledging this Court’s precedent in Waggoner, Wells argues that this case is distinguishable, because Waggoner fails to address the impact of 18 U.S.C, § 3599(e), on which Wells relies to urge an enhanced statutory right to continuity of counsel. Because we find that Wells failed to properly present this statutory argument below, we decline to entertain it on appeal. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998). Instead, we address Wells’ assertion that Mr. Ofifenbecher’s removal constituted an abuse .of discretion under 18 U.S.C. § 3006A. See Martel v. Clair, 565 U.S. 648, 659, 132 S.Ct. 1276, 182 L.Ed.2d 135 (2012) (recognizing that “Congress enacted the legislation now known as § 3599 to govern appointment of counsel in capital cases, thus displacing § 3006Á for persons facing execution (but retaining that section for all Others)”). The CJA does not pi’ohibit courts from appointing, or maintaining, a dual appointment in a non-capital case. Instead, § 3006A(c) generally governs the duration and substitution of all CJA appointments and directs the magistrate judge or the court to make such determinations in accordance with the “interests of justice.” 18 U.S.C. § 3006A(c). Section 630.30 of the Guide to Judiciary Policy (“the Guide”) specifically governs “Death Eligible Cases Where Death Penalty Is Not Sought,” and assists courts in determining whether a particular case supports continuation of a dual appointment'. As recognized by the magistrate judge, § 630.30.10 directs a court to consider the questions of number of counsel and rate of compensation, once it is determined that the death penalty will not be sought. The Guide, Vol. 7, Ch. 6, § 630.30.10. Section 630.30.20 explains that a court “should, absent extenuating circumstances, make an appropriate reduction in the number of counsel.” Id. § 630.30.20(a) (emphasis added). The Guide then sets out the following four factors to consider in deciding whether extenuating circumstances exist: (1) the need to avoid disruption of the proceedings; (2) whether the decision not to seek the death penalty occurred late in the litigation; (3) whether the case is unusually complex; and (4) any other factors that' would interfere with the need to ensure effective representation of the defendant. Id. § 630.30.20(b). Here, the magistrate judge adequately considered the Guide’s directives and found that this case was not unusually complex, the parties were adhering to the pretrial motion schedule, the decision not to seek the death penalty was not delayed, and the continuation of FPD Curtner’s representation would conserve the District of Alaska’s CJA budget while protecting Wells’ Sixth Amendment right to counsel and preserve any attorney-client relationship. In upholding the excusal of Mr. Offenbecher, we intentionally employ the word adequately, to emphasize the'limitations placed on our review, and we offer a cautionary note. First, problematically, we find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole, counsel. Given FPD Curtner’s statements, the absence of any explicit consideration thereof sits in stark contrast to at least one other non-capital case, wherein the same magistrate judge reconsidered his denial of dual-appointed counsel. See United States v. Kott, No. 3:07-CR-056-JWS-JDR, 2011 WL 2357508, at *1 (D. Alaska June 13, 2011). There, the defendant was being retried, after an initial 15-day trial, involving two retained defense counsel. Id. at *3. In denying dual appointment for the. re-trial, the magistrate judge, inter alia, found persuasive that the previously-retained attorneys would be available for consultation and that .the original trial transcripts would provide appointed counsel with knowledge of the Government’s case. Id. Noting, first, that counsel had been appointed at her own request, the magistrate judge nevertheless recognized the attorney’s express concerns about serving as the defendant’s sole attorney. Id. at *4. The magistrate judge requested that the attorney “reassess her- role” and advise accordingly, implying that her relative willingness to serve in that capacity would be taken into consideration. Id. In this Court’s opinion, the careful consideration given to the concerns of appointed counsel in Kott is highly preferable to the lack thereof afforded to FPD Curtner in this case. Second, and of much greater concern to this Court, is the means by which the question of Mr. Offenbecher’s continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of Mr. Offenbecher’s appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, 'it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. Whijle such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. See United States v. Hartfield, 513 F.2d 254, 258 (9th Cir. 1975), abrogated on other grounds by United States v. Sneezer, 900 F.2d 177 (9th Cir. 1990) (“If the fairness of our system is to be assured, indigent defendants must have access to minimal defense aids to offset the advantage presented by the vast prosecutorial and investigative resources available to the Government.”). The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance. The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. In re Smith, 586 F.3d 1169, 1172 (9th Cir. 2009). The prosecution is typically precluded from participating in the determination of a defendant’s eligibility for CJA-appointed counsel. See The Guide, Vol. 7, Ch. 2, § 210.40.20(e) (“Employees of law enforcement agencies or U.S. attorney offices should not participate in the completion of the Form CJA 23 (Financial Affidavit) or seek to obtain information from a person requesting the appointment of counsel concerning the person’s eligibility.”); id. § 230.26.20(c) (“Case budgets should be submitted ex parte and filed and maintained under seal.”); 18 U.S.C. § 3006A(e) (directing that CJA applications for services other than counsel should be filed ex parte, and proceedings on such applications should be-heard ex parte); see also United States v. Feldman, 788 F.2d 625, 626 (9th Cir. 1986) (declining to call on government to brief a novel CJA reimbursement claim because “the [CJA] excludes the government from participation in the Act’s compensation and reimbursement arrangements”); United States v. Gonzales, 150 F.3d 1246, 1257 (10th Cir. 1998) (the CJA process is non-adversarial and has “traditionally been closed to the prosecution”). The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the Government. “A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the fact-finding process.” Hartfield, 513 F.2d at 258. While we find that that the jury’s fact-finding role was reversibly undermined by errors in this case, we do not find that Mr. Offenbecher’s removal constituted an abuse of discretion. Despite our disapproval of the Government’s interference, and regardless of whether we might have decided the question differently, the magistrate judge was within his discretion to find that FPD Curtner’s continued representation afforded Wells “adequate representation” under the CJA. 18 U.S.C. § 3006A(a). Nevertheless, in the future, the Government should tend to its own knitting. B. The District Court Erred in Allowing the Government To Use Criminal Pro--ñle, Testimony :as Substantive Evidence of Guilt We. generally review a district court’s decision to admit or deny expert testimony for abusé of discretion. United States v. Reed, 575 F.3d 900, 918 (9th Cir. 2009). However, we review de novo the “construction or interpretation of ... the-Federal Rules of Evidence, including whethér particular' evidence falls within the scope of a given rule.” United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006). Where the district court fails to engage in necessary Rulé 403 balancing, we likewise review de novo. United States v. Boulware, 384 F.3d 794, 808 n.6 (9th Cir. 2004) (where “[t]he district court. [] did not perform a Rule 403 balancing analysis,” the “review [is] de novo”); see also United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007) (per curiam). Dr. J. Reid Meloy is a licensed, board-certified forensic psychologist, who was tendered as ah expert in “targeted, intended workplace multiple-homicide violence.” While the parties portray the substance of Dr. Meloy’s testimony differently, there is no real dispute as to the intended role of his testimony within the Government’s case. This testimony was presented on the sixth day of trial, during the Government’s case-in-chief, and invited the jury to find a “fit” between Dr. Meloy’s criminal profile and the lay witnesses’ testimony concerning Wells’, own character traits. On appeal, Wells challenges Dr. Meloy’s testimony as improper “profile” evidence used as substantive evidence of Wells’ guilt. For the reasons explained herein, we find that Dr. Meloy’s testimony was admitted without regard to Federal Rule of Evidence 404(a)(1) or the sensitive balancing required by Rule 403. Before we reach the merits, however,- we must first address the parties’ dispute as-to whether Wells properly preserved this claim for appeal. Our analysis begins with the relevant time-line of objections. Pretrial, Wells moved to exclude Dr. Meloy’s testimony under. Rules 401-403, 404(a), and 608, and requested a Daubert hearing. At the hearing, Wells argued, in pertinent part: [T]his is in the realm of creating a profile, and that could, I think, arguably only be- applied to Mr. Wells if this is workplace violence. [T]his is a classic example of vague generalizations that are too broad to be admitted in this particular case under these -circumstances.. In response, the Government recognized that Wells’ “attack seems to be that you can’t testify as to general characteristics,” and then criticized the failure to cite any case law addressing the use of profile evidence. The Government- also relied, then and now, on the advisory committee’s note to the 2000 amendments to Rule 702, providing that it might “be important in some cases for an expert to educate the factfin-der about general principles, without ever attempting to apply these principles to the specific facts of the case.”. Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. Although the magistrate judge ultimately recognized the potential dangers in Dr. Meloy’s testimony, his post-hearing ruling only peripherally acknowledged Wells’ profile challenge, as follows: The defense complains that Melroy [sic] is creating a profile that can only be applied to the defendant if the crime was workplace violence. That observation is not a sufficient reason to preclude the government from calling an expert witness to testify about workplace violence. The magistrate judge further deemed it “appropriate in this case for the government to offer the opinion of a forensic psychologist as to whether certain characteristics present in this casé suggest workplace violence,” while recognizing that Dr. Meloy had not examined Wells personally. Finally, the magistrate judge concluded: [T]he subject matter of [Dr. Meloy’s] proposed testimony may but not necessarily will assist the trier of fact depending on the evidence presented at trial. The probative value of Dr. Meloy’s proposed testimony may or may not outweigh the danger of unfair prejudice, confusion of the issues, or misleading evidence that would be placed before the jury. At this stage of the proceedings Dr. Meloy’s analysis and theories, based upon his experience and training, are not sufficiently relevant to the case at hand to be ruled admissible at trial. The remaining issue is whether [Dr. Meloy’s].proposed testimony passes the balancing test of Federal Rules [sic] of Evidence ⅛03. The government should be given the opportunity at trial to support the issue of admissibility of Dr. Meloy’s testimony before it is presented to the jury. Ruling on the Defendant’s Motion in Limine to Exclude Testimony on Issues of Violence and Psychological Characteristics of Perpetrators of Violent Crimes, Docket 216 is held in abeyance pending further consideration at trial. (first emphases added, last italics supplied). There were no objections to the magistrate judge’s ruling. In his trial brief, filed on March 17, 2014, Wells reiterated his objections to Dr. Meloy’s testimony, arguing, in part, that: Incidents of workplace violence are so common in our culture, that jurors will be. able to apply their own common sense to understand this evidence .without any need for expert interpretation .... The government has not cited a single case in support of admitting an expert to testify about workplace violence. Although the trial brief seemed to focus on relevance and reliability, the recently re-enrolled Peter Offenbecher clarified his objection during the final pretrial conference, on March 24, 2014, as follows: The problem comes where the experts are permitted to testify that a person who commits workplace violence has these characteristics, X, Y, and Z, and then—although they don’t ask the expert to connect the dots, they then—the next witness testifies that the defendant has these characteristics, X, Y, and Z. And what they’re ending up doing is having the expert—they don’t connect ‘the dots in court, but certainly the jury knows, and you end up with impermissible character evidence because they’re saying the characteristics of a person who commits this crime, and there are these—you know, these particular things, and then they just line them up and they try to prove that the defendant has those characteristics. So it’s just a way around the rule that you cannot permit the government to introduce character evidence or make an opinion that the defendant is the person who commits the crime. Substantively, this is the same argument presented on appeal. The Government countered by asserting: “It’s not improper character evidence. The jury looks at it and they say, does it fit, does it not fit? And what we do is we use him to disabuse the jury of commonly held notions that basically come from TV.” The Government confirmed that it intended to have Dr. Meloy describe the characteristics of those who commit “targeted individual multiple homicide workplace vio-lences,” without discussing Wells personally, because Dr. Meloy had not examined him. The district court reflected that the Government was likely correct on this issue, because “[ijt’s done all the time,” but allowed Mr. Offenbecher to respond. Mr. Offenbecher pointed out that the magistrate judge had not yet ruled on the admissibility of Dr. Meloy’s testimony and further noted that the testimony was particularly problematic because, in this specific workplace, there are “only seven peo-pie ... and two of them are deceased.” Mr. Offenbecher concluded with: So, in effect, you’re permitting Dr. Me-loy to testify that Jim Wells is the person who committed the crime, even though that’s impermissible because it goes to the ultimate fact in the case. And also it’s an attempt to get around the rule prohibiting character evidence. We’re asking the Court just to abide by [the magistrate judge’s] ruling on Dr. Meloy. The district judge then acknowledged that the ultimate decision was his to make, declared that he thought that Dr. Meloy’s testimony was “probably permissible,” and instructed the Government to provide its questions in advance so the court could “just rule question by question.” The Government agreed to do so, and the court concluded the discussion with these remarks: We do drug cases all the time, and we ask them, experts to testify about characteristics that are—you know, this doesn’t shock me what you’re talking about, but I’ll look again to make sure that I understand the concerns of the defendant. But again, no matter what we’ve already decided, we can’t go to the—none of these witnesses can testify as to the ultimate question and ask, “Do you believe Mr. Wells did this?” . Thus, the district court made two erroneous assumptions: first, he presumed admissibility of this type of testimony, generally; and, second, he mistakenly believed that Dr. Meloy’s testimony was, at this point, admissible. To the contrary, the magistrate judge had held his ruling in abeyance, finding that the testimony was not yet admissible, unless and until the district court determined that it survived Rule 403’s balancing test. Following the final pretrial conference, in response to the court’s request for advance questions, the Government provided a summary outline of Dr. Meloy’s anticipated testimony. This summary had previously been provided to the defense several months earlier. Therein, the Government generally advised that Dr. Meloy would “elaborate on targeted and intended violence, workplace violence, multiple murders and the personality and other psychological characteristics of those who commit these types of .crimes,” and specified that “Dr. Meloy will not be asked to give an opinion about how these characteristics apply to the known facts concerning Mr. Wells.” (Emphasis in original). It further provided bulletpoints, categorically grouped by the topics of his expertise, of “[s]ome of the characteristics” that he would describe and explain. The district court issued no further ruling. On the first morning of trial, the Government inquired as to whether the court was going to permit Dr. Meloy to testify. The. district court indicated its belief that it had already ruled, and neither party pressed the issue. Later, when Mr. Offen-becher objected during Dr. Meloy’s tender, the district court reiterated that the objections to Dr. Meloy had already been addressed. At that time, Mr. Offenbecher expressed concern surrounding Dr. Meloy being tendered as an expert, suggesting that it would “give [him] the imprimatur of the [c]ourt.” The court confirmed that Mr. Offenbecher’s objection was based on relevance rather than expertise and allowed the Government to proceed with Dr. Me-loy’s tender. On review, it is regrettable that Wells’ trial objections failed to specifically re-urge his pretrial argument that Dr. Me-loy’s testimony was improper character evidence in the form of a. profile; however, the failure to do so is not fatal to the preservation of this claim. Wells’ pretrial objections were clear and consistent. The district court had the opportunity to rule, mistakenly believed it had done so, and led the parties to believe that further argument was both unnecessary and unweir come. Even in the absence of any trial objection, an issue may be sufficiently preserved by a party “objecting and moving for its exclusion on [the specific] basis before the commencement of trial.” United States v. Palmer, 3 F.3d 300, 304 (9th Cir. 1993); see also Palmerin, 794 F.2d at 1413. Thus, this claim is properly before us, and we turn now to the merits thereof. While our concern is rooted in the Government’s use of Dr. Meloy’s testimony as substantive evidence of guilt, we begin by presenting the substance thereof. At the outset of Dr. Meloy’s testimony, he explicitly disclaimed- any attempt to characterize Wells personally, yet he advised the jury that his process began with a review of materials and records specific to this case, and culminated with the preparation of a report concerning his findings in the four areas of targeted and intended violence; workplace violence; multiple-homicide; and the personality and psychological characteristics of those who commit such acts. As his testimony continued, the specific criminal profile emerged. Dr. Me^y began by distinguishing two broad categories of the types of violence in which human beings tend to engage: targeted or intended violence, called “predatory violence”; and emotional or reactive violence, called “affective violence.” He described targeted or intended violence as something that is planned and prepared for; is carried out in an intended fashion; involves tactical planning; and is opportunistic rather than impulsive, meaning it involves “finding an opportunity where the act could be carried out successfully.” On the other hand, affective violence was described as emotional;, responsive to a threat; something that is not controlled; purely defensive; and involves an immediate or impulsive reaction. The majority of his testimony focused on the former category. Dr., Meloy relied on 2012 data compiled from the National Center for Victims of Crime and the Bureau of Labor Statistics, which indicated that there were 463 homicides in the workplace during 2012. Of those 463 homicides, 376 involved intended violence with a firearm, 10% of which were committed by' a co-worker and 6% by a spouse. These statistics were used to explain the rarity of such an event. He then tied these statistics back to the two categories of violence, explaining that workplace violence typically falls under the targeted or intended category, involving “planning and preparation.” He testified that both workplace killings and multiple murders are “virtually always” committed by males. Dr. Meloy described the typical pattern of “individuals who would perpetrate a workplace targeted homicide,” to include: an attack, using a firearm; motivation from either a real or delusional grievance in reaction to an accumulation of losses or humiliations, a sense of rejection, or a felt injustice; a determination to seek revenge; a decision to intentionally act in violence; the existence of violent ideations; and development into the violent act itself, through research and planning. The planning stage was presented as especially important if the individual has never done this before. Dr. Meloy expláined that planning would typically be secretive and involve thinking about the targets, the movements of the targets, what weapons would be used, and how to approach and leave the situation. Later, Dr. Meloy elaborated on the planning phase to include looking “at thé behavioral patterns of the victims, when are they in that particular location, ... [and whether] they- [are] going to be alone.” ! Dr. Meloy then disparaged the popular concept of “snapping,” that is, the term commonly used by lay people to describe a perpetrator of a violent crime as having “lost their mind” or being “out of control.” He explained that this is a myth, unsupported by research of targeted violence or of multiple murders. Instead, he referenced the descriptions offered by survivors of “multiple homicides” as having described the perpetrator as “calm, controlled, deliberate, cool.” He contrasted psychotic and nonpsychotic perpetrators; explaining that the former tended to kill strangers, in mass numbers, while the latter tended to specifically target “one or more people that have angered or humiliated the individual.” Dr. Meloy further explained that perpetrators of targeted or intended violence are typically “pathologically narcissistic,” with a “very inflated view of themselves,” such that what might objectively be ■ perceived as slight criticism would, in their mind, be “very, very wouriding.”'Dr.- Meloy described this type of perpetrator as having a “narcissistic sensitivity that comes from the' individual’s personality.” The perpetrator might “be a legend in their own mind,” and “have a strong sense of entitlement,” such that criticism in the workplace “cuts deep” and is “then carried with them” to become the source of “the formulation óf the grievance.” Dr. Meloy explained' that approximately 80%- of multiple homicides have a “triggering event,” but that “direct causality” may not always be established. On redirect, he clarified that the perpetrator’s actions might seem “very illogical and irrational to the observer.” ■ He explained that the perpetrator will typically have'a personality disorder, which he described as having “over time created problems ... with other people who are close to them.” He testified that 80% of people carrying out targeted violence do not communicate a direct threat or “warn the target beforehand.” And, because employers typically screen people with a history of violent criminality, he explained that perpetrators instead tend to have “histories of chronic conflict with those in i authority over the person in the workplace.” ' Trial testimony purported to show that both Belisle and Hopkins were generally well-liked, and that the two victims had no connection to each other outside of their employment. Wells, while highly regarded for his knowledge and expertise in antenna maintenance, was described by two higher-level supervisors as being difficult to control. Trial testimony indicated that Wells’ insubordination and instances of workplace discord were occurring with increasing frequency before the murders. Chief Reckner testified that, in December 2011, he decided to move his office from Ti to T2, because Hopkins was not being respected as the rigger shop supervisor. Reckner testified that Wells was having ongoing disciplinary issues during this time, as well as health problems, causing him to be absent from work. As a result',1 Reckner made the supervisory decision not to allow Wells to attend an annual conference, which :sparked a “heated” discussion between Wells and Reckner. The conference attendees were Reckner, and the two victims, Hopkins and Belisle. On appeal, Wells summarizes Dr. Melons testimony as having constructed the following profile of the perpetrator: male; pathologically narcissistic, with a grandiose view of him'self 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. The Government attempts to distinguish Dr. Meloy’s testimony from criticized profile evidence by arguing that his actual testimony was much broader than Wells’ portrayal, thereof; his criminal profile was not “personal” to, or based on an examination of, Wells; and his testimony was not the key evidence of Wells’ guilt. We find each of these arguments disingenuous. Dr. Meloy’s testimony was made personal to Wells by the Government’s admitted use of Dr. Meloy’s profile to “fit” Wells’ personal characteristics. Indeed, the Government attempted to defend its use of the testimony by explaining: “It’s not improper character evidence. The jury looks at it and they say, does it fit, does it not fit?” And, the Government twice stated, in its closing rebuttal, that Dr. Meloy’s testimony about predatory violence “fits Mr. Wells to a T.” See United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (recognizing that “closing argument matters ... a great deal”). The Government explains that proving its trial theory required that it intertwine several separate but interconnected strands of evidence to show: [T]he only conclusion consistent with all .the evidence was that Wells carefully planned and executed the murder of his colleagues, motivated by his frustration and resentment over disciplinary issues at work, his increasing problems with COMMSTA management, and his loss of a position of respect and deference in the rigger shop.... The evidence as a whole established that on the morning of April 12, 2012, knowing Belisle and Hopkins would be alone at work, Wells drove to the airport in his white pickup truck, and switched cars to his wife’s 2001 blue Honda CRV, which had been left at the airport earlier in the week. He then drove past the entrance to the rigger shop, bypassing the camera that he knew would capture the image of any vehicle entering the normal parking area, parked behind the building, walked under the camera and entered the rigger shop through the door that he knew would be unlocked and open, bypassing the card reader entrance that would otherwise record his presence. Wells then shot Belisle and Hopkins multiple times and left the buildfrg, again bypassing the rigger shop camera, drove back to the airport where .he parked his wife’s car, got back into his truck and drove home. Immediately upon arriving at home he called and left a message on Hopkins’ and Reckner’s voicemail, giving, a previously-planned false alibi, claiming that he had a flat tire and would be late to work. 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. As Chief Justice Roberts recently confirmed: “Our law punishes people for what they do, not who they are.” Buck v. Davis, 580 U.S. -, 137 S.Ct. 759, 778, 197 L.Ed.2d 1 (2017). Rule.404(a)(1).provides that “[ejvidence 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.” Fed. R. Evid. 404(a)(1). Again, there is no question as to the Government’s purpose for offering this testimony. It explicitly stated that Dr. ikeloy would testify as to the characteristics of those who commit “targeted individual multiple homicide workplace violences” in order to determine, given the lay witnesses’ testimony concerning Wells personally, “does it fit, does it not fit?” This Court has “stated in dictum that testimony of criminal profiles is highly undesirable as substantive evidence because it is of low probativity and inhdr-ently prejudicial.” United States v. Gillespie, 852 F.2d 475, 480 (9th Cir. 1988). “The admission of drug courier profile evidence is inherently prejudicial to the defendant because the profile may suggest that innocuous events indicate criminal activity.” United States v. Lim, 984 F.2d 331, 334-35 (9th Cir. 1993). “Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity.” United States v. Lui, 941 F.2d 844, 847 (9th Cir. 1991) (quoting United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989)). Although “profile” evidence is not per se inadmissible, it is only permitted in narrow and limited circumstances, such as: (1) background evidence, Gomez-Norena, 908 F.2d at 501 (“[Admitting drug courier profile testimony for [the] limited purpose [of providing background material] greatly reduces the potential for unfair prejudice and thus cannot amount to plain error.”); (2) investigative tools, United States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990) (drug courier profiles are investigative tools, not to be admitted as evidence of guilt); or (3) rebuttal evidence, when a party “opens the door” by introducing potentially misleading testimony, Beltran-Rios, 878 F.2d at 1211-12 (profile evidence admissible in rebuttal where defendant initially “opened the door” by emphasizing that he did not fit the stereotype of a drug smuggler). The Government attempts to place Dr. Meloy’s testimony in the third category, arguing that Wells “opened the door” and placed his character in issue, by relying on Wells’ history as a non-violent, non-threatening and peaceful man. Presumably recognizing the inherent weakness in making this argument given Dr. Meloy’s placement in the Government’s case-in-chief, the Government focuses on Wells’ attempts to show his “character for nonviolence” during his opening statement and through questions posed during cross-examination of prosecution witnesses. This argument lacks merit. This Court has cautioned that “the ‘opening the door’ doctrine is not so capacious as to allow the admission of any evidence made relevant by the opposing party’s strategy, without regard to the Federal Rules of Evidence.” United States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007) (emphasis in original); see also Beltran-Rios, 878 F.2d at 1213 n.2 (“The Government may -introduce profile testimony of this sort only to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile.”); Gillespie, 852 F.2d at 480 (finding error in admitting testimony of clinical psychologist, on characteristics common to child molesters, where defendant never put general character at issue or offered testimony of specific character traits that rendered him incapable of molesting a femalé child). We have found that a defendant did not “open the door” to expert testimony establishing his knowledge of a drug trafficking organization, after the district court denied the defendant’s motion to exclude said testimony and advised defense counsel to “plan accordingly.” See United States v. Pineda-Torres, 287 F.3d 860, 865-66 (9th Cir. 2002). Clearly, by the time trial began, Wells knew that Dr. Meloy would be permitted to testify, as extensive pretrial efforts to exclude his testimony had ultimately failed. The vast majority' of relevant federal case law addresses the use of profile evidence in the context of drug couriers. Indeed, the district court presumably referenced this jurisprudence when he mistakenly assumed admissibility. However, we do also find persuasive the principles discussed in the state and military jurisprudence, cited to us by Wells, rejecting the use of other criminal profiles as substantive evidence of guilt. ‘ “Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.” Ryan v. State, 988 P.2d 46, 55 (Wyo. 1999) (collecting cases). Ryan recognized that these cases generally articulate three evi-dentiary bases for excluding, evidence tending to establish that the defendant fits a particular profile: (1) relevancy, see, e.g., Commonwealth v. Day, 409 Mass. 719, 723, 569 N.E.2d 397 (1991) (collecting cases to show that “[testimony regarding a criminal profile is nothing more than,an expert’s opinidn as to certain characteristics which are common to some or most of the individuals who commit particular crimes”); (2) the probative value of the evidence is substantially outweighed by its prejudicial effect, see, e.g., State v. Percy, 146 Vt. 475, 507 A.2d 955, 960 (1986) (explanations or excuses offered by other rapists not relevant to' what this particular defendant said in response to the offense charged, and even if relevant, the evidence failed Vermont’s state equivalent of Rule 403’s balancing test); and (3) it is impermissible character evidence, see, e.g., Haakanson v. State, 760 P.2d 1030, 1036 (Alaska Ct. App. 1988) (‘We hold that the prosecution may not introduce a profile to show that-the defendant is more likely to have committed an offense because the defendant fits within that profile. To admit this testimony at the beginning of trial was clearly erroneous.”). See 988 P.2d at 55-56. As recognized in United States v. Banks, 36 M.J. 150 (C.M.A. 1992), which Wells cites *hs particularly instructive, “[o]ur system of justice is a trial on the facts, not a litmus-paper test for conformity with any set of characteristics, factors, or circumstances.” 36 M.J. at 161. In Banks, the prosecution presented a characteristic “profile” to present appellant’s family situation as ripe for “child sexual abuse.” Id. at 162. Then, “[throughout th[e] case, the prosecutor orchestrated this ‘profile’ evidence to persuade the members that appellant fit the profile and was- a child .molester.” Id. As.the Government did at Wells’ trial, the prosecutor revisited the profile in closing argument, implicitly referencing the profile in explaining how the evidence had proven the appellant’s guilt. Id. Although, in closing, the prosecutor remarked that “we’re not trying to prove our case that way,” the military appeals court found -that statement “disingenuous.” Id. In Banks, the prosecution’s closing argument belied “any assertion that th[e] profile was offered for any other purpose than to prove appellant’s guilt.” Id. at 163. Banks concluded that “[t]he prosecution’s strategy of presenting a ‘profile’ and pursuing this deductive scheme of reasoning and argument to prove that appellant is a child sexual abuser was impermissible.” Id. Here, too, the manner in which Dr. Melons testimony was used by the prosecution was similarly impermissible, and the prosecution’s efforts to distinguish his testimony from criticized profile evidence are equally disingenuous. 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. As explained in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948): Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. ... The overriding policy of excluding such evidence, despite its- admitted probative value, is-the practical experience-that its disallowance tends to prevent confusion of issues, unfair -surprise and undue prejudice. Id. at 475-76, 69 S.Ct. 213 (citation and footnotes omitted). The prosecution made no attempt to establish an ulterior basis for the admission of this improper character profile' in its case-in-chief, and the district court erred in admitting it as such, Generally, if we conclude that evi-. dence has been improperly admitted, “we consider whether the error was harmless.” United States v. Bailey, 696 F.3d 794, 802-03 (9th Cir. 2012). The erroneous admission of expert testimony is subject to harmless error review, just like all other evidentiary errors, See United States v. Rohm, 993 F.2d 1405, 1415 (9th Cir. 1993). Reversal is required “only if the error affect[ed] a substantial right of the party,” Fed. R. Evid. 103(a), meaning “we require a finding of prejudice,” Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005). We begin with a presumption of prejudice, in reviewing the effects of this erroneous admission. See Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1159 (9th Cir. 2010). Given the uniquely and inherently prejudicial nature of this evidence, the Government has failed to rebut that presumption “by a showing that it is more probable than not that the jury would have reached the same verdict even if the evidence had not been admitted.” Id. (internal quotation marks omitted). The Government admits that “[p]roving [its] theory of the crime depended on the intertwining of multiple strands of evidence.” Dr. Meloy’s testimony was undoubtedly instrumental in tying those strands together, allowing the Government to argue that Dr. Meloy’s profile “fit[ ] Mr. Wells to a T.” As we have explained: When the district court has erroneously admitted or excluded prejudicial evidence, we remand for a new trial. We do so even if the district court errs by failing to answer a threshold question of admissibility. We have no precedent for treating the erroneous admission of expert testimony any differently.' Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 466 (9th Cir. 2014) (en banc) (citations omitted). We do not hesitate in finding that the admission of Dr. Meloy’s testimony constituted reversible error. Although we find that Dr. Meloy’s testimony was clearly inadmissible under Rule 404(a)(1), we write further to stress the important role of Rule 403. “As long as it appears from the record as a whole that the trial judge adequately weighed the probative value and prejudicial effect of proffered evidence before its admission, we conclude that the demands of Rule 403 have been met.” United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978). However, this is not a case where we could easily find that the lower court “implicitly balanced the probative value against the prejudicial effect,” see United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987), nor does “the record make[ ] clear that the question of prejudice figured crucially in the court’s mind,” see United States v. Verduzco, 373 F.3d 1022, 1029 n.2 (9th Cir. 2004). Instead, the magistrate judge placed the question explicitly and squarely before the district court, and from there, there is no indication that prejudice was ever a consideration, much less a crucial one. Cf. United States v. MacDonald, 688 F.2d 224, 228 (4th Cir. 1982) (upholding exclusion of tendered expert psychiatric character testimony' where district judge “was keenly aware of the [Rule 403] factors ... and painstakingly examined each”). As we have explained, testimony of this nature is “inherently prejudicial,” has no place as substantive evidence of guilt, and would therefore fail Rule 403’s balancing test. See Gillespie, 852 F.2d at 480; Lim, 984 F.2d at 334-35; see also Michelson, 335 U.S. at 475-76, 69 S.Ct. 213. C. The District Court Erred ■ in Admitting “Other Act” Evidence Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. Generally, “[a] district court’s evidentiary rulings should not be reversed absent clear abuse of discretion and some prejudice.” Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1202 (9th Cir. 2013) (internal quotation marks omitted). “Whether evidence falls within the scope of Rule 404(b) is a question we review de novo.” United States v. Smith, 282 F.3d 758, 768 (9th Cir. 2002); see also Durham, 464 F.3d at 981. Admission of evidence to which there was no objection raised below is reviewed for plain error. Sine, 493 F.3d at 1038. For our purposes, all testimony challenged under Rule 404(a) is subject to plain error review. As to the evidence challenged under Rule 404(b), the Government provided pretrial notice of various other act evidence, for which Wells’ pretrial objections were definitively overruled, adequately preserving these claims for appeal. Palmer, 3 F.3d at 304; see also Palmerin, 794 F.2d at 1413. The district court determined that this evidence was admissible as inextricably intertwined, or alternatively, as other act evidence, permissible to prove motive under Rule 404(b)(2). Thus, we review de novo the district court’s application of the Federal Rules of Evidence to the other acts evidence. Each of Wells’ challenges under Rules 404(a) and 404(b) are made against the backdrop of Dr. Meloy’s profile testimony. Wells argues that this character and other acts evidence was made relevant by Dr. Meloy’s criminal profile of a narcissistically-sensitive individual for whom even minor criticism or setbacks could trigger violence. He argues that the same is true for the district court’s alternative finding, that certain other acts were admissible to prove motive under Rule 404(b)(2), because this evidence was only relevant if the Government’s motive theory was viewed in the context of Dr. Meloy’s profile. The motive theory is thus pertinent to our analysis and is described by the Government, as follows: Wells for years had been allowed to operate as his own boss. Throughout his work history prior to 2011, Wells had been able to do what he wanted when he wanted. He had a high opinion of himself, and any time he ran afoul of management he would just wait them out and go back to his same practices. However, things changed beginning in 2011 with the change in command at COMMSTA. New supervisors were tasked to try and get Wells to “get with the program.” Pressure was put on him to conform. As 2011 progressed, the pressure increased. Then Wells became ill. As he missed work, the Command realized they could do the work without him. Belisle had stepped up and could replace him. When he returned, he was told he could not go to the annual antenna conference,, which made him angry. As an initial matter, we find 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. 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. Our analysis begins with Rule 402 of the Federal Rules of